mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Prudential Regulation Authority v Simiton (No 3) [2006] FCA 397
Outcome: cited
In oral submissions, counsel for Mr Spencer tendered an apology in similarly reserved and conditional terms. I consider that Mr Spencer has not shown any remorse for the fact that he wilfully disobeyed the Orders. Indeed, he has not acknowledged that he is in contempt of court. Through his counsel, Mr Spencer expressed his wish to 'rectify any remaining problems with his compliance with the orders.' In evidence, Mr Spencer added that he would 'rectify any and all points that the Court... says that I have not complied with in the orders.' I do not regard Mr Spencer's statement as one that affords any indication of regret, remorse or contrition about his contempt: it is merely an offer to do what Mr Spencer is in any event obliged to do under the Orders: see Australian Prudential Regulation Authority v Simiton (No 3) [2006] FCA 397 at [14] - [15] ; ACCC v INFO4PC at 57-58 [155].
Case: Australian Competition and Consumer Commission v Jayco Pty Ltd [2003] FCA 94
Outcome: considered
I have concluded that the appropriate penalty is to impose a fine of $8,000 on Mr Spencer in respect of the contempt constituted by his wilful breach of paragraph 13 of the Orders. This penalty is within the range suggested by the authorities: see ACCC v Globex; ACCC v INFO4PC ; and Australian Competition and Consumer Commission v Jayco Pty Ltd [2003] FCA 94. 63 I have taken account of Mr Spencer's personal circumstances. Mr Spencer said that he is currently unemployed and is not remunerated for the work he does as a director of CPG Recruitment Pty Ltd ('CPGR') or Debtregister Pty Ltd ('Debtregister'). He holds himself out to be the chief executive officer of Debtregister, although he said in evidence that he also fills the roles of marketing manager, software developer or whatever he wanted to call himself. He said the work he carries out for CPGR includes the preparation of quarterly BAS statements and the pursuit of various debts allegedly owed to CPGR. He said that the only person earning an income in CPGR is his wife, who is supporting him and his family. 64 In my view, Mr Spencer has not been forthcoming about his personal position and financial circumstances. There is, on the whole, insufficient evidence to suggest that the resources available to Mr Spencer would be inadequate to meet a fine of $8,000. Nor do I consider that the imposition of a fine of $8,000 would impose undue hardship upon him.
Case: Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354
Outcome: cited
Costs can be awarded on an indemnity basis where it is warranted by the interests of justice. In many contempt cases, the court has concluded that justice requires that the respondent pay the applicant's costs on an indemnity basis: Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354 at 358; and ACCC v INFO4PC at 58 [160]-[162].
Case: Martyniuk v King [2000] VSC 319
Outcome: cited
Examples of cases in which receivers have been appointed on an interlocutory basis can be multiplied. Relevantly, a court may appoint a receiver to a trust in order to protect trust property. Such an appointment may be made where the trust is "in a state of disarray" Martyniuk v King [2000] VSC 319 at [14] (Warren J). Her Honour there observed, citing Halsburys Laws of England (4 th ed, Vol 39, par 827), that the general ground upon which a court appoints a receiver is ultimately in every case the protection or preservation of property for the benefit of persons who have an interest in it. She went on to say (at [15]): 'The basis upon which a receiver may be appointed has been regarded by the courts on even as wide a basis as when the circumstances render it just and convenient.' See Manchester and Liverpool District Banking Co v Parkinson (1888) 22 QBD 173. And further (at [16]): 'The court may appoint a receiver of trust property where that it necessary for the wellbeing of the trust." See Ford &amp; Lee The Principles of the Law of Trusts (2 nd edition) at [1739].
Case: Manchester and Liverpool District Banking Co v Parkinson (1888) 22 QBD 173
Outcome: cited
Examples of cases in which receivers have been appointed on an interlocutory basis can be multiplied. Relevantly, a court may appoint a receiver to a trust in order to protect trust property. Such an appointment may be made where the trust is "in a state of disarray" Martyniuk v King [2000] VSC 319 at [14] (Warren J). Her Honour there observed, citing Halsburys Laws of England (4 th ed, Vol 39, par 827), that the general ground upon which a court appoints a receiver is ultimately in every case the protection or preservation of property for the benefit of persons who have an interest in it. She went on to say (at [15]): 'The basis upon which a receiver may be appointed has been regarded by the courts on even as wide a basis as when the circumstances render it just and convenient.' See Manchester and Liverpool District Banking Co v Parkinson (1888) 22 QBD 173. And further (at [16]): 'The court may appoint a receiver of trust property where that it necessary for the wellbeing of the trust." See Ford &amp; Lee The Principles of the Law of Trusts (2 nd edition) at [1739].
Case: Vouros as Liquidator of Cadima Express Pty Ltd v Deputy Commissioner of Taxation [1999] NSWSC 1143 ; (1933) 33 ACSR 527
Outcome: cited
A receiver may be appointed to a body to conduct litigation on its behalf. In Vouros as Liquidator of Cadima Express Pty Ltd v Deputy Commissioner of Taxation [1999] NSWSC 1143 ; (1993) 33 ACSR 527, Austin J dismissed an application for the appointment of a receiver to a company in liquidation to conduct litigation on its behalf. Nevertheless his Honour accepted that there was a power to make such an appointment (at [56]): 'These cases demonstrate that the court has the power to appoint a receiver in cases where it decides to permit proceedings to be commenced and prosecuted in the name of a company in liquidation by a person other than the liquidator.' 74 In my opinion the Court, in an appropriate case, may appoint a person as a receiver to an incorporated body to conduct or defend litigation on its behalf. The power may be exercised where the body is effectively paralysed by internal dissension or where for one reason or another those charged with its management are unable to be identified or, if identified, are unable to act for one reason or another. 75 The present case should not be approached as one simply concerned with the protection of private property. To the extent that CRI holds its Sirtex shares free of any trust in favour of the University, it holds them for the purposes set out in its Constitution . The assets so held cannot be applied to the private benefit of the members. The circumstances may be seen as somewhat analogous to a charitable trust. The public interest served by the association's objects is protected by its own rules relating to the disposition of its assets on a winding up. These are reinforced by like provisions in the Associations Incorporation Act . 76 It is apparent from the evidence that there is considerable room for debate about the membership of CRI, whether it has any members and, if so, who they are. I do not consider, given the apparently incomplete and somewhat conflicting nature of the CRI membership records, that it is possible to determine its membership within any reasonable certainty and within a reasonable time. 77 Whatever their legal status in the association the persons presently claiming to be the board of CRI are not appropriate persons to make decisions about its conduct in relation to the present litigation. One of them, Dr Gray, is being sued by the University in his personal capacity. The chairman is his solicitor. The other member of the board is his sister. Dr Gray's letter to Sirtex shareholders about the alignment of the interests of CRI with those of himself and Sirtex is suggestive of an inability to distinguish between his interests and that of CRI.
Case: Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250
Outcome: referred to
turn now to consider whether settlement of the proceeding ought to be approved under s 33V of the Federal Court of Australia Act . The relevant principles are now well settled: see, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 per Branson J; Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459 at 465-6 [19] per Goldberg J; Neil v P &amp; O Cruises Australia Ltd [2002] FCA 1325 at [6] - [7] per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 at [10] per Crennan J; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 at 317-8 [37]-[42] per Sackville J; Crawford v Bank of Western Australia Ltd [2005] FCA 949 at [16] - [21] per Lee J; Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] per Young J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at 332 [30] and [31] per Jessup J; and Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [17] [20] per Gordon J. The Court must assess whether the proposed settlement is fair and reasonable, having regard to the claims made on behalf of the group members who will be bound by the settlement. In making this assessment, the Court may, and ordinarily will, take into account the amount offered to the group members, the prospects of success in the proceeding, the likelihood of the group members obtaining judgment for an amount significantly in excess of the amount nominated in the settlement offer, the terms of any advice from counsel and any independent expert, the likely duration and cost of the proceeding if continued to judgment, and the attitude of the group members to the settlement: see Williams v FAI Home Security [2000] FCA 1925 ; 180 ALR 459 at [19] . The Court must also be satisfied that the settlement has been made in the interests of the group members as a whole, and not merely the interests of the first and second applicants and the respondent: see ACCC v Chats House 71 FCR at 258.
Case: Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459
Outcome: referred to
turn now to consider whether settlement of the proceeding ought to be approved under s 33V of the Federal Court of Australia Act . The relevant principles are now well settled: see, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 per Branson J; Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459 at 465-6 [19] per Goldberg J; Neil v P &amp; O Cruises Australia Ltd [2002] FCA 1325 at [6] - [7] per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 at [10] per Crennan J; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 at 317-8 [37]-[42] per Sackville J; Crawford v Bank of Western Australia Ltd [2005] FCA 949 at [16] - [21] per Lee J; Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] per Young J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at 332 [30] and [31] per Jessup J; and Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [17] [20] per Gordon J. The Court must assess whether the proposed settlement is fair and reasonable, having regard to the claims made on behalf of the group members who will be bound by the settlement. In making this assessment, the Court may, and ordinarily will, take into account the amount offered to the group members, the prospects of success in the proceeding, the likelihood of the group members obtaining judgment for an amount significantly in excess of the amount nominated in the settlement offer, the terms of any advice from counsel and any independent expert, the likely duration and cost of the proceeding if continued to judgment, and the attitude of the group members to the settlement: see Williams v FAI Home Security [2000] FCA 1925 ; 180 ALR 459 at [19] . The Court must also be satisfied that the settlement has been made in the interests of the group members as a whole, and not merely the interests of the first and second applicants and the respondent: see ACCC v Chats House 71 FCR at 258.
Case: Neil v P &amp; O Cruises Australia Ltd [2002] FCA 1325
Outcome: cited
turn now to consider whether settlement of the proceeding ought to be approved under s 33V of the Federal Court of Australia Act . The relevant principles are now well settled: see, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 per Branson J; Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459 at 465-6 [19] per Goldberg J; Neil v P &amp; O Cruises Australia Ltd [2002] FCA 1325 at [6] - [7] per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 at [10] per Crennan J; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 at 317-8 [37]-[42] per Sackville J; Crawford v Bank of Western Australia Ltd [2005] FCA 949 at [16] - [21] per Lee J; Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] per Young J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at 332 [30] and [31] per Jessup J; and Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [17] [20] per Gordon J.
Case: Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114
Outcome: cited
turn now to consider whether settlement of the proceeding ought to be approved under s 33V of the Federal Court of Australia Act . The relevant principles are now well settled: see, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 per Branson J; Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459 at 465-6 [19] per Goldberg J; Neil v P &amp; O Cruises Australia Ltd [2002] FCA 1325 at [6] - [7] per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 at [10] per Crennan J; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 at 317-8 [37]-[42] per Sackville J; Crawford v Bank of Western Australia Ltd [2005] FCA 949 at [16] - [21] per Lee J; Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] per Young J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at 332 [30] and [31] per Jessup J; and Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [17] [20] per Gordon J.
Case: Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311
Outcome: cited
turn now to consider whether settlement of the proceeding ought to be approved under s 33V of the Federal Court of Australia Act . The relevant principles are now well settled: see, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 per Branson J; Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459 at 465-6 [19] per Goldberg J; Neil v P &amp; O Cruises Australia Ltd [2002] FCA 1325 at [6] - [7] per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 at [10] per Crennan J; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 at 317-8 [37]-[42] per Sackville J; Crawford v Bank of Western Australia Ltd [2005] FCA 949 at [16] - [21] per Lee J; Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] per Young J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at 332 [30] and [31] per Jessup J; and Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [17] [20] per Gordon J.
Case: Crawford v Bank of Western Australia Ltd [2005] FCA 949
Outcome: cited
turn now to consider whether settlement of the proceeding ought to be approved under s 33V of the Federal Court of Australia Act . The relevant principles are now well settled: see, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 per Branson J; Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459 at 465-6 [19] per Goldberg J; Neil v P &amp; O Cruises Australia Ltd [2002] FCA 1325 at [6] - [7] per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 at [10] per Crennan J; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 at 317-8 [37]-[42] per Sackville J; Crawford v Bank of Western Australia Ltd [2005] FCA 949 at [16] - [21] per Lee J; Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] per Young J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at 332 [30] and [31] per Jessup J; and Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [17] [20] per Gordon J.
Case: Georgiou v Old England Hotel Pty Ltd [2006] FCA 705
Outcome: cited
turn now to consider whether settlement of the proceeding ought to be approved under s 33V of the Federal Court of Australia Act . The relevant principles are now well settled: see, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 per Branson J; Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459 at 465-6 [19] per Goldberg J; Neil v P &amp; O Cruises Australia Ltd [2002] FCA 1325 at [6] - [7] per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 at [10] per Crennan J; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 at 317-8 [37]-[42] per Sackville J; Crawford v Bank of Western Australia Ltd [2005] FCA 949 at [16] - [21] per Lee J; Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] per Young J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at 332 [30] and [31] per Jessup J; and Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [17] [20] per Gordon J.
Case: Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322
Outcome: cited
turn now to consider whether settlement of the proceeding ought to be approved under s 33V of the Federal Court of Australia Act . The relevant principles are now well settled: see, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 per Branson J; Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459 at 465-6 [19] per Goldberg J; Neil v P &amp; O Cruises Australia Ltd [2002] FCA 1325 at [6] - [7] per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 at [10] per Crennan J; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 at 317-8 [37]-[42] per Sackville J; Crawford v Bank of Western Australia Ltd [2005] FCA 949 at [16] - [21] per Lee J; Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] per Young J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at 332 [30] and [31] per Jessup J; and Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [17] [20] per Gordon J.
Case: Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897
Outcome: cited
turn now to consider whether settlement of the proceeding ought to be approved under s 33V of the Federal Court of Australia Act . The relevant principles are now well settled: see, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258 per Branson J; Williams v FAI Home Security Pty Ltd (No 4 ) [2000] FCA 1925 ; (2000) 180 ALR 459 at 465-6 [19] per Goldberg J; Neil v P &amp; O Cruises Australia Ltd [2002] FCA 1325 at [6] - [7] per Weinberg J; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 at [10] per Crennan J; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 at 317-8 [37]-[42] per Sackville J; Crawford v Bank of Western Australia Ltd [2005] FCA 949 at [16] - [21] per Lee J; Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] per Young J; Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 at 332 [30] and [31] per Jessup J; and Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [17] [20] per Gordon J.
Case: SZKTC v Minister for Immigration [2007] FMCA 1355
Outcome: considered
The appellant, a citizen of the People's Republic of China, claimed to fear persecution as a result of his practice of Falun Gong. The appellant's application for a Protection (Class XA) visa was refused. The appellant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention. The appellant's application to the Federal Magistrates Court for review of the Tribunal decision was dismissed by Driver FM ( SZKTC v Minister for Immigration [2007] FMCA 1355). 2 In his notice of appeal before this Court the appellant raises two broad grounds: 1. That the Tribunal failed to carry out its statutory duty. 2. That the Tribunal failed to explain, in the form of a document, the reason why the Tribunal considered some particulars of the information relevant to the matter. 3 No particulars of this ground are given in the notice of appeal and it does not seem to have been raised before Driver FM. From my review of the material, it is apparent that the Tribunal complied with s 425 of the Migration Act 1958 (Cth) ('the Act'). The Tribunal invited the appellant to a hearing, the appellant responded to the invitation, he attended the hearing with an interpreter and his daughter was present as an observer. The appellant gave evidence before the Tribunal, which was noted in the Tribunal's reasons.
Case: A42 of 2003 v Minister for Immigration [2004] FMCA 1002
Outcome: distinguished
The first respondent refers also to the decision in A42 of 2003 v Minister for Immigration [2004] FMCA 1002 , affirmed by Jacobson J in this Court ( Applicants 42/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 207) and refused special leave to appeal to the High Court by Heydon and Crennan JJ ( Applicants A42 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 967). In that case, it was decided that it was appropriate to dismiss an application for review as an abuse of process in circumstances where an earlier application for an order nisi had been dismissed by consent (without a merits hearing taking place).
Case: Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876
Outcome: cited
The principle enunciated by Dowsett J was clearly correct, and is supported by numerous other authorities: see NADK of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 184 ; SZEYH v Minister for Immigration and Multicultural Affairs and Anor [2006] FCA 93 ; (2006) 150 FCR 397; Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876. For an allegation of procedural unfairness to be made out, it will usually be the case that fault must be established on the part of the decision-maker (although I note the observations of Gleeson CJ in Hot Holdings Pty Ltd v Creasy and Ors [2002] HCA 51 ; (2002) 210 CLR 438 at [22] where his Honour observed that procedural fairness can occur without any personal fault on the part of the decision-maker).