mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Simon v Vincent J. O'Gorman Pty Ltd (1979) 41 FLR 95
Outcome: cited
Where a petitioning creditor relies on a judgment debt the Court must be satisfied as to the validity of the debt and, to that extent, it may be said that the judgment 'is never conclusive in bankruptcy'; Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224. It is accepted however, that the Court will not investigate validity as a matter of course; Simon v Vincent J. O'Gorman Pty Ltd (1979) 41 FLR 95 at 111, Commonwealth Bank of Australia v Jeans [2005] FCA 978. There must be something to suggest that no real debt lay behind the judgment, whether because of fraud, collusion or miscarriage of justice; Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357; Udovenko v Mitchell (1997) 79 FCR 418 at 421.
Case: Totev v Sfar (2006) 230 ALR 236
Outcome: cited
Section 52 (1) of the Bankruptcy Act 1966 (Cth) provides for the proof of certain matters and states that the Court, 'if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor'. It is accepted that the section gives the Court discretion to decline to make the order if persuaded 'that the public interest in dealing with the insolvent debtor and the rights of individual creditors are outweighed by other considerations'; Totev v Sfar (2006) 230 ALR 236 at 243. See also Cain v Whyte [1933] HCA 6 ; (1933) 48 CLR 639 at 645-6 and 648. It is for the debtor to persuade the Court that the circumstances are such as to warrant an exercise of the Court's discretion in his or her favour.
Case: Udovenko v Mitchell (1997) 79 FCR 418
Outcome: cited
Where a petitioning creditor relies on a judgment debt the Court must be satisfied as to the validity of the debt and, to that extent, it may be said that the judgment 'is never conclusive in bankruptcy'; Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224. It is accepted however, that the Court will not investigate validity as a matter of course; Simon v Vincent J. O'Gorman Pty Ltd (1979) 41 FLR 95 at 111, Commonwealth Bank of Australia v Jeans [2005] FCA 978. There must be something to suggest that no real debt lay behind the judgment, whether because of fraud, collusion or miscarriage of justice; Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357; Udovenko v Mitchell (1997) 79 FCR 418 at 421.
Case: Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212
Outcome: cited
Where a petitioning creditor relies on a judgment debt the Court must be satisfied as to the validity of the debt and, to that extent, it may be said that the judgment 'is never conclusive in bankruptcy'; Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224. It is accepted however, that the Court will not investigate validity as a matter of course; Simon v Vincent J. O'Gorman Pty Ltd (1979) 41 FLR 95 at 111, Commonwealth Bank of Australia v Jeans [2005] FCA 978. There must be something to suggest that no real debt lay behind the judgment, whether because of fraud, collusion or miscarriage of justice; Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357; Udovenko v Mitchell (1997) 79 FCR 418 at 421. 19 In the proceedings in the Federal Magistrates Court it is clear that the question whether the Federal Magistrate should go behind the judgment of the Local Court was raised but not in the context of any challenge to the assignment. His Honour's comments indicate that the issue was considered in the context of whether the Local Court judgment was final: To the extent that it may have been argued during the course of the proceeding, it is not appropriate in this instance for this court to go behind the judgment of the local court relied upon in the bankruptcy notice which in turn then triggered the creditors petition. The power of the court to go behind the bankruptcy notice is referred as being a matter of course for discretion. His Honour referred to Wren v Mahony at 225 and continued: Lest there be any doubt in the present case, applying the relevant principles to the circumstances set out in the affidavit material relied upon by the debtor it is my concluded view that there is no basis in that law for this court going behind the judgment. I am satisfied for reasons given, that the judgment relief [sic] upon in the bankruptcy notice can properly be characterised as a final judgment albeit that it does not include reference to costs yet to be assessed.
Case: HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553
Outcome: followed
As stated by the Full Court in HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 at [44] : It is clear, both having regard to the modern principles of interpretation as enunciated by the High Court in cases such as CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 and s 15AA of the Acts Interpretation Act 1901 (Cth) that the Court will prefer an interpretation of a statute which would give effect to the legislative purpose, as opposed to one that would not. This requires the Court to identify that purpose, both by reference to the language of the statute itself and also any extrinsic material which the Court is authorised to take into account.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: cited
Neither counsel's argument really addressed the substantive merits of an appeal against Sundberg J's judgment, apart from Mr Rebikoff noting the bare fact that Judge Conlon reached the same choice of law conclusion as Sundberg J. Implicit in Mr Rebikoff's case was the contention that because of the lack of "substantial injustice" to the applicant, supposing Sundberg J to be wrong (see D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398), there was no need to go to the other limb of the D&eacute;cor test and show that his Honour's order was "attended with sufficient doubt to warrant it being considered by the Full Court". The lack of substantial injustice was so clear that the application could, and should, be disposed of by a single judge on that ground alone. 11 In theory one can envisage cases where the presence or absence of either substantial injustice or sufficient doubt is so clear and obvious that the application should be disposed of on that ground alone. Such circumstance may in itself point against any departure from the presumption in the Rules that the application be heard before a single judge. The present case is not such a one. As already mentioned, there is, arguably at least, the possibility of substantial injustice being suffered by the applicant. 12 As to sufficient doubt, the point, as I have said, has not been addressed in detail. All I can say is that his Honour's reserved judgment of 81 paragraphs carefully reviews the evidence and authorities. The question for me is not whether it is attended by doubt, sufficient or otherwise, but whether the application should be heard by a Full Court. Sundberg J's judgment deals with substantial legal issues which are appropriate for resolution by a Full Court.
Case: Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133
Outcome: cited
Experience shows that, in cases like the present one, it is not really practicable to separate out the leave issue of whether there the decision below is "attended with sufficient doubt" from the substantive merits. Often the merits of the proposed appeal are argued no less fully than would have been the case were leave not an issue: Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133 at [28] . 14 It would seem to be a very inefficient and wasteful course for there to be a separate hearing before a single judge, and if leave were granted, a subsequent hearing before a Full Court. Notwithstanding the complexity of the matter which resulted in, I am told, written submissions of some 40 pages on each side, his Honour disposed of the hearing in less than a day. One would expect that a Full Court dealing with the leave application would be able to deal with the hearing of the matter in a similar time. 15 Related to the question of efficiency is the matter of timing. There is a possibility, although it certainly cannot be guaranteed, that the leave application and appeal could be heard before a Full Court in either the first week or the last week of the coming November sittings. However, these sittings are already extremely full. Alternatively, and still less is this the subject of any promise, a Full Court might be convened before November. 16 If the application for leave were to be heard before a single judge, the hearing may not occur immediately and the judge might have to reserve his or her decision. While of course if leave were refused that would be the end of the matter, if leave were granted the passage of time may have made it impossible to secure a hearing date for the appeal in the November sittings or earlier. In the meantime, the parties would have to go ahead with their preparations for the US trial which conceivably could be heard before the hearing and disposition of the appeal. 17 I think that in all the circumstances the most efficient and fairest course is to order that the application for leave to appeal be heard by a Full Court.
Case: ACTEW Corp Ltd v Mihaljevic [2007] ACTSC 39
Outcome: cited
about the same time that Meltend 75 FCR 511 was decided, Hunt CJ at CL in New South Wales also reviewed the authorities in some detail in Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468. That judgment provides support for the view that a document sent inadvertently or mistakenly would not be disclosed voluntarily within the meaning of s 122 , particularly if the hypothetical reasonable solicitor would have realised that it had been sent by mistake. Not long afterwards, Sackville J said something similar in BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202 at 208 209. The authorities have again recently been reviewed by Harper M in the Supreme Court of the Australian Capital Territory in ACTEW Corp Ltd v Mihaljevic [2007] ACTSC 39 and Willett v Belconnen Soccer Club Ltd [2007] ACTSC 41. In both cases his Honour followed Meltend 75 FCR 511. Pagone J of the Victorian Supreme Court did the same in Body Corporate No 413424R v Sheppard [2007] VSC 179.
Case: Australian Securities and Investments Commission v Rich [2004] NSWSC 934
Outcome: cited
with that apparent conflict between judges of the Court, in the time available I endeavoured to see what has happened in other courts. That exercise has further confused the picture. For example, counsel for the applicant relied heavily upon the decision of Austin J in Sovereign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521 in which privilege was maintained, notwithstanding inspection of the document by the other side. On the other hand, Austin J considered a similar question in Australian Securities and Investments Commission v Rich [2004] NSWSC 934 and held that disclosure of documents which could be described as inadvertent, in a situation not unlike the present, was held to be knowing and voluntary pursuant to s 122(2) of the Act without reference to his decision in Sovereign Motor Inns [2000] NSWSC 521. The question is further complicated where the opposing party actually has a copy of the document in his possession available to be used.
Case: Body Corporate No 413424R v Sheppard [2007] VSC 179
Outcome: cited
about the same time that Meltend 75 FCR 511 was decided, Hunt CJ at CL in New South Wales also reviewed the authorities in some detail in Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468. That judgment provides support for the view that a document sent inadvertently or mistakenly would not be disclosed voluntarily within the meaning of s 122 , particularly if the hypothetical reasonable solicitor would have realised that it had been sent by mistake. Not long afterwards, Sackville J said something similar in BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202 at 208 209. The authorities have again recently been reviewed by Harper M in the Supreme Court of the Australian Capital Territory in ACTEW Corp Ltd v Mihaljevic [2007] ACTSC 39 and Willett v Belconnen Soccer Club Ltd [2007] ACTSC 41. In both cases his Honour followed Meltend 75 FCR 511. Pagone J of the Victorian Supreme Court did the same in Body Corporate No 413424R v Sheppard [2007] VSC 179.
Case: Boensch v Pascoe [2007] FCA 532
Outcome: considered
of client legal privilege for relevant purposes is governed by s 122 of the Act. Section 122(2) involves a party knowingly and voluntarily disclosing to another person the substance of the evidence. Section 122(4) deals with the substance of the evidence having been disclosed with the express or implied consent of the party to another person. Counsel for the applicant submitted that I should follow the decision of Jacobson J in Boensch v Pascoe [2007] FCA 532 where his Honour held (at [38]): "An inadvertent or unintentional act will not be sufficient to amount to waiver." I would normally follow such a recent and considered decision of a judge of the Court. However, the other authorities to which I was referred by counsel drew attention to the decision of Goldberg J in Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511, to which Jacobson J was apparently not referred, in which Goldberg J made a detailed analysis of the statutory provisions and the authorities and concluded that mere inadvertence or unintentional disclosure in itself is not sufficient to maintain privilege particularly where documents have been inspected.
Case: BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202
Outcome: cited
about the same time that Meltend 75 FCR 511 was decided, Hunt CJ at CL in New South Wales also reviewed the authorities in some detail in Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468. That judgment provides support for the view that a document sent inadvertently or mistakenly would not be disclosed voluntarily within the meaning of s 122 , particularly if the hypothetical reasonable solicitor would have realised that it had been sent by mistake. Not long afterwards, Sackville J said something similar in BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202 at 208 209. The authorities have again recently been reviewed by Harper M in the Supreme Court of the Australian Capital Territory in ACTEW Corp Ltd v Mihaljevic [2007] ACTSC 39 and Willett v Belconnen Soccer Club Ltd [2007] ACTSC 41. In both cases his Honour followed Meltend 75 FCR 511. Pagone J of the Victorian Supreme Court did the same in Body Corporate No 413424R v Sheppard [2007] VSC 179.
Case: Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468 
Outcome: cited
about the same time that Meltend 75 FCR 511 was decided, Hunt CJ at CL in New South Wales also reviewed the authorities in some detail in Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468. That judgment provides support for the view that a document sent inadvertently or mistakenly would not be disclosed voluntarily within the meaning of s 122 , particularly if the hypothetical reasonable solicitor would have realised that it had been sent by mistake. Not long afterwards, Sackville J said something similar in BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202 at 208 209. The authorities have again recently been reviewed by Harper M in the Supreme Court of the Australian Capital Territory in ACTEW Corp Ltd v Mihaljevic [2007] ACTSC 39 and Willett v Belconnen Soccer Club Ltd [2007] ACTSC 41. In both cases his Honour followed Meltend 75 FCR 511. Pagone J of the Victorian Supreme Court did the same in Body Corporate No 413424R v Sheppard [2007] VSC 179.
Case: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511 
Outcome: considered
of client legal privilege for relevant purposes is governed by s 122 of the Act. Section 122(2) involves a party knowingly and voluntarily disclosing to another person the substance of the evidence. Section 122(4) deals with the substance of the evidence having been disclosed with the express or implied consent of the party to another person. Counsel for the applicant submitted that I should follow the decision of Jacobson J in Boensch v Pascoe [2007] FCA 532 where his Honour held (at [38]): "An inadvertent or unintentional act will not be sufficient to amount to waiver." I would normally follow such a recent and considered decision of a judge of the Court. However, the other authorities to which I was referred by counsel drew attention to the decision of Goldberg J in Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511, to which Jacobson J was apparently not referred, in which Goldberg J made a detailed analysis of the statutory provisions and the authorities and concluded that mere inadvertence or unintentional disclosure in itself is not sufficient to maintain privilege particularly where documents have been inspected. At about the same time that Meltend 75 FCR 511 was decided, Hunt CJ at CL in New South Wales also reviewed the authorities in some detail in Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468. That judgment provides support for the view that a document sent inadvertently or mistakenly would not be disclosed voluntarily within the meaning of s 122 , particularly if the hypothetical reasonable solicitor would have realised that it had been sent by mistake. Not long afterwards, Sackville J said something similar in BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202 at 208 209. The authorities have again recently been reviewed by Harper M in the Supreme Court of the Australian Capital Territory in ACTEW Corp Ltd v Mihaljevic [2007] ACTSC 39 and Willett v Belconnen Soccer Club Ltd [2007] ACTSC 41. In both cases his Honour followed Meltend 75 FCR 511. Pagone J of the Victorian Supreme Court did the same in Body Corporate No 413424R v Sheppard [2007] VSC 179.
Case: Sovereign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521
Outcome: cited
with that apparent conflict between judges of the Court, in the time available I endeavoured to see what has happened in other courts. That exercise has further confused the picture. For example, counsel for the applicant relied heavily upon the decision of Austin J in Sovereign Motor Inns Pty Ltd v Bevillesta Pty Ltd [2000] NSWSC 521 in which privilege was maintained, notwithstanding inspection of the document by the other side. On the other hand, Austin J considered a similar question in Australian Securities and Investments Commission v Rich [2004] NSWSC 934 and held that disclosure of documents which could be described as inadvertent, in a situation not unlike the present, was held to be knowing and voluntary pursuant to s 122(2) of the Act without reference to his decision in Sovereign Motor Inns [2000] NSWSC 521. The question is further complicated where the opposing party actually has a copy of the document in his possession available to be used.
Case: Willett v Belconnen Soccer Club Ltd [2007] ACTSC 41 
Outcome: cited
about the same time that Meltend 75 FCR 511 was decided, Hunt CJ at CL in New South Wales also reviewed the authorities in some detail in Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468. That judgment provides support for the view that a document sent inadvertently or mistakenly would not be disclosed voluntarily within the meaning of s 122 , particularly if the hypothetical reasonable solicitor would have realised that it had been sent by mistake. Not long afterwards, Sackville J said something similar in BT Australasia Pty Ltd v State of New South Wales (No 8) (1998) 154 ALR 202 at 208 209. The authorities have again recently been reviewed by Harper M in the Supreme Court of the Australian Capital Territory in ACTEW Corp Ltd v Mihaljevic [2007] ACTSC 39 and Willett v Belconnen Soccer Club Ltd [2007] ACTSC 41. In both cases his Honour followed Meltend 75 FCR 511. Pagone J of the Victorian Supreme Court did the same in Body Corporate No 413424R v Sheppard [2007] VSC 179.
Case: Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368
Outcome: considered
The question, therefore, is whether the failure to consider this issue constituted a failure to consider the whole of the applicant's case. In Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368, Foster J said (at 370): 'It could not be suggested that the Tribunal was under any obligation to isolate in its reasons every issue of fact and record a specific finding in respect of each of them. It is obviously sufficient, in light of the cases referred to above, and as a matter of common sense, that a sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored.'
Case: Coulton and Ors v Holcombe and Ors [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: referred to
In relation to this submission, the respondent submits that the Tribunal was not required to consider expressly every matter raised by the applicant: see Minister for Health v Charvid Pty Ltd (1986) 10 ALD 124. Further, the respondent says that the applicant expressly disavowed reliance upon the ground of aggravation before the Tribunal (see the portion of the transcript set out at [8] above), and that accordingly he was not entitled to raise it on appeal, and relies upon Coulton and Ors v Holcombe and Ors [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8.
Case: Mifsud v Campbell (1991) 21 NSWLR 725
Outcome: referred to
The applicant says that the Tribunal should have considered the totality of the medical evidence and consider whether it suggested that the applicant had suffered an ' injury ' within the meaning of the SRC Act. The applicant submits that because of the comments in relation to 'aggravation' at the beginning of the hearing, the Tribunal failed to carry out its review of the material before it, and relies upon Mifsud v Campbell (1991) 21 NSWLR 725.