mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Czerwinski v Syrena Royal Pty Ltd (No 1) [2000] VSC 125 ; (2000) 34 ACSR 245
Outcome: followed
person applying for an order pursuant to s 247A bears the onus of establishing that he is acting in good faith and that the inspection is to be made for a proper purpose: Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344 at [29] . Merim must do more than demonstrate that it is dissatisfied with the management decisions: Re Augold NL [1987] 2 Qd R 297 at 308 Cescastle Pty Ltd v Renak Holdings Ltd (1991) 6 ACSR 115 at 117. Merim must satisfy me that it is entitled to inspect the books because the information sought relates to matters that it as a shareholder ought to be informed of by the company: see, for example, Czerwinski v Syrena Royal Pty Ltd (No 1) [2000] VSC 125 ; (2000) 34 ACSR 245 at 248.
Case: Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474
Outcome: followed
the primary or dominant purpose for which the inspection is sought by Merim is a proper purpose, any subsidiary purpose for some other benefit is not relevant. In Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474 Beach J said at 480: "Having heard the evidence of the witness Wayland in relation to the matter I am satisfied that although Unity APA may well be seeking an order for inspection with a view to assisting its takeover offer that is not its dominant purpose. In my view its primary or dominant purpose is to ascertain whether or not the directors of Humes have been and are in breach of their duties to the shareholders of Humes in so far as the proposed acquisition of Smorgon Steel is concerned and whether or not it should oppose the proposal. If that is its dominant purpose as I am satisfied it is, in my opinion it is not to the point that an inspection of Humes books relating to the proposal may in some way be of benefit to Unity APA so far as its take over is concerned. If its primary purpose is a valid purpose such a consideration is irrelevant. ..."
Case: Gerah Imports Pty Ltd v Duke Group Ltd (In Liq) [1993] SASC 4359 ; (1993) 61 SASR 557
Outcome: considered
Gerah Imports Pty Ltd v Duke Group Ltd (In Liq) [1993] SASC 4359 ; (1993) 61 SASR 557 , the Full Court of the Supreme Court of South Australia permitted a liquidator to seek information as to the nature and extent of the professional indemnity insurance cover held by professional advisors to the company in liquidation to determine the likely possibility of recovering any judgment obtained against them having regard to the cost likely to be generated by liquidation. Merim did not seek to rely, by analogy on O15A r 6 of the Federal Court Rules which enable an order to be made for preliminary discovery. Merim accepted that the Court, under O 15A r 6, is required to determine whether an applicant has reasonable cause to believe that it may have a cause of action against another person, and whether the applicant has insufficient information to enable the decision to be made. Merim acknowledged that access to insurance policies are usually denied under this Rule (unless relevant to investigating the identity of potential parties to an action).
Case: Grosvenor Hill (Queensland) Pty Ltd v Barber [1994] FCA 921 ; (1994) 48 FCR 301
Outcome: considered
submitted the position for a shareholder, who is granted inspection of the books of a company pursuant to s 247A for the purpose of considering whether proceedings should be commenced in the name of the company against its directors is analogous to that of a liquidator examining the affairs of a company to determine whether litigation on behalf of the company should be pursued. I do not consider that there is an exact analogy between the position of a shareholder and the position of a liquidator in these circumstances. The liquidator is given specific functions and powers by statute and has a status quite independent of any other interest in the company. This status was emphasised by the Full Federal Court in Grosvenor Hill (Queensland) Pty Ltd v Barber [1994] FCA 921 ; (1994) 48 FCR 301. The Full Court said at 306: "A liquidator, when engaged in litigation on behalf of a company which is being wound up, or when contemplating instituting such litigation, is not in the same position as an ordinary litigant. The liquidator comes to the company as an officer of the court under a duty and responsibility to get in and maximise the assets of the company for distribution for the benefit of creditors. In the discharge of his or her duty and function, the liquidator comes to the company with limited or no knowledge of the company's assets, business and affairs. The liquidator is therefore in a position of disadvantage to make informed decisions of both a legal and a commercial nature necessary to carry out the winding up. The legislature has recognised this position of disadvantage and addressed the problem by the enacting of s 596B of the Law and its predecessors. The effect of the legislation is to place a liquidator in a privileged position to obtain information relevant to and necessary for the proper discharge of his or her statutory function. The seeking of information to make decisions as to whether or not litigation ought to be embarked upon or continued in itself is no more than 'an exercise of his duties and the fulfilment of his responsibilities as liquidator' (per Bryson J in Lombard Nash International Pty Ltd v Berentsen (1990) 8 ACLC 1213 at 1217)."
Case: Re Spedley Securities Ltd (In Liq); Ex parte Potts (1990) 8 ACLC 673
Outcome: cited
Full Court also noted that in Re Spedley Securities Ltd (In Liq); Ex parte Potts (1990) 8 ACLC 673 , Young J recognised that the statutory power in s 596B of the Corporations Law (also s 596B of the Act) in relation to an examination of a person about "examinable affairs" of a corporation was not limited to ordering an examination to obtain evidence to prove a claim but also getting evidence to determine the prospects of success. As was pointed out in the cases to which I have earlier referred (par [67] above) the rationale underlying s 247A, insofar as the purpose is to inspect documents in order to consider possible legal proceedings against directors is to enable a shareholder who has identified an appropriate "case for investigation" to determine whether that case has any substance or prospects.
Case: Ly and Another v Jenkins and Others [2001] FCA 1640 ; (2001) 114 FCR 237
Outcome: cited
The appellate jurisdiction of the Federal Court of Australia includes a jurisdiction to hear and determine appeals from judgments of a Court of a State exercising federal jurisdiction, in such cases 'as are provided by any other Act' (s 24(1)(c) Federal Court of Australia Act 1976 ). Section 131B(2) of the Copyright Act 1968 (Cth) (' Copyright Act ') provides that an appeal lies from a decision of a Court of a State under Part V of the Copyright Act to the Federal Court of Australia. Section 39(2) of the Judiciary Act 1903 (Cth) provides that 'the several Courts of the States shall within the limits of their several jurisdictions, ... be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it ...'. The High Court has original jurisdiction in the five matters set out in s 75 of the Constitution . By s 76 of the Constitution , the Parliament may confer original jurisdiction on the High Court in any matter arising under any laws made by the Parliament (s 76(ii)). Additionally, by s 77(iii) of the Constitution , the Parliament may make laws investing any Court of a State with federal jurisdiction in respect of the nine matters identified in ss 75 and 76 of the Constitution . Since original jurisdiction can be conferred upon the High Court in any matter arising under the Copyright Act , s 39(2) invests the Magistrates Court of Queensland with federal jurisdiction in respect of a matter under Part V of the Copyright Act which includes s 115 of the Copyright Act conferring an entitlement upon the copyright owner to bring an action for infringement of copyright. The decision of her Honour was thus a decision under Part V of the Copyright Act and an appeal lies from that decision to the Federal Court of Australia ( Ly and Another v Jenkins and Others [2001] FCA 1640 ; (2001) 114 FCR 237 per Sackville J at [69] and following). 6 The exercise of the Court's appellate jurisdiction contemplates applications for leave to appeal or for an extension of time within which to institute an appeal to the Court (s 25(2)(a) and (b)). By s 25(2A) , the rules of Court may make provision for applications to be dealt with of the kind mentioned in s 25(2). Order 52, rule 15(1)(a) provides that a notice of appeal shall be filed and served within 21 days after the date when the judgment appealed from was pronounced. The time limited for filing and serving a notice of appeal, in this case, expired on 10 April 2007. Order 52, rule 15(2) provides that the Court or a judge for 'special reasons' may at any time give leave to file and serve a notice of appeal which, in accordance with Form 54A and Order 52, rule 15(3) involves an application for an extension of time within which, by leave, to file and serve a notice of appeal. The notice of motion seeking an extension of time was filed on 13 December 2007 approximately eight months after the expiration of the time limited for filing and serving an appeal.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: cited
It is entirely uncontroversial that in considering an application to extend time to file and serve a notice of appeal, the Court will have regard to the length of the delay ( Jess v Scott (1986) 12 FCR 187 per Lockhart, Sheppard and Burchett JJ); the explanation for the delay and whether the applicant has contributed to the delay ( Stollznow v Calvert [1980] 2 NSWLR 749, per Moffit P); any prejudice to the respondents arising out of the delay ( Douglas v Allen (1984) 1 FCR 287 per Morling J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J at p 349); actions taken by the applicant to alert the respondent to the fact that the decision is or may be contested ( Hunter Valley Developments at p 349); the merits of the proposed appeal ( Hunter Valley Developments at p 349; Seiler v Minister for Immigration (1994) 48 FCR 83 per French J at p 98B); alternative avenues of relief ( Re Envirotech Australia Pty Ltd (1989) 14 IPR 108 per Jenkinson J); and any questions going to public interest ( Envirotech and Johns v Australian Securities Commission (1992) 108 ALR 277 per Heerey J).
Case: Stollznow v Calvert [1980] 2 NSWLR 749
Outcome: cited
It is entirely uncontroversial that in considering an application to extend time to file and serve a notice of appeal, the Court will have regard to the length of the delay ( Jess v Scott (1986) 12 FCR 187 per Lockhart, Sheppard and Burchett JJ); the explanation for the delay and whether the applicant has contributed to the delay ( Stollznow v Calvert [1980] 2 NSWLR 749, per Moffit P); any prejudice to the respondents arising out of the delay ( Douglas v Allen (1984) 1 FCR 287 per Morling J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J at p 349); actions taken by the applicant to alert the respondent to the fact that the decision is or may be contested ( Hunter Valley Developments at p 349); the merits of the proposed appeal ( Hunter Valley Developments at p 349; Seiler v Minister for Immigration (1994) 48 FCR 83 per French J at p 98B); alternative avenues of relief ( Re Envirotech Australia Pty Ltd (1989) 14 IPR 108 per Jenkinson J); and any questions going to public interest ( Envirotech and Johns v Australian Securities Commission (1992) 108 ALR 277 per Heerey J).
Case: Douglas v Allen (1984) 1 FCR 287
Outcome: cited
It is entirely uncontroversial that in considering an application to extend time to file and serve a notice of appeal, the Court will have regard to the length of the delay ( Jess v Scott (1986) 12 FCR 187 per Lockhart, Sheppard and Burchett JJ); the explanation for the delay and whether the applicant has contributed to the delay ( Stollznow v Calvert [1980] 2 NSWLR 749, per Moffit P); any prejudice to the respondents arising out of the delay ( Douglas v Allen (1984) 1 FCR 287 per Morling J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J at p 349); actions taken by the applicant to alert the respondent to the fact that the decision is or may be contested ( Hunter Valley Developments at p 349); the merits of the proposed appeal ( Hunter Valley Developments at p 349; Seiler v Minister for Immigration (1994) 48 FCR 83 per French J at p 98B); alternative avenues of relief ( Re Envirotech Australia Pty Ltd (1989) 14 IPR 108 per Jenkinson J); and any questions going to public interest ( Envirotech and Johns v Australian Securities Commission (1992) 108 ALR 277 per Heerey J).
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: cited
It is entirely uncontroversial that in considering an application to extend time to file and serve a notice of appeal, the Court will have regard to the length of the delay ( Jess v Scott (1986) 12 FCR 187 per Lockhart, Sheppard and Burchett JJ); the explanation for the delay and whether the applicant has contributed to the delay ( Stollznow v Calvert [1980] 2 NSWLR 749, per Moffit P); any prejudice to the respondents arising out of the delay ( Douglas v Allen (1984) 1 FCR 287 per Morling J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J at p 349); actions taken by the applicant to alert the respondent to the fact that the decision is or may be contested ( Hunter Valley Developments at p 349); the merits of the proposed appeal ( Hunter Valley Developments at p 349; Seiler v Minister for Immigration (1994) 48 FCR 83 per French J at p 98B); alternative avenues of relief ( Re Envirotech Australia Pty Ltd (1989) 14 IPR 108 per Jenkinson J); and any questions going to public interest ( Envirotech and Johns v Australian Securities Commission (1992) 108 ALR 277 per Heerey J).
Case: Seiler v Minister for Immigration (1994) 48 FCR 83
Outcome: cited
It is entirely uncontroversial that in considering an application to extend time to file and serve a notice of appeal, the Court will have regard to the length of the delay ( Jess v Scott (1986) 12 FCR 187 per Lockhart, Sheppard and Burchett JJ); the explanation for the delay and whether the applicant has contributed to the delay ( Stollznow v Calvert [1980] 2 NSWLR 749, per Moffit P); any prejudice to the respondents arising out of the delay ( Douglas v Allen (1984) 1 FCR 287 per Morling J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J at p 349); actions taken by the applicant to alert the respondent to the fact that the decision is or may be contested ( Hunter Valley Developments at p 349); the merits of the proposed appeal ( Hunter Valley Developments at p 349; Seiler v Minister for Immigration (1994) 48 FCR 83 per French J at p 98B); alternative avenues of relief ( Re Envirotech Australia Pty Ltd (1989) 14 IPR 108 per Jenkinson J); and any questions going to public interest ( Envirotech and Johns v Australian Securities Commission (1992) 108 ALR 277 per Heerey J).
Case: Re Envirotech Australia Pty Ltd (1989) 14 IPR 108
Outcome: cited
It is entirely uncontroversial that in considering an application to extend time to file and serve a notice of appeal, the Court will have regard to the length of the delay ( Jess v Scott (1986) 12 FCR 187 per Lockhart, Sheppard and Burchett JJ); the explanation for the delay and whether the applicant has contributed to the delay ( Stollznow v Calvert [1980] 2 NSWLR 749, per Moffit P); any prejudice to the respondents arising out of the delay ( Douglas v Allen (1984) 1 FCR 287 per Morling J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J at p 349); actions taken by the applicant to alert the respondent to the fact that the decision is or may be contested ( Hunter Valley Developments at p 349); the merits of the proposed appeal ( Hunter Valley Developments at p 349; Seiler v Minister for Immigration (1994) 48 FCR 83 per French J at p 98B); alternative avenues of relief ( Re Envirotech Australia Pty Ltd (1989) 14 IPR 108 per Jenkinson J); and any questions going to public interest ( Envirotech and Johns v Australian Securities Commission (1992) 108 ALR 277 per Heerey J).
Case: Envirotech and Johns v Australian Securities Commission (1992) 108 ALR 277
Outcome: cited
It is entirely uncontroversial that in considering an application to extend time to file and serve a notice of appeal, the Court will have regard to the length of the delay ( Jess v Scott (1986) 12 FCR 187 per Lockhart, Sheppard and Burchett JJ); the explanation for the delay and whether the applicant has contributed to the delay ( Stollznow v Calvert [1980] 2 NSWLR 749, per Moffit P); any prejudice to the respondents arising out of the delay ( Douglas v Allen (1984) 1 FCR 287 per Morling J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J at p 349); actions taken by the applicant to alert the respondent to the fact that the decision is or may be contested ( Hunter Valley Developments at p 349); the merits of the proposed appeal ( Hunter Valley Developments at p 349; Seiler v Minister for Immigration (1994) 48 FCR 83 per French J at p 98B); alternative avenues of relief ( Re Envirotech Australia Pty Ltd (1989) 14 IPR 108 per Jenkinson J); and any questions going to public interest ( Envirotech and Johns v Australian Securities Commission (1992) 108 ALR 277 per Heerey J).
Case: Bushell v Repatriation Commission (1992) 175 CLR 408
Outcome: followed
The tribunal's reasons did not deal with that part of the hypothesis in Dr Volker's evidence that the development of Mr Gilkinson's obesity, first observed in 1971, was contributed to by either the effects of shift work alone, or that in combination with the two factors of eating to excess and not exercising sufficiently. Whether or not Dr Volker's hypothesis was right or wrong, it could not be said to be fanciful, impossible, incredible, not tenable, too remote or too tenuous, unless the tribunal found as a fact that it was satisfied beyond reasonable doubt that there was no temporal connection between Mr Gilkinson having to undertake shift work while on operational service and the development of his obesity: Bushell v Repatriation Commission (1992) 175 CLR 408 at 421-422 per Mason CJ, Deane and McHugh JJ.
Case: Byrne v Repatriation Commission (2007) 242 ALR 620
Outcome: cited
A finding of satisfaction beyond reasonable doubt requires the exclusion of any reasonable hypothesis consistent with the contrary. The question for the tribunal was whether, having regard to the hypothesis of Dr Volker, his obesity could be said beyond reasonable doubt not to have arisen out of or been attributable to Mr Gilkinson's operational service: Roncevich 222 CLR at 125-126 [23]-[28]; see too Byrne v Repatriation Commission (2007) 242 ALR 620 at 633 [58] per Buchanan J, with whom Gyles J at 621 [3] and Edmonds J at 623 [11] agreed. 30 I am of opinion that the amended notice of appeal did state questions of law. As was the case in Roncevich 222 CLR at 126 [28], the questions of law were whether the tribunal posed for itself and answered the two relevant questions. The tribunal's statement in the last sentence of [22] of its reasons, that nothing occurred during the operational service that in any way caused or contributed to Mr Gilkinson's obesity, over and above the existing fact that he was eating to excess and not exercising sufficiently, was a mere conclusion or assertion: cf: Byrne 242 ALR at 632 [53] per Buchanan J, Edmonds J agreeing at [10]. It did not advance a reason for negating beyond reasonable doubt Dr Volker's hypothesis that shift work could have caused or contributed to Mr Gilkinson's eating or not exercising. Instead, the tribunal simply stated a conclusion which indirectly may have rejected the hypothesis. But, it had to make a finding of fact as to whether that hypothesis had been disproved beyond reasonable doubt. Since Dr Volker put forward the hypothesis that shift work contributed to the eating disorder, the tribunal had to make findings which negated any causal effect of shift work on the obesity of Mr Gilkinson first observed in 1971 after he had completed 92 days of operational service for his country.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
Of course, the reasons of an administrative decision-maker must not be construed minutely and finely with an eye keenly attuned to the perception of error. Those reasons are meant to inform and should not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which they are expressed. The Court must guard against turning a review of a decision-maker upon proper principles into a reconsideration on the merits of a decision as explained by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. 25 Here, the tribunal simply asserted that Mr Gilkinson's eating habits and lack of exercise habits had nothing to do with his operational service. But it never dealt with the questions of any relationship between either or both of those habits and the necessity for him to undertake shift work as a part of his ordinary service and how his being obese may or may not have been arisen from or been attributable to the necessity for him to perform shift work during his operational service. 26 The Commission argued that, at least implicitly, the tribunal must have reasoned that Mr Gilkinson would have reached obesity whether he had gone on operational service or not. That argument recognised, by using the word "implicitly", the tribunal's lack of express reasons to negate any hypothesis concerning shift work. The tribunal was required under s 43(2B) of the Administrative Appeals Act to set out its reasons and not to leave important matters to be dealt with by implications. It was not entitled to leave open the hypothesis, clearly articulated by Dr Volker, that the necessity to perform shift work while on operational service itself contributed to Mr Gilkinson's eating disorder and lack of exercise leading to his obesity. The tribunal dealt expressly with only three of the four factors raised in Dr Volker's hypothesis namely, the plentiful supply of food and alcohol and low levels of physical activity. It did not deal with shift work.
Case: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
Where the tribunal gives the reasons for its decision in writing, s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that those reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. The tribunal need only set out the findings that it actually made: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 349 [77] per McHugh, Gummow and Hayne JJ. The tribunal's identification of what it considered to be the material questions of fact might demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration: Yusuf 206 CLR at 346 [69]. A complaint that the tribunal failed to make a relevant finding of fact will often amount to a complaint of error of law or a failure to take into account relevant considerations, as their Honours pointed out in Yusuf 206 CLR at 349-350 [78].