mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Heinrich v Commonwealth Bank of Australia (2003) FCAFC 315
Outcome: referred to
As pointed out by the Full Court in Heinrich v Commonwealth Bank of Australia (2003) FCAFC 315 at par 20, 'The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled... Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made.' 33 On the facts of this case, the applicant has committed an act of bankruptcy. There appears to be no dispute that the applicant was indebted to the respondent, that the respondent obtained a final judgment for the sum in question, and that this final judgment formed the basis of the bankruptcy notice. That debt, and that judgment are not in any way being impugned in this matter. Failure to comply with the bankruptcy notice in turn resulted in a sequestration order being made against the applicant. I have already recounted in some detail the background to this debt. 34 The applicant has submitted before me that, notwithstanding that she did not pay the debt, she was nonetheless solvent that is, able to pay all of her debts as and when they became due and payable. The applicant has also sought to demonstrate that her income exceeded her expenditure during the period when the sequestration order was made, and indeed the applicant has claimed that she had estimated gross annual earnings net of expenses of $90 000 (TS p 23 ll 35-38). However it became clear during cross-examination before me that the applicant has little or no income, and had little or no income at the date of the sequestration order (for example, TS p 15 l 3). Further, under cross-examination by counsel for I &amp; L Securities it became apparent that the applicant's expenses far exceeded any earnings during this time (TS pp 25-32).
Case: House v R [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: referred to
At the same time, it is vital to constantly keep in mind that the power exercised by the learned Federal Magistrate at first instance under s 153B(1), is discretionary. As pointed out by Dixon, Evatt and McTiernan JJ in the well-known case House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 504-505, in the case of an appeal against an exercise of discretion, the appellate court must not attempt to simply substitute its opinion for that of the court at first instance. It must appear that some error has been made by the judge at first instance in exercising discretion, before the appellate court can and should interfere in that decision. 31 The merits of the applicant's proposed appeal case were argued in detail and at length during the hearing before me. The key matters upon which the case prospectively appears to turn are: &#8226; Whether the applicant was actually solvent at the date of the sequestration order, and therefore whether the order should not have been made; &#8226; Whether the applicant was actually served with the second creditor's petition; and &#8226; The applicant's claim that she now has additional resources, in the form of refinancing from other creditors.
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: cited
The Full Court in Jess v Scott emphasised that, given the discretionary nature of the Court's power in O 52 r 15(2) to relax the requirement of the general rules, the power should not itself 'become entangled in a web of rules spun out of the Court's discretionary decisions'. (p 20) However, there are a number of guiding principles which may assist the court in exercising its discretion. These were described by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and adopted by the Full Court in Parker v The Queen at par 6, as follows: 1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an 'acceptable explanation for the delay'; it must be 'fair and equitable in the circumstances' to extend time; 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; 4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
Case: Jess v Scott (unreported Full Court of the Federal Court, Lockhart, Sheppard and Burchett JJ, 4 November 1986)
Outcome: applied
Prima facie , time limits set by the Federal Court Rules , including those with respect to notices of appeal, are there to be observed by the parties. However, O 52 r 15(2) vests a discretion in the Court to extend the time during which a notice of appeal may be lodged, in order to avoid injustice where a party has missed a prescribed deadline for lodgement ( Parker v The Queen [2002] FCAFC 133 at par 13). 'Special reasons' must be demonstrated in order for this rule to be invoked. In considering the meaning of this term in Jess v Scott (unreported Full Court of the Federal Court, 4 November 1986), the Full Court said: 'It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' (pp 18-19) 6 The Full Court in Jess v Scott emphasised that, given the discretionary nature of the Court's power in O 52 r 15(2) to relax the requirement of the general rules, the power should not itself 'become entangled in a web of rules spun out of the Court's discretionary decisions'. (p 20) However, there are a number of guiding principles which may assist the court in exercising its discretion. These were described by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and adopted by the Full Court in Parker v The Queen at par 6, as follows: 1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an 'acceptable explanation for the delay'; it must be 'fair and equitable in the circumstances' to extend time; 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; 4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
Case: Kalaba v R (unreported, 13 September 1996, Finn J)
Outcome: applied
In my view, the key question is whether, prima facie , the merit of the applicant's case is such that the Court should exercise its discretion to allow additional time to file a notice of appeal. To paraphrase Finn J in Kalaba v R (unreported, 13 September 1996 at p 6, quoting in turn the Full Court in Jones v The Queen (unreported) Federal Court, 17 August 1984), has the applicant demonstrated that her appeal may have sufficient prospect of success to make it just that she should not be allowed to proceed with it? The other side of this coin is clearly that it is potentially unjust to all parties to this matter to allow the applicant to proceed with a case, where there are not sufficient prospects of success, but which would cause all parties to perhaps futilely incur costs, and introduce improper delay into the affairs of the parties. 29 It is appropriate that I should then consider the prima facie merit of the applicant's appeal case should she be granted leave to now file her notice of appeal.
Case: Parker v The Queen [2002] FCAFC 133
Outcome: referred to
Prima facie , time limits set by the Federal Court Rules , including those with respect to notices of appeal, are there to be observed by the parties. However, O 52 r 15(2) vests a discretion in the Court to extend the time during which a notice of appeal may be lodged, in order to avoid injustice where a party has missed a prescribed deadline for lodgement ( Parker v The Queen [2002] FCAFC 133 at par 13). 'Special reasons' must be demonstrated in order for this rule to be invoked. In considering the meaning of this term in Jess v Scott (unreported Full Court of the Federal Court, 4 November 1986), the Full Court said: 'It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' (pp 18-19) 6 The Full Court in Jess v Scott emphasised that, given the discretionary nature of the Court's power in O 52 r 15(2) to relax the requirement of the general rules, the power should not itself 'become entangled in a web of rules spun out of the Court's discretionary decisions'. (p 20) However, there are a number of guiding principles which may assist the court in exercising its discretion. These were described by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and adopted by the Full Court in Parker v The Queen at par 6, as follows: 1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an 'acceptable explanation for the delay'; it must be 'fair and equitable in the circumstances' to extend time; 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; 4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
Case: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666
Outcome: cited
The applicant has also claimed that her apparent excess of assets over liabilities means that she was solvent at the relevant time: Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 at 670. I note that, to some extent, it is difficult to know exactly what assets the applicant owns, as there appears to be disputes about, for example, various vehicles and boats. Further, I note, as did his Honour, that the applicant has apparently concealed property, including a china collection, for fear that it would be removed from her. 36 In my view, the applicant has not established a prima facie case that she was solvent at the date of the sequestration order upon which her bankruptcy is founded.
Case: Stankiewicz v Plata (2002) FCA 1185
Outcome: applied
In Stankiewicz v Plata (2002) FCA 1185 at par 19 the Court held that in determining whether a sequestration order ought not to have been made, the court is entitled to consider not only the case as disclosed at the time the order was made, but as it would have been disclosed had all the true facts been before the court on the making of the order. In my view in the case before me, no new facts of substance, relevant to the making of the sequestration order, have emerged since the hearing before the learned Federal Magistrate. In my view the evidence before me shows that it is likely the applicant was not solvent at the date of the sequestration order. I note that his Honour also considered evidence in relation to solvency of the applicant during the relevant period. His Honour, in light of evidence before him, exercised his discretion and refused to annul the applicant's bankruptcy. There appeared on the case before me to be little or no variation in the financial position of the applicant over the period before and after the making of the sequestration order. 38 No evidence has been brought before me which would prima facie incline me to disturb his Honour's findings on appeal in relation to whether the sequestration order ought to have been made.
Case: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 
Outcome: cited
The notice of appeal filed by Mr Lim does not identify a question of law capable of constituting the subject matter of his purported appeal (see, Hussain v Minister for Foreign Affairs [2008] FCAFC 128 at [26] - [34] ). The factual assertion that Mr Lim had made arrangements, apparently after breaching one of his agreements, to attend at WorkDirections on an extra day in a later week does not itself constitute a question of law. Nor does it by implication raise a question of law the answer to which could throw doubt on the correctness of the decision of the Tribunal. The references in the notice of appeal to the law of "attendance" and "reasonable excuse" do not assist Mr Lim in this regard. 13 Nonetheless, as Mr Lim does not have the benefit of legal representation, I have considered it appropriate to approach the issue of the competence of the appeal by giving consideration to any questions of law that Mr Lim could reasonably expect to be able to obtain leave to include in his notice of appeal were he to apply to amend that document. Mr Lim identified the following matters which he characterised as legal errors: (a) it was not legally possible, he argued, for the Tribunal to find that he had breached his Activity Agreement on 27 April 2007 (and possibly on other occasions) as he had received emails from WorkDirections requiring him to make-up missed days; (b) it was not open to the Tribunal, he argued, to find that he had breached one of his Activity Agreements unless his case manager, Rebecca, had asserted that he had done so; (c) he was, he argued, only legally obliged to attend at WorkDirections if his case manager, Rebecca, was present on that day and she was not present on one of the days on which the Tribunal found that he had breached his Activity Agreement without reasonable excuse; (d) he argued that WorkDirections imposed an unlawful condition on him by requiring him to find job interviews for himself; and (e) he argued that his case manager, Rebecca, made an administrative error by requiring him on short notice to make up for missed attendances. 14 None of the above alleged legal errors gives rise to a question of law that Mr Lim could reasonably expect to be able to obtain leave to include in his notice of appeal. They each concern an issue not raised by him before the Tribunal. More importantly, they reflect a clear misapprehension of the obligations imposed on Mr Lim by the agreements signed by him.
Case: Albert Hadid v Lenfest Communications Inc [1998] FCA 470
Outcome: cited
The test for permissible inspection is not whether the documents ought to be admitted into evidence ( National Employers' Mutual General Association Ltd v Waind (1978) 1 NSWLR 372 at 385-386 per Glass JA; Albert Hadid v Lenfest Communications Inc [1998] FCA 470 per Lehane J). Mr Maganga no longer seeks to uphold this aspect of the Tribunal's reasons where it held that inspection of the summonsed documents should not occur in circumstances where they may not ultimately be admissible.
Case: Alister v The Queen [1984] HCA 85 ; (1983-1984) 154 CLR 404
Outcome: cited
Comcare submits that there was evidence before the Tribunal which cast doubt on the reliability and honesty of Mr Maganga's evidence of the separate assaults in 1997. Accordingly, Comcare argues that it was "on the cards" ( Alister v The Queen [1984] HCA 85 ; (1983-1984) 154 CLR 404 at 414 per Gibbs CJ) that the summonsed documents might show that Mr Maganga had previously attempted to pass off a non work-related injury to his left knee as a "journey" injury, which was the very issue in the Tribunal proceedings in relation to the fourth injury. Comcare argues that if the summonsed documents showed there was only one left knee injury in 1997, this, together with cross-examination on the summonsed documents, would have reflected on Mr Maganga's reliability and credit in this Tribunal hearing and demonstrated that he had lied to Comcare and to the Tribunal. Accordingly, Comcare submits that the Tribunal denied it procedural fairness in refusing leave to inspect those documents. 23 The proposition put by Comcare is that, in proceedings which depend substantially on the credit worthiness of a party concerning his behaviour or activity, a proper basis exists for inspecting documents relevant to the honesty of that party on an earlier occasion with respect to the same behaviour or activity. This was not a general character attack on Mr Maganga but the information in the summonsed documents would have formed a substantial basis for cross-examination. The Tribunal permitted cross-examination on the 1997 injuries which challenged Mr Maganga's version of events but, Comcare submits, wrongfully withheld the right to inspect documents on the same subject. 24 Mr Maganga submits that in seeking to prove its case Comcare was, as a matter of fairness, obliged to put to Mr Maganga certain matters including the assertion that he lied to the Tribunal concerning the circumstances of the injury and that he submitted a compensation claim to Comcare which he knew to be false. Mr Maganga submits that Comcare did not put any of these matters to him and that Comcare's decision not to do so was not affected by the Tribunal's decision to deny access to the summonsed documents. Accordingly, Mr Maganga says, Comcare is bound by the way it conducted its case and its decision not to challenge Mr Maganga's credit. Mr Maganga also submits that the Tribunal was correct in not allowing access to the summonsed documents in circumstances where those documents went only to credit. 34 A party seeking to inspect documents does not need to demonstrate that relevant documents exist ( Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398 at [47] , [52] per Graham J; Alister at 451 per Brennan J). In any event, in this case there was no doubt that the summonsed documents did exist as they were produced to the Tribunal. It was also apparent that they were likely to be relevant to a issue in the proceedings. Further, it is not fishing to seek documents going to the credit of a crucial witness ( Fried at [24]).
Case: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
Outcome: cited
Comcare challenges the Tribunal's decision to refuse leave to inspect the summonsed documents. The alleged deficiencies in the cross-examination of Mr Maganga are not relevant to these grounds. Further, the asserted obligation on the part of Comcare to put these matters to Mr Maganga is misplaced. In Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2002) 201 ALR 437 , Gummow and Heydon JJ (with whom Gleeson CJ agreed) referred (at [55]) to the rule in Browne v Dunne and noted at [56] that ' ...the rule has no application to proceedings in the tribunal ... administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures '. Their Honours went on to note that the rule in Browne v Dunne had no application to proceedings in the Refugee Review Tribunal (at [57]), see also Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26] ). In Lawrance v Centrelink (2005) 88 ALD 664 Hely J referred to S154/2002 and found that the rule in Browne v Dunne has no application to proceedings in the Tribunal (at [31]). Regardless, it is evident from the cross-examination that did take place, that credit was strongly in issue and that Mr Maganga's version of events in relation to the 1997 injuries was challenged.
Case: Australian Postal Corporation v Hayes [1989] FCA 176 ; (1989) 23 FCR 320
Outcome: applied
Section 40(1D) of the AAT Act provides that the Tribunal may give a party leave to inspect a document produced under summons. The relevant procedure is generally within the discretion of the Tribunal (s 33(1)(a) of the AAT Act). The Tribunal is required to give proper consideration to matters before it (s 33(1)(b)) and to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case (s 39(1)). A "reasonable opportunity to present his or her case" requires the Tribunal to apply notions of procedural fairness ( Repatriation Commission v Farley-Smith (2007) 96 ALD 348 at [54] per Middleton J; Australian Postal Corporation v Hayes [1989] FCA 176 ; (1989) 23 FCR 320 at 326 per Wilcox J).