mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264
Outcome: followed
But it must now to be accepted -- at least in this Court -- that s 80 is confined to a " trial on indictment ": Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264 at 276 7; Cheng v The Queen [2000] HCA 53 , 203 CLR 248.
Case: Li Chia Hsing v Rankin [1978] HCA 56 ; (1978) 141 CLR 182 , 23 ALR 151
Outcome: followed
The difficulty, however, which would have inevitably confronted the Applicant -- even had it not been abandoned -- is the simple fact that s 80 is confined to a " trial on indictment ". It is Parliament, and not this Court or the High Court, which determines whether proceedings are to be commenced by way of indictment. It is not for this Court to determine that proceedings are sufficiently " serious " that they should be commenced by indictment: Li Chia Hsing v Rankin [1978] HCA 56 ; (1978) 141 CLR 182 at 189 90. Barwick CJ there concluded: Further, if in truth from s 80 you could derive the conclusion that, constitutionally, all "serious" offences must be tried on indictment by a jury, it would be for the Court and not for the Parliament to determine whether any given offence was relevantly a "serious" offence. The limited submission of the applicant that, for the reasons given on his behalf, the present offence was a "serious" offence, in my opinion, fails. ... Further, to so reduce the universality of the language of the section would be insufficient to create a constitutional guarantee that those offences must be treated as indictable offences. The applicant's submission in reality is that s 80 postulates that some offences are of their nature, or of their nature and circumstances, "indictable" offences, ie offences which may not be prosecuted except on indictment. The applicant describes these offences as "serious" offences. Section 80 , however, only operates on indictment. Its language was chosen in the knowledge of Art 3 of the Constitution of the United States and of the experience of that country with the construction and operation of that article over the considerable period of time which had elapsed before the terms of s 80 were accepted. ... [I]t is, in my opinion, not possible to conclude, apart of course from the expressed intention of the Parliament in the relevant statute, that an offence is of its nature "indictable". Summary prosecution for a wide variety of offences has a long history, though punishment upon summary conviction is generally limited so far as imprisonment is provided to a term of twelve months or less. It was unanimously decided in R v Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18 ; [(1928) 41 CLR 128] that the section placed no impediment in the way of the Parliament providing for the summary prosecution of an offence.
Case: McDermott v Collien [1953] HCA 44 ; (1953) 87 CLR 154
Outcome: followed
Sections 39 and 40 of the Federal Court of Australia Act , it may further be noted, are in substantially the same form as ss 12 and 13 of the High Court Procedure Act 1903 (Cth). Those latter provisions were considered by Fullagar J in McDermott v Collien [1953] HCA 44 ; (1953) 87 CLR 154. His Honour there formulated the " general policy " as follows (at 157): Two things ... seem clear enough. The first is that with the merits and demerits of trial by jury as a means of determining civil causes I have nothing whatever to do. ... [S]o far as any question of general policy is involved, it is settled for me by the High Court Procedure Act. Trial without a jury is the normal mode of trial of actions in this Court, and some special reason must be shown for a departure in any particular case from that normal mode. The second thing that seems clear is that it is not enough to show that the cause of action is of a kind which could quite properly be tried with a jury and which was normally tried with a jury in England before the Judicature Act 1873 (36 &amp; 37 Vict. c. 66). The decisions of Hodges J. and of Isaacs J. perhaps suggest that the nature of the cause of action is not even a relevant consideration. I would not be prepared to assent to that as a general proposition: indeed I would rather have thought that it might in some cases be a potent consideration. But it is clear that it is not enough to say: "This is a kind of action which is quite suitable for trial with a jury, and I would like to have it tried with a jury." Appl'd: Dinnison v Commonwealth [2000] FCA 1841 , 106 FCR 418.
Case: R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10 ; (1937) 59 CLR 556
Outcome: considered
Confined in this way, it has been said of s 80 that "[w] hat might have been thought to be a great constitutional guarantee has been discovered to be a mere procedural provision ": Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226 at 244 per Barwick CJ. Early judgments of the High Court were strongly critical of a narrow construction of s 80: eg, R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10 ; (1937) 59 CLR 556 at 581 2 per Dixon and Evatt JJ (dissenting). Writing extra-judicially, Justice Kirby has commented that the " significance of the Australian guarantee has been diminished by the narrow interpretation applied to its language ": ' The High Court of Australia and the Supreme Court of the United States -- A Centenary Reflection ' (2003) 31 UWAL Rev 171 at 180. See also: Re Aird; Ex parte Alpert [2004] HCA 44 at [112] , [2004] HCA 44 ; 220 CLR 308 at 343 4 per Kirby J.
Case: R v Snow [1915] HCA 90 ; (1915) 20 CLR 315
Outcome: followed
Section 80 , it may readily be accepted, " lays down ... a fundamental law of the Commonwealth ": R v Snow [1915] HCA 90 ; (1915) 20 CLR 315 at 323 per Griffith CJ. The entitlement conferred by that provision " is an important constitutional privilege ": Weininger v The Queen [2003] HCA 14 at [54] , [2003] HCA 14 ; 212 CLR 629 at 646.
Case: Ray v Perrett [2007] FCA 1672
Outcome: followed
Moreover, and although there may be trial by jury in bankruptcy proceedings, it is the exception rather than the rule: Re Shields; Ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308. Einfeld J there observed (at 309): ... in bankruptcy proceedings jury trials will be the exception rather than the rule. ... A jury trial involves a great deal of expense and time both to the parties and the Court, as well as considerable inconvenience to the members of the community who constitute the jury. The use of juries in civil matters has steadily declined during this century and is now largely reserved for those areas where serious imputations are to be made against the character of a party. Like divorce, bankruptcy is no longer regarded as such a matter. In the absence of some very compelling special circumstance, the intention of Parliament is clearly that bankruptcy proceedings be heard by a judge. See also: Re Allen (1905) 5 SR (NSW) 55 at 57; Draper v Official Receiver [2004] FCA 1379 at [5] per Mansfield J. Some " special reason " must be shown for a departure from the normal mode of trial: Commonwealth Bank of Australia v Rigg [2001] FCA 590. Section 30(3) only applies where " a question of fact arises ". See: Ray v Perrett [2007] FCA 1672. " While fraud generally is some ground for giving the parties or one of the parties a right to trial by jury, this fact is not conclusive ": Stapleton v Brady [1952] QWN 15 per Clyne J.
Case: Re Aird; Ex parte Alpert [2004] HCA 44 , 220 CLR 308
Outcome: considered
Confined in this way, it has been said of s 80 that "[w] hat might have been thought to be a great constitutional guarantee has been discovered to be a mere procedural provision ": Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226 at 244 per Barwick CJ. Early judgments of the High Court were strongly critical of a narrow construction of s 80: eg, R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10 ; (1937) 59 CLR 556 at 581 2 per Dixon and Evatt JJ (dissenting). Writing extra-judicially, Justice Kirby has commented that the " significance of the Australian guarantee has been diminished by the narrow interpretation applied to its language ": ' The High Court of Australia and the Supreme Court of the United States -- A Centenary Reflection ' (2003) 31 UWAL Rev 171 at 180. See also: Re Aird; Ex parte Alpert [2004] HCA 44 at [112] , [2004] HCA 44 ; 220 CLR 308 at 343 4 per Kirby J.
Case: Re Allen (1905) 5 SR (NSW) 55
Outcome: considered
Moreover, and although there may be trial by jury in bankruptcy proceedings, it is the exception rather than the rule: Re Shields; Ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308. Einfeld J there observed (at 309): ... in bankruptcy proceedings jury trials will be the exception rather than the rule. ... A jury trial involves a great deal of expense and time both to the parties and the Court, as well as considerable inconvenience to the members of the community who constitute the jury. The use of juries in civil matters has steadily declined during this century and is now largely reserved for those areas where serious imputations are to be made against the character of a party. Like divorce, bankruptcy is no longer regarded as such a matter. In the absence of some very compelling special circumstance, the intention of Parliament is clearly that bankruptcy proceedings be heard by a judge. See also: Re Allen (1905) 5 SR (NSW) 55 at 57; Draper v Official Receiver [2004] FCA 1379 at [5] per Mansfield J. Some " special reason " must be shown for a departure from the normal mode of trial: Commonwealth Bank of Australia v Rigg [2001] FCA 590. Section 30(3) only applies where " a question of fact arises ". See: Ray v Perrett [2007] FCA 1672. " While fraud generally is some ground for giving the parties or one of the parties a right to trial by jury, this fact is not conclusive ": Stapleton v Brady [1952] QWN 15 per Clyne J.
Case: Re Shields; Ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308
Outcome: followed
Moreover, and although there may be trial by jury in bankruptcy proceedings, it is the exception rather than the rule: Re Shields; Ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308. Einfeld J there observed (at 309): ... in bankruptcy proceedings jury trials will be the exception rather than the rule. ... A jury trial involves a great deal of expense and time both to the parties and the Court, as well as considerable inconvenience to the members of the community who constitute the jury. The use of juries in civil matters has steadily declined during this century and is now largely reserved for those areas where serious imputations are to be made against the character of a party. Like divorce, bankruptcy is no longer regarded as such a matter. In the absence of some very compelling special circumstance, the intention of Parliament is clearly that bankruptcy proceedings be heard by a judge. See also: Re Allen (1905) 5 SR (NSW) 55 at 57; Draper v Official Receiver [2004] FCA 1379 at [5] per Mansfield J. Some " special reason " must be shown for a departure from the normal mode of trial: Commonwealth Bank of Australia v Rigg [2001] FCA 590. Section 30(3) only applies where " a question of fact arises ". See: Ray v Perrett [2007] FCA 1672. " While fraud generally is some ground for giving the parties or one of the parties a right to trial by jury, this fact is not conclusive ": Stapleton v Brady [1952] QWN 15 per Clyne J.
Case: Salfinger v Niugini Mining (Australia) Pty Ltd (No 4) [2007] FCA 1594
Outcome: followed
Although this Court has expressed greater reluctance to order indemnity costs against an unrepresented litigant, it may do so: Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537 at [20] and [26] per Kenny J. In Salfinger v Niugini Mining (Australia) Pty Ltd (No 4) [2007] FCA 1594 Heerey J relevantly observed: [7] In Spalla v St George Motor Finance Ltd [2006] FCA 1537 Kenny J at [26] recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians [2002] FCAFC 51 and Ogawa v The University of Melbourne (No 2) [2004] FCA 1275. Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person's ability to get redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the Court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion (at [28]) and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds. see Bhagat v Royal &amp; Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ. ... See also: Vink v Tuckwell (No 3) [2008] VSC 316 at [103] [108] per Robson J.
Case: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 , 194 ALR 749
Outcome: considered
Albeit in a different context, applications made pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) may allege in an appropriate case that statutory powers have been exercised for an " improper purpose ". Indeed, the 1977 Act expressly contemplates that a ground upon which an administrative decision may be sought to be impugned is " bad faith ": s 5(2)(d). It may be considered that an allegation of " bad faith " is a more serious allegation than one of pursuing an " improper purpose ". Both are serious allegations. But such applications have long been heard and determined by Judges of this Court without a jury. Although it must readily be recognised that an allegation of " bad faith " is a " very serious allegation " to make, it is an allegation that has in fact been made in other proceedings against both a Deputy Commissioner of Taxation (eg, Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225) and against others exercising statutory power (eg, SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397 at [19] ; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 , 194 ALR 749). " Fraud " or " equitable fraud " is likewise a very serious allegation. Public confidence in the administration of justice by this Court, it is considered, has only been enhanced by this Court entertaining and resolving such " serious " allegations. Such allegations have been made in the past and presumably will continue to be made. And when made they will be resolved. It may be that a case will arise where a Judge of this Court orders a jury. But this proceeding is not that case.
Case: SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397
Outcome: considered
Albeit in a different context, applications made pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) may allege in an appropriate case that statutory powers have been exercised for an " improper purpose ". Indeed, the 1977 Act expressly contemplates that a ground upon which an administrative decision may be sought to be impugned is " bad faith ": s 5(2)(d). It may be considered that an allegation of " bad faith " is a more serious allegation than one of pursuing an " improper purpose ". Both are serious allegations. But such applications have long been heard and determined by Judges of this Court without a jury. Although it must readily be recognised that an allegation of " bad faith " is a " very serious allegation " to make, it is an allegation that has in fact been made in other proceedings against both a Deputy Commissioner of Taxation (eg, Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225) and against others exercising statutory power (eg, SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397 at [19] ; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 , 194 ALR 749). " Fraud " or " equitable fraud " is likewise a very serious allegation. Public confidence in the administration of justice by this Court, it is considered, has only been enhanced by this Court entertaining and resolving such " serious " allegations. Such allegations have been made in the past and presumably will continue to be made. And when made they will be resolved. It may be that a case will arise where a Judge of this Court orders a jury. But this proceeding is not that case.
Case: Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537
Outcome: followed
Although this Court has expressed greater reluctance to order indemnity costs against an unrepresented litigant, it may do so: Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537 at [20] and [26] per Kenny J. In Salfinger v Niugini Mining (Australia) Pty Ltd (No 4) [2007] FCA 1594 Heerey J relevantly observed: [7] In Spalla v St George Motor Finance Ltd [2006] FCA 1537 Kenny J at [26] recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians [2002] FCAFC 51 and Ogawa v The University of Melbourne (No 2) [2004] FCA 1275. Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person's ability to get redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the Court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion (at [28]) and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds. see Bhagat v Royal &amp; Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ. ... See also: Vink v Tuckwell (No 3) [2008] VSC 316 at [103] [108] per Robson J.
Case: Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226
Outcome: followed
Confined in this way, it has been said of s 80 that "[w] hat might have been thought to be a great constitutional guarantee has been discovered to be a mere procedural provision ": Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226 at 244 per Barwick CJ. Early judgments of the High Court were strongly critical of a narrow construction of s 80: eg, R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10 ; (1937) 59 CLR 556 at 581 2 per Dixon and Evatt JJ (dissenting). Writing extra-judicially, Justice Kirby has commented that the " significance of the Australian guarantee has been diminished by the narrow interpretation applied to its language ": ' The High Court of Australia and the Supreme Court of the United States -- A Centenary Reflection ' (2003) 31 UWAL Rev 171 at 180. See also: Re Aird; Ex parte Alpert [2004] HCA 44 at [112] , [2004] HCA 44 ; 220 CLR 308 at 343 4 per Kirby J.
Case: Stapleton v Brady [1952] QWN 15
Outcome: followed
Moreover, and although there may be trial by jury in bankruptcy proceedings, it is the exception rather than the rule: Re Shields; Ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308. Einfeld J there observed (at 309): ... in bankruptcy proceedings jury trials will be the exception rather than the rule. ... A jury trial involves a great deal of expense and time both to the parties and the Court, as well as considerable inconvenience to the members of the community who constitute the jury. The use of juries in civil matters has steadily declined during this century and is now largely reserved for those areas where serious imputations are to be made against the character of a party. Like divorce, bankruptcy is no longer regarded as such a matter. In the absence of some very compelling special circumstance, the intention of Parliament is clearly that bankruptcy proceedings be heard by a judge. See also: Re Allen (1905) 5 SR (NSW) 55 at 57; Draper v Official Receiver [2004] FCA 1379 at [5] per Mansfield J. Some " special reason " must be shown for a departure from the normal mode of trial: Commonwealth Bank of Australia v Rigg [2001] FCA 590. Section 30(3) only applies where " a question of fact arises ". See: Ray v Perrett [2007] FCA 1672. " While fraud generally is some ground for giving the parties or one of the parties a right to trial by jury, this fact is not conclusive ": Stapleton v Brady [1952] QWN 15 per Clyne J.
Case: Taylor v Deputy Commissioner of Taxation [1999] FCA 195 , 99 ATC 4268
Outcome: followed
Each application for a trial by jury must necessarily depend on the facts upon which such an order is sought and the individual judgment of the legal practitioners making the application. Subject to that qualification, the decision of the Full Court in Taylor v Deputy Commissioner of Taxation [1999] FCA 195 , 99 ATC 4268 provides some limited assistance. The Deputy Commissioner had there obtained judgment, a bankruptcy notice and a sequestration order. The trial judge had declined to appoint a jury. As in the present case, Constitutional rights were there also sought to be invoked; unlike the present case, the scope for disputed facts was apparently more confined. Cooper, Kiefel and Tamberlin JJ there concluded: [40] The appellants advance an additional argument on the appeal as to their entitlement to have a jury trial on the hearing of the petitions. They submit that the power to make a sequestration order is a power to acquire property of a person which falls within s51(xxxi) of the Constitution . The constitutional guarantee that the power may only be exercised upon the provision of just terms to the person from whom the property is acquired gives rise, they submit, to the jury issue of whether the taking of their property is upon just terms. The submission misunderstands the administration of the property of a bankrupt for the benefit of the bankrupt's creditors. There is no acquisition of property within the operation of s51(xxxi) of the Constitution when the property of a bankrupt is sequestrated and vested in a trustee in bankruptcy. S51(xxxi) has no bearing on the matter: Re Dohnert Muller Schmidt and Co; Attorney-General of the Commonwealth v Schmidt [1961] HCA 21 ; (1961) 105 CLR 361 at 372. [41] The appellants' submission as to the right to trial by jury on a trial on indictment of an offence against a law of the Commonwealth (s80 of the Constitution ) and to the requirements of full faith and credit being given to the laws of every State (s118 of the Constitution ) do not advance their case to a right to a trial by jury on the hearing of the bankruptcy petitions. [42] In these circumstances there were no issues of fact in dispute on the hearing of the bankruptcy petitions or on the hearing of the review of the District Registrar's decisions, which were capable of, or appropriate for, resolution by the verdict of a jury. ... As in the present case, it is not considered that any such questions of fact which may require resolution are appropriate for resolution by the verdict of a jury. 47 A submission that public confidence in this Court would be affected if a jury were not appointed in this case is, with respect, without substance. 48 The manner in which provisions such as ss 39 and 40 of the Federal Court of Australia Act have been interpreted and applied was, presumably, the reason why the Applicant placed greater -- if not exclusive -- reliance upon ss 30(3) and 31 of the Bankruptcy Act .