mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304
Outcome: cited
The appellant complained that the RRT did not take evidence from Baluyeva, Antoshin and Grechko orally by telephone, despite the request that it should do so. The nature of the RRT's obligation under s 426(3) of the Act is discussed in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304, a case concerning the analogous obligation on the Migration Review Tribunal under s 361(3) of the Act. It is obliged to give genuine consideration to such a request. In doing so, it must have regard to matters such as the relevance and potential importance of the proposed evidence, the sufficiency of any written evidence already provided, and other matters: see the discussion in W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 ; (2002) 124 FCR 449 at [2] , [30]-[32].
Case: W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 ; (2002) 124 FCR 449
Outcome: applied
The appellant complained that the RRT did not take evidence from Baluyeva, Antoshin and Grechko orally by telephone, despite the request that it should do so. The nature of the RRT's obligation under s 426(3) of the Act is discussed in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304, a case concerning the analogous obligation on the Migration Review Tribunal under s 361(3) of the Act. It is obliged to give genuine consideration to such a request. In doing so, it must have regard to matters such as the relevance and potential importance of the proposed evidence, the sufficiency of any written evidence already provided, and other matters: see the discussion in W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 ; (2002) 124 FCR 449 at [2] , [30]-[32].
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: cited
The appellant also contended that the RRT had failed to consider the claim that he had a well-founded fear of being persecuted if he returned to Belarus by reason of his membership of a particular social group, namely the social group comprising those who participated in trade union demonstrations. I do not accept that contention, simply because I do not consider that it was raised before the RRT. The appellant's claim to a protection visa was based upon feared persecution for his political beliefs and activities, and not for his membership of a particular social group; see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1. 54 Finally, as the appellant invited the Court to do, I step back to see if some jurisdictional error must have been committed by the RRT even if it is not readily discernible. His claim was based upon events which the RRT accepted: the existence of an opposition active trade union movement involved in anti-government demonstrations including on particular dates, and evidence of persecutory behaviour at least towards those promoting those protests, including in the BNF. His claim of having suffered injuries on or about the times of two significant protests was accepted, namely a fractured finger and a kidney injury. His claim was apparently verified by several witnesses. Despite all that material, his claim failed because the RRT thought he was fabricating his claimed role as an activist, and consequently it rejected the confirmatory and apparently independent corroborative evidence, as well as corroborative evidence from his wife and son. It did so by a close analysis of the oral evidence and documentary material, indicating some discrepancies between his evidence and that of his witnesses or of the other material. Some of those discrepancies might be seen to be minor: for example, the assumption that a hospital medical certificate issued some six months after treatment would necessarily replicate fully the details of the examination, and not simply the principal injury, may not be made by all fact-finders. The analysis of the discrepancies by the RRT has not, however, persuaded me that it may not have approached its task with an open mind. And there are other discrepancies, such as the appellant's explanations about his movements between Belarus, Moscow and Poland about the time he last left Belarus, which do not lend themselves to such ready explanation. 55 Notwithstanding the apparently cogent material in support of the appellant's claim, I do not think that the RRT has been shown to have somehow reached its decision by some latent error of law. It is not the role of the Court to form a view as to whether it would have reached a different factual conclusion on the evidentiary material.
Case: New England Biolabs Inc v F Hoffman-La Roche AG [2004] FCAFC 213 ; (2004) 141 FCR 1
Outcome: cited
grounds of opposition which were pressed before the delegate of the Registrar of Trade Marks were based upon ss 42, 43, 44 and 60 of the 1995 Act. The delegate found that the opponent had not made out any of the grounds of opposition with the consequence that the mark would proceed to registration. This is an appeal pursuant to s 56 from that decision. The appeal is a hearing de novo ( Blount Inc v Registrar of Trade Marks [1998] FCA 440 ; (1998) 83 FCR 50). The Court stands in the shoes of the Registrar but decides the issue judicially (cf New England Biolabs Inc v F Hoffman-La Roche AG [2004] FCAFC 213 ; (2004) 141 FCR 1).
Case: Aliprandi v Griffith Vintners Pty Ltd (in liq) (1991) 6 ACSR 250
Outcome: cited
is clear authority that the Court retains the inherent power in the course of a winding up of a company to permit proceedings to be taken in the name of a company by contributors and creditors: Russell v Westpac Banking Corporation [1994] SASC 4479 ; (1994) 12 ACLC 278 ; Aliprandi v Griffith Vintners Pty Ltd (in liq) (1991) 6 ACSR 250 ; Magarditch v Australia &amp; New Zealand Banking Group Ltd (1999) 32 ACSR 367. Generally, whether the assets of the company are sufficiently protected by indemnity supported by security is relevant to the exercise of discretion: Aliprandi v Griffith Vintners Pty Ltd (in liq) (1991) 6 ACSR 250. In this case, however, Pearl Coast has no assets and creditors will be no worse off in that even if the application fails and adverse costs orders are made, there is no distribution to creditors to be diluted by the defendants' costs entitlements. Neither Pearl Coast nor the liquidators are at risk in this respect.
Case: Australian Securities and Investments Commission v Marlborough Gold Mines Ltd [1993] HCA 15 ; (1993) 177 CLR 485
Outcome: cited
recently, Siopis J, in Promaco Conventions Pty Ltd v Dedline Printing Pty Ltd [2007] FCA 586 ; (2007) 159 FCR 486 in what I consider, respectfully, to be a most persuasive judgment concluded that Part 2F.1A did not apply to a company in liquidation. Despite this, his Honour was not able to conclude that he had a high enough degree of assurance necessary to characterise the series of earlier contrary decisions at first instance as 'plainly wrong', as required by the test in Australian Securities and Investments Commission v Marlborough Gold Mines Ltd [1993] HCA 15 ; (1993) 177 CLR 485.
Case: BL &amp; GY International Co Ltd v Hypec Electronics Pty Ltd [2001] NSWSC 705 ; (2001) 164 FLR 268
Outcome: referred to
some considerable time there have been differences of judicial opinion as to whether Part 2F.1A has application to a company in liquidation. In BL &amp; GY International Co Ltd v Hypec Electronics Pty Ltd [2001] NSWSC 705 ; (2001) 164 FLR 268 Einstein J in obiter expressed the view that Pt 2F.1A does not so apply. In Carpenter v Pioneer Race Pty Ltd (in liq) [2004] NSWSC 1007 ; (2004) 211 ALR 457 Barrett J concluded that it does apply. Indeed, his Honour said that the question should now be regarded as settled, pointing to the considerable support for this view in a number of judgments of this Court. In one of these, Kamper v Applied Soil Technology Pty Ltd [2004] NSWSC 891 ; (2004) 50 ACSR 738 Einstein J at [10]-[11] having considered the authorities, including that of Barrett J in Charlton v Baber [2003] NSWSC 745 ; (2003) 47 ACSR 31 , was persuaded that his earlier view in BL &amp; GY International was wrong.
Case: Cadima Express Pty Ltd (in liq) v Deputy Commissioner of Taxation [1999] NSWSC 1143 ; (1999) 33 ACSR 527
Outcome: discussed
Cadima Express Pty Ltd (in Liq) v Deputy Commissioner of Taxation [1999] NSWSC 1143 ; (1999) 33 ACSR 527 , Austin J was of the opinion that the attitude of the liquidator to the merits of the action is particularly relevant to the Court's consideration. This flowed from the proposition articulated by Gummow J in Scarel Pty Ltd v City Loan &amp; Credit Corporation Pty Limited (1998) 12 ACLR 730 at 733 that the ordinary rule is that the liquidator is the appropriate person to decide whether the company should commence proceedings, subject to review under the statutory provisions. His Honour considered that if the liquidator is of the view that the proposed litigation is soundly based, but he cannot pursue it because of an absence of funds, the Court will be more disposed to permit proceedings by a contributory in the company's name than in circumstances where he has decided that there is no reasonable foundation to bring proceedings. His Honour then referred to Partnership Pacific Ltd v Aliprandi (1990) 4 ACSR 51 where Cole J said that for an application to succeed more must be shown than that the liquidator's position is protected by an indemnity. Austin J [46]-[48] observed that the two cases indicate that the Court is entitled to have the assistance of the liquidator in making its assessment as to whether an arguable case has been demonstrated and that the Court will normally give weight to the liquidator's view. Nonetheless the position of the defendants is a matter going to the exercise of the Court's discretion: Cadima Express Pty Ltd (in liq) v DCT [1999] NSWSC 1143 ; (1999) 33 ACSR 527 at [49] . The liquidators do not oppose the application so long as neither they nor Pearl Coast are liable for any adverse costs orders. Mr Sharp has already paid from his own funds in excess of $21,000 on behalf of Pearl Coast, by way of costs and interest on those costs so that the action could proceed. By clause 4 of the Deed of Assignment it was agreed that Pearl Coast would not be liable for costs in connection with the action. I infer from this that Mr Sharp would be personally liable. That of course is no comfort to the defendants who, if successful, would likely obtain a costs order against Pearl Coast which in practical terms would be of no value.
Case: Chahwan v Euphoric Pty Ltd [2008] NSWCA 52
Outcome: followed
then the New South Wales Court of Appeal has recently delivered judgment in Chahwan v Euphoric Pty Ltd [2008] NSWCA 52 which is directly on point. Tobias JA (Beasley and Bell JJA concurring) concluded, after full argument and very detailed reasons, that Part 2F.1A of the Act does not apply to a company in liquidation. This judgment is of course highly persuasive and, in my respectful opinion, is correct. In those circumstances I decline to follow earlier judgments of single judges of this and other courts which reached a contrary conclusion: Roach v Winnote Pty Ltd (in liq) [2001] NSWSC 822 ; Brightwell v RFV Holdings Pty Ltd [2003] NSWSC 7 ; Charlton v Baber [2003] NSWSC 745 ; (2003) 47 ACSR 31 ; I invited the parties to make further submissions in light of the judgment in Chahwan. The plaintiffs submit that, in the alternative, the Court should determine the application, in the inherent power of the Court. The defendants are opposed to any consideration of this alternative basis for the relief sought because it was not originally argued on that basis. However the circumstances here are somewhat unusual given that the decision in Chahwan was delivered after argument on the motion but prior to judgment. It is likely, I think, that reliance would have been placed on the Court's inherent jurisdiction if Chahwan had been delivered before the hearing of the present motion. In any event, the parties have delivered fulsome written submissions going to the alternative basis and, in my view, it is in the interests of justice that I consider these.
Case: Magarditch v Australia &amp; New Zealand Banking Group Ltd (1999) 32 ACSR 367
Outcome: referred to
is clear authority that the Court retains the inherent power in the course of a winding up of a company to permit proceedings to be taken in the name of a company by contributors and creditors: Russell v Westpac Banking Corporation [1994] SASC 4479 ; (1994) 12 ACLC 278 ; Aliprandi v Griffith Vintners Pty Ltd (in liq) (1991) 6 ACSR 250 ; Magarditch v Australia &amp; New Zealand Banking Group Ltd (1999) 32 ACSR 367. It is necessary upon such an application for the plaintiff to demonstrate an arguable case for the relief sought in the litigation. The test has been put in different ways. McLelland J referred to the requirement that the proposed action to be taken in the company's name "has some arguable foundation": Aliprandi v Griffith Vintners Pty Ltd (in Liq) at 252. The Full Court in Vagrand Pty Ltd (in Liq) v Fielding (1993) 41 FCR 550 at 556-557 said that a plaintiff was required to satisfy the Court that the claim had a solid foundation and would give rise to serious dispute. The Full Court in Magarditch [69] said that the principle required the plaintiff to determine whether there was a serious claim under real dispute and in so determining to have regard to the quality and strength of the proposed case. The Court at [71], citing with apparent approval Russell v Westpac Banking Corporation [1994] SASC 4479 ; (1994) 12 ACLC 278 at 281, said that even in a case where there be no drain on the assets of the company there is nevertheless a responsibility on the Court to see that any action taken in the company's name under the Court's authority is not vexatious or merely oppressive. The Court considered that, in practice, it may be that there is very little to distinguish the approaches in Aliprandi and Vagrand. It is necessary therefore to consider the merits of the TPA and FTA claims. The merits the position of the liquidators
Case: Park v Allied Mortgage Corporation Ltd (1993) ATPR Digest 46-105
Outcome: cited
of action arising pursuant to s 82 of the TPA are personal and cannot be assigned: Salfinger v Niugini Mining (Australia) Pty Ltd (No. 3) [2007] FCA 1532 at [110] and the cases cited therein, in particular, Park v Allied Mortgage Corporation Ltd (1993) ATPR Digest 46-105. By parity of reasoning, claims arising pursuant to s 79 of the FTA cannot be assigned.
Case: Partnership Pacific Ltd v Aliprandi (1990) 4 ACSR 51
Outcome: referred to
Cadima Express Pty Ltd (in Liq) v Deputy Commissioner of Taxation [1999] NSWSC 1143 ; (1999) 33 ACSR 527 , Austin J was of the opinion that the attitude of the liquidator to the merits of the action is particularly relevant to the Court's consideration. This flowed from the proposition articulated by Gummow J in Scarel Pty Ltd v City Loan &amp; Credit Corporation Pty Limited (1998) 12 ACLR 730 at 733 that the ordinary rule is that the liquidator is the appropriate person to decide whether the company should commence proceedings, subject to review under the statutory provisions. His Honour considered that if the liquidator is of the view that the proposed litigation is soundly based, but he cannot pursue it because of an absence of funds, the Court will be more disposed to permit proceedings by a contributory in the company's name than in circumstances where he has decided that there is no reasonable foundation to bring proceedings. His Honour then referred to Partnership Pacific Ltd v Aliprandi (1990) 4 ACSR 51 where Cole J said that for an application to succeed more must be shown than that the liquidator's position is protected by an indemnity. Austin J [46]-[48] observed that the two cases indicate that the Court is entitled to have the assistance of the liquidator in making its assessment as to whether an arguable case has been demonstrated and that the Court will normally give weight to the liquidator's view.
Case: Promaco Conventions Pty Ltd v Dedline Printing Pty Ltd [2007] FCA 586 ; (2007) 159 FCR 486
Outcome: discussed
recently, Siopis J, in Promaco Conventions Pty Ltd v Dedline Printing Pty Ltd [2007] FCA 586 ; (2007) 159 FCR 486 in what I consider, respectfully, to be a most persuasive judgment concluded that Part 2F.1A did not apply to a company in liquidation. Despite this, his Honour was not able to conclude that he had a high enough degree of assurance necessary to characterise the series of earlier contrary decisions at first instance as 'plainly wrong', as required by the test in Australian Securities and Investments Commission v Marlborough Gold Mines Ltd [1993] HCA 15 ; (1993) 177 CLR 485.
Case: Russell v Westpac Banking Corporation [1994] SASC 4479 ; (1994) 12 ACLC 278
Outcome: cited
is clear authority that the Court retains the inherent power in the course of a winding up of a company to permit proceedings to be taken in the name of a company by contributors and creditors: Russell v Westpac Banking Corporation [1994] SASC 4479 ; (1994) 12 ACLC 278 ; Aliprandi v Griffith Vintners Pty Ltd (in liq) (1991) 6 ACSR 250 ; Magarditch v Australia &amp; New Zealand Banking Group Ltd (1999) 32 ACSR 367. It is necessary upon such an application for the plaintiff to demonstrate an arguable case for the relief sought in the litigation. The test has been put in different ways. McLelland J referred to the requirement that the proposed action to be taken in the company's name "has some arguable foundation": Aliprandi v Griffith Vintners Pty Ltd (in Liq) at 252. The Full Court in Vagrand Pty Ltd (in Liq) v Fielding (1993) 41 FCR 550 at 556-557 said that a plaintiff was required to satisfy the Court that the claim had a solid foundation and would give rise to serious dispute. The Full Court in Magarditch [69] said that the principle required the plaintiff to determine whether there was a serious claim under real dispute and in so determining to have regard to the quality and strength of the proposed case. The Court at [71], citing with apparent approval Russell v Westpac Banking Corporation [1994] SASC 4479 ; (1994) 12 ACLC 278 at 281, said that even in a case where there be no drain on the assets of the company there is nevertheless a responsibility on the Court to see that any action taken in the company's name under the Court's authority is not vexatious or merely oppressive. The Court considered that, in practice, it may be that there is very little to distinguish the approaches in Aliprandi and Vagrand. It is necessary therefore to consider the merits of the TPA and FTA claims. The merits the position of the liquidators
Case: Salfinger v Niugini Mining (Australia) Pty Ltd (No. 3) [2007] FCA 1532
Outcome: cited
of action arising pursuant to s 82 of the TPA are personal and cannot be assigned: Salfinger v Niugini Mining (Australia) Pty Ltd (No. 3) [2007] FCA 1532 at [110] and the cases cited therein, in particular, Park v Allied Mortgage Corporation Ltd (1993) ATPR Digest 46-105. By parity of reasoning, claims arising pursuant to s 79 of the FTA cannot be assigned.
Case: Scarel Pty Ltd v City Loan &amp; Credit Corporation Pty Limited (1998) 12 ACLR 730
Outcome: referred to
Cadima Express Pty Ltd (in Liq) v Deputy Commissioner of Taxation [1999] NSWSC 1143 ; (1999) 33 ACSR 527 , Austin J was of the opinion that the attitude of the liquidator to the merits of the action is particularly relevant to the Court's consideration. This flowed from the proposition articulated by Gummow J in Scarel Pty Ltd v City Loan &amp; Credit Corporation Pty Limited (1998) 12 ACLR 730 at 733 that the ordinary rule is that the liquidator is the appropriate person to decide whether the company should commence proceedings, subject to review under the statutory provisions. His Honour considered that if the liquidator is of the view that the proposed litigation is soundly based, but he cannot pursue it because of an absence of funds, the Court will be more disposed to permit proceedings by a contributory in the company's name than in circumstances where he has decided that there is no reasonable foundation to bring proceedings. His Honour then referred to Partnership Pacific Ltd v Aliprandi (1990) 4 ACSR 51 where Cole J said that for an application to succeed more must be shown than that the liquidator's position is protected by an indemnity. Austin J [46]-[48] observed that the two cases indicate that the Court is entitled to have the assistance of the liquidator in making its assessment as to whether an arguable case has been demonstrated and that the Court will normally give weight to the liquidator's view.
Case: Vagrand Pty Ltd (in Liq) v Fielding (1993) 41 FCR 550
Outcome: referred to
is necessary upon such an application for the plaintiff to demonstrate an arguable case for the relief sought in the litigation. The test has been put in different ways. McLelland J referred to the requirement that the proposed action to be taken in the company's name "has some arguable foundation": Aliprandi v Griffith Vintners Pty Ltd (in Liq) at 252. The Full Court in Vagrand Pty Ltd (in Liq) v Fielding (1993) 41 FCR 550 at 556-557 said that a plaintiff was required to satisfy the Court that the claim had a solid foundation and would give rise to serious dispute. The Full Court in Magarditch [69] said that the principle required the plaintiff to determine whether there was a serious claim under real dispute and in so determining to have regard to the quality and strength of the proposed case. The Court at [71], citing with apparent approval Russell v Westpac Banking Corporation [1994] SASC 4479 ; (1994) 12 ACLC 278 at 281, said that even in a case where there be no drain on the assets of the company there is nevertheless a responsibility on the Court to see that any action taken in the company's name under the Court's authority is not vexatious or merely oppressive. The Court considered that, in practice, it may be that there is very little to distinguish the approaches in Aliprandi and Vagrand. It is necessary therefore to consider the merits of the TPA and FTA claims. The merits the position of the liquidators