mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Motorola Credit Corporation v Uzan (No 2) [2003] EWCA Civ 752 ; [2004] 1 WLR 113
Outcome: discussed
In respect of that finding, the Sharman applicants referred to Moore J's rationale expressed at [37] of his reasons for judgment and emphasised it as is indicated in non-italics: 'Greater clarity about this matter [being the transfer of funds to TIL on 4 February 2005] may arise from the cross-examination of [Ms Hemming].' From what I have already reviewed, there was ample justification for his Honour to have reached that view of the unusual transactional offshore circumstances in evidence before him. It was submitted however on behalf of the Sharman applicants that so much did not imply that Moore J was satisfied that there had not been compliance with the order of the court to disclose assets by Ms Hemming, which affirmative finding was of course contended by the Sharman applicants to be a prerequisite to the making of an order for cross-examination; I was referred for comparison to Planet International v Garcia (No 2) (1991) 1 Qd R 426, where the following appears at 427 of Thomas J's reasons for judgment: 'In the present case I am satisfied Mr Garcia has not adequately complied with the order of the Court. On the material before me, he has provided a collection of some untruthful statements, non-disclosures and qualifications...' I was also referred, by way of further comparison, to the following observations of the Court of Appeal in England in Motorola Credit Corporation v Uzan (No 2) [2003] EWCA Civ 752 ; [2004] 1 WLR 113 at [147] : 'The piecemeal, late, untruthful and manifestly incomplete disclosure which the defendants gave amply justified the view that cross-examination was just and convenient because it might reveal assets which would make the freezing order more effective.' But of course those respective findings related to differing matters and circumstances, and neither finding was intended to be definitively exemplary, such as to exclude the need for further exploration.
Case: Wang v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 717
Outcome: followed
It is accepted by counsel that there is authority for the proposition that the specified time limit of 28 days can go to the issue of jurisdiction. Reference is made to Wang v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 717 at 721, where Merkel J said that reference to the 28 day time limit in s 478 was not merely directory, but specified an absolute mandatory requirement. 8 Counsel for the applicants seeks to draw a distinction between Wang , which concerned s 478 as it previously stood, and the present case. It is submitted that the 84 day limitation on extension in s 477(2)(a) is not mandatory. Counsel has referred to a number of authorities: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695; NABM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 294 ; (2002) 70 ALD 64; Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 ; Wickremsainghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 and Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349.
Case: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695
Outcome: distinguished
Counsel for the applicants seeks to draw a distinction between Wang , which concerned s 478 as it previously stood, and the present case. It is submitted that the 84 day limitation on extension in s 477(2)(a) is not mandatory. Counsel has referred to a number of authorities: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695; NABM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 294 ; (2002) 70 ALD 64; Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 ; Wickremsainghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 and Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349. 9 In my view, these authorities do not assist the applicants in the present circumstances. In these matters, the instances of non-compliance did not go to jurisdiction and were of a non mandatory and non-essential nature. In Yong Jun Qin, for example, the applicant was allowed to amend an application and name the Minister as respondent in place of the Immigration Review Tribunal. In NABM, the applicant sought and was entitled to seek judicial review, although the application mistakenly referred to s 476 of the Migration Act 1958 (Cth) rather than s 39B of the Judiciary Act 1903 (Cth). In Rishmawi , an application for review of the Tribunal's decision was made in the form of a comprehensive letter. The letter did not strictly comply with the requirements of the Federal Court Rules but gave all the necessary information.
Case: NABM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 294 ; (2002) 70 ALD 64
Outcome: distinguished
Counsel for the applicants seeks to draw a distinction between Wang , which concerned s 478 as it previously stood, and the present case. It is submitted that the 84 day limitation on extension in s 477(2)(a) is not mandatory. Counsel has referred to a number of authorities: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695; NABM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 294 ; (2002) 70 ALD 64; Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 ; Wickremsainghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 and Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349. 9 In my view, these authorities do not assist the applicants in the present circumstances. In these matters, the instances of non-compliance did not go to jurisdiction and were of a non mandatory and non-essential nature. In Yong Jun Qin, for example, the applicant was allowed to amend an application and name the Minister as respondent in place of the Immigration Review Tribunal. In NABM, the applicant sought and was entitled to seek judicial review, although the application mistakenly referred to s 476 of the Migration Act 1958 (Cth) rather than s 39B of the Judiciary Act 1903 (Cth). In Rishmawi , an application for review of the Tribunal's decision was made in the form of a comprehensive letter. The letter did not strictly comply with the requirements of the Federal Court Rules but gave all the necessary information.
Case: Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611
Outcome: distinguished
Counsel for the applicants seeks to draw a distinction between Wang , which concerned s 478 as it previously stood, and the present case. It is submitted that the 84 day limitation on extension in s 477(2)(a) is not mandatory. Counsel has referred to a number of authorities: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695; NABM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 294 ; (2002) 70 ALD 64; Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 ; Wickremsainghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 and Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349. 9 In my view, these authorities do not assist the applicants in the present circumstances. In these matters, the instances of non-compliance did not go to jurisdiction and were of a non mandatory and non-essential nature. In Yong Jun Qin, for example, the applicant was allowed to amend an application and name the Minister as respondent in place of the Immigration Review Tribunal. In NABM, the applicant sought and was entitled to seek judicial review, although the application mistakenly referred to s 476 of the Migration Act 1958 (Cth) rather than s 39B of the Judiciary Act 1903 (Cth). In Rishmawi , an application for review of the Tribunal's decision was made in the form of a comprehensive letter. The letter did not strictly comply with the requirements of the Federal Court Rules but gave all the necessary information.
Case: Wickremsainghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125
Outcome: referred to
Counsel for the applicants seeks to draw a distinction between Wang , which concerned s 478 as it previously stood, and the present case. It is submitted that the 84 day limitation on extension in s 477(2)(a) is not mandatory. Counsel has referred to a number of authorities: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695; NABM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 294 ; (2002) 70 ALD 64; Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 ; Wickremsainghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 and Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349.
Case: Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349
Outcome: referred to
Counsel for the applicants seeks to draw a distinction between Wang , which concerned s 478 as it previously stood, and the present case. It is submitted that the 84 day limitation on extension in s 477(2)(a) is not mandatory. Counsel has referred to a number of authorities: Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695; NABM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 294 ; (2002) 70 ALD 64; Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 ; Wickremsainghe v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 125 and Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349.
Case: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: followed
In Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at [7] , Gleeson CJ referred to privative clauses as those clauses which deprive, or purport to deprive, courts of jurisdiction to review the acts of public officials or tribunals in order to enforce compliance with the law, or which limit, or purport to limit, such jurisdiction. Section 477 is not a provision which makes a decision final and conclusive such that it may not be challenged, appealed against, reviewed or called into question in any court. It contemplates a challenge and provides a challenge to be made in a timely way. Section 474 , which was the subject of consideration in S157 , attempted to exclude a challenge in clear terms. It is evident that s 477 does not purport to preclude judicial review but imposes a limitation on the time for initiating that review. In these circumstances, I do not consider there is any substance in the submission that s 477 gives rise to a privative clause which is invalid or unconstitutional. In my view, it is appropriate to construe clauses fixing time limits with due regard to the necessity to ensure that courts are able to properly exercise their jurisdiction in a timely manner. 15 Further submissions were made by counsel for the applicants regarding the desirability of having uniform extendable time limits for appeal and review of administrative decisions, as referred to in the Second Reading Speech for the Migration Litigation Reform Bill 2005 presented in March 2005. It is said that the purpose of s 477 is to avoid the potential unfairness of the strict 28 day time limit while ensuring timely handling of the application. In my view, the section does have the effect of extending the time limit and is a provision favourable to an applicant. 16 I do not consider that there is anything incongruous, capricious or unreasonable in the application of s 477 in the circumstances of the present case. Accordingly, I do not accept the submission that the clear language of s 477 can or should be read down on the basis that it produces such results. 17 Accordingly, for the above reasons, I am not persuaded that there has been any error demonstrated in the judgment of the Federal Magistrate and I dismiss this application with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 21 December 2006 Counsel for the Applicants: S. Thode Counsel for the Respondents: T. Wong Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 11 August 2006 Date of Judgment: 21 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1803.html
Case: In the matter of GIO Personal Investment Services Ltd and AMP Life Ltd [2000] FCA 1871
Outcome: referred to
review of some of the decided cases (including cases decided under similar provisions of the Life Insurance Act 1995 (Cth)) suggests that, in general terms, the Court has treated the critical factor governing the exercise of its discretion as being whether "policyholders" will be materially detrimentally affected by the implementation of the scheme: Re Insurance Australia Ltd at [76]; In the matter of GIO Personal Investment Services Ltd and AMP Life Ltd [2000] FCA 1871 at [27] .
Case: In the matter of Reward Insurance Ltd [2004] FCA 151
Outcome: referred to
Court's discretion to confirm a scheme for the transfer of an insurance business is conferred by s 17F. In In the matter of Reward Insurance Ltd [2004] FCA 151 , Heerey J observed (at [3]) that the discretion was a general one and that the Act did not specify any criteria that were to be considered. His Honour described as "a prime consideration" the nature of the actual and potential claims to which the transferor insurer is subject and the financial viability of the transferee insurer ( ibid ). In Re MDU Australian Insurance Co Pty Ltd [2008] FCA 490 , Emmett J identified (at [7]) "[t]he critical consideration" as being whether the affected policyholders would be detrimentally affected. His Honour also said (at [9]) that the interests of the existing policyholders of the transferee insurer must be considered. Earlier, in Mercantile &amp; General Reinsurance Company of Australia Ltd [2004] FCA 1773 , his Honour had raised (at [23]) the question of the desirability of legislative amendment to make consideration of the interests of the latter mandatory (but see [44] below).
Case: Mercantile &amp; General Reinsurance Company of Australia Ltd [2004] FCA 1773
Outcome: discussed
Court's discretion to confirm a scheme for the transfer of an insurance business is conferred by s 17F. In In the matter of Reward Insurance Ltd [2004] FCA 151 , Heerey J observed (at [3]) that the discretion was a general one and that the Act did not specify any criteria that were to be considered. His Honour described as "a prime consideration" the nature of the actual and potential claims to which the transferor insurer is subject and the financial viability of the transferee insurer ( ibid ). In Re MDU Australian Insurance Co Pty Ltd [2008] FCA 490 , Emmett J identified (at [7]) "[t]he critical consideration" as being whether the affected policyholders would be detrimentally affected. His Honour also said (at [9]) that the interests of the existing policyholders of the transferee insurer must be considered. Earlier, in Mercantile &amp; General Reinsurance Company of Australia Ltd [2004] FCA 1773 , his Honour had raised (at [23]) the question of the desirability of legislative amendment to make consideration of the interests of the latter mandatory (but see [44] below). An intention that might suggest itself is that of making mandatory a consideration that this Court was already at liberty to take into account and has taken into account, namely, the interests of non-transferred (remaining) Australian branch policyholders of the transferor insurer, and existing (continuing) Australian branch policyholders of the transferee insurer, neither of which categories would fall within s 17C's concept of "affected policyholder": see Re Insurance Australia Ltd, above at [25], [70], [75], [76]; Mercantile &amp; General Reinsurance Company of Australia Ltd , above, at [23]; PMI Indemnity Ltd [2005] FCA 1842 at [25] ff; Re Calliden Group Ltd [2007] FCA 2019 at [90] - [91] . Importantly, in no case has the Court had regard to the interests of policyholders of an overseas branch or discussed the desirability of their being considered. In Mercantile &amp; General Reinsurance Company of Australia Ltd, above, for example, Emmett J referred to the effect of a scheme on the Australian branch policyholders of the transferee foreign general insurer, and not the policyholders of its overseas branches. His Honour also said (at [3]) that the non-Australian assets and liabilities of the transferee foreign general insurer could be ignored. Justice Emmett's comment relating to the desirability of legislative amendment to which I referred at [34] above is to be understood against the background of the fact that his Honour took into account the interests of only the Australian branch policyholders of the transferee foreign general insurer.
Case: PMI Indemnity Ltd [2005] FCA 1842
Outcome: cited
intention that might suggest itself is that of making mandatory a consideration that this Court was already at liberty to take into account and has taken into account, namely, the interests of non-transferred (remaining) Australian branch policyholders of the transferor insurer, and existing (continuing) Australian branch policyholders of the transferee insurer, neither of which categories would fall within s 17C's concept of "affected policyholder": see Re Insurance Australia Ltd, above at [25], [70], [75], [76]; Mercantile &amp; General Reinsurance Company of Australia Ltd , above, at [23]; PMI Indemnity Ltd [2005] FCA 1842 at [25] ff; Re Calliden Group Ltd [2007] FCA 2019 at [90] - [91] . Importantly, in no case has the Court had regard to the interests of policyholders of an overseas branch or discussed the desirability of their being considered. In Mercantile &amp; General Reinsurance Company of Australia Ltd, above, for example, Emmett J referred to the effect of a scheme on the Australian branch policyholders of the transferee foreign general insurer, and not the policyholders of its overseas branches. His Honour also said (at [3]) that the non-Australian assets and liabilities of the transferee foreign general insurer could be ignored. Justice Emmett's comment relating to the desirability of legislative amendment to which I referred at [34] above is to be understood against the background of the fact that his Honour took into account the interests of only the Australian branch policyholders of the transferee foreign general insurer.
Case: Re Armstrong Jones Life Assurance Limited (1997) 74 FCR 160
Outcome: cited
required to be taken prior to the "making" of an application need only be taken prior to the time at which the Court is moved for the order of confirmation of the scheme, not prior to the filing of the application in the Court registry: Re Armstrong Jones Life Assurance Limited (1997) 74 FCR 160 at 163, per Emmett J; Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at 39, per Katz J; Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450 ( Re Insurance Australia Ltd ) at [30] [37], per Lindgren J.
Case: Re Calliden Group Ltd [2007] FCA 2019
Outcome: cited
intention that might suggest itself is that of making mandatory a consideration that this Court was already at liberty to take into account and has taken into account, namely, the interests of non-transferred (remaining) Australian branch policyholders of the transferor insurer, and existing (continuing) Australian branch policyholders of the transferee insurer, neither of which categories would fall within s 17C's concept of "affected policyholder": see Re Insurance Australia Ltd, above at [25], [70], [75], [76]; Mercantile &amp; General Reinsurance Company of Australia Ltd , above, at [23]; PMI Indemnity Ltd [2005] FCA 1842 at [25] ff; Re Calliden Group Ltd [2007] FCA 2019 at [90] - [91] . Importantly, in no case has the Court had regard to the interests of policyholders of an overseas branch or discussed the desirability of their being considered. In Mercantile &amp; General Reinsurance Company of Australia Ltd, above, for example, Emmett J referred to the effect of a scheme on the Australian branch policyholders of the transferee foreign general insurer, and not the policyholders of its overseas branches. His Honour also said (at [3]) that the non-Australian assets and liabilities of the transferee foreign general insurer could be ignored. Justice Emmett's comment relating to the desirability of legislative amendment to which I referred at [34] above is to be understood against the background of the fact that his Honour took into account the interests of only the Australian branch policyholders of the transferee foreign general insurer.
Case: Re MDU Australian Insurance Co Pty Ltd [2008] FCA 490
Outcome: referred to
Court's discretion to confirm a scheme for the transfer of an insurance business is conferred by s 17F. In In the matter of Reward Insurance Ltd [2004] FCA 151 , Heerey J observed (at [3]) that the discretion was a general one and that the Act did not specify any criteria that were to be considered. His Honour described as "a prime consideration" the nature of the actual and potential claims to which the transferor insurer is subject and the financial viability of the transferee insurer ( ibid ). In Re MDU Australian Insurance Co Pty Ltd [2008] FCA 490 , Emmett J identified (at [7]) "[t]he critical consideration" as being whether the affected policyholders would be detrimentally affected. His Honour also said (at [9]) that the interests of the existing policyholders of the transferee insurer must be considered. Earlier, in Mercantile &amp; General Reinsurance Company of Australia Ltd [2004] FCA 1773 , his Honour had raised (at [23]) the question of the desirability of legislative amendment to make consideration of the interests of the latter mandatory (but see [44] below).
Case: Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37
Outcome: cited
required to be taken prior to the "making" of an application need only be taken prior to the time at which the Court is moved for the order of confirmation of the scheme, not prior to the filing of the application in the Court registry: Re Armstrong Jones Life Assurance Limited (1997) 74 FCR 160 at 163, per Emmett J; Re Royal &amp; Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37 at 39, per Katz J; Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450 ( Re Insurance Australia Ltd ) at [30] [37], per Lindgren J.
Case: Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 ; (2002) 122 FCR 150
Outcome: cited
order was quashed, and the Tribunal was directed to determine "the matter the subject of the decision according to law", by a consent order made by the Federal Magistrates Court on 29 January 2008. The order noted that the Minister acknowledged that the Tribunal had committed jurisdictional error by failing to ask itself the right question, namely whether the applicant's conscientious objection to performing military service could be regarded as a form of political opinion, or whether "conscientious objectors" could constitute a particular social group. The Minister's acknowledgment was based upon the decision of Gray J in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 ; (2002) 122 FCR 150 at [28] , affirmed in the Full Court of this Court in VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1.