mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF Ltd (2004) 206 ALR 581
Outcome: followed
It is settled that in such circumstances, the Scheme is a members' scheme only: In re Sandwell Park Colliery Co Ltd [1914] 1 Ch 589; In re Star Tea Co Ltd [1930] WN 4; Re Clydesdale Bank Ltd [1950] SC 30; Re AGL Sydney Ltd (1994) 13 ACSR 597; Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF Ltd (2004) 206 ALR 581 (' RVIB '); SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470. The position of creditors is appropriately addressed on the second court hearing as a consideration relevant to the discretion whether to approve the Scheme. 70 It is not necessary that Stork FSA be a party to the Scheme or propose a scheme, but it has been appropriately joined as a defendant: RVIB , esp at [17]. 71 The arrangement is proposed for the purposes of, and in connection with, a scheme by which, generally speaking, one wholly owned subsidiary is to be denuded of its property and liabilities, which are to be vested in another wholly owned subsidiary.
Case: SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470
Outcome: followed
It is settled that in such circumstances, the Scheme is a members' scheme only: In re Sandwell Park Colliery Co Ltd [1914] 1 Ch 589; In re Star Tea Co Ltd [1930] WN 4; Re Clydesdale Bank Ltd [1950] SC 30; Re AGL Sydney Ltd (1994) 13 ACSR 597; Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF Ltd (2004) 206 ALR 581 (' RVIB '); SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470. The position of creditors is appropriately addressed on the second court hearing as a consideration relevant to the discretion whether to approve the Scheme.
Case: Walters v Babergh District Council (1983) 82 LGR (Eng) 235 (QBD)
Outcome: cited
In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 ; (1999) 200 CLR 1, the High Court held unanimously that the word 'liabilities' in s 14 of the Stevedoring Industry Acts (Termination) Act 1977 (Cth), which provided for a vesting in the Stevedoring Industry Finance Committee of liabilities of the Australian Stevedoring Industry Authority, operated to vest in the Committee the liability of the Authority in respect of a breach of its duty of care to safeguard wharf labourers against exposure to asbestos fibres, even though the injury was suffered after the vesting under s 14 took place. Gleeson CJ observed that depending on the context, 'liability' can include contingent or potential liability (his Honour cited Walters v Babergh District Council (1983) 82 LGR (Eng) 235 (QBD)). The Chief Justice noted (at 14) that the legislation abolished the Authority which no longer had the capacity to meet any claims upon it, and said that there was no good reason to distinguish between complete and inchoate causes of action, where the Authority had committed a breach of a legal duty.
Case: Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 170 FLR 388
Outcome: considered
601FC(2) requires other definitions in the Act to be looked at. The Act does not define a "scheme". As Keane JA noted in Mier v FN Management Pty Ltd [2005] QCA 408 ; [2006] 1 Qd R 339 at 350 (fn 29), the phrase "program or plan of action" has been adopted by various courts as the conventional meaning of the word "scheme": see Australian Softwood Forests Pty Ltd v Attorney-General (NSW); ex rel Corporate Affairs Commission [1981] HCA 49 ; (1981) 148 CLR 121 , 129; Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 170 FLR 388 , 393; Australian Securities and Investments Commission v West [2008] SASC 111 ; (2008) 100 SASR 496 , 529. The Act however does define a "managed investment scheme": s 9. That definition is important. It defines, so far as is presently relevant, a managed investment scheme as: (a) a scheme that has the following features: (i) people contribute money or money's worth as consideration to acquire rights (interests) to benefits produced by the scheme (whether the rights are actual, prospective or contingent and whether they are enforceable or not); (ii) any of the contributions are to be pooled, or used in a common enterprise, to produce financial benefits, or benefits consisting of rights or interests in property, for the people (the members) who hold interests in the scheme (whether as contributors to the scheme or as people who have acquired interests from holders); (iii) the members do not have day-to-day control over the operation of the scheme (whether or not they have the right to be consulted or to give directions); or ...
Case: Australian Securities and Investments Commission v West [2008] SASC 111 ; (2008) 100 SASR 496
Outcome: considered
601FC(2) requires other definitions in the Act to be looked at. The Act does not define a "scheme". As Keane JA noted in Mier v FN Management Pty Ltd [2005] QCA 408 ; [2006] 1 Qd R 339 at 350 (fn 29), the phrase "program or plan of action" has been adopted by various courts as the conventional meaning of the word "scheme": see Australian Softwood Forests Pty Ltd v Attorney-General (NSW); ex rel Corporate Affairs Commission [1981] HCA 49 ; (1981) 148 CLR 121 , 129; Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 170 FLR 388 , 393; Australian Securities and Investments Commission v West [2008] SASC 111 ; (2008) 100 SASR 496 , 529. The Act however does define a "managed investment scheme": s 9. That definition is important. It defines, so far as is presently relevant, a managed investment scheme as: (a) a scheme that has the following features: (i) people contribute money or money's worth as consideration to acquire rights (interests) to benefits produced by the scheme (whether the rights are actual, prospective or contingent and whether they are enforceable or not); (ii) any of the contributions are to be pooled, or used in a common enterprise, to produce financial benefits, or benefits consisting of rights or interests in property, for the people (the members) who hold interests in the scheme (whether as contributors to the scheme or as people who have acquired interests from holders); (iii) the members do not have day-to-day control over the operation of the scheme (whether or not they have the right to be consulted or to give directions); or ...
Case: Australian Softwood Forests Pty Ltd v Attorney-General (NSW); ex rel Corporate Affairs Commission [1981] HCA 49 ; (1981) 148 CLR 121
Outcome: considered
601FC(2) requires other definitions in the Act to be looked at. The Act does not define a "scheme". As Keane JA noted in Mier v FN Management Pty Ltd [2005] QCA 408 ; [2006] 1 Qd R 339 at 350 (fn 29), the phrase "program or plan of action" has been adopted by various courts as the conventional meaning of the word "scheme": see Australian Softwood Forests Pty Ltd v Attorney-General (NSW); ex rel Corporate Affairs Commission [1981] HCA 49 ; (1981) 148 CLR 121 , 129; Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 170 FLR 388 , 393; Australian Securities and Investments Commission v West [2008] SASC 111 ; (2008) 100 SASR 496 , 529. The Act however does define a "managed investment scheme": s 9. That definition is important. It defines, so far as is presently relevant, a managed investment scheme as: (a) a scheme that has the following features: (i) people contribute money or money's worth as consideration to acquire rights (interests) to benefits produced by the scheme (whether the rights are actual, prospective or contingent and whether they are enforceable or not); (ii) any of the contributions are to be pooled, or used in a common enterprise, to produce financial benefits, or benefits consisting of rights or interests in property, for the people (the members) who hold interests in the scheme (whether as contributors to the scheme or as people who have acquired interests from holders); (iii) the members do not have day-to-day control over the operation of the scheme (whether or not they have the right to be consulted or to give directions); or ...
Case: Hance v Commissioner of Taxation [2008] FCAFC 196
Outcome: applied
consequence, as noted by Keane JA in Mier at 350 1, is that s 601FC(2) does not necessarily apply to all property held by a responsible entity or used in the operation of the scheme: see also Hance v Commissioner of Taxation [2008] FCAFC 196 , [95] [100]. It operates in connection with scheme property as that term is defined in s 9 of the Act.
Case: Mier v FN Management Pty Ltd [2005] QCA 408 ; [2006] 1 Qd R 339
Outcome: applied
601FC(2) requires other definitions in the Act to be looked at. The Act does not define a "scheme". As Keane JA noted in Mier v FN Management Pty Ltd [2005] QCA 408 ; [2006] 1 Qd R 339 at 350 (fn 29), the phrase "program or plan of action" has been adopted by various courts as the conventional meaning of the word "scheme": see Australian Softwood Forests Pty Ltd v Attorney-General (NSW); ex rel Corporate Affairs Commission [1981] HCA 49 ; (1981) 148 CLR 121 , 129; Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 170 FLR 388 , 393; Australian Securities and Investments Commission v West [2008] SASC 111 ; (2008) 100 SASR 496 , 529. The Act however does define a "managed investment scheme": s 9. That definition is important. It defines, so far as is presently relevant, a managed investment scheme as: (a) a scheme that has the following features: (i) people contribute money or money's worth as consideration to acquire rights (interests) to benefits produced by the scheme (whether the rights are actual, prospective or contingent and whether they are enforceable or not); (ii) any of the contributions are to be pooled, or used in a common enterprise, to produce financial benefits, or benefits consisting of rights or interests in property, for the people (the members) who hold interests in the scheme (whether as contributors to the scheme or as people who have acquired interests from holders); (iii) the members do not have day-to-day control over the operation of the scheme (whether or not they have the right to be consulted or to give directions); or ... As Keane JA went on to say in Mier at 350: It follows that, if property is to be considered "scheme property", the property in question must have been contributed to the scheme or must have been obtained in connection with such contributions. The absence of any such connection would make it doubtful that the property was really part of, or subject to, the scheme. The consequence, as noted by Keane JA in Mier at 350 1, is that s 601FC(2) does not necessarily apply to all property held by a responsible entity or used in the operation of the scheme: see also Hance v Commissioner of Taxation [2008] FCAFC 196 , [95] [100]. It operates in connection with scheme property as that term is defined in s 9 of the Act.
Case: Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association (1999) 161 ALR 105
Outcome: cited
respondents further contended that by reason of the nature of the transaction, the circumstances of the relevant parties and their relationship which I have described above, the Charged Property was held on trust for the scheme: Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association (1999) 161 ALR 105 , 115; Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491, 503; Stephens Travel Service International Pty Ltd (receivers and managers appointed) v Qantas Airways Ltd (1998) 13 NSWLR 331, 441. In light of the earlier reasoning, it is unnecessary to decide this issue.
Case: Re Australian Elizabethan Theatre Trust [1991] FCA 344 ; (1991) 30 FCR 491
Outcome: cited
respondents further contended that by reason of the nature of the transaction, the circumstances of the relevant parties and their relationship which I have described above, the Charged Property was held on trust for the scheme: Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association (1999) 161 ALR 105 , 115; Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491, 503; Stephens Travel Service International Pty Ltd (receivers and managers appointed) v Qantas Airways Ltd (1998) 13 NSWLR 331, 441. In light of the earlier reasoning, it is unnecessary to decide this issue.
Case: Re Investa Properties Ltd [2001] NSWSC 1089 ; (2001) 187 ALR 462
Outcome: considered
5C.2 of the Act provides the legislative framework for managed investment schemes. One of the critical provisions is s 601FC(2). "That section declares in unequivocal terms that the responsible entity of a registered management investment scheme 'holds scheme property on trust for scheme members'": Re Investa Properties Ltd (2001) [2001] NSWSC 1089 ; 187 ALR 462 , 465.
Case: Stephens Travel Service International Pty Ltd (receivers and managers appointed) v Qantas Airways Ltd (1998) 13 NSWLR 331
Outcome: cited
respondents further contended that by reason of the nature of the transaction, the circumstances of the relevant parties and their relationship which I have described above, the Charged Property was held on trust for the scheme: Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association (1999) 161 ALR 105 , 115; Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491, 503; Stephens Travel Service International Pty Ltd (receivers and managers appointed) v Qantas Airways Ltd (1998) 13 NSWLR 331, 441. In light of the earlier reasoning, it is unnecessary to decide this issue.
Case: Wilhelm v McKay [2005] FCA 792
Outcome: cited
On 22 November 2004, the applicants sought leave to amend the primary application in accordance with a formulation of the decisions and conduct sought to be reviewed, reflected in a document described as Exhibit 'SWS2' to an affidavit of Mr Sharry. The applicants also sought discovery of particular documents. Those applications together with a Notice of Objection to Competency filed on behalf of Ms Jilani were heard by Cooper J on 17 December 2004. Following his Honour's untimely death, the parties agreed that the matters ought to be disposed of on the papers and Finkelstein J determined the various matters and published reasons in support of proposed orders on 15 June 2005 ( Wilhelm v McKay [2005] FCA 792). His Honour, perhaps unfortunately, in deciding the application on the papers did not have the benefit of reflection on the issues afforded by oral argument. On 23 June 2005, the following orders were entered, namely, the applicants be given leave to amend the primary application in terms of the Exhibit 'SWS2' (Order 1); the second respondent (Ms Jilani) make discovery of nominated documents (Order 2); the second respondent's objection to competency is dismissed (Order 3); the second respondent pay 85% of the applicants' costs of the motion (Order 4); and leave be granted to appeal with a stay of the earlier orders pending appeal. The second respondent caused a Notice of Appeal to be filed and on 20 December 2005, the Full Court allowed an appeal and set aside orders 1, 2 and 4 of the orders made by Finkelstein J ( Jilani v Wilhelm [2005] FCAFC 269 ; (2005 2006) [2005] FCAFC 269 ; 148 FCR 255 per Dowsett, Jacobson and Greenwood JJ). 46 The applicants contend that in formulating the now proposed amendments to the primary Application, the applicants have taken account of the observations of Finkelstein J ( Wilhelm v McKay (supra [24])) and the Full Court ( Jilani v Wilhelm (supra [24])). The Full Court in determining the appeal from the orders and judgment of Finkelstein J reached the following conclusions. 54 At [10] ( Wilhelm v McKay (supra)), Finkelstein J considered the possibility of a challenge to the 'decisions to obtain and issue the warrant' on the ground of bad faith or unfairness and after dealing with the notion that the investigation had come to an end by 7 July 2004 as a matter of inference arising out of the Deed, said this: '10. There is, I suppose, another possibility. It is that the ATO only agreed to give back the documents to achieve a settlement of the actions but it always intended to arrange for the search warrant to avoid handing over the documents. What effect this would have on the terms of settlement is not a matter that will arise on this application. But, if this is what really happened, it may be the basis of a challenge to the decisions to obtain and issue the warrant on the ground of bad faith or unfairness as suggested in In Re Preston [1985] AC 835. See also Leggo Australia Pty Ltd v Paraggio (1994) 52 FCR 542'.
Case: R v Rogerson [1992] HCA 25 ; (1992) 174 CLR 268
Outcome: cited
Moreover, the Full Court characterised the Deed of Settlement as a compromise of the civil claims for recovery of the unpaid tax instalments and observed at [76]: 'There was not, nor could there be, any suggestion that the payment of $600,000 for the compromise of the civil claims released Mr Dempsey and Mr Wilhelm from the possibility of criminal prosecution: R v Rogerson [1992] HCA 25 ; (1992) 174 CLR 268 at 275 276. Yet the suggestion in ground 1(b), albeit not expressly made, that the payment of the settlement sum and the entitlement to collect the documents, brought to an end the possibility of an investigation into the possible criminal consequences of the applicants' conduct is an essential premise underlying the obligation. In our view, it is unsupportable and should not have been allowed to stand.'
Case: Re Preston [1985] AC 835
Outcome: cited
At [10] ( Wilhelm v McKay (supra)), Finkelstein J considered the possibility of a challenge to the 'decisions to obtain and issue the warrant' on the ground of bad faith or unfairness and after dealing with the notion that the investigation had come to an end by 7 July 2004 as a matter of inference arising out of the Deed, said this: '10. There is, I suppose, another possibility. It is that the ATO only agreed to give back the documents to achieve a settlement of the actions but it always intended to arrange for the search warrant to avoid handing over the documents. What effect this would have on the terms of settlement is not a matter that will arise on this application. But, if this is what really happened, it may be the basis of a challenge to the decisions to obtain and issue the warrant on the ground of bad faith or unfairness as suggested in In Re Preston [1985] AC 835. See also Leggo Australia Pty Ltd v Paraggio (1994) 52 FCR 542'.
Case: Banque Commerciale SA en Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: cited
The Full Court observed that his Honour's observation to that effect could not stand in the face of well established principle that 'allegations of fraud must be made specifically; see Banque Commerciale SA en Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 285'. The Full Court further said this at [100] and [101]: '100. In the absence of any allegation in the application of want of good faith, we do not see how the matter could proceed to trial on that issue. 101. In any event, it is one thing to assert trickery or misrepresentation in relation to the execution of the Deed of Settlement. It is quite another to suggest that the exercise of the power to seek the issue of a search warrant in aid of the power to investigate possible criminal offences is similarly tainted.' 56 At paragraphs [3] and [4] of the amended application before Finkelstein J, the applicants sought to review the 'conduct' of Ms Jilani in applying for and executing the warrant and in delivering up the documents to officers of the ATO. The Full Court concluded that the proposed amendments addressing the conduct of Ms Jilani failed to recognise that 'conduct' for the purposes of s 6 of the A D J R Act focuses upon procedural questions whereas the complaint of the applicants was that the process of decision-making itself was flawed and erroneous. Secondly, the conduct in question was not conduct for the purpose of making a decision within the meaning of the Act.
Case: Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC
Outcome: cited
The applicants challenge this decision on grounds of statutory administrative review and pursuant to s 39B of the Judiciary Act . As to the A D J R Act, Ground 1A relies upon error of law (s 5(1)(f)); Ground 2, an improper exercise of power (s 5(1)(e)); Ground 3, an abuse of power (s 5(2)(j)); and Ground 4, jurisdictional error (s 5(1)(c)). As to the principles at common law upon which the Court will exercise supervisory review of administrative decisions of the Executive, administrative tribunals or officers of the Commonwealth, for the purposes of exercising a jurisdiction under s 39B of the Judiciary Act : see Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC at 171, per Lord Reid, approved in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179; Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 366 and 367 per Deane J; and Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 489 [25] . The applicants contend for three 'decisions' susceptible of review.
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: cited
The applicants challenge this decision on grounds of statutory administrative review and pursuant to s 39B of the Judiciary Act . As to the A D J R Act, Ground 1A relies upon error of law (s 5(1)(f)); Ground 2, an improper exercise of power (s 5(1)(e)); Ground 3, an abuse of power (s 5(2)(j)); and Ground 4, jurisdictional error (s 5(1)(c)). As to the principles at common law upon which the Court will exercise supervisory review of administrative decisions of the Executive, administrative tribunals or officers of the Commonwealth, for the purposes of exercising a jurisdiction under s 39B of the Judiciary Act : see Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC at 171, per Lord Reid, approved in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179; Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 366 and 367 per Deane J; and Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 489 [25] . The applicants contend for three 'decisions' susceptible of review.
Case: Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
The applicants challenge this decision on grounds of statutory administrative review and pursuant to s 39B of the Judiciary Act . As to the A D J R Act, Ground 1A relies upon error of law (s 5(1)(f)); Ground 2, an improper exercise of power (s 5(1)(e)); Ground 3, an abuse of power (s 5(2)(j)); and Ground 4, jurisdictional error (s 5(1)(c)). As to the principles at common law upon which the Court will exercise supervisory review of administrative decisions of the Executive, administrative tribunals or officers of the Commonwealth, for the purposes of exercising a jurisdiction under s 39B of the Judiciary Act : see Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC at 171, per Lord Reid, approved in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179; Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 366 and 367 per Deane J; and Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 489 [25] . The applicants contend for three 'decisions' susceptible of review.
Case: Salerno v National Crime Authority (1997) 75 FCR 133
Outcome: cited
It seems to me that what follows from these observations is that the challenged decision-maker must be shown to have reached an operative resolution or determination as the emanation of a deliberative process, having the character or quality of finality. This view is consistent with the approach adopted, on this question, in Salerno v National Crime Authority (1997) 75 FCR 133 at 138 per von Doussa, Drummond and Mansfield JJ. See also Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCA 230 , per Finn J at [65] and [66]. I adhere to the views I expressed in reviewing the authorities in Guss v Commissioner of Taxation (2006) FCAFC 88 ; (2006) 152 FCR 88 at [70] to [101].