mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Samootin v Shea [2005] HCA Trans 181
Outcome: cited
Ms Samootin has pursued her claims beyond the Court of Appeal and has proceeded to the High Court on a number of occasions. One of those occasions was when she sought a stay of orders made by Giles J in respect to costs: Samootin v Shea [2005] HCA Trans 181. That application came before McHugh J. During an exchange between Ms Samootin and the Court, McHugh J made the following observations: Let me just give you this piece of advice. I am sure you will not accept it, but please give serious thought to the cost that you are incurring and the costs that are being ordered against you. The other side in this case are asking that you pay not only costs, but costs on what is called an indemnity basis, which means you have to pay all the costs that they incur. The High Court has also refused an application for special leave in respect to the decision of the Court of Appeal dismissing an application for leave to appeal to that Court against the orders made by Palmer J: Samootin v Shea [2005] HCA Trans 732. In doing so, Hayne J observed that there was no " reason to doubt the correctness of the decisions in the courts below ".
Case: Samootin v Shea [2005] HCA Trans 732
Outcome: cited
Ms Samootin has pursued her claims beyond the Court of Appeal and has proceeded to the High Court on a number of occasions. One of those occasions was when she sought a stay of orders made by Giles J in respect to costs: Samootin v Shea [2005] HCA Trans 181. That application came before McHugh J. During an exchange between Ms Samootin and the Court, McHugh J made the following observations: Let me just give you this piece of advice. I am sure you will not accept it, but please give serious thought to the cost that you are incurring and the costs that are being ordered against you. The other side in this case are asking that you pay not only costs, but costs on what is called an indemnity basis, which means you have to pay all the costs that they incur. The High Court has also refused an application for special leave in respect to the decision of the Court of Appeal dismissing an application for leave to appeal to that Court against the orders made by Palmer J: Samootin v Shea [2005] HCA Trans 732. In doing so, Hayne J observed that there was no " reason to doubt the correctness of the decisions in the courts below ".
Case: Samootin v Wagner [2005] FMCA 1512
Outcome: cited
On 17 June 2005 Ms Wagner and Mr Holmes caused a bankruptcy notice to be issued to Ms Samootin based upon the orders as to costs made in their favour. Without detailing each of the proceedings in the Federal Magistrates Court, it may be noted that an application to set aside the bankruptcy notice was dismissed with indemnity costs on 30 September 2005: Samootin v Wagner [2005] FMCA 1512.
Case: Samootin v Wagner [2006] FCA 689
Outcome: cited
An application to stay the sequestration order has been dismissed by a judge of this Court: Samootin v Wagner [2006] FCA 689. An appeal against the making of the sequestration order has also been dismissed: Samootin v Wagner [2006] FCA 945.
Case: Samootin v Wagner [2006] FCA 945
Outcome: cited
An application to stay the sequestration order has been dismissed by a judge of this Court: Samootin v Wagner [2006] FCA 689. An appeal against the making of the sequestration order has also been dismissed: Samootin v Wagner [2006] FCA 945.
Case: Samootin v Wagner [2007] FCA 1366
Outcome: cited
Thereafter an application was filed by Ms Samootin with the Federal Magistrates Court on 14 March 2007 seeking the annulment of the sequestration order made on 24 May 2006. That application was dismissed: Samootin v Wagner [2007] FMCA 1100. An application for an extension of time within which to appeal against the dismissal was also dismissed: Samootin v Wagner [2007] FCA 1366.
Case: Wagner v Samootin [2006] FMCA 688
Outcome: cited
On 2 November 2005 Ms Wagner and Mr Holmes filed a creditor's petition in the Federal Magistrates Court on the basis of the failure to comply with the bankruptcy notice. A sequestration order was made against the estate of Ms Samootin on 24 May 2006: Wagner v Samootin [2006] FMCA 688.
Case: Australian Securities Commission v Melbourne Asset Management Pty Ltd (Receiver and Manager Appointed) (1994) 49 FCR 334
Outcome: cited
The distinction between the status of court appointed liquidators and liquidators appointed under voluntary administrators, as a basis for the distinction between the language of s 479(3) and s 511 has long been recognised: see eg, Australian Securities Commission v Melbourne Asset Management Pty Ltd (Receiver and Manager Appointed) (1994) 49 FCR 334 at 348-349 (Northrop J); Deane-Willcocks v Soluble Solution Hydroponics Pty Ltd (1997) 42 NSWLR 209. In the latter case Young J said that: ... the authorities tend to suggest that the court has the same jurisdiction under both sections... The reasons advanced in those and other cases for the conferral of express powers in s 511 are supported by the comment on one of its many predecessors, s 274 of the Uniform Companies Act 1961, in Wallace and Young, Australian Company Law and Practice (Law Book Co, 1965) at 759: the effect of this section (which the court has interpreted so as to give it wide powers) ... is to lessen the distinction between a voluntary and compulsory winding up.
Case: Equity Funds of Australia (In Liq) (1977-78) CLC 40-303
Outcome: cited
A direction given or a question determined under s 479(3) or s 511, as the case may be, will protect the liquidator who acts in accordance with the direction or determination. In relation to a determination under s 511 it may be an open question whether it establishes a res judicata between the liquidator and any parties affected by it who are named as defendants in the application but neither direction nor determination gives rise to a res judicata as between parties who may have competing interests affected by it: Equity Funds of Australia (In Liq) (1977-78) CLC 40-303 at 29,253-29,254 (Bowen CJ (in Eq)). McLelland J said in GB Nathan &amp; Co 24 NSWLR 674 (at 677): The protection of the official administrator, acting under a direction of the court, from personal liability would not however affect the rights of creditors and beneficiaries as between themselves. So far as s 479(3) is concerned, McLelland J was of the view that it does not enable the court to make binding orders in the nature of judgments and that the function of an application for directions under that section is to give the liquidator advice about the proper course of action in the liquidation and not to determine rights and liabilities arising from pre-liquidation transactions (at 679). See also Re JW Murphy and PC Allen (1996) 19 ACSR 569 at 570 (McLelland CJ).
Case: Re JW Murphy and PC Allen (1996) 19 ACSR 569
Outcome: cited
A direction given or a question determined under s 479(3) or s 511, as the case may be, will protect the liquidator who acts in accordance with the direction or determination. In relation to a determination under s 511 it may be an open question whether it establishes a res judicata between the liquidator and any parties affected by it who are named as defendants in the application but neither direction nor determination gives rise to a res judicata as between parties who may have competing interests affected by it: Equity Funds of Australia (In Liq) (1977-78) CLC 40-303 at 29,253-29,254 (Bowen CJ (in Eq)). McLelland J said in GB Nathan &amp; Co 24 NSWLR 674 (at 677): The protection of the official administrator, acting under a direction of the court, from personal liability would not however affect the rights of creditors and beneficiaries as between themselves. So far as s 479(3) is concerned, McLelland J was of the view that it does not enable the court to make binding orders in the nature of judgments and that the function of an application for directions under that section is to give the liquidator advice about the proper course of action in the liquidation and not to determine rights and liabilities arising from pre-liquidation transactions (at 679). See also Re JW Murphy and PC Allen (1996) 19 ACSR 569 at 570 (McLelland CJ).
Case: Re Diamond Press Australia Pty Limited [2001] NSWSC 313
Outcome: applied
The principles which apply to an application for an extension of time to convene and hold a second meeting of creditors have been considered in a series of cases commencing with a decision of Young J in Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 612. The principle applied by Young J was also stated in Re Diamond Press Australia Pty Limited [2001] NSWSC 313 at [10] by Barrett J. His Honour said that: The function of the Court on an application such as this is...to strike an appropriate balance between...the expectation that the administration would be a relatively speedy and summary matter and...the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders. 21 Barrett J observed at [11] of Diamond Press that experience suggests that transactions of the kind contemplated in that case do take time, particularly where an informal tender or competitive selling process is undertaken and structured due diligence procedures are adopted. His Honour said that all of those matters are conducive to the aims of s 435A(b) of the Act and that they would allow the administrators to present a clearer picture to the second meeting. It seems to me that his Honour's observations are particularly apt in the circumstances of this case.
Case: Fincorp Group Holdings Pty Limited (2007) 62 ACSR 192
Outcome: followed
In Fincorp Group Holdings Pty Limited (2007) 62 ACSR 192, Barrett J granted an extension of time, the effect of which was that the convening period set by s 439A would be some three months longer than if the extension had not been granted. His Honour in that case at [10] and [11] pointed to the complexity of the sale process as a matter which justified the extension.
Case: Lehman Brothers Australia Ltd [2008] NSWSC 1132
Outcome: referred to
More recently in Lehman Brothers Australia Ltd [2008] NSWSC 1132 at [4] , Barrett J reiterated the principles referred to above. His Honour said at [13] of Lehman Brothers that a matter to be considered closely in such an application is the impact that prolongation of the administration will have on persons whose claims are affected by the statutory moratoriums arising from Pt 5.3A of the Act.
Case: Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611
Outcome: referred to
The principles which apply to an application for an extension of time to convene and hold a second meeting of creditors have been considered in a series of cases commencing with a decision of Young J in Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 612. The principle applied by Young J was also stated in Re Diamond Press Australia Pty Limited [2001] NSWSC 313 at [10] by Barrett J. His Honour said that: The function of the Court on an application such as this is...to strike an appropriate balance between...the expectation that the administration would be a relatively speedy and summary matter and...the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders.
Case: Applicant M164/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 16
Outcome: considered
The need for further inquiry, as opposed to proceeding to resolve the application on the materials before it, was not " obvious ": cf Applicant M164/2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 16 at [76] per Lee J. Indeed, it is considered that further inquiry may well have been inappropriate. 24 Nor can the Appellant avoid these consequences by, for example, contending that the failure to invite further clarification was a denial of procedural fairness. It was for the Appellant to advance such information as he considered relevant to his application. An invitation seeking further information was forwarded and a response provided by the Appellant. A party cannot thereafter, in effect, ask for an assessment from the Tribunal as to whether the response provided satisfied their concerns or not. Such assessments as were made by the Tribunal of the responses provided inherently involved part of the Tribunal's decision-making processes. The rules of procedural fairness: " do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision ": F Hoffman-La Roche &amp; Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock. Procedural fairness does not require giving to an Applicant a running commentary on his prospects of success and warning him of every reason why his claims might not be thought sufficient to justify the relief sought: Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32] , [2006] FCA 375 ; 90 ALD 632 at 641 per Edmonds J. An appeal has been dismissed: Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166.
Case: Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375 , 90 ALD 632
Outcome: followed
Nor can the Appellant avoid these consequences by, for example, contending that the failure to invite further clarification was a denial of procedural fairness. It was for the Appellant to advance such information as he considered relevant to his application. An invitation seeking further information was forwarded and a response provided by the Appellant. A party cannot thereafter, in effect, ask for an assessment from the Tribunal as to whether the response provided satisfied their concerns or not. Such assessments as were made by the Tribunal of the responses provided inherently involved part of the Tribunal's decision-making processes. The rules of procedural fairness: " do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision ": F Hoffman-La Roche &amp; Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock. Procedural fairness does not require giving to an Applicant a running commentary on his prospects of success and warning him of every reason why his claims might not be thought sufficient to justify the relief sought: Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32] , [2006] FCA 375 ; 90 ALD 632 at 641 per Edmonds J. An appeal has been dismissed: Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166.
Case: Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166
Outcome: cited
Nor can the Appellant avoid these consequences by, for example, contending that the failure to invite further clarification was a denial of procedural fairness. It was for the Appellant to advance such information as he considered relevant to his application. An invitation seeking further information was forwarded and a response provided by the Appellant. A party cannot thereafter, in effect, ask for an assessment from the Tribunal as to whether the response provided satisfied their concerns or not. Such assessments as were made by the Tribunal of the responses provided inherently involved part of the Tribunal's decision-making processes. The rules of procedural fairness: " do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision ": F Hoffman-La Roche &amp; Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock. Procedural fairness does not require giving to an Applicant a running commentary on his prospects of success and warning him of every reason why his claims might not be thought sufficient to justify the relief sought: Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32] , [2006] FCA 375 ; 90 ALD 632 at 641 per Edmonds J. An appeal has been dismissed: Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166.
Case: F Hoffman-La Roche &amp; Co v Secretary of State for Trade and Industry [1975] AC 295
Outcome: followed
Nor can the Appellant avoid these consequences by, for example, contending that the failure to invite further clarification was a denial of procedural fairness. It was for the Appellant to advance such information as he considered relevant to his application. An invitation seeking further information was forwarded and a response provided by the Appellant. A party cannot thereafter, in effect, ask for an assessment from the Tribunal as to whether the response provided satisfied their concerns or not. Such assessments as were made by the Tribunal of the responses provided inherently involved part of the Tribunal's decision-making processes. The rules of procedural fairness: " do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision ": F Hoffman-La Roche &amp; Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock. Procedural fairness does not require giving to an Applicant a running commentary on his prospects of success and warning him of every reason why his claims might not be thought sufficient to justify the relief sought: Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32] , [2006] FCA 375 ; 90 ALD 632 at 641 per Edmonds J. An appeal has been dismissed: Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166.
Case: Gomez v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 480 , 190 ALR 543
Outcome: followed
The source of any duty or obligation to seek " more specific information " -- in the circumstances of the present case -- was not identified. Section 427(1)(d), it may be noted, empowers the Tribunal to require the Secretary " to arrange for the making of any investigation ". But that section does not impose any general duty to inquire: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12] [14], [2000] HCA 50 ; 74 ALJR 1404. See also Minister for Immigration &amp; Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86] , [2001] FCA 274 ; 106 FCR 426 at 445; Gomez v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 480 at [26] , [2002] FCAFC 105 ; 190 ALR 543.
Case: Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129
Outcome: considered
The fact that the Tribunal proceeded to reach a decision without seeking " more specific information " cannot be characterised as either unreasonable (cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155) or capricious (cf Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129). Any such characterisation would be denied by: (i) the general nature of the request being made by the Appellant; (ii) the fact that he had on three occasions been invited to attend a hearing before the Tribunal, being an occasion upon which he would then have had an opportunity to further develop his concerns and to provide such further " information " (if any) as he saw fit; and (iii) the fact that the detailed letter had been forwarded to him on 2 January 2007 inviting him to comment on the matters there set forth. At the conclusion of the hearing of the appeal, it should also be noted that the Appellant summarised his case by stating: " I told them everything but why were they not accepting me ?" The Appellant, it may be concluded, had in fact told " everything " and there was nothing left to tell.
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 , 207 ALR 12
Outcome: followed
The difficulty confronting the Appellant is simply the fact that the Tribunal was under no obligation to seek further information from him before proceeding to make a decision. In the circumstances of the present case, it is considered that it had no duty to inquire further: cf Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 at [42] [43], [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. As concluded by the Full Court in Mohammed v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 47 at [24] by Moore, North and Emmett JJ, " the Tribunal was under no general duty to inquire. It was entitled to act on the material presented by the appellant ".
Case: Minister for Immigration &amp; Multicultural Affairs v Anthonypillai [2001] FCA 274 , 106 FCR 426
Outcome: followed
The source of any duty or obligation to seek " more specific information " -- in the circumstances of the present case -- was not identified. Section 427(1)(d), it may be noted, empowers the Tribunal to require the Secretary " to arrange for the making of any investigation ". But that section does not impose any general duty to inquire: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12] [14], [2000] HCA 50 ; 74 ALJR 1404. See also Minister for Immigration &amp; Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86] , [2001] FCA 274 ; 106 FCR 426 at 445; Gomez v Minister for Immigration &amp; Multicultural Affairs [2002] FCA 480 at [26] , [2002] FCAFC 105 ; 190 ALR 543.
Case: Mohammed v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 47
Outcome: followed
The difficulty confronting the Appellant is simply the fact that the Tribunal was under no obligation to seek further information from him before proceeding to make a decision. In the circumstances of the present case, it is considered that it had no duty to inquire further: cf Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 at [42] [43], [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. As concluded by the Full Court in Mohammed v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 47 at [24] by Moore, North and Emmett JJ, " the Tribunal was under no general duty to inquire. It was entitled to act on the material presented by the appellant ".
Case: Prasad v Minister for Immigration &amp; Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155
Outcome: considered
The fact that the Tribunal proceeded to reach a decision without seeking " more specific information " cannot be characterised as either unreasonable (cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155) or capricious (cf Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129). Any such characterisation would be denied by: (i) the general nature of the request being made by the Appellant; (ii) the fact that he had on three occasions been invited to attend a hearing before the Tribunal, being an occasion upon which he would then have had an opportunity to further develop his concerns and to provide such further " information " (if any) as he saw fit; and (iii) the fact that the detailed letter had been forwarded to him on 2 January 2007 inviting him to comment on the matters there set forth. At the conclusion of the hearing of the appeal, it should also be noted that the Appellant summarised his case by stating: " I told them everything but why were they not accepting me ?" The Appellant, it may be concluded, had in fact told " everything " and there was nothing left to tell.