mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Tyndall (1977) 17 ALR 182
Outcome: referred to
importantly, I consider his initial imprisonment in Australia, and then his forced residence in the Territory, are not consistent with the policy of the Bankruptcy Act. Its policy in relation to such matters is indicated by s 78 (referred to above), and the learned judge found that Mr Sim's desire to return to Indonesia was not with a view to avoiding payment of his debts but for legitimate purposes. See also s 272 of the Bankruptcy Act. I note that, if a sequestration order is made, a bankrupt must then surrender his or her passport to the trustee: s 77. Permission to travel overseas from the trustee then becomes necessary. A decision of the trustee on such a matter is reviewable. In Malouf v Prentice [1998] FCA 1427 Sackville J said the withholding of permission to travel for apparently legitimate purposes should not be lightly exercised. In Re Tyndall (1977) 17 ALR 182, Deane J at 187 and 190 referred to the 'fundamental importance' of such applications for permission to travel overseas to pursue legitimate commercial or personal desires; and also in some cases to the financial rewards to be derived by the bankrupt's estate.
Case: Re Felix Resources Pty Ltd [2009] FCA 1182
Outcome: cited
Honour's reasons for making those orders are to be found in the reasons for judgment which he gave that day: see Re Felix Resources Pty Ltd [2009] FCA 1182. These reasons for judgment should be read in conjunction with those given by his Honour on 28 September 2009. The proposed scheme is more particularly described in his Honour's reasons for judgement. I do not, therefore, take time to recite again the nature of the scheme as proposed. Since 28 September 2009 there has been a further development. The explanatory memorandum, to which I have already referred, has been sent. Section 412 of the Corporations Act requires, inter alia, that the explanatory memorandum sent to shareholders contain: Any other information that is material to the making of a decision by a member whether or not to agree to the arrangement.
Case: Re Coates Hire (No 2) [2007] FCA 2105
Outcome: cited
Resources apprehends, in light of a further development, that it is appropriate to seek court approval for the sending of a supplementary memorandum. There is no doubt that it is a prudent and appropriate course for Felix Resources to have taken to seek such approval, note the criticism voiced in Re Coates Hire (No 2) [2007] FCA 2105 at [7] in respect of a corporation that sent such material without first obtaining court approval. The original explanatory memorandum disclosed that Felix Resources would be declaring a second 50 cent dividend. What that memorandum did not disclose was the timing of the dividend and the circumstances relating to the way in which the company would pay that dividend. As it transpires, the directors of Felix Resources propose to fund that dividend with the use of funds borrowed from particular shareholders. It is that development and that proposal which has provided the occasion for the making of this application. On 10 November 2009, the board of directors of Felix Resources declared a fully franked 50 cent dividend payable to each share in the company. That dividend is payable on 9 December 2009. It is on the day after members met to vote on the scheme and the day before the hearing of the application for court approval. The material before me discloses, candidly, that Felix Resources does not presently have sufficient cash resources to meet the second 50 cent dividend payment on 9 December 2009 while at the same time complying with financing arrangements which it has with the Commonwealth Bank of Australia. It is against that background that Felix Resources proposes to borrow the full amount needed for the payment of the second dividend from its three largest shareholders. It has entered into loan agreements with each of those shareholders to that end. Pursuant to cl 4.3 of an implementation agreement in cl 6 of the deed poll Yanzhou Coal Mining Company Limited (Yanzhou), which I note is represented today by leave by its solicitors, and its subsidiary, Austar, have agreed to put in a place a letter of credit from the Bank of China's Sydney branch which will guarantee repayment of amounts outstanding under the shareholder loans to which I have referred.
Case: Allstate Life Insurance Co v ANZ Banking Group (No 15) (unreported, Lindgren J, 22 August 1995)
Outcome: cited
This passage and the principle which underlies it were referred to with approval by Lindgren J in Allstate Life Insurance Co v ANZ Banking Group Limited (No 15) (unreported, Lindgren J, 22 August 1995) at pages 5-6.
Case: Australian Broadcasting Commission v Parish (1981) 48 FLR 292
Outcome: cited
The Court has power under O 15 r 8 of the Federal Court Rules to order particular discovery where there is a defect in compliance with an earlier order. The power conferred by O 15 r 8 is discretionary; see Australian Broadcasting Commission v Parish (1981) 48 FLR 292 at 295. 7 The orders which are sought go beyond the power conferred by O 15 r 8. However, it seems to me that I have power to make the orders under s 23 of the Federal Court of Australia Act 1976 (Cth) if I consider it to be appropriate.
Case: BT Australasia Pty Limited v State of New South Wales (unreported, Sackville J, 9 April 1998)
Outcome: referred to
In BT Australasia Pty Limited v State of New South Wales (unreported, Sackville J, 9 April 1998), his Honour ordered Telstra to discover emails and attachments from back-up computer tapes for certain identified persons. His Honour also directed Telstra to file a report setting out the steps taken to comply with that order. 11 In deciding to make orders for additional discovery, his Honour was satisfied that Telstra had failed to fully comply with its discovery obligations. His Honour was also satisfied that the tapes contained much material that was relevant to the issues in the proceedings.
Case: Molnlycke AB v Procter &amp; Gamble Limited (No 3) [1990] RPC 498
Outcome: followed
In my view, the exercise of the power is informed by similar considerations to those which underlie the power conferred by O 15 r 8. Thus, the Court may refuse to make an order if it would be unduly oppressive to the other party. As Mummery J said in Molnlycke AB v Procter &amp; Gamble Limited (No 3) [1990] RPC 498 at 503: The Court takes account of such considerations as the value of the discovery to the person seeking it and the burden imposed on the party giving it, with a view to restricting the volume of documents and the labour and expense involved to that which is necessary for fairly disposing of the issues in the case.
Case: NT Power Generation Pty Limited v Power &amp; Water Authority [1999] FCA 1669
Outcome: followed
In NT Power Generation Pty Limited v Power &amp; Water Authority [1999] FCA 1669 , Mansfield J declined to limit discovery to email communications which existed in hard copy form at the time of the order. His Honour indicated at [2] that it would impose a very substantial burden on the respondents to restore and examine the back up tapes. 13 However, he was not satisfied that the material which might be recoverable electronically was sufficiently insubstantial to warrant the order sought by the Respondents limiting discovery to hard copy documents. His Honour said at [17]: As I have indicated, I am not persuaded that the e-mail communications retained only electronically are unlikely to contain any material communications which are discoverable in these proceedings. I have used the word "material" to indicate communications beyond those that are merely formal or insignificant. The applicant is entitled to discovery of them. I am not persuaded, in the interests of justice, that I should excuse the Respondents from giving discovery of that material notwithstanding the time, expense, and effort involved in doing so. 14 The evidence establishes that, as one would expect, both of the respondents used email at the relevant times. Nevertheless, very few emails have been discovered and those which have been discovered fall outside the critical time periods in the proceedings. 15 Most importantly, Quadrant has not discovered any emails from Mr Hadley or Mr Penklis for the whole of the year 2000 which is the most important year in the case. Nor has Quadrant discovered any emails from Mr Hadley or Mr Penklis for the first half of 2001 which is also an important time period in the proceedings. Moreover, Quadrant was able in February 2004 to generate electronic diaries for Mr Hadley and Mr Penklis from its computer systems. 16 Those diaries contain references to a number of important meetings but there are some significant gaps. Both diaries contain references to the meeting of 16 August 2000 between Mr Hadley, Mr Blom and Mr Seward. There is no reference to a meeting apparently planned on 17 or 18 September 2000 between Quadrant and Ms Addison nor is there any reference to the meeting which took place in Dallas on 25 September 2000.
Case: Internet Centre of Excellence 2000 Pty Ltd v Computer World (Victoria) Pty Ltd [2004] FMCA 765
Outcome: affirmed
On 5 November 2004, in an action for breach of trust, and misleading or deceptive conduct, McInnis FM found for Internet Centre of Excellence 2000 Pty Ltd ("ICE 2000") [2004] FMCA 765. ICE 2000 was the applicant below and is the respondent to this appeal. His Honour ordered Computer World (Victoria) Pty Ltd ("Computer World"), the appellant, to pay an amount of just over $62,000 by way of damages, together with costs fixed in the sum of $28,000. He dismissed a cross-claim filed on behalf of Computer World. 2 The trial occupied several days. It was conducted without pleadings. The facts were essentially quite simple. ICE 2000 conducted a retail computer sales outlet on behalf of the Computer World until approximately April 2002. Computer World permitted ICE 2000 to use its signage, and supplied it with stock. ICE 2000 would account to Computer World in relation to sales of stock, and receive commissions from it. 3 As part of the arrangement between the parties, ICE 2000 deposited an amount of $50,000 with Computer World pursuant to what was described as "a credit facility", dated 6 December 2001. It is unnecessary to set out the terms of that document in their entirety. However, the relevant parts are as follows: "Re credit facility, We, the undersigned, Computer World (Vic) Pty Ltd, agree to grant you credit facility for the purchase of computers and associated goods ("goods") on the following terms and conditions: 1. That you deposit an amount of $50,000 ("security amount") (the receipt of which is acknowledged) into a separate interest bearing account to be opened in the name of Computer World (Vic) Pty Ltd and titled Internet Centre of Excellence 2000 Pty Ltd Trust Account. 2. The security amount can only be drawn upon by Computer World (Vic) Pty Ltd in the event the Internet Centre of Excellence 2000 Pty Ltd fails to pay for goods purchased within the trading terms."
Case: CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172
Outcome: cited
Computer World relies upon s 27 of the Federal Court Act 1976 (Cth) as the basis for the receipt by this Court of this further evidence. Pursuant to that section, the power of the Court to receive further evidence on appeal is discretionary. The discretion is a wide one, but must be exercised judicially: CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 185. Factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion.
Case: Barclays Bank Ltd v Quistclose Investments Ltd [1968] UKHL 4 ; [1970] AC 567
Outcome: referred to
This submission, despite its apparent force, nonetheless faces several difficulties. Even if it be assumed that Mr Hasturk's evidence may have led his Honour to accept Mr Yuvarajah's account of what had occurred, the legal consequences of accepting that evidence would still be problematic. On one view of Mr Hasturk's evidence, the $50,000 was paid to be held for a special purpose. It would therefore fall within the principles developed by the House of Lords in Barclays Bank Ltd v Quistclose Investments Ltd [1968] UKHL 4 ; [1970] AC 567 at 580-82 per Lord Wilberforce, and in Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164. Under those principles, the $50,000 would be trust money, as his Honour in fact found.
Case: Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164
Outcome: referred to
This submission, despite its apparent force, nonetheless faces several difficulties. Even if it be assumed that Mr Hasturk's evidence may have led his Honour to accept Mr Yuvarajah's account of what had occurred, the legal consequences of accepting that evidence would still be problematic. On one view of Mr Hasturk's evidence, the $50,000 was paid to be held for a special purpose. It would therefore fall within the principles developed by the House of Lords in Barclays Bank Ltd v Quistclose Investments Ltd [1968] UKHL 4 ; [1970] AC 567 at 580-82 per Lord Wilberforce, and in Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164. Under those principles, the $50,000 would be trust money, as his Honour in fact found.
Case: Hoyts v Spencer [1919] HCA 64 ; (1919) 27 CLR 133
Outcome: referred to
Turning back to the present case, it is far from clear just how Computer World put its case at first instance. On one view, it submitted that the credit facility was nothing more than an acknowledgement of a loan, akin to a receipt. Unfortunately for Computer World, the credit facility simply does not read that way. Indeed, Mr Hasturk regarded it as a contract, albeit "a formality". Nor does the credit facility read as though it contains the terms of a contract that is intended to be partly written and partly oral. Even if it did, the supposed oral agreement between Mr Yuvarajah and Mr Hasturk would directly contradict the written term in paragraph one of the document that the security amount be deposited on trust for ICE 2000. I am unable to accept Computer World's submission that, in some way, it impliedly sought rectification of the written agreement before McInnis FM. Mr Yuvarajah's reference to a "mistake" does not, in context, suggest that any such application was being made. In accordance with the principles so clearly enunciated in Equuscorp (and also stated in earlier cases such as Hoyts v Spencer [1919] HCA 64 ; (1919) 27 CLR 133 and BP Refinery v Hastings [1977] HCA 40 ; (1977) 180 CLR 266), contradiction of a written term, absent rectification, cannot be permitted.
Case: BP Refinery v Hastings [1977] HCA 40 ; (1977) 180 CLR 266
Outcome: referred to
Turning back to the present case, it is far from clear just how Computer World put its case at first instance. On one view, it submitted that the credit facility was nothing more than an acknowledgement of a loan, akin to a receipt. Unfortunately for Computer World, the credit facility simply does not read that way. Indeed, Mr Hasturk regarded it as a contract, albeit "a formality". Nor does the credit facility read as though it contains the terms of a contract that is intended to be partly written and partly oral. Even if it did, the supposed oral agreement between Mr Yuvarajah and Mr Hasturk would directly contradict the written term in paragraph one of the document that the security amount be deposited on trust for ICE 2000. I am unable to accept Computer World's submission that, in some way, it impliedly sought rectification of the written agreement before McInnis FM. Mr Yuvarajah's reference to a "mistake" does not, in context, suggest that any such application was being made. In accordance with the principles so clearly enunciated in Equuscorp (and also stated in earlier cases such as Hoyts v Spencer [1919] HCA 64 ; (1919) 27 CLR 133 and BP Refinery v Hastings [1977] HCA 40 ; (1977) 180 CLR 266), contradiction of a written term, absent rectification, cannot be permitted.
Case: D&eacute;cor Corp v Dart Industries Inc (1991) 3 FCR 397
Outcome: referred to
I would refuse to grant leave in respect of those grounds which require leave. The test for whether leave to appeal is granted or refused is well established: D&eacute;cor Corp v Dart Industries Inc (1991) 3 FCR 397 at [9]. I am of the opinion that none of them has any reasonable prospects of success. The Federal Magistrate's decision is not attended by sufficient doubt to warrant it being reconsidered by the Federal Court. No substantial injustice would result from my refusal to grant leave. It is not "expedient in the interests of justice" to allow these new grounds: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 at [6] .
Case: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348
Outcome: referred to
I would refuse to grant leave in respect of those grounds which require leave. The test for whether leave to appeal is granted or refused is well established: D&eacute;cor Corp v Dart Industries Inc (1991) 3 FCR 397 at [9]. I am of the opinion that none of them has any reasonable prospects of success. The Federal Magistrate's decision is not attended by sufficient doubt to warrant it being reconsidered by the Federal Court. No substantial injustice would result from my refusal to grant leave. It is not "expedient in the interests of justice" to allow these new grounds: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 at [6] .
Case: Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001 [2001] HCA 17 ; 205 CLR 507
Outcome: referred to
The first and last of these require leave to be raised as they are not raised below. Again they are not particularised and the appellant did not advance any before me. I am satisfied that the Tribunal fully considered the appellant's claims and the material before it. I find that they are without merit. As to bias the applicant has not met the requirement that such an allegation be firmly and distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001 [2001] HCA 17 ; 205 CLR 507. No jurisdictional error has been made out. 17 In the fourth ground the appellant alleges that the Tribunal's decision was not based on rational and logical foundation. The Federal Magistrate correctly found that the Tribunal's decision was based on the paucity of detail and information, such that the Tribunal was unable to be satisfied that the appellant has a well-founded fear of persecution within the meaning of the Convention. This ground is not made out. 18 Lastly, the appellant contends that the Federal Magistrate did not fully consider the information provided. Again no particulars are provided. A reading of his Honour's reasons dispels such a ground. The appellant appeared before the Court assisted by an interpreter in the Mandarin language. He was invited to make oral submissions and did so speaking from a prepared document. These submissions were but a repetition, without particulars, of the grounds of appeal. There is nothing in the material before me to support such a ground.
Case: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365
Outcome: cited
The Tribunal, in my opinion, complied with its statutory obligations under the Act to invite the appellant to a hearing. When the appellant failed to appear at the hearing the Tribunal decided to exercise the power under s 426A(1) of the Act and proceeded to make a decision without taking any further action to allow the appellant to appear before it. No error resulted in the Tribunal proceeding in this manner: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [14] - [15] ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at [135] per Allsop J.
Case: SZECI v Minister for Immigration and Multicultural Affairs [2005] FCA 1201
Outcome: cited
The Federal Magistrate considered the second ground outlined by the appellant and held that it was not information but rather the inability of the Tribunal to be satisfied that the applicant fulfilled the criteria for grant of a protection visa which was the basis of the decision of the Tribunal. The Tribunal did not rely on "information" for the purposes of s 424A: SZECI v Minister for Immigration and Multicultural Affairs [2005] FCA 1201 at [24] . Accordingly, both grounds for review were rejected by the Federal Magistrate. 10 The notice of appeal raises the following unparticularised grounds: 2. I was not given an opportunity to explain my case. 3. The Tribunal failed to consider my claims. The Tribunal had bias against me and did not consider my application according the s. 91R of the Migration Act 1958 . 4. The Tribunal's satisfaction that I am not a refugee was not based on a rational and logical foundation for this belief. 5. Federal Magistrates court did not fully consider the information provided and refused my application. (Transcribed from the original without alteration). 11 There are before me four grounds of appeal. I will adopt the paragraph numbering in the Notice of Appeal.
Case: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407
Outcome: referred to
The Tribunal, in my opinion, complied with its statutory obligations under the Act to invite the appellant to a hearing. When the appellant failed to appear at the hearing the Tribunal decided to exercise the power under s 426A(1) of the Act and proceeded to make a decision without taking any further action to allow the appellant to appear before it. No error resulted in the Tribunal proceeding in this manner: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [14] - [15] ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at [135] per Allsop J.
Case: Brownley v Western Australia (No 2) [1999] FCA 1431 ; (1999) 95 FCR 172
Outcome: considered
It is not apparent that the Full Court's judgment in the Lardil Peoples' case was drawn to the attention of either Marshall J or the Full Court in Murray's case. That does not mean, in my opinion, that the two Full Court decisions are irreconcilable. A proceeding under the AD(JR) Act is not a "proceeding" for the purposes of s 85A of the Native Title Act . In Brownley v Western Australia (No 2) [1999] FCA 1431 ; (1999) 95 FCR 172 , Lee J had reached just such a conclusion (at para 21). More recently, in O'Mara v Minister for Lands (2008) 167 FCR 145 , Reeves J reached a like conclusion. That does not mean that it is impermissible, in relation to the exercise of the discretion conferred by s 43 of the Federal Court of Australia Act , to take into account the "spirit" of s 85A. That is what I propose to do and it seems to me that, sitting in the original jurisdiction, I am in any event bound by Murray's case so to do. Taking that consideration into account is influential but certainly not determinative in this particular case.