mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cummings v Claremont Petroleum NL (1986) 185 CLR 123
Outcome: applied
Section 116(1)(b) characterises as property divisible amongst the creditors, "the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his ... own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his ... discharge". The notion of property of the bankrupt within s5(1) of the Bankruptcy Act seems to have the same meaning for the purposes of both s58(1) and s 116 (1) of the Bankruptcy Act , consistent with the views of the majority in Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1986) 185 CLR 124 and Cirillo v Citicorp Australia Ltd [2004] SASC 293 at paragraphs [75] [79] per Perry, Bleby and Gray JJ. 38 Accordingly, all legal and beneficial interests of the bankrupt and all rights, capacities and powers exercisable by the bankrupt in relation to those interests vest in the trustee and are divisible among the bankrupt's creditors. The powers referred to in s116(1)(b) of the Bankruptcy Act are "powers 'which are familiar to all conveyancers and are powers properly so called' as Farwell J pointed out In Re Rose; Trustee of the Property of E T Rose v Rose . In other words, the powers referred to are authorities to dispose of property or interests in property for the benefit of the donee of the power or of some other person": Cummings v Claremont Petroleum NL (supra), per Brennan CJ, Gaudron and McHugh JJ at page 133.
Case: Cirillo v Citicorp Australia Ltd [2004] SASC 293
Outcome: applied
Section 116(1)(b) characterises as property divisible amongst the creditors, "the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his ... own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his ... discharge". The notion of property of the bankrupt within s5(1) of the Bankruptcy Act seems to have the same meaning for the purposes of both s58(1) and s 116 (1) of the Bankruptcy Act , consistent with the views of the majority in Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1986) 185 CLR 124 and Cirillo v Citicorp Australia Ltd [2004] SASC 293 at paragraphs [75] [79] per Perry, Bleby and Gray JJ.
Case: Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591
Outcome: cited
Accordingly, all legal and beneficial interests of the bankrupt and all rights, capacities and powers exercisable by the bankrupt in relation to those interests vest in the trustee and are divisible among the bankrupt's creditors. The powers referred to in s116(1)(b) of the Bankruptcy Act are "powers 'which are familiar to all conveyancers and are powers properly so called' as Farwell J pointed out In Re Rose; Trustee of the Property of E T Rose v Rose . In other words, the powers referred to are authorities to dispose of property or interests in property for the benefit of the donee of the power or of some other person": Cummings v Claremont Petroleum NL (supra), per Brennan CJ, Gaudron and McHugh JJ at page 133. 44 As to the question of whether any of these claims either for final or interlocutory relief fall within the exemption of s116(2)(g) of the Bankruptcy Act thus entitling Mr Rogers to maintain a claim and more particularly a claim for an interlocutory injunction to restrain an exercise of a power of sale by a secured creditor in connection with the property at 13 or 15 Moreton Street, Toogoom, the position seems to be this. In Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591, Kirby P at page 601 made the following observation concerning the phrase "wrong[s] done to the bankrupt": "It is understandable that a person unversed in the principles of statutory construction and unaware of legal authority on the meaning of [the relevant phrase] should have taken the words 'wrong done to the bankrupt' in isolation and concluded as the claimant did about their meaning. However, the words cannot be taken in isolation. They must, in accordance with the ordinary cannons of construction, be read in the context in which they appear." And at page 602, "The exemption [relating to proceedings concerning a wrong done to the bankrupt] is limited to those cases where it has been considered appropriate to sever the personal interests of the person subsequently made bankrupt from his property and to reserve to him the prosecution of and benefits derived from such litigation as not being legitimately entitlements of the creditors."
Case: Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713
Outcome: applied
In Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, Sir Owen Dixon, explained the test to be applied to determine whether the character of the claim is one properly falling within the exemption. His Honour said this, "The plaintiff says that he himself is entitled to prosecute [the claim] under the proviso as an action for personal injury or wrong done to himself. The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property (Wilson v United Counties Bank Ltd (1920) A.C. 102 at pp111 and 128 133)."
Case: Faulkner v Bluett (1981) 52 FLR 115
Outcome: applied
Lockhart J, after considering a number of the early cases and the orthodox approach to a scope of the exemption based upon a wrong done to the bankrupt made this observation in Faulkner v Bluett (1981) 52 FLR 115 at 119: "The common thread running through these cases is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt. Where the essential cause of action is the personal injury done to the person or feelings of the bankrupt, the right to sue remains with the bankrupt." 47 Where the claim for final relief arising out of the conduct of a respondent reflects a claim with respect to both the rights of the bankrupt in property and a claim with respect to a wrong done to the bankrupt characterised as a claim by reference to the anxiety, stress and pain felt by the bankrupt, the rights of action in respect of the bankrupt's interests in property vest in the trustee and those rights of action where the essential cause is emotional injury done to the bankrupt (in respect of a recognised cause of action) remain with the bankrupt. 48 It may be that when Mr Rogers or his advisers formulate a statement of claim in the proceeding, a claim might emerge which, in terms of its material facts, reflects a claim within the exemption reliant upon conduct which involves a contravention of ss52 , 51AC or 60 of the Trade Practices Act 1974 (Cth) independently of any of the former rights of the bankrupt in property which have become vested in the trustee. At the moment, the material does not establish any such right. The alleged contraventions of the Trade Practices Act 1974 (Cth), which are mere conclusionary assertions are relied upon as the basis for final orders with respect to the interests of the bankrupt in property which interests have become vested in the trustee.
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; [2001] 208 CLR 199
Outcome: applied
In formulating the application for interlocutory relief and fundamentally, the affidavit material, Mr Rogers "must be able to show sufficient colour of right to the final relief in aid of which interlocutory relief is sought": Gleeson CJ, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; [2001] 208 CLR 199 at 217, paragraph [11] or, "(1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction": Mason A-CJ, Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153. Sir Frederick Jordan in his work C hapters on Equity in New South Wales , 6 th Edition (1947) at page 146 simply put the jurisdiction to make an interlocutory order, in these terms, "the purpose of an interlocutory injunction is to keep matters in statu quo until the rights of the parties can be determined at the hearing of the suit" .
Case: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: applied
In formulating the application for interlocutory relief and fundamentally, the affidavit material, Mr Rogers "must be able to show sufficient colour of right to the final relief in aid of which interlocutory relief is sought": Gleeson CJ, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; [2001] 208 CLR 199 at 217, paragraph [11] or, "(1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction": Mason A-CJ, Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153. Sir Frederick Jordan in his work C hapters on Equity in New South Wales , 6 th Edition (1947) at page 146 simply put the jurisdiction to make an interlocutory order, in these terms, "the purpose of an interlocutory injunction is to keep matters in statu quo until the rights of the parties can be determined at the hearing of the suit" .
Case: Roger Coyne v Ansett Transport Industries (unreported, Industrial Relations Court of Australia, Wilcox CJ, Ryan and Madgwick JJ, 24 September 1996)
Outcome: followed
The principles upon which an application for enlargement of time in a case such as this should be determined have been the subject of comment in a number of cases. They are most conveniently set out for present purposes in the judgment of Marshall J in Jennings v Salvation Army [2003] FCA 1193 (2003) 128 IR 366 at [9] , where his Honour quoted from the judgment of a Full Court of the Industrial Relations Court of Australia in Roger Coyne v Ansett Transport Industries (unreported, Industrial Relations Court of Australia, Wilcox CJ, Ryan and Madgwick JJ, 24 September 1996). The principles so quoted are as follows: '1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to extend. 2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time. 3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time. 4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time. 5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time. 6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.'
Case: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 (2000) 177 ALR 491
Outcome: considered
I deal first with the lapse of time, and with the question whether there should be an enlargement of time because there has been an acceptable explanation. As I have said the lapse of time involved over one year and nine months from the date when the application should have been filed. A period of that length itself may be sufficient to defeat an application to enlarge time. As McHugh J said in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 (2000) 177 ALR 491 at [16] , when dealing with an application to extend time limits imposed by the High Court Rules in respect of relief under s 75(v) of the Constitution : 'Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy [ [1965] 1 WLR 8 at 12 ], "[t]he rules of court must prima facie be obeyed."... In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.' 9 The applicant's explanation of the delay has involved a number of issues. I accept that he is an unrepresented litigant, with no knowledge of the law. It is clear, however, that he had taken two steps in the Commission, instituting his proceeding there and appealing to the Full Bench, both of which involved time limits. Together with his certificate dated 6 February 2004, the applicant was given a note, making it clear to him that it was incumbent upon him to commence proceedings before an appropriate Court, and that lodgement of a notice of election did not have the effect of commencing any Court proceedings. Perhaps regrettably, the notice did not advise that there was a time limit attached to the commencement of proceedings in the Court, much less what that time limit in fact entailed. 10 The applicant, in his material, was inclined to blame the respondent for failing to give him advice as to the presence of a time limit, or its duration. It was no part of the respondent's function to give the applicant such advice. It was no part of the respondent's function to anticipate that the applicant would wish to bring proceedings in the Court. In particular, it was no part of the respondent's function to encourage the bringing of those proceedings, and the consequent expenditure of public money.
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572
Outcome: cited
The second ground of appeal contends that the Tribunal failed to perform the statutory duty imposed by s 424A of the Act. As the Federal Magistrate found, the Tribunal's decision turned on the Tribunal's assessment of the appellant's evidence at the hearing and did not rely upon any information which fell within the scope of the obligation in s 424A(1). His Honour found the Tribunal was not required to give written particulars of the information referred to under the heading 'Country Information' because that material fell within the exception in s 424A(3)(a) of the Act: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572. I agree with the conclusion and reasoning of the Federal Magistrate.
Case: SCAA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 668
Outcome: cited
The first ground of appeal asserts that the Tribunal was biased because it did not believe, and failed to consider, the appellant's claims. I agree with the Federal Magistrate's finding, that there is no basis to conclude that the Tribunal's decision was affected by actual or apprehended bias: SCAA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 668 ; VFAB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102.
Case: SZBEL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: considered
Mr Jordan of counsel, who appeared for the first respondent, brought to my attention the High Court of Australia decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 (' SZBEL '), and indicated that in light of s 422B of the Act (which did not apply in SZBEL but does in this appeal) the principles enunciated by the High Court of Australia may not be relevant to my considerations. I need not examine this issue because in my view, at the hearing, the Tribunal did identify the issues upon which its decision was based and gave the appellant the opportunity to address the issues and make submissions. Accordingly, there is no basis upon which to find the Tribunal breached procedural fairness in circumstances such as those in SZBEL assuming that the principles enunciated therein apply to this appeal. 11 I will therefore order that the appeal be dismissed. I will also make orders that the title of the first respondent be changed to Minister for Immigration and Citizenship and the Tribunal be joined as the second respondent to this appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 20 February 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: D Jordan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 14 February 2007 Date of Judgment: 14 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/155.html
Case: VFAB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102
Outcome: cited
The first ground of appeal asserts that the Tribunal was biased because it did not believe, and failed to consider, the appellant's claims. I agree with the Federal Magistrate's finding, that there is no basis to conclude that the Tribunal's decision was affected by actual or apprehended bias: SCAA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 668 ; VFAB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102.
Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 
Outcome: followed
As I have already indicated, the appellant did not attend Court this morning. There were no submissions made by anyone on his behalf. The allegation of bias made here is a fresh allegation. That allegation was not agitated before the Federal Magistrate. It is a serious allegation which must be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [69] ). It must also be borne in mind that bias on the part of the Tribunal will rarely be demonstrated or apparent from the Tribunal's written reasons alone (see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] ).
Case: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 
Outcome: followed
As I have already indicated, the appellant did not attend Court this morning. There were no submissions made by anyone on his behalf. The allegation of bias made here is a fresh allegation. That allegation was not agitated before the Federal Magistrate. It is a serious allegation which must be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [69] ). It must also be borne in mind that bias on the part of the Tribunal will rarely be demonstrated or apparent from the Tribunal's written reasons alone (see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] ).
Case: SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280
Outcome: cited
The remaining grounds raised in the Notice of Appeal have not been made out. There is no suggestion in any of the material before me that the learned Federal Magistrate behaved unfairly vis-&agrave;-vis the appellant or that there was anything unfair in the decision by the Federal Magistrate to deliver judgment ex tempore. Such a proposition would ordinarily be difficult to establish (see SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280). 17 The last ground is really a ground which seeks to re-agitate the merits of the Tribunal's decision, a course which is impermissible in this Court. 18 For these reasons, in my view, there was no jurisdictional error committed by the Federal Magistrate. Accordingly the appellant's appeal is dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 18 November 2008 The Appellant did not appear Counsel for the First Respondent: Ms SA Sirtes Solicitor for the Respondents: DLA Phillips Fox Date of Hearing: 12 November 2008 Date of Judgment: 12 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1709.html
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: applied
Federal Magistrates Court exercised jurisdiction to judicially review the decision of the Tribunal. The appeal to this Court is to correct error in the decision of the Federal Magistrates Court. The ground of appeal sought to be relied upon does not relate to any such error. Furthermore, the ground involves a question of fact not raised before the Federal Magistrates Court. The application to amend is misconceived ( Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1). The application to amend is refused.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572
Outcome: followed
consequence is that the case for the appellants stands or falls upon the use by the Tribunal of country information concerning document fraud in Bangladesh without having complied with s 424A in relation to that information. That basis was rejected by the learned Federal Magistrate, based upon Full Court authority in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572. Counsel for the Minister submits that authority since then has confirmed that position. It is sufficient to refer to QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.
Case: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 
Outcome: followed
consequence is that the case for the appellants stands or falls upon the use by the Tribunal of country information concerning document fraud in Bangladesh without having complied with s 424A in relation to that information. That basis was rejected by the learned Federal Magistrate, based upon Full Court authority in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572. Counsel for the Minister submits that authority since then has confirmed that position. It is sufficient to refer to QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.