mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bahonko v Sterjov [2007] FCA 1556
Outcome: referred to
This is an application for leave to appeal and for consequential orders from orders made by Gordon J on 8 October 2007. There were two separate notices of motion before Gordon J. She made orders in each of the proceedings and published separate reasons for those orders: Bahonko v Sterjov [2007] FCA 1555 ; Bahonko v Sterjov [2007] FCA 1556. The orders made in both proceedings are the subject of this application for leave to appeal.
Case: Bird v Free (1994) 126 ALR 475
Outcome: cited
Each judge, when exercising the jurisdiction of the Court, is sitting as "the Court". In those circumstances, no one judge sitting as the Court can direct another judge, also sitting as the Court, to do or not to do something and, in particular, to review the judge's reasons or in any way alter those reasons: Bird v Free (1994) 126 ALR 475. It goes without saying, of course, that no judge could direct another judge to apologise to a litigant or to pay damages to that litigant. 62 For those reasons, the applications must be dismissed.
Case: Bizuneh v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 
Outcome: cited
A direction under O 46 r 7A is made by a judge to assist the Registrar in the administration of the Registry and "is not a determination of right made by a judge after hearing or considering arguments or submissions upon an application to the Court seeking the exercise of judicial power.": Bizuneh v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at 357. Thus, it is not a judgment which is subject to appeal by a person whose document has been rejected by the Registrar in accordance with a direction given by a Judge. 59 Paragraph 6 of the notice of motion seeking leave to appeal from Gordon J's orders in relation to the second notice of motion must be dismissed. 60 Paragraphs 7 and 10 of the notice of motion seem to assume that a judge of the Court has some sort of supervisory jurisdiction over another judge of the Court or at least the reasons published by another judge of the Court. Nothing could be further from the fact. The notion of the independence of the judiciary is fundamental to the system of justice in this country. It is not only that judges are independent of the Executive but each judge of the Court is independent of each other. It is important that judges are not subject to influences or pressures from their fellow judges so that each judge can give their judgment and their reasons freely. A judge's judgment and reasons are subject to scrutiny but only on appeal.
Case: Cabassi v Villa [1940] HCA 41 ; (1940) 64 CLR 130
Outcome: cited
The applicant should understand that the kinds of complaints she makes about the judges of this Court must be viewed in the light of the immunity which attaches to judicial proceedings. A judge, a jury, the parties, their representatives and witnesses enjoy an absolute privilege in respect of their statements in judicial proceedings: Cabassi v Villa [1940] HCA 41 ; (1940) 64 CLR 130 at 140; Mann v O'Neill [1997] HCA 28 ; (1997) 191 CLR 204 at 211. The rationale for the rule is that it is indispensable for the performance of the function: Mann v O'Neill 191 CLR at 213. It exists for the protection of judicial independence: Fingleton v R [2005] HCA 34 ; (2005) 216 ALR 474 at 486. No action lies against a judge in defamation for the matters published in the judge's reasons.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: cited
The test for leave to appeal is well known. An applicant must establish that the decision is attended with sufficient doubt to warrant the decision being reconsidered by the Full Court and, as well, that substantial injustice would result if leave were refused supposing the decision to be wrong: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 33 Order 52 rule 17(1) of the Federal Court of Australia Rules 1979 (Cth) (the Rules) provides that an appeal to the Full Court does not operate as a stay of execution or of proceedings under the judgment appealed from. Thus it is that the applicant needed a stay of the proceedings to prevent the respondents taxing their costs and when taxed, executing upon the taxed costs.
Case: Fingleton v R [2005] HCA 34 ; (2005) 216 ALR 474
Outcome: cited
The applicant should understand that the kinds of complaints she makes about the judges of this Court must be viewed in the light of the immunity which attaches to judicial proceedings. A judge, a jury, the parties, their representatives and witnesses enjoy an absolute privilege in respect of their statements in judicial proceedings: Cabassi v Villa [1940] HCA 41 ; (1940) 64 CLR 130 at 140; Mann v O'Neill [1997] HCA 28 ; (1997) 191 CLR 204 at 211. The rationale for the rule is that it is indispensable for the performance of the function: Mann v O'Neill 191 CLR at 213. It exists for the protection of judicial independence: Fingleton v R [2005] HCA 34 ; (2005) 216 ALR 474 at 486. No action lies against a judge in defamation for the matters published in the judge's reasons. 64 In Fingleton 216 ALR at 485-6, Gleeson CJ cited with approval Lord Denning's dicta in Sirros v Moore [1975] QB 118 at 132: Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error of ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.
Case: Mann v O'Neill [1997] HCA 28 ; (1997) 191 CLR 204
Outcome: cited
The applicant should understand that the kinds of complaints she makes about the judges of this Court must be viewed in the light of the immunity which attaches to judicial proceedings. A judge, a jury, the parties, their representatives and witnesses enjoy an absolute privilege in respect of their statements in judicial proceedings: Cabassi v Villa [1940] HCA 41 ; (1940) 64 CLR 130 at 140; Mann v O'Neill [1997] HCA 28 ; (1997) 191 CLR 204 at 211. The rationale for the rule is that it is indispensable for the performance of the function: Mann v O'Neill 191 CLR at 213. It exists for the protection of judicial independence: Fingleton v R [2005] HCA 34 ; (2005) 216 ALR 474 at 486. No action lies against a judge in defamation for the matters published in the judge's reasons.
Case: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65
Outcome: cited
Justice Gordon proceeded upon the basis that an appeal does not operate as a stay but that the Court could grant a stay if the Court considers that, in all the circumstances, the matter is an appropriate case for the grant of the stay. The approach adopted by her Honour was undoubtedly right. In Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 the Full Court of this Court, after observing that O 52 r 17 did not limit the broad discretion reposing in the Court, followed a decision of the Court of Appeal in New South Wales in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 where it was said at 694 that it was "sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour." In other words, no special or exceptional circumstances need be shown. It is enough to satisfy the Court that the proceeding is one where it is appropriate that the Court exercise its discretion to grant the order.
Case: Reid v Nairne (1985) 60 ALR 419 
Outcome: cited
Sections 24(1A) and 25(2)(a) make it clear that the appellate jurisdiction to grant or refuse leave is to be exercised by either a single judge or the Full Court but not both. A party seeking leave is not entitled first to apply to a single judge and, if unsuccessful, then to apply to the Full Court. That follows because, to use the words of s 25(2)(a), the application has been determined by the single judge. It follows that no appeal lies from an order of a Judge granting or refusing leave to appeal: Reid v Nairne (1985) 60 ALR 419; Thomas Borthwick &amp; Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424; Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543.
Case: Sirros v Moore [1975] QB 118
Outcome: cited
In Fingleton 216 ALR at 485-6, Gleeson CJ cited with approval Lord Denning's dicta in Sirros v Moore [1975] QB 118 at 132: Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error of ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.
Case: Thomas Borthwick &amp; Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 
Outcome: cited
Sections 24(1A) and 25(2)(a) make it clear that the appellate jurisdiction to grant or refuse leave is to be exercised by either a single judge or the Full Court but not both. A party seeking leave is not entitled first to apply to a single judge and, if unsuccessful, then to apply to the Full Court. That follows because, to use the words of s 25(2)(a), the application has been determined by the single judge. It follows that no appeal lies from an order of a Judge granting or refusing leave to appeal: Reid v Nairne (1985) 60 ALR 419; Thomas Borthwick &amp; Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424; Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543.
Case: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 
Outcome: cited
Sections 24(1A) and 25(2)(a) make it clear that the appellate jurisdiction to grant or refuse leave is to be exercised by either a single judge or the Full Court but not both. A party seeking leave is not entitled first to apply to a single judge and, if unsuccessful, then to apply to the Full Court. That follows because, to use the words of s 25(2)(a), the application has been determined by the single judge. It follows that no appeal lies from an order of a Judge granting or refusing leave to appeal: Reid v Nairne (1985) 60 ALR 419; Thomas Borthwick &amp; Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424; Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543.
Case: Australian Securities &amp; Investments Commission v Carey (No 6) [2006] FCA 814 ; (2006) 58 ACSR 141
Outcome: cited
Although the discretionary objects do not have a beneficial interest in any property the subject of a "discretionary" trust prior to a distribution or appointment of income or capital, they are freely referred to as "beneficiaries"; see for example, Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 617-618; R &amp; I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 at 79; Australian Securities &amp; Investments Commission v Carey (No 6) (2006) 152 FCR 509 at [25]-[28]. Provided it can be said with certainty that any particular person is or is not within the class of discretionary beneficiaries, there is a trust, due administration of which can be enforced by discretionary beneficiaries: see In re Gulbenkian's Settlements [1970] AC 508 ; McPhail v Doulton [1970] UKHL 1 ; [1971] AC 424.
Case: CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 ; (2005) 224 CLR 98
Outcome: referred to
The word "beneficiary" reaches beyond a person who has a beneficial interest in the trust property. It is possible for the legal estate in land to be vested in "trustees" without equitable ownership being vested in someone else. The trustees must, however, owe fiduciary obligations in respect of the trust property to persons who, although they may have no interest in the trust property and may never have an interest in the trust property, are called "beneficiaries". In CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria [2005] HCA 53 ; (2005) 224 CLR 98 , the High Court rejected (at [25]): a "dogma" that, where ownership is vested in a trustee, equitable ownership must necessarily be vested in someone else because it is an essential attribute of a trust that it confers upon individuals a complex of beneficial legal relations which may be called ownership. That is to say, there can be a trustee who owes fiduciary obligations in respect of trust property to "beneficiaries" without any of the latter having a beneficial interest in the property.
Case: Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; (1968) AC 553
Outcome: cited
Although the discretionary objects do not have a beneficial interest in any property the subject of a "discretionary" trust prior to a distribution or appointment of income or capital, they are freely referred to as "beneficiaries"; see for example, Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 617-618; R &amp; I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 at 79; Australian Securities &amp; Investments Commission v Carey (No 6) (2006) 152 FCR 509 at [25]-[28]. Provided it can be said with certainty that any particular person is or is not within the class of discretionary beneficiaries, there is a trust, due administration of which can be enforced by discretionary beneficiaries: see In re Gulbenkian's Settlements [1970] AC 508 ; McPhail v Doulton [1970] UKHL 1 ; [1971] AC 424.
Case: Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271
Outcome: referred to
In Stephenson (HM Inspector of Taxes) v Barclays Bank Trust Co Limited [1975] 1 All ER 625, Walton J considered the meaning of the expression "absolutely entitled as against the trustee" under the predecessor of s 46(1), namely, s 22(5) of the Finance Act 1965 (UK). His Lordship said (at 637): Now it is trite law that the persons who between them hold the entirety of the beneficial interests in any particular trust fund are as a body entitled to direct the trustees how that trust fund is to be dealt with, and this is obviously the legal territory from which that definition derives. Reference may also be made to Tomlinson (Inspector of Taxes) v Glyns Executor &amp; Trustees Co [1969] 1 All ER 700 at 704 and [1970] 1 All ER 381 at 383-384 (per Lord Denning MR), and Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281. In Herdegen , Gummow J distinguished between "active" and "passive" trusts, and said of a "bare" trust: Today the usually accepted meaning of "bare" trust is a trust under which the trustee or trustees hold property without any interest therein, other than that existing by reason of the office and the legal title as trustee, and without any duty or further duty to perform, except to convey it upon demand to the beneficiary or beneficiaries or as directed by them, for example, on sale to a third party. The beneficiary may of course hold the equitable interest upon a sub-trust for others or himself and others ...
Case: In re Gulbenkian's Settlements [1970] AC 408
Outcome: cited
Although the discretionary objects do not have a beneficial interest in any property the subject of a "discretionary" trust prior to a distribution or appointment of income or capital, they are freely referred to as "beneficiaries"; see for example, Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 617-618; R &amp; I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 at 79; Australian Securities &amp; Investments Commission v Carey (No 6) (2006) 152 FCR 509 at [25]-[28]. Provided it can be said with certainty that any particular person is or is not within the class of discretionary beneficiaries, there is a trust, due administration of which can be enforced by discretionary beneficiaries: see In re Gulbenkian's Settlements [1970] AC 508 ; McPhail v Doulton [1970] UKHL 1 ; [1971] AC 424.
Case: McPhail v Doulton [1970] UKHL 1 ; [1971] AC 424
Outcome: cited
Although the discretionary objects do not have a beneficial interest in any property the subject of a "discretionary" trust prior to a distribution or appointment of income or capital, they are freely referred to as "beneficiaries"; see for example, Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 617-618; R &amp; I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 at 79; Australian Securities &amp; Investments Commission v Carey (No 6) (2006) 152 FCR 509 at [25]-[28]. Provided it can be said with certainty that any particular person is or is not within the class of discretionary beneficiaries, there is a trust, due administration of which can be enforced by discretionary beneficiaries: see In re Gulbenkian's Settlements [1970] AC 508 ; McPhail v Doulton [1970] UKHL 1 ; [1971] AC 424.
Case: Public Curator of Queensland v Union Trustee Company of Australia Ltd [1922] HCA 28 ; (1922) 31 CLR 66
Outcome: referred to
In Public Curator of Queensland v Union Trustee Company of Australia Ltd [1922] HCA 28 ; (1922) 31 CLR 66 at 74, Higgins J noted: Those who are solely and absolutely entitled to receive money from trustees are entitled to ignore the specific mode and time of payment directed by the testator, to "break the trust", as it is called, and to claim immediate payment without the delay and formalities prescribed by the will (Saunders v Vautier (1841) 4 Beav. 115 ; Cr &amp; Ph., 240, Harbin v Masterman (1894) 2 Ch. 184; (1895) A.C. 186 , and other cases).
Case: R &amp; I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59
Outcome: cited
Although the discretionary objects do not have a beneficial interest in any property the subject of a "discretionary" trust prior to a distribution or appointment of income or capital, they are freely referred to as "beneficiaries"; see for example, Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 617-618; R &amp; I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 at 79; Australian Securities &amp; Investments Commission v Carey (No 6) (2006) 152 FCR 509 at [25]-[28]. Provided it can be said with certainty that any particular person is or is not within the class of discretionary beneficiaries, there is a trust, due administration of which can be enforced by discretionary beneficiaries: see In re Gulbenkian's Settlements [1970] AC 508 ; McPhail v Doulton [1970] UKHL 1 ; [1971] AC 424.
Case: Re Denley's Trust Deed ; Holman v HH Martyn &amp; Co Ltd [1968] 3 All ER 65
Outcome: cited
According to the ordinary meaning of the word, a beneficiary is any person for whose benefit a trust is to be administered and who is entitled to enforce the trustee's obligation to administer the trust according to its terms. It is trite that for every trust there must be a "beneficiary" so understood (see, for example, Re Denley's Trust Deed ; Holman v HH Martyn &amp; Co Ltd [1969] 1 Ch 373 at 382-384). A beneficiary is not simply a person who as a matter of fact obtains some practical benefit from the existence of a trust: Sacks v Gridiger (1990) 22 NSWLR 502 at 508.
Case: Sacks v Gridiger (1990) 22 NSWLR 502
Outcome: cited
According to the ordinary meaning of the word, a beneficiary is any person for whose benefit a trust is to be administered and who is entitled to enforce the trustee's obligation to administer the trust according to its terms. It is trite that for every trust there must be a "beneficiary" so understood (see, for example, Re Denley's Trust Deed ; Holman v HH Martyn &amp; Co Ltd [1969] 1 Ch 373 at 382-384). A beneficiary is not simply a person who as a matter of fact obtains some practical benefit from the existence of a trust: Sacks v Gridiger (1990) 22 NSWLR 502 at 508.
Case: Saunders v Vautier (1841) 4 Beav 115
Outcome: discussed
The concept of absolute entitlement against the Trustee is related to the well known case of Saunders v Vautier (1841) 4 Beav 115. In substance, it was held in that case that where a beneficiary is absolutely and indefeasibly entitled to a trust asset as against the trustee, the beneficiary is entitled to terminate the trust and require the trustee to transfer the asset to him or her or at his or her direction. In order to invoke the rule, multiple beneficiaries can come together so that their beneficial interests exhaust the beneficial entitlement to the asset. For example, the rule could be invoked by a life tenant and the remainder man: since their interests in combination exhaust the beneficial interest in the subject property, in combination they are entitled to direct the trustee to transfer the property as they will. 60 In Public Curator of Queensland v Union Trustee Company of Australia Ltd [1922] HCA 28 ; (1922) 31 CLR 66 at 74, Higgins J noted: Those who are solely and absolutely entitled to receive money from trustees are entitled to ignore the specific mode and time of payment directed by the testator, to "break the trust", as it is called, and to claim immediate payment without the delay and formalities prescribed by the will (Saunders v Vautier (1841) 4 Beav. 115 ; Cr &amp; Ph., 240, Harbin v Masterman (1894) 2 Ch. 184; (1895) A.C. 186 , and other cases). 62 It will be noted that unlike the position under the rule in Saunders v Vautier , subs (5) of s 104-55 and of s 104-60 applies only to trusts of which there is a "sole beneficiary". Moreover, the provision requires the sole beneficiary to be absolutely entitled "to the asset" over which the trust was created. In the present case, the asset over which the trust was created was Helen's half interest in the Property. 63 It is sufficient to say in relation to the absolute entitlement aspect that cll 34.12(b) and (c) are fatal to the applicants' cases. Those provisions were set out at [37] above. As mentioned, I do not agree with counsel for the applicants that the word "may" in cl 34.12(b) means "must". 64 There is no ground for saying that once Helen's Fund was established, Helen was absolutely entitled as against the Trustees to the half interest in the Property that she had owned prior to its establishment
Case: Stephenson (HM Inspector of Taxes) v Barclays Bank Trust Co Limited [1975] 1 All ER 625
Outcome: referred to
In Stephenson (HM Inspector of Taxes) v Barclays Bank Trust Co Limited [1975] 1 All ER 625, Walton J considered the meaning of the expression "absolutely entitled as against the trustee" under the predecessor of s 46(1), namely, s 22(5) of the Finance Act 1965 (UK). His Lordship said (at 637): Now it is trite law that the persons who between them hold the entirety of the beneficial interests in any particular trust fund are as a body entitled to direct the trustees how that trust fund is to be dealt with, and this is obviously the legal territory from which that definition derives. Reference may also be made to Tomlinson (Inspector of Taxes) v Glyns Executor &amp; Trustees Co [1969] 1 All ER 700 at 704 and [1970] 1 All ER 381 at 383-384 (per Lord Denning MR), and Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281. In Herdegen , Gummow J distinguished between "active" and "passive" trusts, and said of a "bare" trust: Today the usually accepted meaning of "bare" trust is a trust under which the trustee or trustees hold property without any interest therein, other than that existing by reason of the office and the legal title as trustee, and without any duty or further duty to perform, except to convey it upon demand to the beneficiary or beneficiaries or as directed by them, for example, on sale to a third party. The beneficiary may of course hold the equitable interest upon a sub-trust for others or himself and others ...