mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Andjelkovic v AFG Insurances Ltd (1980) 47 FLR 348
Outcome: applied
In light of section 6 of the LR Act, the parties to the present interlocutory application agreed that the threshold issue arising is whether the foreshadowed claim for the application of a statutory charge on the part of the Insurers in favour of PCL is reasonably arguable. If the claim is reasonably arguable in the sense that it 'could be seriously put' ( Andjelkovic v AFG Insurances Ltd (1980) 47 FLR 348 at 356 per Blackburn CJ, the context whereof involved an issue as to statutory or alternatively contractual interpretation), then leave should be granted to join the Insurers, or at least that Insurer resident in Australia being of course Macquarie, notwithstanding its purported agency status, so that the issue as to availability of the statutory remedy referrable to the prevailing circumstances may be subsequently resolved at a final hearing of the proceedings. The parties further agreed that for the purposes of the present interlocutory application of PCL, the following general principles apply: (i) an action pursuant to section 6 of the LR Act cannot be commenced of course without the leave of the Court, and whilst some specific circumstances may be identified as operative against the grant of leave, any grant of leave or otherwise falls ultimately within the statutory discretion thereby vested in the Court; and (ii) the Court will not grant leave to commence proceedings in circumstances where on the basis of the material placed before the Court, the claim of an applicant for the statutory indemnity sought is not reasonably arguable. 42 I have reached the conclusion, subject to provision of evidence formally as to Mr Teves' status as a director and shareholder of PCL at the material times, being a circumstance of course asserted by PCL, that PCL has demonstrated satisfaction of the test exemplified in Andjelkovic, and subsequently as articulated more expansively in Fishwives , in relation to both successive insurance policies, and that it would be erroneous on my part to shut out PCL from pursing its presently framed causes of action at this interlocutory stage upon the demurrable basis advanced on behalf of the Insurers. I think that I should exercise my discretion in favour of the grant of the leave sought in relation to the operation of both policies, and thus in relation to the successive years of indemnity from 26 July 2003 to 26 July 2004 and from 26 July 2004 to 2005. The addition of SVB as a respondent is more problematical, but I gained the ultimate understanding that no objection would be raised in principle to the inclusion of SVB as an additional respondent, apparently as a representative of the individual Lloyds underwriters involved.
Case: FAI General Insurance Co Limited v McSweeney ((1999) 10 ANZ Ins Cas 61-443
Outcome: applied
The Insurers rejoined that the words 'circumstances which might result in a claim' the subject of exclusion clause 4.1 of each policy included circumstances where a claim is possible in the sense, for instance, of being contingent upon crystallisation of some event, and that if such was not the case, there could never be any circumstances, short of the making of a claim per se , which could constitute circumstances which might result in a claim. The respondents drew attention to FAI General Insurance Co Limited v McSweeney ((1999) 10 ANZ Ins Cas 61-443 at 75,033-4), where this Court (Lindgren J) gave consideration to a policy condition containing a similar expression ' may give rise to a claim', and expressed the opinion that although it was not desirable to attempt to define precisely the shade of meaning to be signified by that expression in particular contexts, circumstances may be said to give rise to a claim if ' they would... immediately suggest to a reasonable person in the... insured's position who reflected upon those known circumstances, that the bringing of a claim against the insured in respect of them was a "definite risk" or a "real possibility" or "on the cards". It was therefore contended by the Insurers the second policy 'does not respond' to the claim of ARMA as valuer and hence also to that of PCL as mortgagee . 25 As appears further from the text of the letter dated 13 May 2004 which I have earlier extracted in full, it contains the opinion '[i]t appears your valuations significantly overvalued the properties, such that our client may suffer a shortfall upon sale of the properties' , and the statement of intention that '[w]e have been instructed to take action to recover any shortfall from you'. Moreover this letter warned '... that circumstances have arisen that may give rise, to a claim', being words reflected in the fourth indented paragraph of exclusion clause 4.1 of each of the first and second policies. The letter dated 23 April 2004 is to similar effect.
Case: Darlington Futures Limited v Delco Australia Proprietary Limited [1986] HCA 82 ; (1986) 161 CLR 500
Outcome: referred to
PCL drew attention to the well known principle of insurance law that an exclusion clause in an insurance policy should be construed narrowly and otherwise against the interests of the insurer, citing in that regard Derrington and Ashton, The Law of Liability Insurance (2 nd edition Lexis Nexis, 2005) at 10-2. PCL referred further to the principle enunciated in the unanimous reasons for judgment of the High Court in Darlington Futures Limited v Delco Australia Proprietary Limited [1986] HCA 82 ; (1986) 161 CLR 500 at 510 to the effect that in the event of ambiguity, an exclusion clause is to be construed contra proferentem . I have already extracted the material provisions of exclusion clause 4.1 of potential relevance. Given the content of the letters of PCL to Mr Teves, apparently a director and shareholder of ARMA during the term of the first policy (as well as the second policy), yet the absence of any sale of the properties the subject of ARMA's valuations prior to commencement of the second policy, being letters apparently not provided to Macquarie prior to the commencement of the term of the second policy, the Insurers contended that if the second policy was otherwise the subject of relevant cover, that absence of disclosure by ARMA to Macquarie of those notifications of apparent likely claim communicated by PCL to ARMA was fatal to invocation of any liability of the Insurers under the second policy. 27 It was PCL's further contention however that s 33 (of Division 3 of Part IV) of the Insurance Contracts Act 1984 (Cth) ('IC Act') so operates as to preclude, in the present circumstances, the Insurers from any effective reliance upon exclusion clause 4.1. Section 33, which is headed 'No other remedies' , stipulates as follows: 'The provisions of this Division are exclusive of any right that the insurer has otherwise than under this Act in respect of a failure by the insured to disclose a matter to the insurer before the contract was entered into and in respect of a misrepresentation or incorrect statement.'
Case: Permanent Trustee Australia Limited v FAI Insurance Company Limited (1988) 153 ALR 529
Outcome: cited
PCL submitted that if exclusion clause 4.1 was to be applied adversely to PCL, it would effectively provide an additional right to Macquarie/SVB that they have 'otherwise than under [the IC Act] in respect of a failure by the insured to disclose a matter to the insurer before the contract was entered into and in respect of a misrepresentation or an incorrect statement' , and thus should be invalidated by reason of the operation of s 33 of the IC Act. PCL cited in that regard Permanent Trustee Australia Limited v FAI General Insurance Company Limited (1988) 153 ALR 529, where Hodgson CJ in Eq considered a policy condition, extracted at 536 under the heading ' Retroactive Liability ', which was claimed to have granted unlimited retroactive liability, qualified only by the words ' omitting claims or circumstances which may give rise to a claim which are known to the insured prior to the inception of this insurance' . PCL contended that such exclusion condition addressed in FAI was 'on all fours' with exclusion clause 4.1 of each of the present policies, and that what was addressed by his Honour was indeed the substance rather than the form of the exclusion clause there in issue. His Honour determined (at 568) that '... the retroactive clause should be interpreted as applying only if the insured knows the circumstances as circumstances which might give rise to a claim (being his Honour's emphasis), because otherwise the clause would have the unreasonable effect of excluding many or even most circumstances that were purportedly insured against'. Subsequently (at 589), his Honour added that '[i]f the retroactive clause had the effect of excluding liability for something which was in substance a non-disclosure, then I think s 33 would in any event, prevent the retroactive clause excluding liability'. PCL's submissions was that '... the only way that [Macquarie and SVB] can escape the making of the orders sought is... to persuade [the Federal Court] that Hodgson J... was wrong' in his approach to the resolution of Permanent Trustee .
Case: Wang v Australian Industrial Relations Commission [2006] FCAFC 31
Outcome: cited
The applicants then sought an order to show cause in the High Court. On remitter to this Court a Full Court consisting of North, Madgwick and Siopis JJ dismissed the application: Wang v Australian Industrial Relations Commission [2006] FCAFC 31. 7 On 10 April 2006 the applicants filed an application for special leave to appeal to the High Court from the decision of the Full Court. A copy of the special leave application was produced to me. I am satisfied that it is confined to issues concerning the termination of their employment by Demos and the conduct of the matters in the Commission. The respondents are the Full Bench of the Commission, Commissioner Lewin and Demos. The Secretary is not a party. Of course if the application for special leave covered matters in the present proceedings it would not be appropriate for me to proceed with the Secretary's applications. However I am satisfied that is not the case. The present proceedings are confined to the complaints concerning Centrelink, the Secretary being the only respondent. 8 The initiating applications are in substantially the same form. Taking Mr Wang's application, it commences by alleging that it is made "as a result of several breaches of law by Centrelink ... against the applicant". Paragraphs 1 and 2 state: "1. Centrelink conspired to defraud, breached the criminal law and the common law, as well as committing misprision of serious offence. 2. Breaches of the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth), and Racial Discrimination Act 1975 (Cth)."
Case: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570
Outcome: applied
In their submissions the applicants submit "the Federal Court has general power to hear all matters subject only to express legislative restriction". This is fundamentally incorrect. Section 19(1) of the Federal Court of Australia Act 1976 (Cth) provides that the Court "has such original jurisdiction as is vested in it by laws made by the Parliament". The Federal Court only has such jurisdiction as is conferred on it by the Commonwealth Parliament, together with accrued jurisdiction over non-federal claims as arise out of transactions and facts common to the federal claims: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570.
Case: Scott v Secretary, Department of Social Security (2000) 65 ALD 79 at [24]
Outcome: applied
The claims of the applicants are not within the jurisdiction of the Federal Court. The Court does not have jurisdiction to try criminal offences such as fraud and conspiracy. Breaches of the Social Security Act do not confer private rights for damages: Scott v Secretary Department of Social Security (2000) 65 ALD 79 at [24], Scott v Pedler [2004] FCAFC 67 at [1] , [53], [93], [102-103] and [106]. Nor is there any duty of care owed: Scott v Pedler . The Federal Court does not have a jurisdiction of general oversight of the administrative efficiency of federal government entities.
Case: Scott v Pedler [2004] FCAFC 67 at [1] , [53], [93], [102-103] and [106]
Outcome: applied
The claims of the applicants are not within the jurisdiction of the Federal Court. The Court does not have jurisdiction to try criminal offences such as fraud and conspiracy. Breaches of the Social Security Act do not confer private rights for damages: Scott v Secretary Department of Social Security (2000) 65 ALD 79 at [24], Scott v Pedler [2004] FCAFC 67 at [1] , [53], [93], [102-103] and [106]. Nor is there any duty of care owed: Scott v Pedler . The Federal Court does not have a jurisdiction of general oversight of the administrative efficiency of federal government entities.
Case: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458
Outcome: discussed
Because there is no jurisdiction for this Court to deal with various claims made it is not appropriate to consider whether any reasonable causes of action are raised. Such an exercise would amount to exercising a jurisdiction which the Court does not have. However, I should take this opportunity to correct an error I made in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 in relation to the new s 31A of the Federal Court of Australia Act which introduces for strikeout applications the lower threshold of "reasonable prospects of success" as against the test laid down in such cases as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 150. I was not referred in Duncan to item 44 of Pt 2 of Sch 1 to the misleadingly titled Migration Litigation Reform Act 2005 (Cth) (misleading because it applies to all litigation) which makes it clear that s 31A does not apply to proceedings commenced before that Act came into force.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 150
Outcome: cited
Because there is no jurisdiction for this Court to deal with various claims made it is not appropriate to consider whether any reasonable causes of action are raised. Such an exercise would amount to exercising a jurisdiction which the Court does not have. However, I should take this opportunity to correct an error I made in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 in relation to the new s 31A of the Federal Court of Australia Act which introduces for strikeout applications the lower threshold of "reasonable prospects of success" as against the test laid down in such cases as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 150. I was not referred in Duncan to item 44 of Pt 2 of Sch 1 to the misleadingly titled Migration Litigation Reform Act 2005 (Cth) (misleading because it applies to all litigation) which makes it clear that s 31A does not apply to proceedings commenced before that Act came into force.
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597
Outcome: cited
It is now well-established that the invitation that the Tribunal is required by s 425(1) of the Migration Act to give to an applicant is not a matter of form. The duty to give the invitation will not be performed if what the Tribunal then affords to an invited applicant is not a hearing that conforms with the requirements of s 425(1). This was made clear in Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] - [39] . Section 425(1) requires that the invitation be to a hearing at which the applicant is "to give evidence and present arguments relating to the issues arising in relation to the decision under review." As SCAR itself makes clear, even if the Tribunal is unaware of the inability of the applicant to give evidence and present arguments about those issues, the hearing will have fallen short of the requirements of s 425(1) , so that the duty to invite the applicant to a hearing of the required kind will not have been fulfilled. In that case, the Tribunal was unaware that the applicant was undergoing medical treatment as a result of being affected badly by news of his father's recent death. In [39] of its reasons for judgment in SCAR , the Full Court relied on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 , in which it was held that the Tribunal had denied the applicant procedural fairness through inadvertence, because it was unaware of a letter seeking an adjournment of the hearing.
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553
Outcome: discussed
It is now well-established that the invitation that the Tribunal is required by s 425(1) of the Migration Act to give to an applicant is not a matter of form. The duty to give the invitation will not be performed if what the Tribunal then affords to an invited applicant is not a hearing that conforms with the requirements of s 425(1). This was made clear in Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] - [39] . Section 425(1) requires that the invitation be to a hearing at which the applicant is "to give evidence and present arguments relating to the issues arising in relation to the decision under review." As SCAR itself makes clear, even if the Tribunal is unaware of the inability of the applicant to give evidence and present arguments about those issues, the hearing will have fallen short of the requirements of s 425(1) , so that the duty to invite the applicant to a hearing of the required kind will not have been fulfilled. In that case, the Tribunal was unaware that the applicant was undergoing medical treatment as a result of being affected badly by news of his father's recent death. In [39] of its reasons for judgment in SCAR , the Full Court relied on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 , in which it was held that the Tribunal had denied the applicant procedural fairness through inadvertence, because it was unaware of a letter seeking an adjournment of the hearing.
Case: Attorney-General for Victoria v The Commonwealth [1935] HCA 31 ; (1935) 52 CLR 533
Outcome: cited
The High Court has cautioned that when considering the ambit of the incidental power, whether arising by implication or expressly under s 51(xxxix) of the Constitution , it is important not to allow the incidental power to dominate the main power or, as Rich J said, not to put the cart before the horse; Attorney-General for Victoria v The Commonwealth [1935] HCA 31 ; (1935) 52 CLR 533 at 563. The point was well illustrated by Dixon J in the Pharmaceutical Benefits case. The legislation under consideration there rested on the power of the Commonwealth to appropriate money under s 81 of the Constitution . Dixon J concluded that even if one accepted that s 81 authorised the expenditure of money on any purpose that the Parliament might think fit without restriction, the scheme established under the legislation would still be invalid. His Honour, at 270, put the point thus: ' [T] he fact is that under the Pharmaceutical Benefits Act appropriation of money is the consequence of the plan; the plan is not consequential upon or incidental to the appropriation of money.' 52 Since the Pharmaceutical Benefits case, s 51(xxiiiA) has, of course, authorised the provision of services that were not possible under the previous constitutional arrangements. However, as the General Practitioners case shows, the incidental power is still relevant in an assessment of the constitutional standing of the PSR. 53 The applicant accepts that matters 'merely incidental to the core of clinical practice of medicine' do not fall within the constitutional prohibition because they might constitute a necessary part of the Commonwealth's administration of its benefits scheme. In the applicant's written submissions such incidental matters are said to include requirements about completing forms or with respect to accounts and receipts or financial and administrative matters. The applicant does not accept that it is incidental to the Commonwealth's provision of medical services either that it has the power to impose a standard which the services provided have to meet or the power to discipline medical practitioners whose services fail to meet that standard.
Case: The General Practitioners Society in Australia v The Commonwealth of Australia [1980] HCA 30 ; (1980) 145 CLR 532
Outcome: applied
In making these submissions the applicant relies on the decision of the High Court in The General Practitioners Society in Australia v Commonwealth of Australia [1980] HCA 30 ; (1980) 145 CLR 532 ('General Practitioners case'). In the alternative the applicant submits that: (a) GPS is distinguishable and does not apply to the present case; and/or (b) the construction of 'civil conscription' in GPS is incorrect and should not be accepted by this Court. Rather, it is submitted, the broader view of what constitutes 'civil conscription' taken by Latham CJ, Rich, Williams and Webb JJ in Federal Council of the British Medical Association in Australia v Commonwealth [1949] HCA 44 ; (1949) 79 CLR 201 ('BMA case') should be accepted.
Case: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 ; (2009) 258 ALR 14
Outcome: cited
decision of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision ( Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 ; (2009) 258 ALR 14 , Goldberg v Morrow [2004] FCA 1490 at [36] ). There is authority that the discretion in respect of ordering or refusing an adjournment miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present his case ( Thornberry v R (1995) 69 ALJR 777). Where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party, there is authority that adjournment should ordinarily be granted: Jordan v Smart [1961] NSWR 735.
Case: Goldberg v Morrow [2004] FCA 1490
Outcome: cited
decision of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision ( Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 ; (2009) 258 ALR 14 , Goldberg v Morrow [2004] FCA 1490 at [36] ). There is authority that the discretion in respect of ordering or refusing an adjournment miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present his case ( Thornberry v R (1995) 69 ALJR 777). Where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party, there is authority that adjournment should ordinarily be granted: Jordan v Smart [1961] NSWR 735.
Case: Jordan v Smart [1961] NSWR 735
Outcome: cited
decision of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision ( Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 ; (2009) 258 ALR 14 , Goldberg v Morrow [2004] FCA 1490 at [36] ). There is authority that the discretion in respect of ordering or refusing an adjournment miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present his case ( Thornberry v R (1995) 69 ALJR 777). Where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party, there is authority that adjournment should ordinarily be granted: Jordan v Smart [1961] NSWR 735.