mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: followed
It was also submitted that I should draw an inference that this email of 9 July 2008 was part of the overall plan to consolidate the directors' control of the company, reinforced by the failure to call Mr Baguley; reliance was placed to this end upon the principle in Jones v Dunkel (1959) 101 CLR 298. Of course, the failure to call evidence may, not must, lead to an inference that the uncalled evidence would not have assisted a party's case. The application of the principles in Jones v Dunkel must be applied in the context of the evidence that is presented to a court. Assuming that the defendants were in a position to call Mr Baguley, I do not regard the email as of sufficient significance to consider Mr Baguley to be a witness expected to be called. Further, on the evidence presented by Bell IXL, I would not otherwise require an explanation of the email of 9 July 2008 in circumstances where the main issues of fact relate to the events in May 2008. In this hearing, all of the directors and Mr Waller gave evidence and were subject to cross-examination on all the issues raised for determination between the parties, including the existence of some impermissible arrangement between the defendants. 94 I am not saying the email of 9 July may not be relevant to showing (on Bell IXL's case) an overall strategy of improper purpose. However, in the end, the conclusion I have reached is that irrespective of the wording adopted in the 9 July email, the purpose in making the allotment was not that described by Bell IXL. I have reached this conclusion on the basis of all the evidence before me including the evidence of all the actual persons involved in the decision-making in May and June 2008. 95 In view of the above, I propose to dismiss the proceeding and make other orders upon hearing further from the parties. I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 26 September 2008 Counsel for the Plaintiff: Mr Mark A Robins Solicitor for the Plaintiff: Pointon Partners Counsel for the First Defendant: Mr Noel C Hutley SC, Mr David J O'Callaghan SC &amp; Mr Robert G Craig Solicitor for the First Defendant: Johnson Winter &amp; Slattery Counsel for the Second and Third Defendants: Mr David T Forbes Solicitor for the Second and Third Defendants: Chang, Pistilli &amp; Simmons Date of Hearing: 2 - 4, 10 September 2008 Date of Judgment: 26 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1457.html
Case: Langton v Forsayth Mineral Exploration NL (1975) 1 ACLR 227 
Outcome: cited
Thirdly, I make some observations on the factual enquiry necessary in identifying the purpose for which a power may be exercised. It may be possible to conclude on a collective reason or purposes of a board comprising multiple directors, even though each statement by a director of his or her reasons or purposes may differ (see eg Langton v Forsayth Mineral Exploration NL (1975) 1 ACLR 227). This is not to say that each director's position must not be analysed separately; but I must determine the substantial purpose of the directors (if necessary the majority of directors) which is causative of the decision being made to allot the shares (see Harlowe's [1968] HCA 37 ; 121 CLR 483 and Re Southern Resources Ltd (No 2) (1989) 15 ACLR 770). Obviously, I must have regard to the circumstances surrounding the decision in question, as well as the evidence of the directors themselves.
Case: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449
Outcome: discussed
It is undoubtedly plain as stated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 at 450 that the principles in Briginshaw do not create any different or intermediate standard of proof between the civil standard of on a balance of probabilities and the criminal standard of proof of beyond reasonable doubt. Clearly where there is an allegation of impropriety or criminal or fraudulent conduct then a court should not lightly make a finding of a person being guilty of such conduct. However, the essential task always remains of looking at the evidence in its totality and determining whether a party has proved on the balance of probabilities the factual matters required for that party to succeed.
Case: Ngurli Ltd v McCann [1953] HCA 39 ; (1953) 90 CLR 425
Outcome: cited
In Ngurli Ltd v McCann [1953] HCA 39 ; (1953) 90 CLR 425 at 439-440, the High Court said of the power to issue shares: The power must be used bona fide for the purpose for which it was conferred, that is to say, to raise sufficient capital for the benefit of the company as a whole. It must not be used under the cloak of such a purpose for the real purpose of benefiting some shareholders or their friends at the expense of other shareholders or so that some shareholders or their friends will wrest control of the company from the other shareholders. It was submitted by Bell IXL that the expression 'under the cloak of such a purpose' was an apt description of the allegedly false reasons for the placement given by LFE's directors.
Case: Whitehouse v Carlton Hotel Pty Ltd [1987] HCA 11 ; (1987) 162 CLR 285
Outcome: cited
Directors of a company cannot ordinarily exercise a fiduciary power to allot shares for the purpose of defeating the voting power of existing shareholders by creating a new majority ( Whitehouse v Carlton Hotel Pty Ltd [1987] HCA 11 ; (1987) 162 CLR 285 at 289 per Mason, Deane and Dawson JJ).
Case: Andrews v John Fairfax &amp; Sons Limited [1979] 2 NSWLR 184
Outcome: referred to
One of the relevant considerations on a stay application of this kind is whether the proposed appeal is genuine and based on reasonably arguable grounds: see Andrews v John Fairfax &amp; Sons Limited [1979] 2 NSWLR 184 at 188-9. I could form no judgment on this point in the absence of a notice of appeal and submissions from counsel. No doubt other potentially relevant considerations could arise from Mr Siminton's consideration of the terms of the orders. 15 For these reasons I adjourned the further hearing of this stay application until 15 November 2007. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 15 November 2007 Counsel for the Applicant: Ms D Mortimer SC &amp; Mr S Hibble Solicitor for the Applicant: Australian Prudential Regulation Authority Counsel for the Respondent: Mr D Sharp Solicitor for the Respondent: Erhardt &amp; Associates Date of Hearing: 7 November 2007 Date of Judgment: 15 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1714.html
Case: Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608
Outcome: cited
On 26 October 2007 I delivered judgment in this proceeding: see Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. I found that Mr Siminton was a person who had carried on and was proposing to carry on the business of banking in Australia and that such conduct constituted or would constitute a contravention of s 7 of the Banking Act 1959 (Cth) ("the Act "). I also found that Mr Siminton had engaged in conduct which contravened s 66 of the Act . I foreshadowed making injunctive orders to restrain Mr Siminton from engaging in further contraventions of the Act and orders appointing a receiver to identify the persons who had made deposits in the "bank" established by Mr Siminton, to get in the funds which were the subject of an order, made by Gray J on 10 January 2006, and to provide for an orderly and equitable distribution of those funds to depositors. I listed the matter for mention on 7 November 2007. On that day I made the foreshadowed orders.
Case: Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612
Outcome: cited
The Full Court's order read: "2 Paragraph 2 of the orders of Merkel J made on 10 April 2006 is set aside and in lieu thereof it is ordered: (a) A fine in the sum of $50,000 be imposed on the appellant in respect of the contempt ... (b) The fine be paid to the District Registrar within 60 days or such further time and by such instalments as the District Registrar may allow. (c) In the event that there is default in payment of the fine or of any instalment, the District Registrar shall apply to a judge of the Court for direction concerning enforcement." On 18 September 2006, the day on which the sixty day period prescribed by Order 2(b) expired, Mr Siminton applied for an extension of time within which to make payment of the $50,000. By order dated 18 September 2006 the District Registrar extended the time for payment to 5:00 pm on 2 October 2006. On that day Mr Siminton's solicitors wrote to the District Registrar seeking a further extension of one month for Mr Siminton to pay the fine. No reason for seeking the extension was given. The application was refused. The fine has not since been paid. On 7 November 2007 I found that Mr Siminton had committed a contempt of the Full Court's order by failing to make the $50,000 payment (or that part of it which he had the capacity to pay) in a timely manner: see Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612. 10 I harbour grave doubts as to whether I have the power, should I be minded to exercise it, to stay the operation of the Full Court's order. The Full Court imposed the fine and provided the mechanism by which Mr Siminton could be relieved of the obligation to pay it in whole or in part within the 60 days which the Court allowed. The Full Court did not confer on a single judge of the Court the power to vary its orders or delay their implementation.
Case: Beach Petroleum NL v Johnson (1993) 43 FCR 1 
Outcome: cited
On general agency principles, Mr Somerset's knowledge of the falsity of the proposed confessional advertisement is attributable to his principal, AMI. Mr Somerset became party to the arrangement to deceive the public in the course of acting in AMI's interests, and the case is not one of a fraud perpetrated by Mr Somerset exclusively against AMI; cf Beach Petroleum NL v Johnson (1993) 43 FCR 1 at [22.31] [22.35] and cases there cited. Another way of expressing the matter is to say that because Mr Somerset was AMI's agent, AMI cannot claim, as against Mr Turpie, to have relied on what Mr Turpie said and wrote, devoid of the accompanying context that Mr Somerset and Mr Turpie were proposing a lie to the public. Mr Turpie did not mislead or deceive Mr Somerset, and if Mr Somerset misled and deceived Dr Vaisman into believing that Mr Turpie suffered from impotence or erectile dysfunction (as noted below, I do not accept that Dr Vaisman had any belief one way or the other on that matter), it was Mr Somerset, not Mr Turpie, who caused AMI's loss; cf Dalton v Lawson Hill Estate Pty Ltd (2005) 66 IPR 525 at [121] [130].
Case: Dalton v Lawson Hill Estate Pty Ltd (2005) 66 IPR 525
Outcome: cited
On general agency principles, Mr Somerset's knowledge of the falsity of the proposed confessional advertisement is attributable to his principal, AMI. Mr Somerset became party to the arrangement to deceive the public in the course of acting in AMI's interests, and the case is not one of a fraud perpetrated by Mr Somerset exclusively against AMI; cf Beach Petroleum NL v Johnson (1993) 43 FCR 1 at [22.31] [22.35] and cases there cited. Another way of expressing the matter is to say that because Mr Somerset was AMI's agent, AMI cannot claim, as against Mr Turpie, to have relied on what Mr Turpie said and wrote, devoid of the accompanying context that Mr Somerset and Mr Turpie were proposing a lie to the public. Mr Turpie did not mislead or deceive Mr Somerset, and if Mr Somerset misled and deceived Dr Vaisman into believing that Mr Turpie suffered from impotence or erectile dysfunction (as noted below, I do not accept that Dr Vaisman had any belief one way or the other on that matter), it was Mr Somerset, not Mr Turpie, who caused AMI's loss; cf Dalton v Lawson Hill Estate Pty Ltd (2005) 66 IPR 525 at [121] [130].
Case: Chandler v Alberta Association of Architects [1989] 2 SCR 848
Outcome: followed
In my view, the Federal Magistrate was correct to reach this conclusion. In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597, the High Court held that, when the Immigration Review Tribunal had denied an applicant procedural fairness, it was open to that tribunal to take the view that it had not performed its statutory function, to set aside its purported decision and to revisit the matter. As a step to reaching that conclusion, at [52], Gaudron and Gummow JJ cited with approval the judgment of the Supreme Court of Canada in Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 861-862, where Sopinka J, which whom Dixon CJ and Wilson J concurred, said: As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances.
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597
Outcome: cited
In my view, the Federal Magistrate was correct to reach this conclusion. In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597, the High Court held that, when the Immigration Review Tribunal had denied an applicant procedural fairness, it was open to that tribunal to take the view that it had not performed its statutory function, to set aside its purported decision and to revisit the matter. As a step to reaching that conclusion, at [52], Gaudron and Gummow JJ cited with approval the judgment of the Supreme Court of Canada in Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 861-862, where Sopinka J, which whom Dixon CJ and Wilson J concurred, said: As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances.
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: applied
In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 at 18, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ referred to injury in employment as a term which "covers injury of any compensable kind", and alteration to an employee's position to the employee's prejudice as: "... a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question." 23 Suspension from employment is an injury of a compensable kind. It is also an "affection of, or deterioration in, advantages enjoyed" before the suspension. Suspension can be a form of punishment and was most certainly a form of punishment meted out to Ms Eghnatios by AOS for being an alleged "trouble maker" and standing up for her workplace rights.
Case: Squires v Flight Stewards Association of Australia (1982) 2 IR 155
Outcome: followed
It is noteworthy that in Community &amp; Public Sector Union v Telstra Corporation Ltd [2001] FCA 267 ; (2001) 104 IR 195 at 199 the Full Court endorsed the view expressed in Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164 by Ellicott J that an employee who was "stood down" on full pay for one month was injured in his employment because he was: "... treated substantially differently to the manner in which [an employee] is ordinarily treated and where that treatment can be seen to be injurious or prejudicial."
Case: Ponzio v B &amp; P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Outcome: referred to
Employees also have the right to assist in the preparation and presentation of cases in courts of law and industrial tribunals designed to assert their legal rights without fear of thuggish retaliatory disciplinary action by an employer. The community should not tolerate the conduct which AOS engaged in with respect to Ms Eghnatios. The total penalty which should be imposed is $60,000. Having regard to the totality principle, it would not be appropriate to treble that amount to reflect the three prohibited reasons for which the offending conduct was taken. It is appropriate, however, for the Court to punish the two separate discriminatory overt acts of the transfer and the suspension of an individual employee. The total sentence reflects the totality principle as discussed by Jessup J in Ponzio v B &amp; P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at 570-571; [145] to [146]. 41 The Court makes the following orders: 1. Pursuant to s 807(1)(a) of the Workplace Relations Act 1996 (Cth) ("the Act ") a penalty of $60,000 is imposed on the respondent. 2. The penalty is to be paid into Consolidated Revenue within 21 days of the date of this order. 3. Pursuant to s 807(1)(b) of the Act , the respondent pay Ms Joanne Eghnatios, within 21 days of the date of this order, the sum of $6,668.97 by way of compensation for damage suffered by her as a result of contraventions of Div 4 of Pt 16 of the Act by the respondent. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 14 February 2008 Counsel for the Applicant: Mr P O'Grady Solicitor for the Applicant: Australian Government Solicitor There was no appearance for the Respondent Date of Hearing: 4 February 2008 Date of Judgment: 14 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/66.html
Case: Community &amp; Public Sector Union v Telstra Corporation Ltd [2001] FCA 267 ; (2001) 104 IR 195
Outcome: applied
It is noteworthy that in Community &amp; Public Sector Union v Telstra Corporation Ltd [2001] FCA 267 ; (2001) 104 IR 195 at 199 the Full Court endorsed the view expressed in Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164 by Ellicott J that an employee who was "stood down" on full pay for one month was injured in his employment because he was: "... treated substantially differently to the manner in which [an employee] is ordinarily treated and where that treatment can be seen to be injurious or prejudicial."
Case: Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32
Outcome: cited
In Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 Ormiston J said at 81: '...I am prepared to accept...that agreement and thus a contract can be extracted from circumstances where no acceptance of an offer can be established or inferred and where the most that can be said is that a manifestation of mutual assent must be implied from the circumstances.'
Case: Meates v Attorney General [1983] NZLR 308
Outcome: cited
The assessment of whether the conduct of the parties gives rise to a concluded contract is to be made by reference to the objective standard ( Meates v Attorney General [1983] NZLR 308 at 377; Integrated Computer Services at 11,118).
Case: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liquidation) [1916] HCA 81 ; (1916) 22 CLR 490
Outcome: cited
The applicant did not make a specific alternative claim that it was entitled to the payment of the termination payment under cl 8.6 of the consultancy agreement. However, it followed that if the Court accepted the case advanced by the respondent, it would find that cl 8.6 of the consultancy agreement continued. Accordingly, although there was no alternative plea by the applicant founded on the continued existence of cl 8.6, it was a live issue because it was an incident of the case advanced by the respondent at trial (see, Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liquidation) [1916] HCA 81 ; (1916) 22 CLR 490 at 517-518). 122 Clause 8.6 of the consultancy agreement provides: 'In the event that the Company terminates this Agreement for any other reason other than as stated in clause 8.1 hereof or the Term (as extended or renewed) is not renewed the Company shall pay to the Consultant the Fee for the remaining period of the contract or six (6) months whichever is the lesser period.' 123 After trial I asked the parties for submissions on the proper construction of cl 8.6 of the consultancy agreement and in particular, whether in the absence of rectification, the word 'lesser' should be construed as 'greater'.
Case: Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290
Outcome: applied
In my view, counsel for the respondent's contention cannot be accepted. It is clear that the contractual intention was to provide the applicant with a termination payment of a minimum of six months, regardless of whether the relationship between the parties ended by the non renewal of the term of the consultancy agreement on the expiry of the existing term or by the termination of the agreement (other than for a reason set out in cl 8.1) during the currency of the term, of the consultancy agreement. This construction is consistent with the presence in the clause of the words 'or the Term (as extended or renewed) is not renewed '. The construction contended for by the respondent is inconsistent with the presence of those words in the clause and renders those words otiose. In my view, it is obvious that there was a mistake by the draftsman in using the word 'lesser' when the word 'greater' should have been used to give effect to the obvious intention of the parties. Where there is an obvious mistake the Court can give effect to the true contractual intention of the parties without there being any need for rectification. The principle was expressed thus by Santow J in the case of Spunwill Pty Ltd v BAB Pty Ltd (1994) 36 NSWLR 290 at 299: '...Where a court can discern the intent of the parties from an examination of the document as a whole, words may be supplied, omitted or corrected in the instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420 at 426-427. In such cases rectification of the document is not required: Re United Pacific Transport Pty Ltd [1968] Qd R 517; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (at 346).'