mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Fig Tree Developments Ltd v Australian Property Custodial Holdings [2008] FCA 1041
Outcome: distinguished
the respondent argued that Dr Toben was provoked by Mr Jones' publication in the Australian Jewish News to publishing the material which he did and breaching the undertaking. The respondent relied on Fig Tree Developments Ltd v Australian Property Custodial Holdings [2008] FCA 1041. I do not, with respect, think that that case stands for the proposition which was put. That case involved an application for discovery and the judge made some observations about a party having the right to apply to be released from an undertaking. But, in any event, there are a number of difficulties with this argument. First, the September 2002 orders and the November 2007 undertaking operated in their terms for all circumstances. Dr Toben was obliged to comply with the terms of paragraphs 2 and 3 of the September 2002 orders until such time as those orders were varied or revoked. If he thought that Mr Jones had said something that would have allowed him to respond, but for the orders to which he was subjected, he could have applied to the Court for a variation or revocation of those orders. He was not entitled for himself to ignore those orders. Secondly, there is no evidence that he responded as he did because of the provocation which he said was displayed by Mr Jones. His articles suggest that he thought he had some right to respond because of what was published in the Australian Jewish News but there is no evidence because he gave none that he was provoked into doing what he did. Thirdly, and in any event, intention is not an element that needs to be established by the moving party when that party seeks punishment for contempt by another party disobeying an order of the Court. For all of those reasons, those arguments fail.
Case: ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248
Outcome: referred to
ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 , Lockhart J (with whom Gummow J agreed and French J generally agreed) said at 259: Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction. Contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed. That decision was approved in Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41.
Case: Jones v Scully [2002] FCA 1080 ; (2002) 120 FCR 243
Outcome: cited
the argument put does not assist the respondent in the proceeding because the respondent has not tendered any evidence at all and there is no evidence that would bring the respondent within s 18D of the Racial Discrimination Act . The onus was on the respondent to establish an entitlement to an exemption under s 18D of the Racial Discrimination Act : Jones v Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at [127] and [230]. Next it was put that the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) has the effect of rendering the September 2002 orders nugatory. It was not explained what was meant by the term "rendering the order nugatory" but unless the Citizenship Act had the effect of discharging or revoking the September 2002 orders then the orders would continue to stand. Mr Perkins relied upon the preamble in the Citizenship Act which provides: The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity. The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations: (a) by pledging loyalty to Australia and its people; and (b) by sharing their democratic beliefs; and (c) by respecting their rights and liberties; and (d) by upholding and obeying the laws of Australia.
Case: Longhurst v Hunt [2004] NSWCA 91
Outcome: cited
135 of the Evidence Act applies to both criminal and civil trials. It permits the Court to refuse to admit evidence if the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the party against whom the evidence is sought to be tendered. It seems to me the unguarded admissions made by a party which are sought to be used for the purpose of proving the party to be in contempt of Court and therefore liable to be imprisoned could be unfairly prejudicial to that party. They might, if admitted, mean that that party is put at a forensic disadvantage by having to give evidence to explain the admissions where otherwise that party would choose not to give evidence. The Courts have said the inability to cross-examine on material sought to be adduced in a civil trial may attract the discretion in s 135: Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [55] ; Longhurst v Hunt [2004] NSWCA 91 at [46] - [49] .
Case: Telstra Corporation Ltd v SingTel Optus Pty Ltd [2007] FCA 824
Outcome: referred to
Telstra Corporation Ltd v SingTel Optus Pty Ltd [2007] FCA 824 at [19] the Court said: It is a fundamental principle of the law relating to injunctions that they should be expressed with precision. A person against whom an injunction is made should be told precisely what can or cannot be done ...
Case: The King v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3 ; (1951) 82 CLR 208
Outcome: applied
The King v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3 ; (1951) 82 CLR 208 at 243 Latham CJ said, "Wilful disobedience to an order of the Court is contempt of a criminal nature." In Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 489, Barwick CJ said: A contempt in procedure by disobedience of an order of the Court or by breach of an undertaking given to it may be accompanied by such contumacy or defiance on the part of the party against whom the contempt proceedings are brought as evidences a criminal as well as a civil contempt.
Case: The King v Nicholls [1911] HCA 22 ; (1911) 12 CLR 280
Outcome: cited
Toben has published remarks which might be described as insulting of the Court and which tend to scandalise the Court. An act which is calculated to lower the authority of the Court or a judge of the Court or an act which is calculated to obstruct or interfere with the course of justice will be a contempt: The King v Nicholls [1911] HCA 22 ; (1911) 12 CLR 280. The first class is often referred to as scandalising the Court. Mr Perkins, Dr Toben's counsel, argued that the Court should not have regard to those remarks in considering whether these charges of contempt have been made out. I think that contention is partly right. Clearly enough, whatever remarks Dr Toben has made about the Court would not be relevant in determining whether his other remarks or his other publication was in disobedience of the September 2002 orders or breached the November 2007 undertaking. However, his remarks may be relevant for that aspect of the applicant's case which is directed to establishing contumacy.
Case: Universal Music Australia Pty Ltd v Sharman Network Ltd [2006] FCAFC 41
Outcome: cited
respondent next argued that the September 2002 orders were vague or unclear and therefore cannot be enforced in contempt proceedings, and in that regard relied upon the decision of the Full Court of this Court in Universal Music Australia Pty Ltd v Sharman Network Ltd [2006] FCAFC 41. In ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 , Lockhart J (with whom Gummow J agreed and French J generally agreed) said at 259: Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction. Contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed. That decision was approved in Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41.
Case: Wimpole v McIlwraith [1923] VLR 553
Outcome: applied
applicant argued, relying upon a decision of the Supreme Court of Victoria in Wimpole v McIlwraith [1923] VLR 553 , that those paragraphs of the respondent's which contained admissions were admissible without the applicant being required to tender the whole of the affidavit. In that case, Mann J said at 555: I think in trials without juries there has been in our Courts some diversity of practice about this matter, and I think the reason is that there are two courses that may be taken, and which lead now practically to the same result. One course I might take here would be to admit the four paragraphs tendered, subject to and along with any other qualifying paragraphs to which the defendant's counsel would be at liberty to refer without thereby being taken to be tendering evidence. The other alternative is to insist on the whole document going in, but with these reservations, which seem to be just&#8212;firstly, that the plaintiff putting in the document would only be bound by the admissions to which he calls attention and any qualifications contained in any other part of the document. The defendant would not be treated as calling evidence by calling attention to any such qualifications. As regards statements appearing elsewhere in the affidavit prejudicial to the plaintiff, I should hold that he is not bound by them in the circumstances, and, so far as those statements were in support of facts, the proof of which was on the defendant, I should not accept them as being sufficient proof of those facts by the defendant for the purpose of satisfying that proof. I refused to admit those parts of the respondent's affidavits which contained admissions. If it were a criminal trial, s 90 of the Evidence Act 1995 (Cth) (the Evidence Act ) would give the Court a discretion to refuse to admit the evidence of an admission if, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. The admissions were contained in affidavits filed prior to the present charges being laid. The respondent was unrepresented at that time. He was apparently not warned that anything contained in an affidavit might be used against him in contempt proceedings. The applicant only seeks to put part of the respondent's affidavit, effectively reserving to himself the editing of the respondent's affidavits. However, this is not a criminal trial, even though the charges must be proved to the level of satisfaction required in a criminal trial, so s 90 of the Evidence Act does not control the admissibility of the evidence of an admission.
Case: Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384 ; (1986) 19 FCR 110
Outcome: cited
course, the November 2007 undertaking is in a different class. The respondent gave the undertaking himself. He has always been aware of that undertaking and its effect. So much is clear from his attempting to resile from the undertaking. An undertaking given to the Court is punishable in the same way as if it were an order of the Court. It is a contempt to breach an undertaking the same as it is to disobey an order of the Court: Biba Ltd v Stratford Investments Ltd [1973] Ch 281 ; Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384 ; (1986) 19 FCR 110. A breach of an undertaking will involve the same consequences for the party in breach as disobedience of an order of the Court: Milburn v Newton Colliery (1908) 52 S.J. 317. Where the undertaking is given to the Court by the person who is to be bound by the undertaking, the undertaking does not need to be served upon that person before contempt proceedings for a breach of that undertaking are commenced. Order 37 rule 3 only applies to orders, not undertakings: Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384 ; 19 FCR 110. Separate charges for breaches of the September 2002 orders and the November 2007 undertaking
Case: Witham v Holloway (1995) 183 CLR 525
Outcome: applied
Witham v Holloway (1995) 183 CLR 525 , Brennan, Deane, Toohey and Gaudron JJ described the distinction between civil and criminal contempts as illusory. In that case, the majority held that because contempt proceedings are brought to punish the contemnor either for the purpose of vindicating judicial authority or for the purpose of coercing obedience to an order, the proceedings must realistically be seen as criminal in nature. For that reason, whether the contempt is civil or criminal, the charge must be proved beyond reasonable doubt. The onus of establishing the contempt is, of course, on the party asserting it.
Case: Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343
Outcome: cited
is also authority to the effect that a court will be more ready to find that there is a substantial reason for questioning whether a judgment is based on an actual debt when that judgment has been given by default. See Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 348 per Dixon, Williams, Webb and Kitto JJ and 357-358 per Fullagar J and Wolff v Donovan (1991) 29 FCR 480 at 486 per Lee and Hill JJ.
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: followed
power of a court on an application to set aside a bankruptcy notice to "go behind the judgment" on which the bankruptcy notice is based is a discretionary power. In an appeal from a judgment involving the exercise of discretion, the question for the appeal court is not whether it would have exercised the discretion differently from the court below. The basis on which an appeal court is required to act is set out in the well-known passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504-555: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Case: Jooss &eacute; v Commissioner of Taxation [2004] FCAFC 245 (2004) 137 FCR 576
Outcome: followed
nature of the discretion the exercise of which is sought when a recipient of a bankruptcy notice seeks to set aside that notice by going behind the judgment on which it is based is set out in the joint judgment of North and Finkelstein JJ in Jooss&eacute; v Commissioner of Taxation [2004] FCAFC 245 (2004) 137 FCR 576 at [3] : The court can go behind a judgment to determine whether it is founded on a real debt because a sequestration order should not be made on the petition of a person who is not a real creditor. The court has a discretion whether or not to go behind the judgment. The discretion is of a limited kind. In Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 , Barwick CJ, with whom Windeyer and Owen JJ agreed, said (at 224-225) that: [t]he Court's discretion ... is a discretion to accept the judgment as satisfactory proof of [the petitioning creditor's] debt. That discretion is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner.
Case: Wolff v Donovan (1991) 29 FCR 480
Outcome: cited
is also authority to the effect that a court will be more ready to find that there is a substantial reason for questioning whether a judgment is based on an actual debt when that judgment has been given by default. See Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 348 per Dixon, Williams, Webb and Kitto JJ and 357-358 per Fullagar J and Wolff v Donovan (1991) 29 FCR 480 at 486 per Lee and Hill JJ.
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457
Outcome: followed
The principles governing the grant or refusal of interlocutory injunctions have recently been confirmed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457. Chief Justice Gleeson and Crennan J at [19] observed: ... in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) [1968] HCA 1 ; 118 CLR 618] should be folIowed. (footnotes omitted) 25 At [70] Gummow and Hayne JJ make clear that they (like Gleeson CJ and Crennan J) have no objection to the use of the phrase 'serious question' if it is understood as conveying the notion that the seriousness of the question depends on the considerations emphasised in Beecham [1968] HCA 1 ; 118 CLR 618 . At [71] their Honours emphasise that the governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.
Case: Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339
Outcome: approved
The scope of the definition of a 'managed investment scheme' has been considered in a number of cases. In Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46, Barrett J adopted the description and explanation of a 'managed investment scheme and its components' in Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 at [45] - [49] and Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at [26]-[32]. Justice Goldberg in Australian Securities and Investments Commission v Primelife (2006) 235 ALR 328 agreed with and adopted those descriptions and I would be content to do likewise.
Case: Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561
Outcome: approved
The scope of the definition of a 'managed investment scheme' has been considered in a number of cases. In Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46, Barrett J adopted the description and explanation of a 'managed investment scheme and its components' in Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 at [45] - [49] and Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at [26]-[32]. Justice Goldberg in Australian Securities and Investments Commission v Primelife (2006) 235 ALR 328 agreed with and adopted those descriptions and I would be content to do likewise. 26 This application is also brought in reliance of provisions of the Corporations Act , and I am mindful of the need to consider the purpose and objectives of that legislation in the consideration of the relief sought, particularly pursuant to ss 1323 and 1324 of the Corporations Act . I should therefore consider the public interest that would be promoted by the making of certain orders if a proper legal basis existed for such relief: see generally Pegasus 41 ACSR 583-584 at [108]-[110]. I must consider whether it is necessary or desirable to make orders for the purpose of protecting the interests of aggrieved persons where orders are sought prohibiting the transfer of property (see for example s 1323 of the Corporations Act ). However, I must be careful not to go beyond what is necessary in the circumstances of this case in making interlocutory orders, based on the extent of the evidentiary material before me. 27 APM has already been wound up. A liquidator, Mr McCann, has been appointed. As I have said, no relief at this interlocutory stage is sought directly in relation to the alleged Scheme, only in relation to its participants. Ancillary orders are sought, for instance, that the provisional liquidator provide a written report as to certain aspects, including the future disposition, of the Scheme but the making of these orders depends on the appointment of a provisional liquidator to the corporate defendants. 28 My function now is to preserve the status quo and to protect insofar as is necessary the interests I have outlined above. As events have transpired the only issues remaining are: &#8226; whether the continuation of orders preventing the disposal of property in the name of APM should be made; &#8226; whether a provisional liquidator should be appointed to the corporate defendants other than APM; &#8226; whether the continuation or imposition of orders preventing the disposal of property or the financial records held by the corporate defendants (other than APM) should be made; &#8226; whether orders should be made restraining the operation of the Scheme; and &#8226; whether restraining orders should be made against Mr Kyriackou.
Case: Australian Securities and Investment Commission v Primelife (2006) 235 ALR 328
Outcome: approved
The scope of the definition of a 'managed investment scheme' has been considered in a number of cases. In Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46, Barrett J adopted the description and explanation of a 'managed investment scheme and its components' in Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 at [45] - [49] and Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at [26]-[32]. Justice Goldberg in Australian Securities and Investments Commission v Primelife (2006) 235 ALR 328 agreed with and adopted those descriptions and I would be content to do likewise.