mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: The Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33 ; (1941) 65 CLR 150
Outcome: referred to
applicant then referred to decisions which have considered whether various grounds in s 5 of the ADJR Act embody a "no evidence" or "no probative material" test. In the context of the ground in s 5(1)(a) (a breach of the rules of natural justice occurred in connection with the making of the decision), he referred to Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (" Bond ") at 367 per Deane J and Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 (" Rajamanikkam ") at 232-233 [25]-[29] per Gleeson CJ. In the context of the ground in s 5(1)(f) (the decision involved an error of law), the applicant referred to Bond at 355-358 per Mason CJ; The Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33 ; (1941) 65 CLR 150 at 155 per Starke J, at 157 per McTiernan J, at 160-161 per Williams J; Rajamanikkam at 238-240 [49]-[53] per Gaudron and McHugh JJ. In the context of the ground in s 5(1)(h) (there was no evidence or other material to justify the making of the decision; see also s 5(3)), the applicant referred to Bond at 358 per Mason CJ, at 365 per Brennan J, at 369 per Deane J; Rajamanikkam at 233-234 [30]-[34] per Gleeson CJ, at 238-240 [49]-[53] per Gaudron and McHugh JJ, at 250-261 [96]-[125] per Kirby J.
Case: Undershaft (No 1) Ltd (Formerly CGNU Holdings (Australia) Ltd) v Commissioner of Taxation (2009) 253 ALR 280
Outcome: cited
was debate before me as to the operation of the comity principle in circumstances where a single judge of this Court is called upon to decide an issue previously decided by another single judge of the Court. A judge of this Court should follow the decision of another single judge, unless satisfied that the decision is clearly wrong: Fernando v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1375 at [1] per Finn J; Hicks v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 757 at [75] - [76] per French J. The comity principle in the circumstances I have described was discussed in detail by Lindgren J in Undershaft (No 1) Ltd (Formerly CGNU Holdings (Australia) Ltd) v Commissioner of Taxation (2009) 253 ALR 280, and I refer in particular to his Honour's discussion at 294-295 [68]-[74].
Case: Watt v Australian Crime Commission [2004] FCA 1669
Outcome: discussed
respondents referred to Watt v Australian Crime Commission [2004] FCA 1669 (" Watt "). The applicant in that proceeding sought an interlocutory injunction restraining an examiner from requiring him to answer questions at an examination conducted under the ACC Act which he (the applicant) objected to answering upon the ground that to do so may tend to interfere with the administration of justice by reason of the applicant's involvement in confiscation proceedings in the Supreme Court of the Northern Territory. Mansfield J considered three questions. First, he considered whether, as a matter of law, an examinee may object to answering questions which may tend to incriminate him and which, by reason of him answering them, might have the additional quality of constituting a real or substantial risk of interference with the course of justice. Mansfield J considered that the proposition of law was arguable but not strongly arguable (at [27]). Secondly, Mansfield J considered whether, as a matter of fact, the compulsory interrogation of the applicant under the ACC Act involved a real or substantial risk of interference with the administration of justice in relation to the confiscation proceedings. His Honour found that there was no serious question to be tried in relation to that issue (at [21]). Thirdly, Mansfield J considered the balance of convenience. He decided that it favoured the refusal of an interlocutory injunction. Watt is clearly distinguishable from the circumstances of the applications before me. However, I note Mansfield J's reference to the public interest in the timely progression of examinations under the ACC Act. His Honour, after identifying the particular delay relevant in that case, said (at [25]): "That delay in the Examiner being able to complete the examination, and perhaps to progress it much or at all, in a matter which is of public importance is itself very significant. The nature of the ACC, its functions under the ACC Act, and the nature of the special investigation are sufficient reason to be satisfied of its importance, and of the timely gathering of information." (See also CC v Australian Crime Commission [2005] FCA 754 at [15] ).
Case: World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181
Outcome: cited
is necessary to consider the balance of convenience in relation to the further ground of review. No doubt, the applicant's likelihood of success is relevant to the balance of convenience. However, two important points must not be overlooked. First, leaving aside cases which on their face are obviously strong or obviously weak, it would be dangerous, and probably futile, to attempt too precise an assessment of an applicant's prospects of success. Any assessment is inevitably made on imperfect material and argument. This leads to the second point. It is not appropriate, in effect, to try the proceeding in order to determine an applicant's prospects of success (see Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622-623; World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 186 per Bowen CJ). It was for these reasons, and because I think the balance of convenience clearly favours the refusal of interlocutory relief, that I considered any further answer to the notices to produce was unnecessary in terms of resolving the present applications.
Case: Australian Competition and Consumer Commission v Maritime Union of Australia and Others [2001] FCA 1549 ; (2001) 187 ALR 487 at [68]
Outcome: cited
Under s 102(2)(b) of the FMA a Registrar has the power to make orders 'in relation to substituted service' . The use of the words 'in relation to' provide a much wider power to the Registrar than merely the making of an order for substituted service. In Tooheys Limited and Others v Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602 at 620, Taylor J referred to the expansive meaning incorporated in the words 'relating to' . His Honour said: There can be no doubt that the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used. See also Australian Competition and Consumer Commission v Maritime Union of Australia and Others [2001] FCA 1549 ; (2001) 187 ALR 487 at [68] ; Joye v Beach Petroleum NL and Another (1996) 67 FCR 275.
Case: Bird v Free and Others (1994) 126 ALR 475
Outcome: followed
Section 11 of the FMA has its equivalent in s 20 of the Federal Court of Australia Act 1976 (Cth). In Bird v Free and Others (1994) 126 ALR 475 at 479 Drummond J said of s 20 of the latter Act: The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other judges of the court, as a group.
Case: Cheesman and Others v Waters and Another (1997) 148 ALR 21
Outcome: cited
In making the orders for substituted service upon the applicant, Registrar Segal was exercising the power of the court provided by ss 103 and 102(2)(b) of the FMA. A Registrar of the Federal Magistrates Court has power to make orders pursuant to the FMC Bankruptcy Rules: see Cheesman and Others v Waters and Another (1997) 148 ALR 21. 39 Although the applicant claimed that no direction had been issued authorising a Registrar to exercise the power of the court as prescribed by reg 20.00A(2) of the FMC Rules, a delegation for such purpose has been made pursuant to the Federates Magistrates (Delegations to Registrars) Approval 2006 ('the Delegations') on 23 May 2006. Pursuant to the Delegations each Registrar referred to in Sch 1 thereof is approved to exercise powers under s 102(2)(a) to (i) of the FMA including the powers mentioned in Sch 2 of the FMC Bankruptcy Rules, as prescribed by r 2.02 of those Rules. Registrar Segal is nominated in Sch 1. 40 Pursuant to the Federal Magistrates Court (Bankruptcy) Direction 2006 ('the Bankruptcy Direction') it was directed that the powers referred to in Sch 2 of the FMC Bankruptcy Rules may be exercised by a Registrar. The Delegations thus complete the authority provided to Registrars by Sch 2 of the FMC Bankruptcy Rules.
Case: Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84
Outcome: applied
In Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84 the High Court held that a court created under s 71 of the Constitution may, if so authorised, delegate the exercise of its judicial functions to an officer of the court provided that the exercise of that power is subject to review. Such review must be by way of a hearing de novo by a Justice or Judge of the court in accordance with s 72 of the Constitution (see Mason CJ and Deane J at 95). 20 Pursuant to s 99 of the FMA Registrars of the Federal Magistrates Court may be appointed as officers of the Federal Magistrates Court. Subsection 104(2) of the FMA provides that a party to proceedings in which a Registrar has exercised any of the powers of the Federal Magistrates Court pursuant to subs 102(2) or subs 103(1) of the FMA may apply to the Federal Magistrates Court for review of that exercise of power. Such provisions thereby satisfy the requirements of the delegational functions referred to in Harris v Caladine .
Case: Joye v Beach Petroleum NL and Another (1996) 67 FCR 275
Outcome: cited
Under s 102(2)(b) of the FMA a Registrar has the power to make orders 'in relation to substituted service' . The use of the words 'in relation to' provide a much wider power to the Registrar than merely the making of an order for substituted service. In Tooheys Limited and Others v Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602 at 620, Taylor J referred to the expansive meaning incorporated in the words 'relating to' . His Honour said: There can be no doubt that the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used. See also Australian Competition and Consumer Commission v Maritime Union of Australia and Others [2001] FCA 1549 ; (2001) 187 ALR 487 at [68] ; Joye v Beach Petroleum NL and Another (1996) 67 FCR 275.
Case: Knight v Knight [1971] HCA 21 ; (1971) 122 CLR 114
Outcome: distinguished
The applicant submits that s 8 of the FMA requires that the Federal Magistrates Court consist of a Chief Federal Magistrate and Federal Magistrates, but does not include Registrars. The applicant relies upon Kotsis v Kotsis [1970] HCA 61 ; (1970) 122 CLR 69 and Knight v Knight [1971] HCA 21 ; (1971) 122 CLR 114 in support of its submissions that the Registrar of the Federal Magistrates Court cannot exercise the powers of that court. 17 In Kotsis v Kotsis the High Court determined that a Deputy Registrar of a State Supreme court had no power to make an order for costs. Windeyer J observed at 91-92: 'Nevertheless I think that when any court is authorized to exercise the judicial power of the Commonwealth the power of adjudication thus committed to it must be exercised by the whole court or by a judge of the court, not by a subordinate officer' . The same principle was applied in Knight v Knight . 18 Kotsis v Kotsis and Knight v Knight related to the power of a court official to make an order of an adjudicative nature. These decisions, however, are not relevant to the exercise of an administrative function by a Registrar of the Federal Magistrates Court. The issue of a bankruptcy notice and orders for its service are not adjudicative in nature, and accordingly such authorities are not relevant to the present proceedings. Quite apart from this distinction, both cases were overruled in The Commonwealth of Australia and Others v The Hospital Contribution Fund of Australia and Others [1982] HCA 13 ; (1982) 150 CLR 49.
Case: Kotsis v Kotsis [1970] HCA 61 ; (1970) 122 CLR 69
Outcome: distinguished
The applicant submits that s 8 of the FMA requires that the Federal Magistrates Court consist of a Chief Federal Magistrate and Federal Magistrates, but does not include Registrars. The applicant relies upon Kotsis v Kotsis [1970] HCA 61 ; (1970) 122 CLR 69 and Knight v Knight [1971] HCA 21 ; (1971) 122 CLR 114 in support of its submissions that the Registrar of the Federal Magistrates Court cannot exercise the powers of that court. 17 In Kotsis v Kotsis the High Court determined that a Deputy Registrar of a State Supreme court had no power to make an order for costs. Windeyer J observed at 91-92: 'Nevertheless I think that when any court is authorized to exercise the judicial power of the Commonwealth the power of adjudication thus committed to it must be exercised by the whole court or by a judge of the court, not by a subordinate officer' . The same principle was applied in Knight v Knight . 18 Kotsis v Kotsis and Knight v Knight related to the power of a court official to make an order of an adjudicative nature. These decisions, however, are not relevant to the exercise of an administrative function by a Registrar of the Federal Magistrates Court. The issue of a bankruptcy notice and orders for its service are not adjudicative in nature, and accordingly such authorities are not relevant to the present proceedings. Quite apart from this distinction, both cases were overruled in The Commonwealth of Australia and Others v The Hospital Contribution Fund of Australia and Others [1982] HCA 13 ; (1982) 150 CLR 49.
Case: Re Fernandes (1861) 6 H &amp; N 717; 158 ER 296 at 300-301
Outcome: considered
Quite apart from its statutory origins, the Federal Magistrates Court has power to punish for contempt (see s 17 of the FMA). It was recognised in the United Kingdom that a court of assize or of nisi prius which had certain powers, including powers to punish for contempt, were regarded as superior courts although not principal superior courts: see Re Fernandes [1861] EngR 489 ; (1861) 6 H &amp; N 717; 158 ER 296 at 300-301. However, for the above reasons such historical indicia of a court have no application to the Federal Magistrates Court. 24 For the above reasons, the submissions of the applicant that the Registrars of the Federal Magistrates Court cannot exercise administrative functions are rejected. 25 The applicant submits that the text of the Oath of Office administered to a Registrar differs from that taken by a Federal Magistrate, and that such difference demonstrates a limitation on the Registrar's powers to issue orders in the name of the Federal Magistrates Court.
Case: Re Jarman and Others; Ex parte Cook [1997] HCA 13 ; (1997) 188 CLR 595
Outcome: referred to
The above principle, as it applied to the Federal Court of Australia was approved by the High Court in Re Jarman and Others; Ex parte Cook [1997] HCA 13 ; (1997) 188 CLR 595 per Toohey and Gaudron JJ at 616-617. Since the Federal Magistrates Court is court created under Ch III of the Constitution , the same principle applies. It follows that the exercise of power by a Federal Magistrate is a valid exercise of the power of the Federal Magistrates Court.
Case: The Commonwealth of Australia and Others v The Hospital Contribution Fund of Australia and Others [1982] HCA 13 ; (1982) 150 CLR 49
Outcome: referred to
Kotsis v Kotsis and Knight v Knight related to the power of a court official to make an order of an adjudicative nature. These decisions, however, are not relevant to the exercise of an administrative function by a Registrar of the Federal Magistrates Court. The issue of a bankruptcy notice and orders for its service are not adjudicative in nature, and accordingly such authorities are not relevant to the present proceedings. Quite apart from this distinction, both cases were overruled in The Commonwealth of Australia and Others v The Hospital Contribution Fund of Australia and Others [1982] HCA 13 ; (1982) 150 CLR 49.
Case: The Mayor and Aldermen of the City of London v Richard Henry Cox and Others (1867) LR 2 HL 239
Outcome: distinguished
The applicant further submits that a Registrar of the Federal Magistrates Court is to be equated with a clerk of an inferior court. The applicant relies upon The Queen v Douglas and Others [1898] 1 QB 560, which held that the office of a clerk of such court was incompatible with a justice of the peace, and The Mayor and Aldermen of the City of London v Richard Henry Cox and Others (1867) LR 2 HL 239, which held that the Lord Mayor's Court in London is an inferior court.
Case: The Queen v Douglas and Others [1898] 1 QB 560
Outcome: distinguished
The applicant further submits that a Registrar of the Federal Magistrates Court is to be equated with a clerk of an inferior court. The applicant relies upon The Queen v Douglas and Others [1898] 1 QB 560, which held that the office of a clerk of such court was incompatible with a justice of the peace, and The Mayor and Aldermen of the City of London v Richard Henry Cox and Others (1867) LR 2 HL 239, which held that the Lord Mayor's Court in London is an inferior court.
Case: Tooheys Limited and Others v Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602 at 620
Outcome: followed
Under s 102(2)(b) of the FMA a Registrar has the power to make orders 'in relation to substituted service' . The use of the words 'in relation to' provide a much wider power to the Registrar than merely the making of an order for substituted service. In Tooheys Limited and Others v Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602 at 620, Taylor J referred to the expansive meaning incorporated in the words 'relating to' . His Honour said: There can be no doubt that the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used. See also Australian Competition and Consumer Commission v Maritime Union of Australia and Others [2001] FCA 1549 ; (2001) 187 ALR 487 at [68] ; Joye v Beach Petroleum NL and Another (1996) 67 FCR 275.
Case: Natuna Pty Limited v Cook [2006] NSWSC 1367
Outcome: cited
There is a clear line of authority which establishes that draft documents and other communications of a like nature with an expert witness proposed to be called in litigation are privileged under s 119(b) whatever may have been the position at common law: Natuna Pty Limited v Cook [2006] NSWSC 1367 ; New Cap Reinsurance Corporation Ltd (In Liq) &amp; 1 Or v Renaissance Reinsurance Ltd [2007] NSWSC 258 ; and ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859.
Case: New Cap Reinsurance Corporation Ltd (In Liq) &amp; 1 Or v Renaissance Reinsurance Ltd [2007] NSWSC 258
Outcome: cited
There is a clear line of authority which establishes that draft documents and other communications of a like nature with an expert witness proposed to be called in litigation are privileged under s 119(b) whatever may have been the position at common law: Natuna Pty Limited v Cook [2006] NSWSC 1367 ; New Cap Reinsurance Corporation Ltd (In Liq) &amp; 1 Or v Renaissance Reinsurance Ltd [2007] NSWSC 258 ; and ML Ubase Holdings Co Ltd v Trigem Computer Inc [2007] NSWSC 859.
Case: Aldersea v Public Transport Corporation (2001) 3 VR 499
Outcome: cited
for Ms Yousif also contended that there was a term implied by law that the Bank would act in good faith. An authority cited in support of the implication of such a term was the judgment of Rothman J in Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104 ; (2007) 69 NSWLR 198. However, there is a preponderance of authority against the implication of such a term: Aldersea v Public Transport Corporation (2001) 3 VR 499 ; Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114 ; [2005] FCA 1678 ; McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 ; [2007] FCA 1903. Was there a breach of the implied terms?
Case: Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371 ; (1996) 142 ALR 144
Outcome: cited
for Ms Yousif relied on a line of authority which has accepted that a term of trust and confidence is implied by law in contracts of employment. By this term an employer must not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the parties as employee and employer: Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371 ; (1996) 142 ALR 144 ; Malik v Bank of Credit &amp; Commerce International SA (in liq) [1997] UKHL 23 ; [1998] AC 20 ( Malik ); Gogay v Hertfordshire County Council [2000] IRLR 783 ; Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 ; [2002] FCA 939 ; Russell v Trustees of Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 ; (2008) 176 IR 82. The effect of the conduct must be viewed objectively: Malik [1997] UKHL 23 ; [1998] AC 20 at 47B and G per Lord Steyn.
Case: Gogay v Hertfordshire County Council [2000] IRLR 783
Outcome: cited
for Ms Yousif relied on a line of authority which has accepted that a term of trust and confidence is implied by law in contracts of employment. By this term an employer must not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the parties as employee and employer: Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371 ; (1996) 142 ALR 144 ; Malik v Bank of Credit &amp; Commerce International SA (in liq) [1997] UKHL 23 ; [1998] AC 20 ( Malik ); Gogay v Hertfordshire County Council [2000] IRLR 783 ; Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 ; [2002] FCA 939 ; Russell v Trustees of Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 ; (2008) 176 IR 82. The effect of the conduct must be viewed objectively: Malik [1997] UKHL 23 ; [1998] AC 20 at 47B and G per Lord Steyn.
Case: Malik v Bank of Credit &amp; Commerce International SA (in liq) [1997] UKHL 23 ; [1998] AC 20
Outcome: applied
for Ms Yousif relied on a line of authority which has accepted that a term of trust and confidence is implied by law in contracts of employment. By this term an employer must not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the parties as employee and employer: Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371 ; (1996) 142 ALR 144 ; Malik v Bank of Credit &amp; Commerce International SA (in liq) [1997] UKHL 23 ; [1998] AC 20 ( Malik ); Gogay v Hertfordshire County Council [2000] IRLR 783 ; Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 ; [2002] FCA 939 ; Russell v Trustees of Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 ; (2008) 176 IR 82. The effect of the conduct must be viewed objectively: Malik [1997] UKHL 23 ; [1998] AC 20 at 47B and G per Lord Steyn.