mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ah Toy v Registrar of Companies (1986) 10 FCR 356
Outcome: discussed
Tribunal rejected a submission made by Mr Gould in reliance on Ah Toy v Registrar of Companies (1986) 10 FCR 356. In that case, at 381, a Full Court of this Court accepted that circumstances could arise in which it would be accurate to characterise a debit to an estate of penalty fees as a "fraud on the creditors", but considered that that would be so only where the penalty fees had been incurred at "as a result of the neglect or omission of the liquidator" (at 381). In the case before their Honours there was no evidence as to the circumstances under which the penalty fees had become payable: the fault may have lain with the liquidator or with another party or "may have been caused by circumstances outside the control of the liquidator and his agents" (at 381). Their Honours observed that a finding of fraud, especially against a professional person in relation to his or her professional activities, should be made only upon the basis of clear evidence and after the person concerned has had the opportunity to deal with the matter. The Tribunal distinguished Ah Toy . It considered that the Full Court was directing its attention to the trial judge's finding that the liquidator's charging the company's estate with a total of $127 for late filing fees was "most reprehensible" and "a fraud on the creditors, small but important, as indicating serious impropriety" (at 380). The Tribunal remarked (at [220]): "It was the finding of fraud that the court set aside, not the finding that the late fee should not have been charged to the estate as such. That would depend on whose fault it was that the documents were lodged late. In this case it can only have been the applicant's." In substance the Tribunal decided that if Mr Gould chose to rely on the post, he had to accept the risk of incurring a late filing fee "or else allow a margin of a couple of days to guard against the risk of late delivery" (at [221]). The Tribunal recorded Mr Gould's evidence that it was widely regarded as competent practice to mail forms to ASIC, that it was extraordinary for that course to fail and that he had not known of a prior occasion when the mail had "failed". The Tribunal also noted Mr Gould's evidence that to require a different mode of delivery in all cases would increase the cost to creditors, for no real benefit in nearly all cases. The Tribunal said (at [227]) that it did not think the facts warranted a finding of fraud, but nor did it think that Mr Gould was justified in treating the expense as a reasonable expense of the liquidation or as otherwise proper. Indeed, the Tribunal thought that the reasoning in Ah Toy strongly suggested the opposite.
Case: Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23 ; (2007) 231 CLR 350
Outcome: cited
Gould submits that in the absence of expert evidence, it was not permissible for the Tribunal to find that he had not carried out or performed his duties as liquidator of Popwing "adequately and properly". Mr Gould submits that this question is one of judgment, not a pure question of law, and that the answer must be informed by evidence of accepted proper practice: Mr Gould refers to Re Vouris; Epromotions Australia Pty Ltd and Relectronic-Remech Pty Ltd (in liq) [2003] NSWSC 702 ; (2003) 47 ACSR 155 at [101] and [103] Goodman v Australian Securities and Investments Commission (2004) 50 ACSR 1 at [26]; Dean-Willcocks at [24]-[26]; Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23 ; (2007) 231 CLR 350 at [18] , [20] and [24].
Case: Anderson and Companies Auditors and Liquidators Disciplinary Board [2007] AATA 1540
Outcome: discussed
Tribunal dealt with the question of whether Mr Gould's consent could operate nunc pro tunc . It referred to Ascot Investment and Management v Livestock Genetics (1999) 205 LSJS 247 ( Ascot ) and Re Anderson and Companies Auditors and Liquidators Disciplinary Board [2007] AATA 1540 ( Anderson ). In Anderson the Tribunal reviewed a decision under s 1292(2)(d)(ii) of the Act. It was alleged that an administrator had not complied s 439A(4) of the Act. The administrator had been appointed on 12 February 2004 but had not consented to act until four days later. Although the point was not argued, neither ASIC, nor the Board nor the Tribunal expressed any doubt about the validity of the appointment. The Tribunal noted (at [102]) that ASIC did not dispute the correctness or applicability of Ascot or Anderson . The Tribunal concluded that there was no legal impediment to the adoption of an appointment resolution that operated conditionally on the appointee's consenting to the appointment. The Tribunal entered a caveat: the consent must be given within a timeframe that was appropriate to the procedure in question, but the Tribunal saw no difficulty in this respect in the present case in which the lapse of time was of only some three weeks. I do not gain particular assistance from Ascot , which concerned a different statutory provision, s 440D(1) of the Law, nor from Anderson , in which the Tribunal was not called upon to address the present issue.
Case: Ascot Investment and Management v Livestock Genetics (1999) 205 LSJS 247
Outcome: discussed
Tribunal dealt with the question of whether Mr Gould's consent could operate nunc pro tunc . It referred to Ascot Investment and Management v Livestock Genetics (1999) 205 LSJS 247 ( Ascot ) and Re Anderson and Companies Auditors and Liquidators Disciplinary Board [2007] AATA 1540 ( Anderson ). The Tribunal noted that in Ascot Smith DCJ held that an administrator's written consent to the beginning of a proceeding against a company in administration could operate nunc pro tunc . Section 440D of the Law provided that during the administration of a company, a proceeding in a court against the company or in relation to any of its property could not be begun or proceeded with, except with the administrator's written consent or with the leave of the Court. The Tribunal said (at [100]) that Smith DCJ had held that s 440D did not "invalidate that part of the proceedings that had unfolded before the date of consent". The Tribunal noted (at [102]) that ASIC did not dispute the correctness or applicability of Ascot or Anderson . The Tribunal concluded that there was no legal impediment to the adoption of an appointment resolution that operated conditionally on the appointee's consenting to the appointment. The Tribunal entered a caveat: the consent must be given within a timeframe that was appropriate to the procedure in question, but the Tribunal saw no difficulty in this respect in the present case in which the lapse of time was of only some three weeks. I do not gain particular assistance from Ascot , which concerned a different statutory provision, s 440D(1) of the Law, nor from Anderson , in which the Tribunal was not called upon to address the present issue.
Case: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577
Outcome: followed
noting the parties' submissions, the Tribunal addressed the question whether its jurisdiction to review was limited by reference to the scope of ASIC's application before the Board. The Tribunal said (at [30]) that its role was to determine the correct or preferable decision on the material before the Tribunal, not on the material that was before the primary decision-maker, and that the Tribunal was required to review the primary decision, not the reasons given for it, citing Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 24 ALR 577 ( Drake ) at 589, 599. The Tribunal thought that Mr Gould's submission sought to read too much into the word "on" in the expression "on an application by ASIC" in s 1292(2). The Tribunal stated (at [34]) that to confine the review before it to the grounds contained in the original application (as amended) would be a significant departure from the usual pattern of merits review under the AAT Act as analysed in Drake and succeeding cases.
Case: Goodman v Australian Securities and Investments Commission (2004) 50 ACSR 1
Outcome: cited
Gould submits that in the absence of expert evidence, it was not permissible for the Tribunal to find that he had not carried out or performed his duties as liquidator of Popwing "adequately and properly". Mr Gould submits that this question is one of judgment, not a pure question of law, and that the answer must be informed by evidence of accepted proper practice: Mr Gould refers to Re Vouris; Epromotions Australia Pty Ltd and Relectronic-Remech Pty Ltd (in liq) [2003] NSWSC 702 ; (2003) 47 ACSR 155 at [101] and [103] Goodman v Australian Securities and Investments Commission (2004) 50 ACSR 1 at [26]; Dean-Willcocks at [24]-[26]; Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23 ; (2007) 231 CLR 350 at [18] , [20] and [24].
Case: Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165
Outcome: cited
for ASIC submits that the role of the SOFAC was to afford procedural fairness to Mr Gould and that what procedural fairness requires does not involve a fixed body of rules to be applied at a formulaic manner. Counsel refers to the statement by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [37] that: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. Counsel also referred to Adler v Australian Securities and Investments Commission [2003] NSWCA 131 ; (2003) 46 ACSR 504 at [139] where Giles JA quoted from Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 at [18] where Mason P had said that "pleadings serve the ends of justice [and] must not be permitted to assume an independent self-referential function".
Case: John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 ; (1987) 163 CLR 508
Outcome: cited
offence provided for in s 1308(4) was not declared to be an offence of strict liability: cf contravention of s 450E of the Law referred to at [127] and [140] above. The failure to take reasonable steps to ensure that the statement was not false or misleading is an essential element of the offence. Contention 6.6 is deficient for failing to allege and particularise the failure to take reasonable steps. If Contention 6.6 and the particulars that ASIC gave of it had been an information for criminal purposes, it would have been quashed as insufficient in law and invalid: see, for example, John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 ; (1987) 163 CLR 508 at 519-520. The question is whether, notwithstanding its deficiency, Contention 6.6 is saved by reason of other considerations.
Case: Parkdale Custom Built Furniture Pty Limited v Puxu Pty Limited [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
that there were no authorities on the construction of s 1308(4), the Tribunal referred to authorities on s 52 of the Trade Practices Act 1974 (Cth) (TPA Act), to the effect that in deciding whether a statement is misleading or deceptive, the Court will have regard to the persons to whom the statement is directed. The Tribunal referred to Parkdale Custom Built Furniture Pty Limited v Puxu Pty Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 199, and Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Incorporated [1992] FCA 630 ; (1992) 38 FCR 1 at 49-50 per Hill J.
Case: Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 235 CLR 286
Outcome: cited
Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 235 CLR 286 the High Court held that the Tribunal was entitled to take into account facts and circumstances that had arisen since the primary decision. This approach was said to be consistent with s 43(1) of the AAT Act. It supports the view that the Tribunal's role and the Tribunal proceeding were independent of the Board's role and the Board proceeding. Once this fact is fully appreciated, any force that Mr Gould's present submission might be thought to have disappears. In my view there is no substance in Mr Gould's second submission either. Question 23 (set out at [260] above) should also be answered "yes". Parties' submissions relevant to Question 24 Finally, ASIC submits that Mr Gould's argument that it is unfair that he was denied a merits review after an adverse finding by the primary decision maker could also be said in relation to the facts in Shi . A person in Mr Shi's position could be found by the Tribunal to be unfit based on new facts that emerged after the original decision was made. According to the High Court, however, the fact that there might be no merits review on the new facts as found by the Tribunal was not an impediment to the Tribunal's acting on those new facts. Consideration of Question 24 In my opinion, ASIC's submissions should in substance be accepted. The proceeding before the Tribunal was a new and independent proceeding in which the Tribunal was required, for the protection of the public, to arrive at the correct or preferred decision on the evidence before it.
Case: Sleiman and Australian Securities and Investments Commission [2007] AATA 1383
Outcome: followed
Tribunal saw the issue between the parties as being whether there was a statutory provision to the contrary of the view that effective exercise of the Tribunal's review power normally required it to be free to consider the application of any of the criteria on which the proper exercise of the statutory power might depend: the Tribunal cited Sleiman and Australian Securities and Investments Commission [2007] AATA 1383 ( Sleiman ) at [9]. Sleiman was also concerned with an application by ASIC to the CALDB in relation to a registered liquidator. In that case, as in the present one, s 1317B of the Law (s 1317B of the Act is in the same terms) permitted an application to be made to the Tribunal for review of a decision made under the Act by the Board. The Tribunal found nothing in s 1292 or s 1317B to alter the ordinary position as recognised in that line of cases, and referred with approval to Senior Member Taylor's statement in Sleiman at [10] that: ... it is likely to be appropriate, subject to being satisfied that Mr Sleiman has a proper opportunity to deal with them, and subject to any order that might be made under s 25(4A) of the AAT Act, for ASIC to seek to support the cancellation order against Mr Sleiman on the additional grounds contained in its amended Statement of Facts and Contentions. Consideration of Tribunals' decision of 2 November 2007 not to preclude ASIC from relying on Contentions 2.1, 6.5, 6.6 and 6.7A Question 23 Question 23 raises the question whether the Tribunal had jurisdiction to hear and determine Contentions 2.1, 6.5, 6.6 and 6.7A. Mr Gould submits that Sleiman and a case relied on in it, Re Wharton and Australian Securities and Investments Commission [2002] AATA 443 ; (2002) 69 ALD 419 , were either wrongly decided or should be distinguished.
Case: Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Incorporated [1992] FCA 630 ; (1992) 38 FCR 1
Outcome: cited
that there were no authorities on the construction of s 1308(4), the Tribunal referred to authorities on s 52 of the Trade Practices Act 1974 (Cth) (TPA Act), to the effect that in deciding whether a statement is misleading or deceptive, the Court will have regard to the persons to whom the statement is directed. The Tribunal referred to Parkdale Custom Built Furniture Pty Limited v Puxu Pty Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 199, and Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Incorporated [1992] FCA 630 ; (1992) 38 FCR 1 at 49-50 per Hill J.
Case: Vines v Australian Securities and Investments Commission [2007] NSWCA 75 ; (2007) 62 ACSR 1
Outcome: cited
seems, in view of the seriousness of the consequences, that the failure to take "reasonable steps" in the s 1308(4) offence, would have to be unreasonable or blameworthy, as distinct from merely at a level that would give rise to a breach of the common law duty of care: compare Vines v Australian Securities &amp; Investments Commission [2007] NSWCA 75 ; (2007) 62 ACSR 1 at [142] - [152] per Spigelman CJ. In his statement of facts and contentions in response, Mr Gould stated (at para 21) in relation to Contention 6.6 that the material allegations of fact pleaded did not disclose or make out a contravention of s 1308(4) and that Contention 6.6 was therefore "deficient, embarrassing and liable to be struck out at the hearing". Mr Gould also denied that he had contravened s 1308(4). In his statement Mr Gould said (at para 177), after referring to the reference in s 1308(4) to the omission to take reasonable steps, that his staff, who were qualified beyond industry standards and practice, had filled out the Forms 524. He further said: The particulars do not state that I personally as opposed to my staff, failed to take reasonable steps, for what those steps were, that were available to me to ensure the forms were not false. Hence, I cannot respond to the charge. [Emphasis in original]
Case: Vouris; Epromotions Australia Pty Ltd and Relectronic-Remech Pty Ltd (in liq) [2003] NSWSC 702 ; (2003) 47 ACSR 155
Outcome: cited
Gould submits that in the absence of expert evidence, it was not permissible for the Tribunal to find that he had not carried out or performed his duties as liquidator of Popwing "adequately and properly". Mr Gould submits that this question is one of judgment, not a pure question of law, and that the answer must be informed by evidence of accepted proper practice: Mr Gould refers to Re Vouris; Epromotions Australia Pty Ltd and Relectronic-Remech Pty Ltd (in liq) [2003] NSWSC 702 ; (2003) 47 ACSR 155 at [101] and [103] Goodman v Australian Securities and Investments Commission (2004) 50 ACSR 1 at [26]; Dean-Willcocks at [24]-[26]; Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23 ; (2007) 231 CLR 350 at [18] , [20] and [24].
Case: Wharton and Australian Securities and Investments Commission [2002] AATA 443 ; (2002) 69 ALD 419
Outcome: cited
Gould submits that Sleiman and a case relied on in it, Re Wharton and Australian Securities and Investments Commission [2002] AATA 443 ; (2002) 69 ALD 419 , were either wrongly decided or should be distinguished.
Case: GenRx Pty Limited v Sanofi Aventis [2007] FCA 1485 ; (2007) 73 IPR 502
Outcome: cited
once a generic is released into the market for PBS products, it would be likely to have the effect of reducing Wyeth's market share. As Gyles J observed in GenRx Pty Limited v Sanofi Aventis [2007] FCA 1485 ; (2007) 73 IPR 502 at [15] . A new entrant ... would have an effect which may be both unpredictable and irreversible. The question which arises in all these circumstances is whether damages would be an adequate remedy. Wyeth submitted that any doubts which may exist in its ability to recover its losses at a final hearing point toward an order being made in the interests of justice for identity discovery at the earliest possible date.
Case: Hexal Australia Pty Limited v Roche Therapeutics Inc (2005) 66 IPR 325
Outcome: applied
seems to me to follow that the Court should approach an application along the same lines as that which applies to a claim for interlocutory injunctive relief. Whilst an applicant under O 15A is not required to establish a serious question to be tried, the applicant's prospects of success are not to be considered in isolation from the element of the interests of justice. The strength or otherwise of the prospects will bear upon the question of where the interests of justice lie: Hexal Australia Pty Limited v Roche Therapeutics Inc (2005) 66 IPR 325 at [18].
Case: Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1
Outcome: applied
considerations which are to inform the exercise of the discretion were stated by a Full Court in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1. See also Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39 in relation to the principles applicable under O 15A r 6. Two of the considerations referred to in Hooper are critical to the determination of the present application. The first is that, although an applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent, the power conferred by O 15A r 3 is not to be exercised in favour of a person who intends to commence "merely speculative proceedings". The prospects of success are a material factor in the exercise of the discretion: Hooper at [33]. The second consideration is that an applicant must show that the order is necessary in the interests of justice. Their Honours said that this means that an applicant must show that the making of the order is necessary to provide that person with an effective remedy in respect of the actionable wrong of which he or she complains: Hooper at [34]. The jurisdictional facts There was substantial argument between the parties as to whether two of the necessary jurisdictional facts were established. The first was whether Wyeth had made reasonable inquiries. The second was whether the "proceeding" to which O 15A r 3 refers is final or interlocutory, it being contended by the Department that Wyeth's purpose is to commence a proceeding for interlocutory relief, which is not contemplated by the Rule. These issues can be disposed of quite briefly. There was some force in Mr Howe's submission that Wyeth has not adduced any evidence of inquiries made overseas as to the identities of the sponsors. Wyeth acknowledged that TGA applications are often preceded by similar applications made in other jurisdictions. Nevertheless, I am prepared to proceed on the basis that inquiries in those jurisdictions would not be conclusive. The test stated in Hooper does not expressly stipulate any threshold which an applicant must satisfy for the exercise of the power. But in stating that a material factor in the exercise of the discretion is the prospect of success in the proceedings, the Full Court in Hooper specified, as one of the elements of the claim for identity discovery, that an applicant provide evidence in support of its claim for final relief. In my view the decision in Viskase does not establish a gloss on the principles stated in Hooper . Whilst good cause must be shown, each case must turn on its own facts and the prospects of success are to be weighed in the balance of the interests of justice. Wyeth's evidence as to prospects of success
Case: Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1498
Outcome: cited
observations of Jessup J in Interpharma Pty Ltd v Commissioner of Patents [2008] FCA 1498 at [71] [73] recognise the difficulties which may arise in restoring a patentee to the position it occupies as the only supplier of the product in the event that the patent holder succeeds at the final hearing but is denied interlocutory relief. Nevertheless, I have come to the view that it is not in the interests of justice to order identity discovery on this application. There are two reasons for this. First, I am not satisfied on the evidence before me that Wyeth has good prospects of success at a final hearing. The most that can be said is that it has a provisional working hypothesis which would need to be supplemented by further evidence, including expert evidence, to determine the strength of Wyeth's case.