mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Excel; Worthley v England (1994) 52 FCR 69
Outcome: cited
The Corporations Act makes no express provision for ASIC to authorise a person to make an application under Pt 5.9. Its function in that respect is identified in the definition of "eligible applicant". The function so identified is picked up by the general provisions of s 11(1) of the ASIC Act. The power to do whatever is necessary for the performance of its functions is conferred upon ASIC by s 11(4). Section 11(4) is therefore the source of ASIC's power to authorise a person as an "eligible applicant". That has been so held in respect of analogous provisions of the Corporations Law in three decisions of the Full Court: HongKong Bank of Australia Ltd v Australian Securities Commission (1992) 40 FCR 402; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 and Re Excel; Worthley v England (1994) 52 FCR 69. The Court of Appeal of New South Wales in Burns Philp &amp; Co Ltd v Murphy (1993) 29 NSWLR 723 held that the power was located in the definitional provision of s 597(1) of the Corporations Law, reflected in the definition of "eligible applicant" in s 9 of the Corporations Act . I will, with respect, follow and apply the analysis and conclusions of the Full Court of the Federal Court in the three decisions mentioned. They are helpfully discussed in Zumbo F, Liquidator's Power of Examination under the Corporations Law: The State of Play (1994) 12 C &amp; SLJ 504. The precise location of the statutory power to authorise a person to make application for an examination summons was relevant, in those cases, to the availability of administrative review by the Administrative Appeals Tribunal. The decisions of the Full Court of the Federal Court had the consequence that such review was not available. No such limitation applies in respect of judicial review of the ASIC decision whether under the ADJR Act or the provisions of s 39B(1A) of the Judiciary Act 1903 (Cth).
Case: Burns Philp &amp; Co Ltd v Murphy (1993) 29 NSWLR 7232
Outcome: cited
The Corporations Act makes no express provision for ASIC to authorise a person to make an application under Pt 5.9. Its function in that respect is identified in the definition of "eligible applicant". The function so identified is picked up by the general provisions of s 11(1) of the ASIC Act. The power to do whatever is necessary for the performance of its functions is conferred upon ASIC by s 11(4). Section 11(4) is therefore the source of ASIC's power to authorise a person as an "eligible applicant". That has been so held in respect of analogous provisions of the Corporations Law in three decisions of the Full Court: HongKong Bank of Australia Ltd v Australian Securities Commission (1992) 40 FCR 402; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 and Re Excel; Worthley v England (1994) 52 FCR 69. The Court of Appeal of New South Wales in Burns Philp &amp; Co Ltd v Murphy (1993) 29 NSWLR 723 held that the power was located in the definitional provision of s 597(1) of the Corporations Law, reflected in the definition of "eligible applicant" in s 9 of the Corporations Act . I will, with respect, follow and apply the analysis and conclusions of the Full Court of the Federal Court in the three decisions mentioned. They are helpfully discussed in Zumbo F, Liquidator's Power of Examination under the Corporations Law: The State of Play (1994) 12 C &amp; SLJ 504. The precise location of the statutory power to authorise a person to make application for an examination summons was relevant, in those cases, to the availability of administrative review by the Administrative Appeals Tribunal. The decisions of the Full Court of the Federal Court had the consequence that such review was not available. No such limitation applies in respect of judicial review of the ASIC decision whether under the ADJR Act or the provisions of s 39B(1A) of the Judiciary Act 1903 (Cth).
Case: R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254
Outcome: cited
Non-judicial functions may be conferred as an incident of judicial power. As was said in R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 278: '... it must not be forgotten that s 51(xxxix) expressly empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the federal judicature. What belongs to the judicial power or is incidental or ancillary to it cannot be determined except by ascertaining if it has a sufficient relation to the principal or judicial function or purpose to which it may be thought to be accessory.' More recently in Re Tracey; Ex parte Ryan [1989] HCA 12 ; (1989) 166 CLR 518 Deane J observed (at 580): 'The Executive Government cannot absorb or be amalgamated with the judicature by the conferral of non-ancillary executive functions upon the courts.'
Case: Re Tracey; Ex parte Ryan [1989] HCA 12 ; (1989) 166 CLR 518
Outcome: cited
Non-judicial functions may be conferred as an incident of judicial power. As was said in R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 278: '... it must not be forgotten that s 51(xxxix) expressly empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the federal judicature. What belongs to the judicial power or is incidental or ancillary to it cannot be determined except by ascertaining if it has a sufficient relation to the principal or judicial function or purpose to which it may be thought to be accessory.' More recently in Re Tracey; Ex parte Ryan [1989] HCA 12 ; (1989) 166 CLR 518 Deane J observed (at 580): 'The Executive Government cannot absorb or be amalgamated with the judicature by the conferral of non-ancillary executive functions upon the courts.'
Case: Re Monadelphous Engineering Associates (NZ) Ltd (in liq); ex parte McDonald and Watson (1989) 7 ACLC 220
Outcome: cited
In Re Monadelphous Engineering Associates (NZ) Ltd (in liq) ; ex parte McDonald and Watson (1989) 7 ACLC 220 Northrop J referred to the investigative character of the examination procedure under s 541 of the Companies (Victoria) Code and said it was "inappropriate" for a judge of the Federal Court to conduct such a process (at 225-226): '... examination is not a court hearing in the true sense. It is not the exercise of judicial power. It is part of an investigative procedure ... In my opinion it would not be appropriate for a Judge of the Federal Court to conduct examinations of an investigatory nature, and not truly judicial.' He transferred the matter, which was an application by a liquidator, to the Supreme Court of Victoria. The same characterisation of the examination process was made by the Full Court of the Supreme Court of Victoria in Friedrich v Herald &amp; Weekly Times Ltd [1990] VR 995 at 1003: '... essentially this procedure is administrative and does not result in judicial decisions as to any parties' rights, except decisions as to the manner in which the examination itself should be conducted.'
Case: Friedrich v Herald &amp; Weekly Times Ltd [1990] VR 995
Outcome: cited
In Re Monadelphous Engineering Associates (NZ) Ltd (in liq) ; ex parte McDonald and Watson (1989) 7 ACLC 220 Northrop J referred to the investigative character of the examination procedure under s 541 of the Companies (Victoria) Code and said it was "inappropriate" for a judge of the Federal Court to conduct such a process (at 225-226): '... examination is not a court hearing in the true sense. It is not the exercise of judicial power. It is part of an investigative procedure ... In my opinion it would not be appropriate for a Judge of the Federal Court to conduct examinations of an investigatory nature, and not truly judicial.' He transferred the matter, which was an application by a liquidator, to the Supreme Court of Victoria. The same characterisation of the examination process was made by the Full Court of the Supreme Court of Victoria in Friedrich v Herald &amp; Weekly Times Ltd [1990] VR 995 at 1003: '... essentially this procedure is administrative and does not result in judicial decisions as to any parties' rights, except decisions as to the manner in which the examination itself should be conducted.'
Case: Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226
Outcome: cited
Gaudron J held that Ch III would preclude conferral on the Federal Court of a non-judicial examinations power "not confined to examination by a court which has exercised or is exercising jurisdiction to make an order for the winding up of corporations" (405). However there was nothing to prevent the Commonwealth from conferring power of that kind on the Supreme Court of the Australian Capital Territory (405). Reference should be made in that regard to the developing jurisprudence about the interaction of Ch III and the Territories' power in Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10 ; (1971) 125 CLR 591; Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44 ; (1999) 165 ALR 171 and in the joint judgment of Black CJ and Hely J in North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297 ; (2002) 122 FCR 204 at [106] [133].
Case: Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10 ; (1971) 125 CLR 591
Outcome: cited
Gaudron J held that Ch III would preclude conferral on the Federal Court of a non-judicial examinations power "not confined to examination by a court which has exercised or is exercising jurisdiction to make an order for the winding up of corporations" (405). However there was nothing to prevent the Commonwealth from conferring power of that kind on the Supreme Court of the Australian Capital Territory (405). Reference should be made in that regard to the developing jurisprudence about the interaction of Ch III and the Territories' power in Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10 ; (1971) 125 CLR 591; Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44 ; (1999) 165 ALR 171 and in the joint judgment of Black CJ and Hely J in North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297 ; (2002) 122 FCR 204 at [106] [133].
Case: Spinks v Prentice (1998) 87 FCR 89
Outcome: cited
Spinks v Prentice (1998) 87 FCR 89 was one of a group of appeals decided in conjunction with Re Wakim . It was an appeal from the Full Court of the Federal Court with respect to an order for examination of former officers of a company in liquidation. The company was taken to be incorporated in the Australian Capital Territory. The Full Court held that the Corporations Act 1989 (Cth), which applied the Corporations Law to the ACT, validly conferred jurisdiction on the Federal Court to entertain the application for an examination summons. The examination orders were also challenged before the Full Court on the basis that they did not involve an exercise of judicial power. As to that the Court said (at 96): 'It is true that, although there is no challenge to the winding up order made here, s 596A would permit an examination where there has been no winding up. But given the long history of courts exercising such powers, we can see nothing foreign to the exercise of judicial power in this aspect of s 596A.' They referred to the Compass Airlines and Grosvenor Hall cases. It is not clear, given the absence of any long history of judicial examination of corporations at large unrelated to winding up or other judicial procedures, whether their Honours were saying that applications under s 596A when there was no winding up order or pending court proceedings were an exercise of judicial power. To the extent that they were so saying, their observations were dicta. 105 In the High Court, on appeal from the Full Federal Court in Spinks v Prentice , Gummow and Hayne JJ noted that it had not been contended that the power to order the examination of witnesses and the production of documents for the purposes of a winding up and to supervise the conduct of the examination was otherwise than in the exercise of a function incidental to the exercise of judicial power. Their Honours did not think it appropriate to express any view on the validity of provisions conferring jurisdiction on the Federal Court to make orders under Pt 5.9 save for those immediately in question. On that point Kirby J agreed with them (619).
Case: Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44 ; (1999) 165 ALR 171
Outcome: cited
Gaudron J held that Ch III would preclude conferral on the Federal Court of a non-judicial examinations power "not confined to examination by a court which has exercised or is exercising jurisdiction to make an order for the winding up of corporations" (405). However there was nothing to prevent the Commonwealth from conferring power of that kind on the Supreme Court of the Australian Capital Territory (405). Reference should be made in that regard to the developing jurisprudence about the interaction of Ch III and the Territories' power in Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10 ; (1971) 125 CLR 591; Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44 ; (1999) 165 ALR 171 and in the joint judgment of Black CJ and Hely J in North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297 ; (2002) 122 FCR 204 at [106] [133].
Case: North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297 ; (2002) 122 FCR 204
Outcome: cited
Gaudron J held that Ch III would preclude conferral on the Federal Court of a non-judicial examinations power "not confined to examination by a court which has exercised or is exercising jurisdiction to make an order for the winding up of corporations" (405). However there was nothing to prevent the Commonwealth from conferring power of that kind on the Supreme Court of the Australian Capital Territory (405). Reference should be made in that regard to the developing jurisprudence about the interaction of Ch III and the Territories' power in Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10 ; (1971) 125 CLR 591; Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44 ; (1999) 165 ALR 171 and in the joint judgment of Black CJ and Hely J in North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297 ; (2002) 122 FCR 204 at [106] [133].
Case: Federal Commissioner of Taxation v Munro [1926] HCA 58 ; (1926) 38 CLR 153
Outcome: cited
Divorced from association with a judicial proceeding nothing about the examination power under the Corporations Act marks it as judicial in character. It lacks the core elements of the judicial process such as the finding of facts, the making of value judgments and binding determinations as to legal rights and obligations. There are of course, functions, which can be viewed as administrative or judicial depending upon the body that discharges them: Federal Commissioner of Taxation v Munro [1926] HCA 58 ; (1926) 38 CLR 153 at 175-179; Cominos v Cominos [1972] HCA 54 ; (1972) 127 CLR 588 at 599, 605 and 606; R v Quinn ; Ex parte Consolidated Foods Corporation [1977] HCA 62 ; (1977) 138 CLR 1 at 6. It is nevertheless a necessary condition of the attribution of this "chameleon" status to a particular function that it be capable of constituting an exercise of judicial power.
Case: Cominos v Cominos [1972] HCA 54 ; (1972) 127 CLR 588
Outcome: cited
Divorced from association with a judicial proceeding nothing about the examination power under the Corporations Act marks it as judicial in character. It lacks the core elements of the judicial process such as the finding of facts, the making of value judgments and binding determinations as to legal rights and obligations. There are of course, functions, which can be viewed as administrative or judicial depending upon the body that discharges them: Federal Commissioner of Taxation v Munro [1926] HCA 58 ; (1926) 38 CLR 153 at 175-179; Cominos v Cominos [1972] HCA 54 ; (1972) 127 CLR 588 at 599, 605 and 606; R v Quinn ; Ex parte Consolidated Foods Corporation [1977] HCA 62 ; (1977) 138 CLR 1 at 6. It is nevertheless a necessary condition of the attribution of this "chameleon" status to a particular function that it be capable of constituting an exercise of judicial power.
Case: R v Quinn; Ex parte Consolidated Foods Corporation [1977] HCA 62 ; (1977) 138 CLR 1
Outcome: cited
Divorced from association with a judicial proceeding nothing about the examination power under the Corporations Act marks it as judicial in character. It lacks the core elements of the judicial process such as the finding of facts, the making of value judgments and binding determinations as to legal rights and obligations. There are of course, functions, which can be viewed as administrative or judicial depending upon the body that discharges them: Federal Commissioner of Taxation v Munro [1926] HCA 58 ; (1926) 38 CLR 153 at 175-179; Cominos v Cominos [1972] HCA 54 ; (1972) 127 CLR 588 at 599, 605 and 606; R v Quinn ; Ex parte Consolidated Foods Corporation [1977] HCA 62 ; (1977) 138 CLR 1 at 6. It is nevertheless a necessary condition of the attribution of this "chameleon" status to a particular function that it be capable of constituting an exercise of judicial power.
Case: Dalton v New South Wales Crime Commission [2006] HCA 17 ; (2006) 226 ALR 570
Outcome: cited
The examination power taken alone, in the sense used above, is not an exercise of judicial power nor, taken alone, is it judicial when exercised by a court. It can only be accommodated within the exercise of judicial power if incidental to it or justified by historical usage. An examination ordered in aid of the implementation of a winding up order made by a court can be seen as incidental to the exercise of judicial power and has long been accepted as such, at least implicitly if not explicitly, on that basis. On the other hand an examination which is "free standing" in the sense that it is exercised without reference to any pending proceeding does not fall within the scope of the judicial power unless it can be characterised as judicial on the basis that it is a function which courts have long carried out. The historical incidence of investigative functions exercised by courts was referred to in Dalton v New South Wales Crime Commission [2006] HCA 17 ; (2006) 226 ALR 570. That case concerned the validity of s 76 of the Service and Execution of Process Act 1992 (Cth). The section empowers the Supreme Court of a State, in which a subpoena is issued by a tribunal for a person to give evidence before the tribunal, to give leave to serve the subpoena out of the State. It was submitted in the High Court that the exercise by the Courts of investigative functions did not occasion or support the issue and service of process under s 51(xxiv) of the Constitution . There was therefore said to be no foundation for an analogical extension in respect of the investigative functions of tribunals. To the extent that this argument involved a denial of the investigative function of courts it was rejected in the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ. Their Honours said (at [45]): 'From a time well before federation, the courts of the Australian colonies, like those in England and elsewhere in the Empire, exercised a range of administrative and investigative functions. Provisions for the examination of judgment debtors, bankrupts, and officers of failed corporations are in point. In Cheney v Spooner [(1929) [1929] HCA 12 ; 41 CLR 532] this court upheld the application of the 1901 Act to an order by the Supreme Court of New South Wales under ss 123 and 124 of the Companies Act 1899 (NSW) which gave leave to the liquidator of a company in voluntary liquidation to summons a number of persons to attend for examination by the Master in Equity. The equity jurisdiction of the Supreme Courts with respect to bills of discovery (or preliminary discovery in more recent parlance) provides another instance of an investigative procedure. So also the courts of marine inquiry established in the Australian colonies. Likewise the next of kin inquiry in an administration suit, conducted in New South Wales by the master in equity. Further, the 1901 Act, as King CJ pointed out in [ Alliance Petroleum Australia NL v Australian Gaslight Co (1983) 34 SASR 215 at 236], applied to subpoenas and summonses issued by coroners.'
Case: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564
Outcome: applied
Where a claim relates to operational service, as the applicant's claim did, the standard of proof to be applied to the question whether an injury or disease is war-caused is prescribed by subss 120(1) and (3) of the Act. Those provisions are applied in the manner explained by the High Court in Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571 and may be summarised as follows: (1) The threshold question is posed by subs 120(3) namely, whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's injury or disease with the circumstances of his service. The question whether the material raises a reasonable hypothesis of that kind does not involve the finding of any facts relating to the veteran's service or relating to any connection between that service and the relevant injury or disease. (2) If the material does raise such a reasonable hypothesis, the decision-maker proceeds to the question posed by subs 120(1) namely, is the decision-maker satisfied beyond reasonable doubt that the facts required to connect the veteran's injury or disease with his service were not present or were displaced by other facts. It is only at this stage that the Tribunal finds any facts. 12 Subsection 120(3) 'is affected by s 120A'; and, according to subs 120A(1), s 120A applies to a claim under Part II of the Act made on or after 1 June 1994 that relates to operational service rendered by a veteran. The applicant's claim was such a claim.
Case: Hardman v Repatriation Commission [2005] FCAFC 83
Outcome: cited
The appeal focuses on the alleged failure of the Tribunal to approach the question whether the applicant's CP was war-caused in the manner prescribed by subss 120(1) and (3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth) ('the Act'), as explained in the authorities, including Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 ; Repatriation Commission v Cornelius [2002] FCA 750 ; Meehan v Repatriation Commission (2002) 35 AAR 353 ; Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 ; and Hardman v Repatriation Commission [2005] FCAFC 83. In particular, the applicant contends that the Tribunal erred in law by: (1) Treating clinical onset of CP as requiring the contemporaneous diagnosis of CP ground 4(i); (2) impermissible fact-finding at the reasonable hypothesis stage that one of the elements required to raise a reasonable hypothesis connecting CP with the applicant's war service (clinical onset of CP within six months of direct trauma to the patella) did not occur within the prescribed time ground 4(ii); and (3) rejecting the alternative hypothesis (of inability to obtain appropriate clinical management in Vietnam for pre-existing CP) on the basis of impermissible fact-finding that the applicant's CP did not have its clinical onset until after his operational service grounds 4(iii) and 4(iv).