mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Marra Developments Ltd and the Companies Act (No 2) (1978) 3 ACLR 798
Outcome: cited
J referred to certain cases as authority for the proposition that a company was or could be subject to an absolute obligation to redeem notwithstanding a provision similar to s 254K of the Act ( UOB Venture Investments Ltd v Tong Garden Holdings Pte Ltd [2001] 1 SLR 362 at [20]; Mutual Life and Citizens Assurance Co Ltd v Mosgiel Ltd [1994] 1 NZLR 146 ; Re Dividend Fund Incorporated (In Liquidation) [1974] VR 451 at 454-6; TNT Australia Pty Ltd v Normandy Resources NL (1989) 53 SASR 156 at 206; and Re Marra Developments Ltd and the Companies Act (No 2) (1978) 3 ACLR 798. His Honour stated (at [58]-[59]): [58] What these cases really show, in my view, is that the question is ultimately one of construction. It cannot be doubted that, upon and by virtue of subscription for and allotment of redeemable preference shares, a contract comes into existence between the company and the shareholder. The contract may or may not impose what the Singapore court found to be an absolute obligation to redeem (or, for that matter, to pay specified dividends at specified times). If the obligation is absolute, a breach of contract occurs when the company fails to perform; and this is so even if the failure is because of unavailability of a fund from which payment may lawfully be made. There are then questions about remedies, a matter to which I shall return. [59] In the present case, the contract between York and each holder of CPRPS shares includes not only the provisions of the constitution given contractual force by s 140 of the Corporations Act but also the terms of issue set out in the prospectus. When regard is had to the content of each, the contract is seen to be of the kind described in Coppleson above [discussed below], both as to default in the payment of dividends and as to default in redemption. The contract requires only such performance as is consistent with the statutory constraints. There are no absolute obligations.
Case: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: cited
the applicant submitted that the argument advanced by the Tribunal that there was no denial of procedural fairness was outside the grant of leave that was afforded to the Tribunal to make submissions about the matters in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13. The Tribunal, by making this submission, enters the arena properly occupied by the applicant and the respondent; it is difficult to see how the submission is one which is limited to the Tribunal's powers and procedures. The applicant submitted that by making this submission, the Tribunal has taken the respondent's side in the case. The 'ambulatory' nature of the Tribunal which has intervened means that the apprehension of bias which arises cannot be resolved by reconstituting the Tribunal in a different way. Apart from that difficulty, according to the applicant, the submission is without merit. The Tribunal argues that there is no substantive unfairness because the applicant was made aware of the notification to APRA, in an email dated 3 June 2005. However, the applicant continued, the apprehended bias case was not based on the notification to APRA. It was based on the discussions which may have taken place between APRA and the Tribunal after that notification. There is no doubt that the real complaint of the applicant in relation to ground (h) the Tribunal acting in a way (by consulting with APRA) which gave rise to an apprehension of bias was not the s 64 referral made by the Chairperson of the Tribunal on 10 May 2005, but the letter of invitation to Mr Venkatramani of APRA, at [57], sent by Ms McDonald, a Director of the Tribunal, on 1 June 2005 and the content of that letter. It invited discussion not on possible contravention by the applicant of reg 4.15 of the SIS Regs but in assisting the Tribunal in identifying all possible issues and gathering all relevant information before the matter (the respondent's complaint) was listed for a review determination.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
to the second point, it was submitted that it is obvious that the communication was relevant to the inquiry being undertaken by the Tribunal. A decision-maker is obliged to disclose adverse information that is credible, relevant and significant to the decision to be made: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 631 [123] , per McHugh J and 1005 [227], per Kirby J; Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629; Minister for Local Government v South Sydney City Council [2002] NSWCA 288 ; (2002) 55 NSWLR 381 at 438 [260] , per Mason P. Accordingly, a breach of the rules of procedural fairness occurred. By failing to afford the applicant procedural fairness, the Tribunal committed an excess of jurisdiction and hence an error of law.
Case: Laws v Australian Broadcasting Tribunal (1990) 93 ALR 435
Outcome: cited
that reason, I do not agree with the Tribunal's submission that the Tribunal's statutory functions and procedures, in particular the requirement in s 64 to refer matters to APRA, informs or circumscribes the practical content of the requirement to avoid apprehension of bias. Nor do I think the rule of necessity operates in the present case to prevail over and displace the application of the rules of natural justice to ensure that the Tribunal is not disabled from performing its statutory functions, cf., Laws v Australian Broadcasting Tribunal (1990) 93 ALR 435 at 448, 449. The letter at [57] and the subject matter of the invitation it contained had nothing to do with the statutory functions of the Tribunal under s 64. However, there are a number of difficulties in the way of the applicant succeeding on this ground and the next an alleged failure to accord the applicant procedural fairness. First, the letter at [57] was not sent by the members who constituted the Tribunal for the purpose of hearing the respondent's complaint. Indeed, it was not even sent by the Chairperson who made the s 64 referral. It was sent by a staff member of the Tribunal holding the position of Director. Second, there is no evidence that any meeting or discussions took place in response to the letter and even if a meeting or discussions took place, there is no evidence as to who participated at that meeting or in those discussions.
Case: Minister for Local Government v South Sydney City Council [2002] NSWCA 288 ; (2002) 55 NSWLR 381
Outcome: cited
to the second point, it was submitted that it is obvious that the communication was relevant to the inquiry being undertaken by the Tribunal. A decision-maker is obliged to disclose adverse information that is credible, relevant and significant to the decision to be made: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 631 [123] , per McHugh J and 1005 [227], per Kirby J; Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629; Minister for Local Government v South Sydney City Council [2002] NSWCA 288 ; (2002) 55 NSWLR 381 at 438 [260] , per Mason P. Accordingly, a breach of the rules of procedural fairness occurred. By failing to afford the applicant procedural fairness, the Tribunal committed an excess of jurisdiction and hence an error of law.
Case: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966
Outcome: cited
to the second point, it was submitted that it is obvious that the communication was relevant to the inquiry being undertaken by the Tribunal. A decision-maker is obliged to disclose adverse information that is credible, relevant and significant to the decision to be made: Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 631 [123] , per McHugh J and 1005 [227], per Kirby J; Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629; Minister for Local Government v South Sydney City Council [2002] NSWCA 288 ; (2002) 55 NSWLR 381 at 438 [260] , per Mason P. Accordingly, a breach of the rules of procedural fairness occurred. By failing to afford the applicant procedural fairness, the Tribunal committed an excess of jurisdiction and hence an error of law.
Case: Re Irismay Holdings Pty Ltd [1996] 1 Qd R 172 
Outcome: approved
agree with the applicant's submissions as to the proper construction of cl 10.7(d) of the 2000 Trust Deed (and, if it matters, cl 9.7(d) of the 1995 Trust Deed), namely, that it is only concerned with the applicant's power to compromise claims made against the Fund and does not extend to claims made against the applicant. On the other hand, I see no warrant for confining the operation of cl 10.7(d) of the 2000 Trust Deed by concluding that it does not empower a trustee to compromise a claim by a beneficiary relating to the beneficiary's entitlement to trust property. This was certainly the view of the Queensland Supreme Court (Lee J) in Re Irismay Holdings Pty Ltd [1996] 1 Qd R 172, criticising statements to the contrary in Re Earl of Strafford deceased; Royal Bank of Scotland Ltd v Byng [1980] Ch 28 at 32 33, albeit in relation to the Queensland statutory equivalent of s 49(d) of the Trustee Act 1925 (NSW). I agree with that criticism.
Case: Smits v Roach [2006] HCA 36 ; (2006) 228 ALR 262
Outcome: cited
to the apprehension of bias ground, on the resumed hearing of the appeal, the Tribunal, in its submissions, referred to what was said in the joint judgment in Ebner at 345, [8]: 'The apprehension of bias principle ... [in its] application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.' The need for this two step process was affirmed in Smits v Roach [2006] HCA 36 ; (2006) 228 ALR 262 at [53] , [56].
Case: VFAB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102
Outcome: cited
Tribunal submitted that the correct approach is that set out by this Court (Kenny J) in VFAB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102, at [25]: 'The test for apprehended bias in relation to curial proceedings is well-settled. The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 75 ALJR 982, at [27] per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed, this rule may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the decision-maker and its proceedings. "[R]egard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned": see Ex parte H , at [5]. Further, their Honours posited, at [28], that: Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.' The Tribunal noted that her Honour also emphasised (at [77]) that the nature of the Tribunal's processes was important to ascertaining the presence or absence of an apprehension of bias: 'In order to determine whether, in this case, there was disqualifying bias, the court must carefully consider all the circumstances in order to assure itself that the test is by a fair-minded lay observer. Accordingly, the Court must consider the nature of the Tribunal, the issues before it, and the conduct of all relevant participants in the proceeding.' Applying those authorities to the present situation, the Tribunal submitted the following considerations are important: (a) The Tribunal is an administrative tribunal which sits in private. (b) Although it has the power to conduct oral hearings, it generally does not, but rather decides matters 'on the papers'. (c) It decided this matter on the papers.
Case: Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366
Outcome: cited
In my view, there is little to add to the observations of his Honour in Hicks . Similar observations have been made in many other Federal Court cases including La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 (per Burchett J), Bank of Western Australia v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255 (per Lindgren J), Nezovic v MIMIA [2003] FCA 1263 ; (2003) 133 FCR 190 at 206 (per French J), and Koara People v State of Western Australia [2006] FCA 66 at par 29 (per Nicholson J). The principle of comity is applied in other Australian courts in respect of decisions of single judges: I note, by way of illustration, Durovic trading as Shell Tornik Roadhouse v Judge , unreported Supreme Court of New South Wales, Rolfe J, 25 February 1997; Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32 (per Blackburn CJ); Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366 par 25 (per Balmford J); McDermott Projects Pty Ltd v Chadwell Pty Ltd (2002) 2 QdR 363 at 365 (per Holmes J); and Swetnam Brothers Pty Ltd v Grundy , unreported Supreme Court of Tasmania, Wright J, 14 March 1997. The principle of judicial comity as between Courts of equal status is long-standing in the United Kingdom; the principle is discussed, with many case citations, in Halsbury's Law of England , 4 th Edition Reissue vol 37 at par 1244. I also note similar comments in A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths, Sydney, 1998) at 179-180.
Case: Bank of Western Australia v Federal Commissioner of Taxation (1994) 55 FCR 233
Outcome: cited
In my view, there is little to add to the observations of his Honour in Hicks . Similar observations have been made in many other Federal Court cases including La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 (per Burchett J), Bank of Western Australia v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255 (per Lindgren J), Nezovic v MIMIA [2003] FCA 1263 ; (2003) 133 FCR 190 at 206 (per French J), and Koara People v State of Western Australia [2006] FCA 66 at par 29 (per Nicholson J). The principle of comity is applied in other Australian courts in respect of decisions of single judges: I note, by way of illustration, Durovic trading as Shell Tornik Roadhouse v Judge , unreported Supreme Court of New South Wales, Rolfe J, 25 February 1997; Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32 (per Blackburn CJ); Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366 par 25 (per Balmford J); McDermott Projects Pty Ltd v Chadwell Pty Ltd (2002) 2 QdR 363 at 365 (per Holmes J); and Swetnam Brothers Pty Ltd v Grundy , unreported Supreme Court of Tasmania, Wright J, 14 March 1997. The principle of judicial comity as between Courts of equal status is long-standing in the United Kingdom; the principle is discussed, with many case citations, in Halsbury's Law of England , 4 th Edition Reissue vol 37 at par 1244. I also note similar comments in A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths, Sydney, 1998) at 179-180.
Case: Durovic trading as Shell Tornik Roadhouse v Judge , unreported Supreme Court of New South Wales, Rolfe J, 25 February 1997
Outcome: cited
In my view, there is little to add to the observations of his Honour in Hicks . Similar observations have been made in many other Federal Court cases including La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 (per Burchett J), Bank of Western Australia v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255 (per Lindgren J), Nezovic v MIMIA [2003] FCA 1263 ; (2003) 133 FCR 190 at 206 (per French J), and Koara People v State of Western Australia [2006] FCA 66 at par 29 (per Nicholson J). The principle of comity is applied in other Australian courts in respect of decisions of single judges: I note, by way of illustration, Durovic trading as Shell Tornik Roadhouse v Judge , unreported Supreme Court of New South Wales, Rolfe J, 25 February 1997; Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32 (per Blackburn CJ); Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366 par 25 (per Balmford J); McDermott Projects Pty Ltd v Chadwell Pty Ltd (2002) 2 QdR 363 at 365 (per Holmes J); and Swetnam Brothers Pty Ltd v Grundy , unreported Supreme Court of Tasmania, Wright J, 14 March 1997. The principle of judicial comity as between Courts of equal status is long-standing in the United Kingdom; the principle is discussed, with many case citations, in Halsbury's Law of England , 4 th Edition Reissue vol 37 at par 1244. I also note similar comments in A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths, Sydney, 1998) at 179-180.
Case: Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553
Outcome: cited
The nature of a discretionary trust is such that, although the beneficiaries have an interest in the trust, it is in the nature of a right to be considered as a potential recipient of benefit by the trustees, and a right to have their interests protected by a court of equity: Gartside v Inland Revenue Commissioners [1967] UKHL 6 ; [1968] AC 553 at 617. As Lord Wilberforce said in Gartside : '(W)hen it is said that he has a right to have the trustees exercise their discretion "fairly" or "reasonably" or properly that indicates clearly enough that some objective consideration (not stated explicitly in declaring the discretionary trust, but latent in it) must be applied by the trustees and that the right is more than a mere spes. But that does not mean that he has an interest which is capable of being taxed by reference to its extent in the trust find's income.' (at 617-618) 72 While the trustee is to have regard to specified criteria in appointing capital and income under the CSP Deed, this does not derogate from what in the final analysis is an absolute discretion of the trustee as defined in cl 8.7. 73 Accordingly, in relation to Key Question 2, namely 'If the Court should apply that interpretation, was a fringe benefit provided within the meaning of s 136(1) FBTAA in the case before me?' the answer is that no fringe benefit was provided in the case before me within the meaning of s 136(1) FBTAA .
Case: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757
Outcome: cited
In Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [76] French J said: 'The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is 'clearly wrong' is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. Indeed, where a serious doubt arises on the part of one judge, about the correctness of the law as stated by another, in a matter of importance, it may be desirable for a case to be stated to the Full Court for early resolution of the question in contention.' 51 In my view, there is little to add to the observations of his Honour in Hicks . Similar observations have been made in many other Federal Court cases including La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 (per Burchett J), Bank of Western Australia v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255 (per Lindgren J), Nezovic v MIMIA [2003] FCA 1263 ; (2003) 133 FCR 190 at 206 (per French J), and Koara People v State of Western Australia [2006] FCA 66 at par 29 (per Nicholson J). The principle of comity is applied in other Australian courts in respect of decisions of single judges: I note, by way of illustration, Durovic trading as Shell Tornik Roadhouse v Judge , unreported Supreme Court of New South Wales, Rolfe J, 25 February 1997; Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32 (per Blackburn CJ); Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366 par 25 (per Balmford J); McDermott Projects Pty Ltd v Chadwell Pty Ltd (2002) 2 QdR 363 at 365 (per Holmes J); and Swetnam Brothers Pty Ltd v Grundy , unreported Supreme Court of Tasmania, Wright J, 14 March 1997. The principle of judicial comity as between Courts of equal status is long-standing in the United Kingdom; the principle is discussed, with many case citations, in Halsbury's Law of England , 4 th Edition Reissue vol 37 at par 1244. I also note similar comments in A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths, Sydney, 1998) at 179-180.
Case: Koara People v State of Western Australia [2006] FCA 66
Outcome: cited
In my view, there is little to add to the observations of his Honour in Hicks . Similar observations have been made in many other Federal Court cases including La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 (per Burchett J), Bank of Western Australia v Federal Commissioner of Taxation (1994) 55 FCR 233 at 255 (per Lindgren J), Nezovic v MIMIA [2003] FCA 1263 ; (2003) 133 FCR 190 at 206 (per French J), and Koara People v State of Western Australia [2006] FCA 66 at par 29 (per Nicholson J). The principle of comity is applied in other Australian courts in respect of decisions of single judges: I note, by way of illustration, Durovic trading as Shell Tornik Roadhouse v Judge , unreported Supreme Court of New South Wales, Rolfe J, 25 February 1997; Zotovic v Dobel Boat Hire Pty Ltd (1985) 62 ACTR 29 at 32 (per Blackburn CJ); Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366 par 25 (per Balmford J); McDermott Projects Pty Ltd v Chadwell Pty Ltd (2002) 2 QdR 363 at 365 (per Holmes J); and Swetnam Brothers Pty Ltd v Grundy , unreported Supreme Court of Tasmania, Wright J, 14 March 1997. The principle of judicial comity as between Courts of equal status is long-standing in the United Kingdom; the principle is discussed, with many case citations, in Halsbury's Law of England , 4 th Edition Reissue vol 37 at par 1244. I also note similar comments in A MacAdam and J Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths, Sydney, 1998) at 179-180.