mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: referred to
J in Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 said, at [67]: ... a finding as to whether the prosecutor should be believed in his claim a finding on credibility ... [is] the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
Case: TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 829
Outcome: cited
I find that the decision was perverse to such an extent as to exhibit a serious failure in the decision making process, with the consequences that the decision was so unreasonable that it was beyond power: see TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 829 at 861.
Case: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: referred to
J, as he then was, said in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 , at 77: There is no error of law simply in making a wrong finding of fact. A finding, which purports to be a finding of fact, is not rendered immune from judicial examination, if it is not made in good faith, but for an ulterior purpose: in this case, in the light of the remittal to the Tribunal by the High Court, to "get around" the factual findings that had earlier been made, in the enquiry as to whether the appellants were entitled to the issue of protection visas. Whether the decision of the third Tribunal be regarded as unreasonable in the Wednesbury corporation sense, or on the basis that the decision was not made in good faith, or on the basis that there was a lack of impartiality in the fact-finding process, the decision of the third Tribunal has to be set aside.
Case: Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935 
Outcome: related
On 15 June 2007 I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Corporations Act 2001 (Cth) (the Act) to midnight 23 July 2007 in relation to a number of companies, being the members of what is known as the Estate Property Group (the Group), together with some ancillary orders on the application of the administrators of the companies in the Group (the Administrators) ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935). In a related application concerning Australian Capital Reserve Limited (Administrators Appointed) (ACR), on 12 June 2007 orders were made extending the "decision period" provided for by s 441A(1)(b) of the Act to the last day of the convening period for a number of companies in the Group ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 13 July 2007 the convening period for the second meeting of creditors of those companies was further extended to midnight on 31 August 2007 utilising the provisions of s 447A(1) of the Act to achieve that result and certain ancillary orders were made. I indicated then that I would give reasons for those orders in due course. These are those reasons. These reasons should be read with those in Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328 to be delivered contemporaneously. The background to these reasons is set out in the various judgments to which I have referred and need not be repeated.
Case: Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028 
Outcome: related
On 15 June 2007 I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Corporations Act 2001 (Cth) (the Act) to midnight 23 July 2007 in relation to a number of companies, being the members of what is known as the Estate Property Group (the Group), together with some ancillary orders on the application of the administrators of the companies in the Group (the Administrators) ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935). In a related application concerning Australian Capital Reserve Limited (Administrators Appointed) (ACR), on 12 June 2007 orders were made extending the "decision period" provided for by s 441A(1)(b) of the Act to the last day of the convening period for a number of companies in the Group ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 13 July 2007 the convening period for the second meeting of creditors of those companies was further extended to midnight on 31 August 2007 utilising the provisions of s 447A(1) of the Act to achieve that result and certain ancillary orders were made. I indicated then that I would give reasons for those orders in due course. These are those reasons. These reasons should be read with those in Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328 to be delivered contemporaneously. The background to these reasons is set out in the various judgments to which I have referred and need not be repeated.
Case: Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328
Outcome: related
On 15 June 2007 I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Corporations Act 2001 (Cth) (the Act) to midnight 23 July 2007 in relation to a number of companies, being the members of what is known as the Estate Property Group (the Group), together with some ancillary orders on the application of the administrators of the companies in the Group (the Administrators) ( Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935). In a related application concerning Australian Capital Reserve Limited (Administrators Appointed) (ACR), on 12 June 2007 orders were made extending the "decision period" provided for by s 441A(1)(b) of the Act to the last day of the convening period for a number of companies in the Group ( Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028). On 13 July 2007 the convening period for the second meeting of creditors of those companies was further extended to midnight on 31 August 2007 utilising the provisions of s 447A(1) of the Act to achieve that result and certain ancillary orders were made. I indicated then that I would give reasons for those orders in due course. These are those reasons. These reasons should be read with those in Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328 to be delivered contemporaneously. The background to these reasons is set out in the various judgments to which I have referred and need not be repeated.
Case: Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey [2006] FCA 366
Outcome: cited
On 30 March 2006 Siopis J made interim orders restraining the defendants from removing any of their property from Australia or from otherwise dealing with it except to the extent set out in the order. He also directed the surrender of their passports. His Honour published his reasons for those orders on 5 April 2006 Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey [2006] FCA 366. 16 On 7 April 2006 I made orders extending the operation of the interim injunctions granted by Siopis J (subject to some undisputed variations) until 5pm on 12 April 2006 which was the date set down for the hearing of the substantive application. Following the hearing of the substantive application those orders were further extended to 5pm on Thursday 20 April 2006 subject to further agreed variations. Judgment on the substantive application was reserved to 2.15pm on Thursday 20 April 2006. 17 There was an application made on behalf of the second defendant for an order setting aside the ex parte orders made by Siopis J on the basis that there had not been full disclosure by ASIC of relevant evidence to the Court. The second defendant submitted that ASIC's evidence predominately related to transactions involving other defendants which were not relevant to the second. I am not satisfied that any material non disclosure is shown. In any event the interim freezing orders lapse today.
Case: ASIC v Mauer-Swisse Securities Ltd (2002) 20 ACLC 1530
Outcome: cited
There is a variety of ways in which the interests of persons, to whom liabilities may be owed, can be protected by orders made under the section. The nature of the protection can vary according to the nature of the risks assessed. As Palmer J said in ASIC v Mauer-Swisse Securities Ltd (2002) 20 ACLC 1530 at [37]: '... there may be evidence to suggest that fraud has been perpetrated on a large scale and that many of the victims have no or little information about the extent of the fraud, no or little means for their own investigations, and no or little resources to prosecute their own claims. In such a case, the interests of such persons are protected, within the contemplation of s 1323, by enabling ASIC to conduct an investigation for the purpose of identifying the wrongdoers and exposing them not only to penalties under the Corporations Act and other legislation, but also to claims for compensation from the victims themselves.' `
Case: CAC v Lone Star Exploration NL (1988) 14 ACLR 499
Outcome: cited
The orders that can be made under the section are directed, inter alia, to the preservation of assets against which recovery may be sought in the event that liability to an 'aggrieved person' is established on the part of a 'relevant person'. The orders are made in circumstances where 'an investigation is being carried out', 'a prosecution has been begun' or 'a civil proceeding has been begun'. That is to say the orders can be made before liability is established and indeed before the evidence necessary to establish liability has been collected. While an application under the section is not interlocutory in an existing criminal or civil proceeding, it is interlocutory in a wider sense. It preserves the status quo and the assets of the relevant person pending the outcome of the investigation, prosecution or civil proceedings which are on foot CAC v Lone Star Exploration NL( No 2) (1988) 14 ACLR 499 at 504. At the stage an order is sought the Court may not be in a position to identify with precision any particular liability owed by the person the subject of the proposed order. This consideration applies to final orders made under the section as well as to interim orders for which it expressly provides in s 1323(3). The final orders made under the section are necessarily of a temporary or holding character rather than finally disposing of the rights and liabilities of the relevant persons affected by them.
Case: Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 7 ACLC 467
Outcome: cited
The circumstances in which the Court may make orders under s 1323(1) are wide as indicated by the words 'necessary or desirable ... for the purpose of protecting the interests of a person ...'. There is an element of risk assessment and risk management in the judgment the Court is called on to make. It follows, and has been accepted, that there is no requirement on the part of ASIC to demonstrate a prima facie case of liability on the part of the relevant person or that the person's assets have been or are about to be dissipated Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 7 ACLC 467 at 476 (Powell J); Australian Securities and Investment Commission v Adler (2001) 38 ACSR 266 at [7] (Santow J).
Case: Australian Securities and Investments Commission v Adler (2001) 38 ACSR 266
Outcome: cited
The circumstances in which the Court may make orders under s 1323(1) are wide as indicated by the words 'necessary or desirable ... for the purpose of protecting the interests of a person ...'. There is an element of risk assessment and risk management in the judgment the Court is called on to make. It follows, and has been accepted, that there is no requirement on the part of ASIC to demonstrate a prima facie case of liability on the part of the relevant person or that the person's assets have been or are about to be dissipated Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 7 ACLC 467 at 476 (Powell J); Australian Securities and Investment Commission v Adler (2001) 38 ACSR 266 at [7] (Santow J).
Case: Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488
Outcome: cited
Mansfield J reached a similar conclusion in Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488. In that case, the individual in question was one of the directors of the company managing the scheme. His Honour found that the person in question formulated and directed the scheme, and was actively involved in its day to day operations as the directing mind and will of the company managing the scheme. Accordingly, he was operating the scheme in contravention of s 601EB(5). In making these findings, Mansfield J approved the passage in Pegasus to which I have referred. 74 In ASIC v Takaran Pty Ltd (No 2) (2003) 194 ALR 743 at 747-748, at [15], Barrett J made the following observation, with which I agree: "The fact that a scheme is being operated by its existing operators in contravention of statute activates a public interest in favour of not only its being wound up under s 601EE ( Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488) but also 'ensuring the transparency of the winding up process and the safeguarding of the rights of the contributories' by committing the winding up to an independent party ( Bells Securities Pty Ltd v LPG Mourant [2002] QSC 156 ; BC200202989 per Wilson J; see also Australian Securities and Investments Commission v Product Management Group Pty Ltd (2002) 42 ACSR 343)."
Case: Australian Securities and Investments Commission v Giann &amp; Giann Pty Ltd [2005] FCA 81 ; (2005) 141 FCR 278
Outcome: cited
Numerous cases have held that s 911A of the Act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an Australian financial services licence: see Australian Securities and Investments Commission v Giann &amp; Giann Pty Ltd [2005] FCA 81 ; (2005) 141 FCR 278; Australian Securities and Investments Commission v Manito Pty Ltd (2005) 53 ACSR 56; Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68.
Case: Australian Securities and Investments Commission v Manito Pty Ltd (2005) 53 ACSR 56
Outcome: cited
Numerous cases have held that s 911A of the Act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an Australian financial services licence: see Australian Securities and Investments Commission v Giann &amp; Giann Pty Ltd [2005] FCA 81 ; (2005) 141 FCR 278; Australian Securities and Investments Commission v Manito Pty Ltd (2005) 53 ACSR 56; Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68.
Case: Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68
Outcome: cited
Numerous cases have held that s 911A of the Act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an Australian financial services licence: see Australian Securities and Investments Commission v Giann &amp; Giann Pty Ltd [2005] FCA 81 ; (2005) 141 FCR 278; Australian Securities and Investments Commission v Manito Pty Ltd (2005) 53 ACSR 56; Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
In Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564, at 581-582, Mason CJ, Dawson, Toohey and Gaudron JJ said that superior courts have inherent power to grant declaratory relief. Their Honours added that it is a discretionary power which it is neither possible nor desirable to fetter by laying down rules as to the manner of its exercise, although it must be recognised that it is a power confined by the considerations which mark out the boundaries of judicial power. In the same case, Brennan J emphasised that the making of a declaration, and the terms in which it is to be made, are in the court's discretion: at 596.
Case: Australian Softwood Forest Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121
Outcome: cited
Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW ) [1981] HCA 49 ; (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) NSWLR 596 at 603; Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 at [30] - [31] ; and Pegasus at 571. ASIC is charged with the administration and enforcement of the Act , and there will be many cases where it is in the public interest for the courts to make a declaration on ASIC's application that the Act has been contravened in specified respects. The making of such a declaration does not simply record the outcome of enforcement proceedings; it may also be an appropriate way of marking the court's disapproval of the contravening conduct: see Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 80 at 97-99, 106 and 110.
Case: Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596
Outcome: cited
Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW ) [1981] HCA 49 ; (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) NSWLR 596 at 603; Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 at [30] - [31] ; and Pegasus at 571. ASIC is charged with the administration and enforcement of the Act , and there will be many cases where it is in the public interest for the courts to make a declaration on ASIC's application that the Act has been contravened in specified respects. The making of such a declaration does not simply record the outcome of enforcement proceedings; it may also be an appropriate way of marking the court's disapproval of the contravening conduct: see Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 80 at 97-99, 106 and 110.
Case: Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114
Outcome: cited
Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW ) [1981] HCA 49 ; (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) NSWLR 596 at 603; Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 at [30] - [31] ; and Pegasus at 571. ASIC is charged with the administration and enforcement of the Act , and there will be many cases where it is in the public interest for the courts to make a declaration on ASIC's application that the Act has been contravened in specified respects. The making of such a declaration does not simply record the outcome of enforcement proceedings; it may also be an appropriate way of marking the court's disapproval of the contravening conduct: see Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 80 at 97-99, 106 and 110.
Case: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 80
Outcome: cited
Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW ) [1981] HCA 49 ; (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) NSWLR 596 at 603; Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 at [30] - [31] ; and Pegasus at 571. ASIC is charged with the administration and enforcement of the Act , and there will be many cases where it is in the public interest for the courts to make a declaration on ASIC's application that the Act has been contravened in specified respects. The making of such a declaration does not simply record the outcome of enforcement proceedings; it may also be an appropriate way of marking the court's disapproval of the contravening conduct: see Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 80 at 97-99, 106 and 110.
Case: OD Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500
Outcome: cited
Section 1324 permits the Court to grant an injunction "on such terms as the court thinks appropriate". These words echo the concluding words of s 80(1) of the Trade Practices Act 1974 ("TPA") which state that the Court may grant an injunction in such terms as the Court determines to be appropriate. These words were introduced into s 80(1) by a 1983 amendment to the TPA, which, to adapt the language used by French J in OD Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500 at 508, freed the power conferred by s 80 from the previous constraint that the injunction granted under it must restrain a person from engaging in conduct that constitutes or would constitute a contravention of Part IV of Part V of the TPA or one of the species of accessorial participation there listed. 67 French J said that s 80 was a widely drawn remedial provision which was available to restrain conduct which may infringe upon the public interest by contravening the provisions of the TPA in Part IV and Part V. His Honour added at 268: "There is room within the statutory framework and the policy that underlies it for an injunction which is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court. The possibility remains open, by virtue of s 80(3) , that after a suitable period unmarked by further contravention the party restrained may apply to the court to rescind the order. The remedy is flexible and may be applied in service of a variety of functions to support the policy of the Act . This was a proper case for the grant of that relief."