mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Western Australia v The Commonwealth (the Native Title Act case) [1995] HCA 47 ; (1995) 183 CLR 373
Outcome: considered
In Western Australia v The Commonwealth (the Native Title Act case) [1995] HCA 47 ; (1995) 183 CLR 373 at 487 Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said: 'A "law of the Commonwealth", as that term is used in the Constitution , cannot be the unwritten law. It is necessarily statute law, for the only power to make Commonwealth law is vested in the Parliament (Consitiution, s 1 ; see also Covering Clause 5 and ss 51 and 52 ). ... But the common law is not itself a law of the Commonwealth.' 62 I am of opinion that the common law is a law of each State. The reasoning underlying the decision in the Native Title Case [1995] HCA 47 ; (1995) 183 CLR 373 at 487 was that the Constitution was the only source of the laws of the Commonwealth and it identified the Parliament as the mechanism by which such laws came into existence. But the nature of the federation created by the Constitution recognized that a body of law, separate from statute, existed in the former colonies which became States on 1 January 1901. That body of law, the common law, undoubtedly exists today. It forms part of the 'single system of jurisprudence constituted by the Constitution , federal, State and Territory laws and the common law of Australia' identified by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 ; (2000) 203 CLR 503 at 534 [66] (see too Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 562).
Case: Williams v The Queen [1987] HCA 36 ; (1986) 161 CLR 278
Outcome: referred to
While in centuries gone by it may have been legally possible to imprison people who owed but had not paid debts, imprisonment in Australia today can only occur where a person is sentenced to a term by a court pursuant to law, be it a statute or the unwritten law, or is remanded (or held for a very limited time before he or she must be brought before a court or a justice of the peace: cf: Williams v The Queen [1987] HCA 36 ; (1986) 161 CLR 278) in custody as incident of the administration of the criminal law so as to be available at his or her trial. Administrative detention is not imprisonment ( Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562) and some statutes can authorize preventative detention after a term of imprisonment has been served (cf: Fardon v Attorney-General (Qld) [2004] HCA 46 ; (2004) 210 ALR 50, 78 ALJR 1519; Baker v The Queen [2004] HCA 45 ; (2004) 210 ALR 1, 78 ALJR 1483; Kable v DPP (NSW) [1996] HCA 24 ; (1996) 189 CLR 51). As Salmon LJ remarked in Jennison v Baker [1972] 2 QB 52 at 61G, of the distinction between 'civil' and 'criminal' contempt: 'I think that, at any rate today, this is an unhelpful and almost meaningless classification.' see too per John Laws (then junior counsel to the Treasury) in: Current Problems in the Law of Contempt (1990) 43 Current Legal Prolems 99 at 101, 102 quoted in Aldridge Eady &amp; Smith on Contempt (3 rd ed) at [3-48].
Case: Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262
Outcome: referred to
In Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 at 281D-282G Kirby P and at 288A-D Handley JA held that Pt 55 r 14 of the Supreme Court Rules 1970 (NSW), which contained a power to discharge a convicted contemnor from prison, was authorized by an Act, namely the Supreme Court Act 1970 (NSW). They held that this was because, first, the rule had been made as delegated legislation under the Act and, secondly, in The Queen v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 280 Dixon CJ, McTiernan, Fullagar and Kitto JJ had approved of the explanation given by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34 ; (1931) 46 CLR 73 at 101-102 that a statute may authorize the Executive to make a law i.e. to make delegated legislation and that such a law is made under the statute. 114 I am also of opinion that s 312(1)(e) required Mr Seymour to notify the Authority of his conviction of the offence of contempt which is an offence under the law of New South Wales. For the reasons above, I am of that opinion whether the contempt power was inherent in the Supreme Court of New South Wales, and so was part of that State's unwritten law, or was created under the Supreme Court Act 1970 (NSW) or SCR Part 55 rr 7, 13 (see Young v Registrar Court of Appeal [No 3] (1993) 32 NSWLR 262 at 281D-282G, 288A-D). 115 Accordingly, the tribunal committed no error of law in finding that Mr Seymour had been convicted of a criminal offence by Buddin J and that he had not declared that he was the subject of a criminal proceeding in his 1 May 2004 application to the Authority when he ought to have declared that he was. It was also correct to have decided that Mr Seymour failed to notify the Authority in accordance with s 312(1)(e) after his conviction by Buddin J. 116 It was open to the tribunal in coming to a view as to whether or not Mr Seymour was a person of integrity or was a fit and proper person to give immigration assistance to consider his conduct in making the original application in 1993 for registration as a migration agent. The tribunal found, correctly, that there was no question at that time that the PCA high range offence conviction had not been spent by reason of the Criminal Records Act 1991 (NSW) ss 7 and 9 (see [34]).
Case: Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778
Outcome: related
background to this judgment is set out in full in Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778 and Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen (No 2) [2009] FCA 1383. In Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen (No 2) [2009] FCA 1383 I ordered that these proceedings be transferred to the Family Court of Australia. The only outstanding matter for decision at this stage relates to costs incurred in the following proceedings: An application by Mrs Jensen for a stay of the proceedings for abuse of process. Mrs Jensen was unsuccessful in respect of this application.
Case: Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen (No 2) [2009] FCA 1383
Outcome: related
background to this judgment is set out in full in Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen [2009] FCA 778 and Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen (No 2) [2009] FCA 1383. In Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen (No 2) [2009] FCA 1383 I ordered that these proceedings be transferred to the Family Court of Australia. The only outstanding matter for decision at this stage relates to costs incurred in the following proceedings: An application by Mrs Jensen for a stay of the proceedings for abuse of process. Mrs Jensen was unsuccessful in respect of this application.
Case: JT Stratford &amp; Son Ltd v Lindley (No 2) [1969] 3 All ER 1122
Outcome: cited
Third, I am not persuaded by the trustee's submission that costs of the notice of motion for transfer should be costs in the cause of the trustee's application in this court to be transferred to the Family Court. While the trustee had, appropriately, commenced these proceedings in this Court and had a prima facie right to have his claim heard in this Court, Mrs Jensen was well within her rights to apply for an order that the proceedings be transferred to the Family Court. I do not agree that Mrs Jensen sought, unsuccessfully, to have the proceedings transferred to the Family Court at the hearing of 31 March 2009 in fact although counsel for Mrs Jensen invited the Court to make the order of its own initiative, no formal application for transfer was made. I do not think that, at this stage, an order should be made that such costs should be costs in the cause and awarded according to the final award of costs in the action (cf comments of Lord Denning in JT Stratford &amp; Son Ltd v Lindley (No 2) [1969] 3 All ER 1122 at 1123).
Case: Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545
Outcome: cited
Finally, even were I minded to order costs in favour of the trustee in whole or in part, I am not persuaded that the demands of justice require a departure from the general rule that an order for costs of an interlocutory proceeding shall not entitle a party to have a bill of costs taxed until the principal proceeding has concluded (cf Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312, Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545). Although the trustee was successful in its notice of motion to strike out paragraphs of the Defence and in its opposition to para 24 of the Cross-Claim, the principal proceedings will now continue in the Family Court. In my view it is for the trial judge in that Court to determine where costs should fall, including in respect of the interlocutory proceedings. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 10 December 2009 Counsel for the Applicant: Mr PP McQuade Solicitor for the Applicant: James Conomos Lawyers Counsel for the Respondent: Mr J Griffin QC and Mr FG Forde Solicitor for the Respondent: Michael Sing Lawyers Date of Hearing: 6 October 2009 Date of Last Submission: 10 December 2009 Date of Judgment: 10 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1482.html
Case: Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297
Outcome: cited
Finally, even were I minded to order costs in favour of the trustee in whole or in part, I am not persuaded that the demands of justice require a departure from the general rule that an order for costs of an interlocutory proceeding shall not entitle a party to have a bill of costs taxed until the principal proceeding has concluded (cf Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312, Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545). Although the trustee was successful in its notice of motion to strike out paragraphs of the Defence and in its opposition to para 24 of the Cross-Claim, the principal proceedings will now continue in the Family Court. In my view it is for the trial judge in that Court to determine where costs should fall, including in respect of the interlocutory proceedings. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 10 December 2009 Counsel for the Applicant: Mr PP McQuade Solicitor for the Applicant: James Conomos Lawyers Counsel for the Respondent: Mr J Griffin QC and Mr FG Forde Solicitor for the Respondent: Michael Sing Lawyers Date of Hearing: 6 October 2009 Date of Last Submission: 10 December 2009 Date of Judgment: 10 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1482.html
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: applied
The disclosure of the contents of the letter of 3 March 2005 in the Notice of Appeal signed by the debtor is inconsistent with the maintenance of confidentiality. The only apparent purpose of the reference to the letter is to summarise the content of the letter and indicate that it supported the assertion that the debtor was domiciled in Australia. The reference to the letter in the Notice of Appeal cannot be linked to the Tribunal's alleged error since the letter is dated 3 March 2005 and, according to the Notice of Appeal, the Tribunal's decision was made on 11 March 2005. In my view it constitutes waiver of legal privilege in accordance with the principle expressed in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at 13 and for that reason I decline to set aside paragraph 4 of the subpoena. 6 This subpoena was not referred to in the interim application; however it was raised at the hearing. As the documents sought under this subpoena are the same as those sought under the subpoena already discussed, the debtor's objections can be dealt with expeditiously. The documents produced in response to the above subpoena are also responsive to paragraphs 1 and 2 of this subpoena and there are no documents falling within paragraph 3. The only issue is the legal professional privilege issue discussed above and my conclusion is the same as that expressed above, for the same reasons. 7 The notice seeks documents in eight categories. I was informed that there are not any documents in six of the categories. The remaining categories are in paragraphs 4 and 5: '4. Trust account and general account statements of account from Salvatore Russo, solicitor for the period 1 January 2005 to 30 December 2005 issued with respect to the Union Club litigation in the Supreme Court of New South Wales Equity Division; Supreme Court of New South Wales defamation list; Administrative Decisions Tribunal; the Supreme Court of New South Wales Court of Appeal and the Applicant's litigation before Gyles J in the Federal Court and Full Court of the Federal Court. 5. Statements of account and/or memorandum of fees from Murray Aldridge SC and James Dupree for the period 1 January 2005 to 30 December 2005 and records by way of cheque butts, direct deposit and bank statements to show payment of same.'
Case: Re Sonodyne International Limited (1994) 15 ACSR 494
Outcome: cited
It is, of course, clear that the Court's role on this application is not to pass a final view on whether the proposed scheme should be approved, either by the members at the proposed meeting, or then by the Court under s 411(4)(d). The decision must first await the will of the members to be expressed at the scheme meeting. Assuming the members support the proposed scheme, when the Court is then called upon to approve it, dissenting members or other interested parties will have the opportunity to oppose the Court's granting approval: Re Sonodyne International Limited (1994) 15 ACSR 494 at 497 per Hayne J. 16 However, the authorities indicate that, at this point, the Court should review the proposed scheme and the proposed explanatory statement, and may invite the plaintiff company to attend to any matters which seemed to the Court to require attention before the distribution of the documents.
Case: FT Eastment &amp; Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69
Outcome: cited
In FT Eastment &amp; Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 at 72, Street CJ said: [T]he court will not ordinarily summon a meeting unless the scheme is of such a nature and cast in such terms, if it achieves the statutory majority at the creditor's meeting [in this case, the members' meeting] the court would be likely to approve it on the hearing of a petition which is unopposed. That passage was cited with approval by the High Court in Australian Securities Commission v Marlborough Goldmines Ltd [1993] HCA 15 ; (1993) 177 CLR 485, and has been followed in many decisions since, including recently Re Coles Group Limited [2007] VSC 389 per Robson J.
Case: Australian Securities Commission v Marlborough Goldmines Ltd [1993] HCA 15 ; (1993) 177 CLR 485
Outcome: referred to
In FT Eastment &amp; Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 at 72, Street CJ said: [T]he court will not ordinarily summon a meeting unless the scheme is of such a nature and cast in such terms, if it achieves the statutory majority at the creditor's meeting [in this case, the members' meeting] the court would be likely to approve it on the hearing of a petition which is unopposed. That passage was cited with approval by the High Court in Australian Securities Commission v Marlborough Goldmines Ltd [1993] HCA 15 ; (1993) 177 CLR 485, and has been followed in many decisions since, including recently Re Coles Group Limited [2007] VSC 389 per Robson J.
Case: Re Central Pacific Minerals NL [2002] FCA 239
Outcome: referred to
Obviously, one focus of the Court in fulfilling that task is to ensure that there is sufficient disclosure to those who may be affected by the proposed scheme of its details and effect: see Re Central Pacific Minerals NL [2002] FCA 239. In that case, Emmett J at [9] said that, amongst the factors to which the Court should have regard in exercising its discretion whether to convene a meeting, were the acceptability of the documentation of the proposed scheme; the commercial viability and morality of the proposed scheme; the likely acceptability of the proposed scheme; the bona fides of the proposals; whether the proposal could be achieved by another method; and any objections or submissions by the Australian Securities and Investments Commission (ASIC). Both Conti J in Re CSR Ltd (2003) 45 ACSR 34 at 36-37 and Lander J in Re Adelaide Bank Limited [2007] FCA 1582 at [38] referred to those criteria with approval, and as conforming with the observations of Santow J in Re NRMA Limited [2000] NSWSC 82 ; 33 ACSR 595 referred to.
Case: Re CSR Ltd (2003) 45 ACSR 34
Outcome: referred to
Obviously, one focus of the Court in fulfilling that task is to ensure that there is sufficient disclosure to those who may be affected by the proposed scheme of its details and effect: see Re Central Pacific Minerals NL [2002] FCA 239. In that case, Emmett J at [9] said that, amongst the factors to which the Court should have regard in exercising its discretion whether to convene a meeting, were the acceptability of the documentation of the proposed scheme; the commercial viability and morality of the proposed scheme; the likely acceptability of the proposed scheme; the bona fides of the proposals; whether the proposal could be achieved by another method; and any objections or submissions by the Australian Securities and Investments Commission (ASIC). Both Conti J in Re CSR Ltd (2003) 45 ACSR 34 at 36-37 and Lander J in Re Adelaide Bank Limited [2007] FCA 1582 at [38] referred to those criteria with approval, and as conforming with the observations of Santow J in Re NRMA Limited [2000] NSWSC 82 ; 33 ACSR 595 referred to.
Case: Re Adelaide Bank Limited [2007] FCA 1582
Outcome: referred to
Obviously, one focus of the Court in fulfilling that task is to ensure that there is sufficient disclosure to those who may be affected by the proposed scheme of its details and effect: see Re Central Pacific Minerals NL [2002] FCA 239. In that case, Emmett J at [9] said that, amongst the factors to which the Court should have regard in exercising its discretion whether to convene a meeting, were the acceptability of the documentation of the proposed scheme; the commercial viability and morality of the proposed scheme; the likely acceptability of the proposed scheme; the bona fides of the proposals; whether the proposal could be achieved by another method; and any objections or submissions by the Australian Securities and Investments Commission (ASIC). Both Conti J in Re CSR Ltd (2003) 45 ACSR 34 at 36-37 and Lander J in Re Adelaide Bank Limited [2007] FCA 1582 at [38] referred to those criteria with approval, and as conforming with the observations of Santow J in Re NRMA Limited [2000] NSWSC 82 ; 33 ACSR 595 referred to. 41 Under cl 7.3(a) of the Implementation Agreement, each scheme participant is deemed to have warranted that all of its shares in Hostworks which are transferred under the scheme will be free from all mortgages and encumbrances. Fryberg J in Re Mincom Ltd (No 3) (2007) 25 ACLC 207, regarded an almost identical deemed warranty clause as onerous and unreasonable and "calculated to catapult unsuspecting shareholders who have not read the small print of the arrangement in the schedule to the explanatory statement into a state of breach of warranty": at [21]. In Re APN News &amp; Media Ltd 62 ACSR 400, Lindgren J disagreed with the approach of Fryberg J: see at [59]-[62]. I respectfully agree with and adopt the views of Lindgren J. I share the understanding of his Honour that the purpose and effect of such a clause is simply to ensure that a scheme participant whose shares are subject to an encumbrance is not unfairly advantaged. The amount of the damages payable for breach of the warranty would be equal to the amount required to discharge the encumbrance. I note that the approach of Lindgren J has been preferred in subsequent cases, including by Robson J in Re Coles Group Limited [2007] VSC 389 at [45] ; by Lander J in Re Adelaide Bank Limited [2007] FCA 1582 at [33] ; and by Gyles J in Orion Telecommunications Ltd [2007] FCA 1389 at [9] .
Case: Re Mincom Ltd (No 3) (2007) 25 ACLC 207
Outcome: referred to
Section 411 further requires that the Court is satisfied that the scheme can properly be described as a compromise or arrangement so as to come within its ambit. The word "arrangement" has been held to be a word of wide import, not limited by its relationship or the expression "compromise". An arrangement may extend to any subject matter which is something which a company is able to agree with its members, and is likened to a contract between a company and its members. As noted earlier, there have been a number of cases in which a scheme involving the acquisition of a company's issued capital for cash, so that the company becomes a wholly owned subsidiary of an acquiring entity, is a common use of the Pt 5.1 procedure. See also e.g. Re Mincom Ltd (No 3) (2007) 25 ACLC 207; and Re APN News &amp; Media Ltd (2007) 62 ACSR 400. 41 Under cl 7.3(a) of the Implementation Agreement, each scheme participant is deemed to have warranted that all of its shares in Hostworks which are transferred under the scheme will be free from all mortgages and encumbrances. Fryberg J in Re Mincom Ltd (No 3) (2007) 25 ACLC 207, regarded an almost identical deemed warranty clause as onerous and unreasonable and "calculated to catapult unsuspecting shareholders who have not read the small print of the arrangement in the schedule to the explanatory statement into a state of breach of warranty": at [21]. In Re APN News &amp; Media Ltd 62 ACSR 400, Lindgren J disagreed with the approach of Fryberg J: see at [59]-[62]. I respectfully agree with and adopt the views of Lindgren J. I share the understanding of his Honour that the purpose and effect of such a clause is simply to ensure that a scheme participant whose shares are subject to an encumbrance is not unfairly advantaged. The amount of the damages payable for breach of the warranty would be equal to the amount required to discharge the encumbrance. I note that the approach of Lindgren J has been preferred in subsequent cases, including by Robson J in Re Coles Group Limited [2007] VSC 389 at [45] ; by Lander J in Re Adelaide Bank Limited [2007] FCA 1582 at [33] ; and by Gyles J in Orion Telecommunications Ltd [2007] FCA 1389 at [9] .