mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Octaviar Ltd (formerly MFS Ltd) (2009) 69 ACSR 621
Outcome: applied
WPS Motorsport I was faced with a question as to whether, on the evidence to hand, I was satisfied that it was in the interests of the creditors to the company for the winding up application to be adjourned. The evidence put forward on behalf of the company, there to give rise such satisfaction, was, when one analysed it, illusory. That is not this case. While the evidence is certainly of a general nature, it does enliven, in my opinion, sentiments of the kind voiced by Philip McMurdo J in Re Octaviar Ltd (formerly MFS Ltd) (2009) 69 ACSR 121 at [55] (Re Octaviar), in a passage to which I referred in WPS Motorsport Pty Ltd at [21]. In particular, his Honour observed that it will often be the case where not enough is known about what is likely to come from either a liquidation or a deed of company administration regime for a comparison as to relative worth not to be able to be made at an early stage. In Re Octaviar, his Honour referred to a passage from a judgment delivered by Campbell J in Deputy Commission of Taxation v Bradley Keeling Management Pty Ltd [2003] NSWSC 47 ; (2003) 44 ACSR 377 at 380. The passage concerned is in these terms: Ultimately what the court needs to do is to be persuaded. The amount of proof which can result in persuasion, differs with the circumstances in which litigation comes before the court. It is common enough, in applications under s 440A , for an administrator to need to seek an adjournment very soon after his or her appointment, at a time when he or she knows very little about the affairs of the company. In that sort of situation, comparatively little material might be needed to justify a short adjournment. As time goes on, however, and the occasion that there has been for the collecting of evidence increases, so the amount of material which might need to be put before the court before it is persuaded, will increase.
Case: Deputy Commission of Taxation v Bradley Keeling Management Pty Ltd [2003] NSWSC 47 ; (2003) 44 ACSR 377
Outcome: applied
WPS Motorsport I was faced with a question as to whether, on the evidence to hand, I was satisfied that it was in the interests of the creditors to the company for the winding up application to be adjourned. The evidence put forward on behalf of the company, there to give rise such satisfaction, was, when one analysed it, illusory. That is not this case. While the evidence is certainly of a general nature, it does enliven, in my opinion, sentiments of the kind voiced by Philip McMurdo J in Re Octaviar Ltd (formerly MFS Ltd) (2009) 69 ACSR 121 at [55] (Re Octaviar), in a passage to which I referred in WPS Motorsport Pty Ltd at [21]. In particular, his Honour observed that it will often be the case where not enough is known about what is likely to come from either a liquidation or a deed of company administration regime for a comparison as to relative worth not to be able to be made at an early stage. In Re Octaviar, his Honour referred to a passage from a judgment delivered by Campbell J in Deputy Commission of Taxation v Bradley Keeling Management Pty Ltd [2003] NSWSC 47 ; (2003) 44 ACSR 377 at 380. The passage concerned is in these terms: Ultimately what the court needs to do is to be persuaded. The amount of proof which can result in persuasion, differs with the circumstances in which litigation comes before the court. It is common enough, in applications under s 440A , for an administrator to need to seek an adjournment very soon after his or her appointment, at a time when he or she knows very little about the affairs of the company. In that sort of situation, comparatively little material might be needed to justify a short adjournment. As time goes on, however, and the occasion that there has been for the collecting of evidence increases, so the amount of material which might need to be put before the court before it is persuaded, will increase.
Case: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 226 CLR 256
Outcome: cited
In Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251 at 286, Mason CJ, after remarking that categories of abuse of process remain open, identified three categories within which abuse of process usually falls: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. See also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 226 CLR 256.
Case: Brock v Minister for Justice and Customs [2007] FCA 2091 ; (2007) 243 ALR 315
Outcome: cited
It is an abuse of process, in my opinion, to proceed in the way in which the applicant has. It could lead to the very unsatisfactory result that, contrary to the decision of Mansfield J, the decisions would be quashed for reasons not considered by him. That would tend to bring the administration of justice into disrepute: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 and Brock v Minister for Justice and Customs [2007] FCA 2091 ; (2007) 243 ALR 315.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
The respondents acknowledged that although it is only in the clearest of cases that an application for summary dismissal would succeed: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91 per Dixon J, in this case, because the applicant's claim failed to disclose a reasonable cause of action, it was appropriate for the Court to exercise its power and dismiss the proceeding. 49 Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey [1949] HCA 1 ; 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries [1964] HCA 69 ; 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. So much is supported by the Attorney-General's second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A. He said: The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts' powers in dealing with any unsustainable case.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 
Outcome: cited
Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey [1949] HCA 1 ; 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries [1964] HCA 69 ; 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. So much is supported by the Attorney-General's second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A. He said: The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts' powers in dealing with any unsustainable case.
Case: Gye v McIntyre [1991] HCA 60 ; (1991) 171 CLR 609
Outcome: cited
In relation to the issue of "offset against bankruptcy proceedings", the respondents submitted that there were no "mutual dealings" between the respondents and the applicants for the purpose of s 86 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act): Gye v McIntyre [1991] HCA 60 ; (1991) 171 CLR 609 , and that the $2,000,000 claimed in damages by the applicant in this matter is neither a debt presently owed to the applicant by the respondents, nor is it a contingent liability arising out of mutual dealings between them. The respondents also stated that as there is currently no sequestration order made against the applicant, he is not presently a "person who has become a bankrupt" which means s 86 of the Bankruptcy Act cannot operate in relation to him. 43 The respondents argued that the proceeding was vexatious, given the applicant's litigation history in which he has been attempting (unsuccessfully) to establish that, as a result of his service in the Army, he developed a mental disability for which he should be compensated and that this proceeding was yet another attempt by the applicant to re-litigate matters already determined against him on a number of occasions both in this Court and in the AAT. 44 The respondents also contended that as there are no particulars in the application or statement of claim (other than bare allegations) as to how the applicant was discriminated against, that the applicant should be ordered to pay security for costs. They argued that the claim was unmeritorious. The respondents contended that the applicant owns no property and has been unable to pay previous costs orders made against him.
Case: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 
Outcome: cited
Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey [1949] HCA 1 ; 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries [1964] HCA 69 ; 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. So much is supported by the Attorney-General's second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A. He said: The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts' powers in dealing with any unsustainable case.
Case: Metall &amp; Rohstoff AG v Donaldson Lufkin [1990] 1 QB 391
Outcome: cited
In support of the abuse of process ground, the respondents contended "that in making his application ... the predominant purpose of the [a]pplicant [was] not to prosecute the proceeding to a conclusion, but instead to use it as a means of obtaining an advantage for which it [was] not designed ...": Metall &amp; Rohstoff AG v Donaldson Lufkin [1990] 1 QB 391 at 469. In particular, the respondents submitted that the purpose of the applicant was to delay and/or frustrate the bankruptcy proceedings against the applicant. 41 The respondents submitted that the applicant was seeking to re-litigate issues already decided such that there was a collateral attack on several Full Court decisions. The respondents stated that, in effect, the applicant was seeking to re-agitate issues already the subject of a decision and order of the Full Court. The respondents submitted that there were no facts currently pleaded in the applicant's statement of claim which would support any conclusion that the second respondent actually unlawfully discriminated against the applicant.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: followed
There is no doubt that the issues which are said to arise in this proceeding should have been raised in the proceeding before Mansfield J: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422 ; (2004) 146 FCR 1. No explanation has been given for the failure to raise these issues in that proceeding. In those circumstances, this proceeding is a manifest abuse.
Case: Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251
Outcome: cited
In Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251 at 286, Mason CJ, after remarking that categories of abuse of process remain open, identified three categories within which abuse of process usually falls: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. See also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 226 CLR 256.
Case: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699
Outcome: cited
It is an abuse of process, in my opinion, to proceed in the way in which the applicant has. It could lead to the very unsatisfactory result that, contrary to the decision of Mansfield J, the decisions would be quashed for reasons not considered by him. That would tend to bring the administration of justice into disrepute: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 and Brock v Minister for Justice and Customs [2007] FCA 2091 ; (2007) 243 ALR 315.
Case: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378
Outcome: cited
This Court has an implied incidental power to prevent an abuse of its processes. The jurisdiction of a superior court to prevent its processes from an abuse of process was considered by the High Court in Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378. In that case, the High Court was concerned with complaints against three medical practitioners which were laid but not prosecuted in the Medical Tribunal and then re-laid after a Royal Commission had reported adversely on the conduct of the practitioners. On an application to the Court, the Court of Appeal in New South Wales stayed the new complaints on the ground that they were so unfairly and unjustly oppressive as to constitute an abuse of process. 56 Chief Justice Mason, Deane and Dawson JJ said at 392-393: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. ... Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate a newer case which has already been disposed of by earlier proceedings. (Footnotes omitted.) 57 The respondents contended that this Court should find that this proceeding is an abuse of process.
Case: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: cited
Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey [1949] HCA 1 ; 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries [1964] HCA 69 ; 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298. So much is supported by the Attorney-General's second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A. He said: The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts' powers in dealing with any unsustainable case.
Case: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 
Outcome: cited
Moreover, I am satisfied that this proceeding, as the respondents have contended, has been brought for a collateral purpose and thereby an improper purpose: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509. This proceeding has been brought for the purpose of calling into question Mansfield J's decision and that of the Full Court. It has also been brought for the further improper purpose to obtain the interlocutory relief which is sought in the application so as to prevent the first respondent from proceeding with the creditor's petition in the Federal Magistrates Court. Clearly, in this proceeding, this Court could not make an interlocutory order of the kind sought in the application. The Court in which the bankruptcy proceeding has been brought might make such an order but, as the reasons of Simpson FM show, the Federal Magistrates Court has declined to make such an order: Rana v Chief of Army [2008] FMCA 518.
Case: Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422 ; (2004) 146 FCR 1
Outcome: cited
There is no doubt that the issues which are said to arise in this proceeding should have been raised in the proceeding before Mansfield J: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422 ; (2004) 146 FCR 1. No explanation has been given for the failure to raise these issues in that proceeding. In those circumstances, this proceeding is a manifest abuse.
Case: James North (Aust) Pty Ltd v Blundstone Pty Ltd (1978) 48 AOJP 2419 , (1978) 1b IPR 596
Outcome: applied
the respondents challenge Harry Wang's entitlement to be and to remain the registered proprietor of the Registered Trade Mark. As I have already mentioned in [52] and [53] above, the gateway to that challenge is s 88(1) and s 88(2)(a) of the Trade Marks Act . In order to bring themselves within that section, the respondents, or one or more of them, must be an aggrieved person within the meaning of that expression as used in s 88. The respondents seemed to suggest that the owner at common law of the Anying mark was An Ying NZ although, at times, they seemed to be submitting that the owner was either An Ying NZ or Andrew Chen personally. An Ying NZ is not a party to the proceedings at the present time. The argument at trial, no doubt, will be that Andrew Chen is an aggrieved person within the meaning of s 88(1) as is Anying Auburn. This argument will focus on Andrew Chen's involvement in the creation of the Anying mark and its use in New Zealand and arguably in Australia for some years prior to February 2006 and contentions on the part of Anying Auburn that, because it is using the Anying mark currently and has done so for almost two years, Anying Auburn itself is an aggrieved person within the meaning of s 88(1) (see Radio &amp; Records Inc v Dahlke (2005) 67 IPR 187). A person who is not the true owner of a trade mark may yet be aggrieved by the false claim to ownership of another ( James North (Aust) Pty Ltd v Blundstone Pty Ltd (1978) 48 AOJP 2419 at 2423, (1978) 1b IPR 596 at 604).
Case: Radio &amp; Records Inc v Dahlke (2005) 67 IPR 187
Outcome: cited
the respondents challenge Harry Wang's entitlement to be and to remain the registered proprietor of the Registered Trade Mark. As I have already mentioned in [52] and [53] above, the gateway to that challenge is s 88(1) and s 88(2)(a) of the Trade Marks Act . In order to bring themselves within that section, the respondents, or one or more of them, must be an aggrieved person within the meaning of that expression as used in s 88. The respondents seemed to suggest that the owner at common law of the Anying mark was An Ying NZ although, at times, they seemed to be submitting that the owner was either An Ying NZ or Andrew Chen personally. An Ying NZ is not a party to the proceedings at the present time. The argument at trial, no doubt, will be that Andrew Chen is an aggrieved person within the meaning of s 88(1) as is Anying Auburn. This argument will focus on Andrew Chen's involvement in the creation of the Anying mark and its use in New Zealand and arguably in Australia for some years prior to February 2006 and contentions on the part of Anying Auburn that, because it is using the Anying mark currently and has done so for almost two years, Anying Auburn itself is an aggrieved person within the meaning of s 88(1) (see Radio &amp; Records Inc v Dahlke (2005) 67 IPR 187). A person who is not the true owner of a trade mark may yet be aggrieved by the false claim to ownership of another ( James North (Aust) Pty Ltd v Blundstone Pty Ltd (1978) 48 AOJP 2419 at 2423, (1978) 1b IPR 596 at 604).
Case: Anderson v Palmer [2002] NSWSC 192
Outcome: cited
Under the particular circumstances of this case, notwithstanding the principles that I referred to in Deputy Commissioner of Taxation, in the matter of Northview Developments Pty Limited (in liq) (ACN 092 804 254) v Northview Developments Pty Limited (in liq) (ACN 092 804 254) [2005] FCA 1825 based upon the decision of Barrett J in Anderson v Palmer [2002] NSWSC 192 , I propose to make the orders sought.
Case: Brolrik Pty Ltd v Sambah Holdings Pty Ltd [2001] NSWSC 1171 ; (2001) 40 ACSR 361 
Outcome: followed
With that in mind, the matter was adjourned to enable consideration to be given to a cure for that. I have now received written undertakings along the lines of those accepted by Barrett J in Brolrik Pty Ltd v Sambah Holdings Pty Ltd [2001] NSWSC 1171 ; (2001) 40 ACSR 361 particularly at [49]. The effect of those undertakings to the Court are to ensure that what were described as the subordinated liabilities will be in truth subordinated to the claim of any unsecured creditor.
Case: Deputy Commissioner of Taxation, in the matter of Northview Developments Pty Limited (in liq) (ACN 092 804 254) v Northview Developments Pty Limited (in liq) (ACN 092 804 254) [2005] FCA 1825 
Outcome: cited
Under the particular circumstances of this case, notwithstanding the principles that I referred to in Deputy Commissioner of Taxation, in the matter of Northview Developments Pty Limited (in liq) (ACN 092 804 254) v Northview Developments Pty Limited (in liq) (ACN 092 804 254) [2005] FCA 1825 based upon the decision of Barrett J in Anderson v Palmer [2002] NSWSC 192 , I propose to make the orders sought.