mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Outcome: followed
The approach that the Court has taken in similar circumstances is the subject of a consistent line of authority: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 ; Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261 ; Komesaroff v Law Institute of Victoria [1997] FCA 965 ; Re Langridge; Ex parte Bennett , Carroll &amp; Gibbons [1998] FCA 879 ; Matthews v Collett [2000] FCA 224 ; Bankstown Grammar School Ltd v Park [2000] FCA 1205 ; Griffiths v Boral Resources (Qld) Pty Ltd (2006) FCR 554. In the present case, there is clear evidence that Ms Menassa intended to apply on 11 April 2006 for an order under s 52(5) of the Bankruptcy Act but forgot to do so and a clear statement by Driver FM in his Honour's reasons for judgment that he would have made such an order if he had appreciated that the creditor's petition was to lapse on 25 April 2006.
Case: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421
Outcome: followed
Ordinarily, the law takes no account of parts of a day, and the expression "commencing on" must mean commencing on either the first or the last moment of the day in question. In my opinion, the expression "commencing on" in s 52(4)(a) of the Bankruptcy Act means "commencing at the first moment on", and the period of 12 months commencing on the date of presentation of the petition in the present case, 26 April 2005, expired on 25 April 2006 at midnight between 25 and 26 April 2006: see Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277 at 285; Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 453 per Mason J, with whom McTiernan J agreed; Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 at 526-527. Expressions referring to a certain period "from" or "before" or of the kind "within [a certain period] of" are different. In those cases, the starting day is excluded in the computation: see, for example, Re Butler; Ex parte Toohey's Ltd (1934) 34 SR (NSW) 277 ; Re Gray; Ex parte Deputy Commissioner of Taxation [1993] FCA 277 ; (1993) 115 ALR 638 ; and see s 36(1) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act ).
Case: Re Gray; Ex parte Deputy Commissioner of Taxation [1993] FCA 277 ; (1993) 115 ALR 638
Outcome: cited
Ordinarily, the law takes no account of parts of a day, and the expression "commencing on" must mean commencing on either the first or the last moment of the day in question. In my opinion, the expression "commencing on" in s 52(4)(a) of the Bankruptcy Act means "commencing at the first moment on", and the period of 12 months commencing on the date of presentation of the petition in the present case, 26 April 2005, expired on 25 April 2006 at midnight between 25 and 26 April 2006: see Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277 at 285; Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 453 per Mason J, with whom McTiernan J agreed; Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 at 526-527. Expressions referring to a certain period "from" or "before" or of the kind "within [a certain period] of" are different. In those cases, the starting day is excluded in the computation: see, for example, Re Butler; Ex parte Toohey's Ltd (1934) 34 SR (NSW) 277 ; Re Gray; Ex parte Deputy Commissioner of Taxation [1993] FCA 277 ; (1993) 115 ALR 638 ; and see s 36(1) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act ).
Case: Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261
Outcome: cited
The approach that the Court has taken in similar circumstances is the subject of a consistent line of authority: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 ; Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261 ; Komesaroff v Law Institute of Victoria [1997] FCA 965 ; Re Langridge; Ex parte Bennett , Carroll &amp; Gibbons [1998] FCA 879 ; Matthews v Collett [2000] FCA 224 ; Bankstown Grammar School Ltd v Park [2000] FCA 1205 ; Griffiths v Boral Resources (Qld) Pty Ltd (2006) FCR 554. In the present case, there is clear evidence that Ms Menassa intended to apply on 11 April 2006 for an order under s 52(5) of the Bankruptcy Act but forgot to do so and a clear statement by Driver FM in his Honour's reasons for judgment that he would have made such an order if he had appreciated that the creditor's petition was to lapse on 25 April 2006.
Case: Komesaroff v Law Institute of Victoria [1997] FCA 965
Outcome: cited
The approach that the Court has taken in similar circumstances is the subject of a consistent line of authority: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 ; Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261 ; Komesaroff v Law Institute of Victoria [1997] FCA 965 ; Re Langridge; Ex parte Bennett , Carroll &amp; Gibbons [1998] FCA 879 ; Matthews v Collett [2000] FCA 224 ; Bankstown Grammar School Ltd v Park [2000] FCA 1205 ; Griffiths v Boral Resources (Qld) Pty Ltd (2006) FCR 554. In the present case, there is clear evidence that Ms Menassa intended to apply on 11 April 2006 for an order under s 52(5) of the Bankruptcy Act but forgot to do so and a clear statement by Driver FM in his Honour's reasons for judgment that he would have made such an order if he had appreciated that the creditor's petition was to lapse on 25 April 2006.
Case: Re Langridge; Ex parte Bennett, Carroll &amp; Gibbons [1998] FCA 879
Outcome: cited
The approach that the Court has taken in similar circumstances is the subject of a consistent line of authority: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 ; Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261 ; Komesaroff v Law Institute of Victoria [1997] FCA 965 ; Re Langridge; Ex parte Bennett , Carroll &amp; Gibbons [1998] FCA 879 ; Matthews v Collett [2000] FCA 224 ; Bankstown Grammar School Ltd v Park [2000] FCA 1205 ; Griffiths v Boral Resources (Qld) Pty Ltd (2006) FCR 554. In the present case, there is clear evidence that Ms Menassa intended to apply on 11 April 2006 for an order under s 52(5) of the Bankruptcy Act but forgot to do so and a clear statement by Driver FM in his Honour's reasons for judgment that he would have made such an order if he had appreciated that the creditor's petition was to lapse on 25 April 2006.
Case: Matthews v Collett [2000] FCA 224
Outcome: cited
The approach that the Court has taken in similar circumstances is the subject of a consistent line of authority: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 ; Re Howell; Ex parte Commissioner of Taxation (1996) 70 FCR 261 ; Komesaroff v Law Institute of Victoria [1997] FCA 965 ; Re Langridge; Ex parte Bennett , Carroll &amp; Gibbons [1998] FCA 879 ; Matthews v Collett [2000] FCA 224 ; Bankstown Grammar School Ltd v Park [2000] FCA 1205 ; Griffiths v Boral Resources (Qld) Pty Ltd (2006) FCR 554. In the present case, there is clear evidence that Ms Menassa intended to apply on 11 April 2006 for an order under s 52(5) of the Bankruptcy Act but forgot to do so and a clear statement by Driver FM in his Honour's reasons for judgment that he would have made such an order if he had appreciated that the creditor's petition was to lapse on 25 April 2006.
Case: Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277
Outcome: cited
Ordinarily, the law takes no account of parts of a day, and the expression "commencing on" must mean commencing on either the first or the last moment of the day in question. In my opinion, the expression "commencing on" in s 52(4)(a) of the Bankruptcy Act means "commencing at the first moment on", and the period of 12 months commencing on the date of presentation of the petition in the present case, 26 April 2005, expired on 25 April 2006 at midnight between 25 and 26 April 2006: see Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277 at 285; Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 453 per Mason J, with whom McTiernan J agreed; Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 at 526-527. Expressions referring to a certain period "from" or "before" or of the kind "within [a certain period] of" are different. In those cases, the starting day is excluded in the computation: see, for example, Re Butler; Ex parte Toohey's Ltd (1934) 34 SR (NSW) 277 ; Re Gray; Ex parte Deputy Commissioner of Taxation [1993] FCA 277 ; (1993) 115 ALR 638 ; and see s 36(1) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act ).
Case: Finanzamt Gro&szlig;-Gerau v MKG-Kraftfahrzeuge-Factory GmbH (C-305/01 ) [2003] EUECJ C-305_01 ; [2004] All ER (EC) 454
Outcome: distinguished
AXA referred to Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59 ; (2003) 216 CLR 1 ( Visy ), Finanzamt Gro&szlig;-Gerau v MKG-Kraftfahrzeuge-Factory GmbH (C-305/01 ) [2003] EUECJ C-305_01 ; [2004] All ER (EC) 454 , and Hagemeyer Ireland Plc v Revenue Commissioners [2007] IEHC 49. With respect, I do not see that any of these cases have any bearing on the present issue. The latter two were concerned with "factoring arrangements" arising under the terms of foreign legislation and the Visy case was concerned with s 47 of the Trade Practices Act 1974 (Cth). 103 While the concept of economic activity is relevant to the cases Finanzamt Gro&szlig;-Gerau v MKG-Kraftfahrzeuge-Factory GmbH (C-305/01 ) [2003] EUECJ C-305_01 ; [2004] All ER (EC) 454 and Hagemeyer Ireland Plc v Revenue Commissioners [2007] IEHC 49 , to which AXA referred, those cases arose under foreign legislation. The concept of "economic activity" that arose in those cases is not relevant to the Act.
Case: Hagemeyer Ireland Plc v Revenue Commissioners [2007] IEHC 49
Outcome: distinguished
AXA referred to Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59 ; (2003) 216 CLR 1 ( Visy ), Finanzamt Gro&szlig;-Gerau v MKG-Kraftfahrzeuge-Factory GmbH (C-305/01 ) [2003] EUECJ C-305_01 ; [2004] All ER (EC) 454 , and Hagemeyer Ireland Plc v Revenue Commissioners [2007] IEHC 49. With respect, I do not see that any of these cases have any bearing on the present issue. The latter two were concerned with "factoring arrangements" arising under the terms of foreign legislation and the Visy case was concerned with s 47 of the Trade Practices Act 1974 (Cth). 103 While the concept of economic activity is relevant to the cases Finanzamt Gro&szlig;-Gerau v MKG-Kraftfahrzeuge-Factory GmbH (C-305/01 ) [2003] EUECJ C-305_01 ; [2004] All ER (EC) 454 and Hagemeyer Ireland Plc v Revenue Commissioners [2007] IEHC 49 , to which AXA referred, those cases arose under foreign legislation. The concept of "economic activity" that arose in those cases is not relevant to the Act.
Case: Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59 ; (2003) 216 CLR 1
Outcome: distinguished
AXA referred to Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59 ; (2003) 216 CLR 1 ( Visy ), Finanzamt Gro&szlig;-Gerau v MKG-Kraftfahrzeuge-Factory GmbH (C-305/01 ) [2003] EUECJ C-305_01 ; [2004] All ER (EC) 454 , and Hagemeyer Ireland Plc v Revenue Commissioners [2007] IEHC 49. With respect, I do not see that any of these cases have any bearing on the present issue. The latter two were concerned with "factoring arrangements" arising under the terms of foreign legislation and the Visy case was concerned with s 47 of the Trade Practices Act 1974 (Cth).
Case: Termination Change and Redundancy Case (1984) 8 IR 34
Outcome: referred to
The provision of severance pay in industrial instruments may be traced back to the Termination Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115, in the Australian Conciliation and Arbitration Commission. Those decisions illustrate that severance pay is designed to compensate employees for loss of transferable employment credits, loss of security in employment, loss of seniority and the hardship associated with redundancy for longer serving and older employees. See especially 8 IR 34 at 72-75 and see also the Redundancy Case (2004) 129 IR 155 at [133] - [142]. Those decisions further stress that severance pay is not designed to compensate employees for a period of unemployment.
Case: Termination Change and Redundancy Case (1984) 9 IR 115
Outcome: referred to
The provision of severance pay in industrial instruments may be traced back to the Termination Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115, in the Australian Conciliation and Arbitration Commission. Those decisions illustrate that severance pay is designed to compensate employees for loss of transferable employment credits, loss of security in employment, loss of seniority and the hardship associated with redundancy for longer serving and older employees. See especially 8 IR 34 at 72-75 and see also the Redundancy Case (2004) 129 IR 155 at [133] - [142]. Those decisions further stress that severance pay is not designed to compensate employees for a period of unemployment.
Case: Redundancy Case (2004) 129 IR 155
Outcome: referred to
The provision of severance pay in industrial instruments may be traced back to the Termination Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115, in the Australian Conciliation and Arbitration Commission. Those decisions illustrate that severance pay is designed to compensate employees for loss of transferable employment credits, loss of security in employment, loss of seniority and the hardship associated with redundancy for longer serving and older employees. See especially 8 IR 34 at 72-75 and see also the Redundancy Case (2004) 129 IR 155 at [133] - [142]. Those decisions further stress that severance pay is not designed to compensate employees for a period of unemployment.
Case: McLennan v Surveillance Australia Pty Ltd [2005] FCAFC 46 ; (2005) 142 FCR 105
Outcome: cited
An AWA is an industrial instrument and a creature of statute. AWAs are "a species of agreement which derive their legal effect from the [Workplace Relations] Act": McLennan v Surveillance Australia Pty Ltd [2005] FCAFC 46 ; (2005) 142 FCR 105 at [25] . As an industrial instrument created by the Act, an AWA should be interpreted in the same way as one would interpret an award made by an industrial tribunal. One looks to the particular language of the provision in light of its context and purpose: see Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 at [2] per Gleeson CJ and McHugh J, at [30] per Gummow, Hayne and Heydon JJ, at [66] per Kirby J, and at [129] and [130] per Callinan J.
Case: Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241
Outcome: applied
An AWA is an industrial instrument and a creature of statute. AWAs are "a species of agreement which derive their legal effect from the [Workplace Relations] Act": McLennan v Surveillance Australia Pty Ltd [2005] FCAFC 46 ; (2005) 142 FCR 105 at [25] . As an industrial instrument created by the Act, an AWA should be interpreted in the same way as one would interpret an award made by an industrial tribunal. One looks to the particular language of the provision in light of its context and purpose: see Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10 ; (2005) 222 CLR 241 at [2] per Gleeson CJ and McHugh J, at [30] per Gummow, Hayne and Heydon JJ, at [66] per Kirby J, and at [129] and [130] per Callinan J.
Case: Clothing Trades Award 1982(1) (Derole Case) (1990) 140 IR 123
Outcome: referred to
The Australian Industrial Relations Commission has discussed the meaning of "obtains acceptable alternative employment" in the context of the redundancy test case standard. In Clothing Trades Award 1982(1) (Derole Case) (1990) 140 IR 123, a Full Bench of the Australian Industrial Relations Commission referred to "obtains" at 127 and said: ...the creation of the legal relationship of master and servant [between the outgoing employer's employee and the incoming employer] depends on a mutuality being arrived at between the individual and the incoming employer. Therefore, the pursuit of alternative employment by the outgoing employer cannot be expected, by reason of itself alone, to produce the new employment; there will usually...remain the opportunity for the incoming employer, and the employee, to disagree as to matters such as terms of employment, suitability of the job to the employee and vice versa so that alternative employment may not eventuate. 13 The Full Bench went on at 127 to consider "obtain" in context to signify that: ...the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind. Later, at 128, the Full Bench said: The employer must be a strong, moving force towards the creation of the available opportunity. 14 In the relevant AWAs of the employee applicants, the applicable sub-clause refers to the employer being "able to arrange alternative employment." There is no material difference between obtaining alternative employment and being able to arrange it. If an employer who is about to make an employee redundant said to the employee, "I have obtained alternative employment for you" or said "I have been able to arrange alternative employment for you", the employee would understand the employer on each occasion to be saying that it has found another job for the employee. The employee may not choose to take up the job, but it must be one that is there for the taking if the employee chooses to take it.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: applied
Tribunal also sought comment from the Appellant in the letter in respect of particular subjects arising from his evidence as given at the first hearing which might, so the Tribunal stated in its letter, form part of the reason for affirming the decision under review. Having regard to the exclusions from the obligation which falls on the Tribunal under s 424A of the Act, which are found in s 424A(3) , and the remarks given in the High Court's judgment in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at para 17 and para 18, it may very well be the case that the Tribunal, in the despatch of this letter, exceeded what the Act strictly required of it. That is hardly a basis of criticism in respect of the proceedings in the Tribunal. See SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at para 30.
Case: SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
Outcome: cited
Tribunal also sought comment from the Appellant in the letter in respect of particular subjects arising from his evidence as given at the first hearing which might, so the Tribunal stated in its letter, form part of the reason for affirming the decision under review. Having regard to the exclusions from the obligation which falls on the Tribunal under s 424A of the Act, which are found in s 424A(3) , and the remarks given in the High Court's judgment in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at para 17 and para 18, it may very well be the case that the Tribunal, in the despatch of this letter, exceeded what the Act strictly required of it. That is hardly a basis of criticism in respect of the proceedings in the Tribunal. See SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at para 30.
Case: Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688
Outcome: cited
The Court's discretion under s 601AH is very wide. The factors to be taken into account in the exercise of that discretion include the circumstances in which the company was de-registered, the purpose in seeking its re-registration and the likely prejudice to any person; Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 at 693. In this case the purpose of the order is to allow the company to take its place alongside the other asset vendors as a respondent and cross-claimant in the proceedings. As such, its fortunes would stand or fall with the other respondents and cross-claimants. The company's ability to contribute financially to any order made against the respondents would depend on its success in the cross-claim, however there is no suggestion that its position in defending the claims made by the applicants in the main proceeding or in pursuing the cross-claim would differ from that of the other respondents and cross-claimants. At this stage there has been no submission that the company's participation would be likely to add to the costs in the proceeding. 5 The applicants on the notice of motion have tendered a letter dated 17 March 2008 from ASIC which states that ASIC does not oppose the application on the following conditions: 1. The order sought for reinstatement is in terms of section 601AH(2) of the Corporations Act , requiring ASIC to reinstate the registration of the company; 2. The company (if ordered to be reinstated) continues in liquidation (subject to any order made by the Court in this regard) and a liquidator appointed; 3. The Court order is lodged with ASIC ... so that the company may be reinstated; 4. The Applicant pays ASIC's costs of $434 for consideration of this matter; 5. The applicant notifies ASIC upon conclusion of the winding up so that the company may be deregistered. 6 The letter from ASIC points out that if the company was re-registered it would return on ASIC's register to the status of External Administration. Clearly condition 2 above assumes that re-registration of the company would not automatically reinstate Mr Taylor as liquidator and therefore that it would be necessary to appoint a liquidator. 7 There are conflicting authorities as to whether a liquidator of a company who was in office at the time the company was de-registered is automatically reinstated to that office when the company is restored to the register. In Brownlie v TTPM Pty Ltd (2003) 21 ACLC 1204 , Hamilton J held that in such circumstances the liquidator was automatically reinstated and approved a statement to that effect made in A R Keay, McPherson: The Law of Company Liquidation 4 th ed, 1999 at 678; see also Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 at 697.
Case: Brownlie v TTPM Pty Ltd (2003) 21 ACLC 1204
Outcome: considered
There are conflicting authorities as to whether a liquidator of a company who was in office at the time the company was de-registered is automatically reinstated to that office when the company is restored to the register. In Brownlie v TTPM Pty Ltd (2003) 21 ACLC 1204 , Hamilton J held that in such circumstances the liquidator was automatically reinstated and approved a statement to that effect made in A R Keay, McPherson: The Law of Company Liquidation 4 th ed, 1999 at 678; see also Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 at 697.