mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1
Outcome: followed
And part of the statutory function of the Tribunal is to decide the application for review by exercising its powers in accordance with s 415 and then giving what it considers to be the correct or preferable decision ( Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at p 18). It forms that opinion after considering the views of the original decision maker (189 CLR at p 18), but if there is some matter comprising 'information' in the reasons for that original decision then in my opinion s 424A(1) requires that 'information' to be furnished to the applicant for review unless it is excepted in s 424A(3). The very language of s 424A(1)(a) denies the construction put here by the Minister for it contemplates 'information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review '. It is the decision, not the reasons for it or the information on which it was based, which the Tribunal could so affirm. 34 Thus, while the reasons for the original decision may not all be 'information' within the meaning of s 424A, no doubt some of the material before the original decision maker to which he or she referred in the reasons for that decision will be 'information' to which s 424A applies.
Case: Tait v Harris [2003] FCA 446
Outcome: cited
first respondent, a Deputy Registrar of the High Court of Australia, has agreed to abide by any order of the Court save as to costs. As I understand Mr Rana's application against the Registrar it is without foundation once its essence is appreciated. The Official Trustee having filed a notice of discontinuance in an application in the High Court in A20 of 2008 for an order to show cause against a judge of this Court, the Registrar has taken no further steps in that matter. Unless and until the Official Trustee's decision to file that notice is declared invalid, the Registrar was entitled to act upon it. In any event, any decisions taken by the Registrar in relation to the acceptance or otherwise of material for filing in the High Court, even where potentially amenable to review under the AD(JR) Act; see Tait v Harris [2003] FCA 446 ; are not ones in relation to which I should make any determination. Such matters, which involve the conduct of the High Court's own officers in the discharge of their duties, are, in my view, ones for that Court itself properly to determine. The real respondent in this matter is the Official Trustee and Mr Rana's complaints are in relation to decisions allegedly taken by the Trustee in relation to proceedings which Mr Rana has prosecuted and lost in this Court (whether at first instance or on appeal). Because the application relates to decisions taken by the Trustee in that capacity, the application has been dealt with as well as if it were made under s 178 of the Bankruptcy Act 1966 (Cth). The section provides: 178(1) If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable. 178(2) The application must be made not later than 60 days after the day on which the person became aware of the trustee's act, omission or decision. I simply note that the application initiating this proceeding appears to have been filed within the time limited by s 178(2) in respect of what I consider to be operative decisions of the Trustee in this matter.
Case: Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45
Outcome: applied
provisions have been subjected to considerable judicial exegesis. It suffices for present purposes if I refer without further comment to observations of Kirby P in Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 at 50: These provisions make it clear that the scheme and purpose of the Act is, upon the debtor's becoming a bankrupt, to transfer property rights, including certainly the right to sue in respect of claims to property, from the bankrupt to his trustee. This is so, notwithstanding that it involves personal inconvenience to the bankrupt: see Faulkner v Bluett [1981] FCA 5 ; (1981) 52 FLR 115 at 119. Indeed, it is so notwithstanding the fact that it deprives the bankrupt of important civil rights which he or she would otherwise normally enjoy. It is of the essence of bankruptcy, as provided for by the Act, that property which belongs to the bankrupt, including choses in action (other than those which are specifically exempted) are vested upon bankruptcy in the bankrupt's trustee.
Case: Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 592
Outcome: cited
was an appeal by Mr Rana from the decision of the Federal Magistrate who made the sequestration order against him. The Trustee wrote to the court on 29 August 2008 notifying its decision to elect to discontinue the appeal. Nonetheless, the matter properly was heard: Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 592 at [11] ; and the appeal was dismissed on 20 October 2008. An application was made to the High Court for special leave. As will be seen below that application has been dismissed. There is no decision of the Trustee in relation to the appeal to the Federal Court that could now found proceedings under the AD(JR) Act or s 178 of the Bankruptcy Act. (iv) A 32 of 2008 This was the application for special leave to appeal against the decision in SAD 124 of 2008. It was dismissed on 29 April 2009. The Official Trustee does not appear, on the evidence before me, to have made any decision after the decision in SAD 124 of 2008 which could now be the subject of review in this matter. (v) A 20 of 2008
Case: Rana v University of Adelaide [No 2] [2008] FCA 494
Outcome: cited
the decision refusing the application for an extension of time in which to appeal against the above orders, Lander J indicated that judgment had been entered against Mr Rana under s 31A , not because of some failure in the pleading to identify a cause of action: Judgment was entered against him [on 17 March] because, manifestly, in the manner in which the proceeding was presented, he had no claim against any of those four respondents. He could not have, in my opinion, amended his statement of claim so as to cure those defects: Rana v University of Adelaide [2008] FCA 940 at [14] . See also Rana v University of Adelaide [No 2] [2008] FCA 494 at [7] in relation to the 3 rd respondent where the claim dismissed was based on an email found to be not authentic.
Case: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89
Outcome: applied
am for present purposes obliged to accept the Court's ruling in relation to its characterisation of the proceedings in that case as "an action": Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 at [135] . The Bankruptcy Act does not make express provision for actions instituted by a bankrupt after his or her bankruptcy in respect of a cause of action which either predates or post-dates the bankruptcy. The effect of the bankruptcy on that cause of action is said to be governed by s 58 and s 116 of the Act, these being the provisions relating to the vesting of the bankrupt's property in the trustee in bankruptcy and to the property available for distribution among the creditors: see 3 The Laws of Australia, "Bankruptcy" at [3.8.940]. If such be the case, the issue which arises is not, as in Daemar , with the question whether Mr Rana's show cause proceedings is an "action". Rather, it is with whether it is "property" passing to the Trustee under s 58(1) and, if so, whether it is divisible amongst his creditors under s 116(1) or exempted therefrom by s 116(2)(g) (ie is it a "right ... to recover damages or compensation ... for personal injury or wrong done to [him]"). In Daemar Kirby P acknowledged the possibility of "a serious disharmony" between s 60(2) and s 58(1) and their respective operations upon claims brought, respectively, before and after bankruptcy supervened: at 53 and 55. In the case there before the Court, the claim (as noted) was instituted before the bankruptcy and thus fell clearly within s 60(2). His Honour went on to say (at 55): If the section is clear, as I believe it to be, the fact that it may sometimes provide a wider provision for a stay on proceedings commenced before bankruptcy than would effectively be secured by proceedings commenced after bankruptcy does not avail the claimant. Especially because the Parliament has specifically adumbrated the exceptions to the operation of the statutory stay, in the terms of s 60(4), this indicates that it attended to the way in which prior civil action should go forward at the option only of the trustee, or be stayed by the statute. The scheme of Part IV, Division 4 of the Bankruptcy Act (which contains s 58(1) and s 60(2) and (4)) would appear to proceed upon the premise that, subject to s 60(4), all "actions" encompassed by s 60(2) have been vested in the trustee by s 58(1) such that in the administration of the bankrupt's estate, he or she can make the election envisaged by s 60. Such vesting necessarily presupposes that all such actions were the bankrupt's property.
Case: Daemar v Industrial Commission of New South Wales [No 2] (1990) 22 NSWLR 178
Outcome: considered
Daemar v Industrial Commission of New South Wales [No 2] (1990) 22 NSWLR 178 , the New South Wales Court of Appeal revisited its earlier orders. Mr Daemar had by now been discharged from bankruptcy and sought the vacation or variation of the stay which the Court had held was in place by force of s 60(2) .
Case: Madden v Madden [1995] FCA 297
Outcome: cited
present, as I have noted, is not a s 60 case, and neither is Mr Rana an undischarged bankrupt. Nonetheless I consider I am obliged to follow the reasoning of the Daemar cases insofar as it has a direct bearing upon the matter before me: cf Farar Constructions . Whatever my own concerns, they are decisions of long standing which have been considered and applied without demur including in decisions of this Court: see eg Madden v Madden [1995] FCA 297 ; Fitzpatrick v Keelty [2008] FCA 35.
Case: Fitzpatrick v Keelty [2008] FCA 35 
Outcome: cited
present, as I have noted, is not a s 60 case, and neither is Mr Rana an undischarged bankrupt. Nonetheless I consider I am obliged to follow the reasoning of the Daemar cases insofar as it has a direct bearing upon the matter before me: cf Farar Constructions . Whatever my own concerns, they are decisions of long standing which have been considered and applied without demur including in decisions of this Court: see eg Madden v Madden [1995] FCA 297 ; Fitzpatrick v Keelty [2008] FCA 35.
Case: Cox v Journeux [No 2] [1935] HCA 48 ; (1935) 52 CLR 713
Outcome: cited
Cox v Journeux [No 2] [1935] HCA 48 ; (1935) 52 CLR 713 Dixon J indicated (at 721) that the test whether the above Bankruptcy Act formula was satisfied was ... whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property. The losses of compensation and benefits from the Commonwealth which Mr Rana claims by way of damages are manifestly not so estimated. Rather, they are presumably referable to entitlements which he alleges he has against the Commonwealth and its agencies but of which he has been deprived. To the extent that these make up the major part of the damages he claims, then the causes of action to which they relate have passed to the Trustee to the exclusion of Mr Rana.
Case: Faulkner v Bluett [1981] FCA 5 ; (1981) 52 FLR 115
Outcome: cited
provisions have been subjected to considerable judicial exegesis. It suffices for present purposes if I refer without further comment to observations of Kirby P in Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 at 50: These provisions make it clear that the scheme and purpose of the Act is, upon the debtor's becoming a bankrupt, to transfer property rights, including certainly the right to sue in respect of claims to property, from the bankrupt to his trustee. This is so, notwithstanding that it involves personal inconvenience to the bankrupt: see Faulkner v Bluett [1981] FCA 5 ; (1981) 52 FLR 115 at 119. Indeed, it is so notwithstanding the fact that it deprives the bankrupt of important civil rights which he or she would otherwise normally enjoy. It is of the essence of bankruptcy, as provided for by the Act, that property which belongs to the bankrupt, including choses in action (other than those which are specifically exempted) are vested upon bankruptcy in the bankrupt's trustee. As to Mr Rana's alleged cause of action for damages against the University of Adelaide for defamation for which the University was alleged to be vicariously liable, the claim, while hopelessly misconceived, was in form for a personal injury or wrong done to him: s 116(2)(g). As such, it could be said not to be of a type that would vest in the Trustee. Nonetheless, it failed for the same reason as did all of the claims made against the University. The actions giving rise to those claims were done by a person acting in his private capacity and not as an employee of the University. In this sense this claim was integrally interconnected in the proceedings with the other non-personal claims made in SAD 12 of 2008 which made up the real substance of that litigation. In these circumstances I regard it as unnecessary here to enter upon any consideration of apportionment of Mr Rana's claims against the University: cf Faulkner v Bluett [1981] FCA 5 ; (1981) 52 FLR 115 at 115; Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 at [47] and [51] for the purposes of A20 of 2008. Apportionment was not raised before me in any event. It was for the Trustee, not Mr Rana, to determine whether the show cause application would be prosecuted.
Case: Rogers v Asset Loan Co Pty Ltd [2006] FCA 434
Outcome: cited
to Mr Rana's alleged cause of action for damages against the University of Adelaide for defamation for which the University was alleged to be vicariously liable, the claim, while hopelessly misconceived, was in form for a personal injury or wrong done to him: s 116(2)(g). As such, it could be said not to be of a type that would vest in the Trustee. Nonetheless, it failed for the same reason as did all of the claims made against the University. The actions giving rise to those claims were done by a person acting in his private capacity and not as an employee of the University. In this sense this claim was integrally interconnected in the proceedings with the other non-personal claims made in SAD 12 of 2008 which made up the real substance of that litigation. In these circumstances I regard it as unnecessary here to enter upon any consideration of apportionment of Mr Rana's claims against the University: cf Faulkner v Bluett [1981] FCA 5 ; (1981) 52 FLR 115 at 115; Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 at [47] and [51] for the purposes of A20 of 2008. Apportionment was not raised before me in any event. It was for the Trustee, not Mr Rana, to determine whether the show cause application would be prosecuted.
Case: Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 221
Outcome: cited
Despite the breadth of the term 'in relation to', the cases also make it clear that in deciding the nature and closeness or remoteness of the connection required and therefore whether there is a necessary 'relationship', the legislative context and purpose should be considered (Dawson J in O'Grady at 367, Brennan CJ, Gaudron and McHugh JJ in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Services [1995] HCA 36 ; (1995) 184 CLR 301 at 313, Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 221 at [26] - [34] ).
Case: Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd [2006] NSWCA 100
Outcome: cited
The width of the meaning of the words 'in connection with', and the fact that they signify a relationship between one thing and another, was recognised by Barwick CJ (with whom McTiernan, Windeyer and Owen JJ agreed) in Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157 at 165, Beazley and Tobias JJ in Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd [2006] NSWCA 100 at [68] , Burchett and Marshall JJ in Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275 (per Burchett J at [15]-[17], Marshall J agreeing with respect to this issue at [53]), the Full Court of the Federal Court in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 and the Full Court in Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275.
Case: Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157
Outcome: cited
The width of the meaning of the words 'in connection with', and the fact that they signify a relationship between one thing and another, was recognised by Barwick CJ (with whom McTiernan, Windeyer and Owen JJ agreed) in Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157 at 165, Beazley and Tobias JJ in Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd [2006] NSWCA 100 at [68] , Burchett and Marshall JJ in Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275 (per Burchett J at [15]-[17], Marshall J agreeing with respect to this issue at [53]), the Full Court of the Federal Court in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 and the Full Court in Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275.
Case: Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR
Outcome: cited
The width of the meaning of the words 'in connection with', and the fact that they signify a relationship between one thing and another, was recognised by Barwick CJ (with whom McTiernan, Windeyer and Owen JJ agreed) in Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157 at 165, Beazley and Tobias JJ in Boylan Nominees Pty Ltd v Williams Refrigeration Australia Pty Ltd [2006] NSWCA 100 at [68] , Burchett and Marshall JJ in Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275 (per Burchett J at [15]-[17], Marshall J agreeing with respect to this issue at [53]), the Full Court of the Federal Court in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 and the Full Court in Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275.
Case: Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147
Outcome: cited
There is no doubt that a decision to issue a search warrant is a decision under an enactment in this case, the Crimes Act and accordingly reviewable under the ADJR Act: Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 at 152-153, Salerno v National Crime Authority (1997) 75 FCR 133, Harts Australia Ltd v The Commissioner, Australian Federal Police [2001] FCA 175. In my view however, the application of the applicant concerning the decision of the second respondent to issue the search warrant is an application 'in relation to a related criminal justice process decision ' for the reasons I discussed earlier in the context of the first respondent. Accordingly, the jurisdiction of the Federal Court is excluded under s 9A ADJR Act in respect of the Application for an Order of Review of the decision of the second respondent to issue the warrant.
Case: Harris v Commissioner of Taxation (Cth) [2002] FCAFC 226
Outcome: cited
Earlier in this judgment I considered the meaning of 'decision' and 'in connection with' in the context of s 9A(4)(a). The differences between 'in connection with' and 'in relation to' are, as a general proposition, minimal (cf French J in Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 1303). Indeed, related criminal justice process decisions are defined by the fact that there is a 'connection' between a decision and some other event, such as the issue of a warrant. 'In relation to' was explained by McHugh J in O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 376 in the following terms: 'The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters. ' (followed by the Full Court of the Federal Court in Harris v Commissioner of Taxation (Cth) [2002] FCAFC 226 at [68] )
Case: Harts Australia Ltd v The Commissioner, Australian Federal Police [2001] FCA 175
Outcome: cited
There is no doubt that a decision to issue a search warrant is a decision under an enactment in this case, the Crimes Act and accordingly reviewable under the ADJR Act: Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 at 152-153, Salerno v National Crime Authority (1997) 75 FCR 133, Harts Australia Ltd v The Commissioner, Australian Federal Police [2001] FCA 175. In my view however, the application of the applicant concerning the decision of the second respondent to issue the search warrant is an application 'in relation to a related criminal justice process decision ' for the reasons I discussed earlier in the context of the first respondent. Accordingly, the jurisdiction of the Federal Court is excluded under s 9A ADJR Act in respect of the Application for an Order of Review of the decision of the second respondent to issue the warrant. 73 As I noted earlier in this judgment, a reviewable decision under the ADJR Act is, inter alia , a decision of an administrative character made under an enactment. There appears to be no doubt that a decision to issue a search warrant is a reviewable decision. Authority also indicates that: &#8226; A decision to seize material in the course of execution of a search warrant is reviewable under the ADJR Act: Drummond J in Harts Australia Limited v Commissioner, Australian Federal Police [2001] FCA 175 at [22] . &#8226; A decision to apply for a warrant may be reviewable under the ADJR Act, or if not under that legislation then under s 39B Judiciary Act . This was the view taken by Finkelstein J in Wilhelm v McKay [2005] FCA 792 at [7] (although the issue was specifically not decided by the Full Court in Jilani v Wilhelm [2005] FCAFC 269 ; [2005] 148 FCR 255, at 274). &#8226; Although this case did not consider an order of review, the Full Court was prepared to entertain an application with respect to 'obtaining' a search warrant and seizing documents pursuant to that search warrant in Health Insurance Commission v Freeman .
Case: Jilani v Wilhelm [2005] FCAFC 269 ; [2005] 148 FCR 255
Outcome: cited
As I noted earlier in this judgment, a reviewable decision under the ADJR Act is, inter alia , a decision of an administrative character made under an enactment. There appears to be no doubt that a decision to issue a search warrant is a reviewable decision. Authority also indicates that: &#8226; A decision to seize material in the course of execution of a search warrant is reviewable under the ADJR Act: Drummond J in Harts Australia Limited v Commissioner, Australian Federal Police [2001] FCA 175 at [22] . &#8226; A decision to apply for a warrant may be reviewable under the ADJR Act, or if not under that legislation then under s 39B Judiciary Act . This was the view taken by Finkelstein J in Wilhelm v McKay [2005] FCA 792 at [7] (although the issue was specifically not decided by the Full Court in Jilani v Wilhelm [2005] FCAFC 269 ; [2005] 148 FCR 255, at 274). &#8226; Although this case did not consider an order of review, the Full Court was prepared to entertain an application with respect to 'obtaining' a search warrant and seizing documents pursuant to that search warrant in Health Insurance Commission v Freeman .