mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation [1993] HCA 1 ; (1993) 178 CLR 145
Outcome: cited
There is no reason to impress upon the administrator a trust so that the company is divested of its assets upon the execution of the deed of company arrangement. It is enough that the administrator is obliged to deal with the assets of the company in accordance with the directions given by the company by its execution of the deed of company arrangement. The Parliament could, if it wished, create the administrator as a trustee of the company's assets on execution of the deed of company arrangement: Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation [1993] HCA 1 ; (1993) 178 CLR 145 at 167. Indeed, the legislation could render the administrator as trustee without the legislation using the expression "trust": Commissioner of Taxation of the Commonwealth of Australia v Linter Textiles Australia Ltd (in liq) [2005] HCA 20 ; 220 CLR 592 at 607. But that is not the case here. There is nothing in the statute which suggests that an administrator is to become the trustee of any fund created by the company pursuant to a deed of company arrangement. There is nothing to suggest that the administrator should occupy any different position to a liquidator. The purpose of an administration is to get in the available assets and distribute them to the creditors; in the case of an administrator in accordance with the deed of company arrangement and in the case of a liquidator in accordance with the statutory scheme.
Case: Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Outcome: applied
I would note in passing that the subsection's reasonable satisfaction standard is to be applied where the matter in issue is whether or not a veteran actually suffers the injury or disease said to be war-caused: see Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at [35]-[49]. 32 It is well accepted that the Tribunal cannot use other evidence (expert or otherwise) to contradict or provide an alternative to the requirements of an SoP. As Weinberg J noted in Repatriation Commission v Gosewinckel at [67]: "Section 120A and the associated provisions in Part XIA of the VE Act [which include s 196B] were introduced in order to take the determination of 'purely medical ... issues' out of the hands of bodies such as the [Tribunal]."
Case: Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331
Outcome: cited
The question whether a disease as defined in a SoP has clinically worsened is a medical one, raising as it does a diagnostic question. I have emphasised "as defined" for the reason that the clinical worsening must be of the disease having the features, symptoms and manifestations prescribed in the relevant SoP's definition: cf Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331 at [16] .
Case: Repatriation Commission v Cornelius [2002] FCA 750
Outcome: cited
As I have already indicated, the definition of "alcohol abuse" provides its own diagnostic criteria. I need not repeat them here. These contrive the inquiry to be undertaken by a doctor in determining for the purposes of the SoP whether the disease is, or was, present at a particular time: cf Repatriation Commission v Cornelius [2002] FCA 750 at [26] ; or whether that disease, being present, had worsened. In other words, to use the language of the definition, the worsening is in the "clinically significant impairment or distress" which resulted from the maladaptive pattern of alcohol abuse and which, importantly for present purposes, was "manifested" in one or more of the prescribed ways within a 12-month period. 35 What is clear, in my view, is that the Tribunal misconstrued what was comprehended by the clinical worsening requirement of par 5(d) of the SoP. That requirement imposed a medical-scientific standard, not a lay standard. Though the Tribunal found a clinical worsening of Mr Milenz's alcohol abuse, it did not address whether there was a worsening in the disease as defined and manifest. It simply inferred a worsening because, "after operational service, the quantity, type and frequency of alcohol consumed was far greater". These are not features or manifest symptoms of the disease defined in par 2(b) of the SoP. 36 The consequence of the Tribunal so treating par 5(d) is that the actual hypothesis it considered was pointed to on the material before it was not one upheld by the SoP. For this reason the decision as it relates to alcohol abuse must be set aside.
Case: Santa Sabina College v Minister for Education (1985) 58 ALR 527
Outcome: cited
The course pressed on me is not one I am prepared to take. I do not speculate on the likely fate of Mr Milenz's claim on a rehearing particularly given the standard of proof provisions of the VE Act. He is entitled to have his case put again to the Tribunal. It is possible that it might come to a result favourable to him: cf Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540. 39 The appeal in relation to this condition can be dealt with relatively briefly as it raises the same general issue as that considered in relation to alcohol abuse. 40 Only one of the three psychiatrists, Dr Strauss, diagnosed Mr Milenz as having a depressive disorder. Such views as the other two had on whether Mr Milenz suffered from a depressive/anxiety condition of some variety had no relevance either to the condition found by the Tribunal or to the SoP applying to it. That SoP (No 58 of 1998) concerned "Depressive Disorder".
Case: Australian Securities and Investments Commission v Rich [2006] NSWSC 826
Outcome: cited
To that list can be added: &#8226; it is necessary that the evidence sought to be adduced is relevant within the meaning of s 56 Evidence Act 1995 (Cth) and is of probative value (cf Australian Securities and Investments Commission v Rich [2006] NSWSC 826 at [18] ); and &#8226; the court must be conscious of the principle of finality of litigation in deciding whether to exercise discretion to allow evidence after the conclusion of the trial ( Bradshaw [2006] FCA 22 at [25] ).
Case: Bing! Software Pty Ltd v Bing Technologies Pty Limited (No 1) [2008] FCA 1760
Outcome: related
As I have noted in my judgment in the primary proceedings ( Bing! Software Pty Ltd v Bing Technologies Pty Limited (No 1) [2008] FCA 1760) an undertaking given by a party to proceedings in Court is enforceable by order of the Court pursuant to O 35 r 11 Federal Court Rules . The submission of the first respondent that it anticipates the applicant submitting that the first respondent "giving the undertaking is not enough" is: &#8226; curious in light of the power of the Court to enforce the undertaking; and &#8226; indicative of the fact that the respondents, in seeking to introduce this additional evidence, are attempting a "second bite" at the case after the trial has concluded.
Case: Gulf Pacific Pty Ltd v Londish [1992] FCA 502
Outcome: cited
It is not in dispute that the Court has the power to grant leave for further evidence-in-chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612 , Gulf Pacific Pty Ltd v Londish [1992] FCA 502 , Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256 , McCarthy v McIntyre [2000] FCA 1250 , Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 , Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010.
Case: Hawthorn Glen v Aconex (No 1) [2007] FCA 2010
Outcome: cited
It is not in dispute that the Court has the power to grant leave for further evidence-in-chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612 , Gulf Pacific Pty Ltd v Londish [1992] FCA 502 , Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256 , McCarthy v McIntyre [2000] FCA 1250 , Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 , Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010.
Case: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Outcome: considered
It is not in dispute that the Court has the power to grant leave for further evidence-in-chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612 , Gulf Pacific Pty Ltd v Londish [1992] FCA 502 , Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256 , McCarthy v McIntyre [2000] FCA 1250 , Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 , Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. 13 In Bradshaw [2006] FCA 22 , Kenny J conveniently summarised the circumstances in which the Court will permit further evidence to be adduced between conclusion of the hearing and delivery of judgment as follows: [24] The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Assn [No 2] (1992) 108 ALR 55 at 61 2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ("UTA") at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Co Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 ("Silver Fox") at [22] and [25]. 15 To that list can be added: &#8226; it is necessary that the evidence sought to be adduced is relevant within the meaning of s 56 Evidence Act 1995 (Cth) and is of probative value (cf Australian Securities and Investments Commission v Rich [2006] NSWSC 826 at [18] ); and &#8226; the court must be conscious of the principle of finality of litigation in deciding whether to exercise discretion to allow evidence after the conclusion of the trial ( Bradshaw [2006] FCA 22 at [25] ).
Case: McCarthy v McIntyre [2000] FCA 1250
Outcome: cited
It is not in dispute that the Court has the power to grant leave for further evidence-in-chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612 , Gulf Pacific Pty Ltd v Londish [1992] FCA 502 , Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256 , McCarthy v McIntyre [2000] FCA 1250 , Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 , Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010.
Case: Murray v Figge (1974) 4 ALR 612
Outcome: considered
It is not in dispute that the Court has the power to grant leave for further evidence-in-chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612 , Gulf Pacific Pty Ltd v Londish [1992] FCA 502 , Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256 , McCarthy v McIntyre [2000] FCA 1250 , Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 , Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. 13 In Bradshaw [2006] FCA 22 , Kenny J conveniently summarised the circumstances in which the Court will permit further evidence to be adduced between conclusion of the hearing and delivery of judgment as follows: [24] The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Assn [No 2] (1992) 108 ALR 55 at 61 2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ("UTA") at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Co Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 ("Silver Fox") at [22] and [25]. 14 With respect to fresh evidence, Muirhead J held in Murray v Figge 4 ALR 612 that fresh evidence should be admitted only when: (a) it is so material that the interests of justice require it; (b) the evidence if believed would most probably affect the result; (c) the evidence could not by reasonable diligence have been discovered before; (d) inadvertence was established; and (e) no prejudice was suffered by the other party by reason of its introduction at a late point of time.
Case: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Outcome: cited
It is not in dispute that the Court has the power to grant leave for further evidence-in-chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612 , Gulf Pacific Pty Ltd v Londish [1992] FCA 502 , Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256 , McCarthy v McIntyre [2000] FCA 1250 , Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 , Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010.
Case: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Outcome: cited
It is not in dispute that the Court has the power to grant leave for further evidence-in-chief to be adduced after the trial of the proceeding has concluded and judgment reserved. Indeed this jurisdiction is well recognised: Murray v Figge (1974) 4 ALR 612 , Gulf Pacific Pty Ltd v Londish [1992] FCA 502 , Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v New South Wales Bar Association (1992) 176 CLR 256 , McCarthy v McIntyre [2000] FCA 1250 , Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 , Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010. 13 In Bradshaw [2006] FCA 22 , Kenny J conveniently summarised the circumstances in which the Court will permit further evidence to be adduced between conclusion of the hearing and delivery of judgment as follows: [24] The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Assn [No 2] (1992) 108 ALR 55 at 61 2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ("UTA") at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Co Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 ("Silver Fox") at [22] and [25].
Case: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 92 ALR 499
Outcome: cited
It can be seen that the content of the mandatory injunction is directed to achieving by an interlocutory order what is sought by para 3 of the claim for final relief. In order to make such an order, the Court would require a high degree of satisfaction that the applicant would be entitled to that relief at trial by way of final relief. In terms of an interlocutory mandatory order where a higher risk of injustice might arise, it is not enough for the Court to be satisfied that the applicant has demonstrated a sufficient likelihood of success in terms of Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] to [72] per Gummow and Hayne JJ. A higher state of assurance is necessary ( Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 92 ALR 499 per Gummow J).
Case: Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685
Outcome: referred to
The Federal Magistrate found that there was no arguable jurisdictional error affecting the Tribunal's decision. His Honour found that the Tribunal had complied with its obligations under ss 425 and 425A of the Act and that it was sufficient for the Tribunal to send an invitation to the authorised recipient pursuant to ss 441A(4) and 441G (1) of the Act and Reg 4.35D of the Migration Regulations 1994 (Cth) ("the Regulations "). The Federal Magistrate was not satisfied that the Tribunal had not followed those procedures and considered that it was probable that it did. He noted that the appellant was seeking to take advantage of his failure to comply with the instructions contained in Section D of the form on which he applied to the Tribunal for review of the delegate's decision. Section D asked the applicant: "Where do you want us to send correspondence about your application?" Various options appeared in the form. An applicant was instructed to "tick one box only." Despite this the appellant had ticked the boxes adjacent to "my residential address in Australia" and a box which authorised correspondence in connection with the review to be received by "my adviser". The Federal Magistrate held that the requirements of the Act relating to the giving of notice of a hearing had been satisfied by the advice given to the adviser notwithstanding the Tribunal's failure also to advise the appellant directly. His Honour relied on his decision in Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685. The Federal Magistrate was prepared to accept that the appellant did not have actual notice, but considered that, if preconditions for the exercise of its power exist and the Tribunal has properly exercised its discretion to proceed, then it has no obligation to make further enquiries or efforts to notify an applicant that it proposed to do so. 7 The Federal Magistrate found that the Tribunal had taken into account the contents of the telephone conversation with the appellant's migration agent before deciding to proceed pursuant to s 426A(1) of the Act , but that there was no breach of s 424A(1) of the Act because the Tribunal did not take the information into account in order to affirm the delegate's decision. However, his Honour considered that, even if this conclusion were incorrect, the information from the appellant's migration agent would be treated as information given by the appellant and would attract the exception provided for in s 424A(3)(b) of the Act .
Case: Rupert Co v Chameleon Mining (2006) 24 ACLC 635
Outcome: cited
Rupert Co v Chameleon Mining (2006) 24 ACLC 635 presented factual circumstances somewhat similar to those of the present case. Austin J stated in that case (at [15]) that in the exercise of its discretion whether to terminate the winding up, the Court considers the interests of creditors (including future creditors), the liquidator, contributories and the public. 25 In the present case, the application is made by the Liquidators; the existing creditors have voted in favour of the DOCA and the Terraplanet Creditors' Trust; and the contributories (that is, the shareholders) have voted in favour of the various resolutions to implement the recapitalisation proposal. 26 Terraplanet is released from all existing debts under an arrangement that sees existing creditors better off than they would be if the winding up were to proceed to finalisation. 27 This leaves future creditors to be considered. In substance, Terraplanet is to commence its commercial life again. No doubt Dalgety is of the view that its capitalisation of Terraplanet is adequate to enable it to succeed commercially. 28 In the light of the absence of any existing debts and of the recapitalisation of the company, I infer that Terraplanet is solvent. There is no reason to doubt, on the present evidence, that the company will be able to pay debts it will incur as and when they fall due after it recommences business.
Case: Pembroke School Incorporated v Human Rights and Equal Opportunity Commission [2002] FCA 1020
Outcome: referred to
the applicant pays the first respondent and second respondent's taxed costs in this action. Mr Wharton now contends that the consent order was obtained by fraud. He says it should be set aside and an order made for the reinstatement of proceeding TAD 19 of 2003; see O 35 r 7(2) of the rules of Court. The motion was filed in TAD 19 of 2003. It may, more appropriately, have constituted a separate proceeding; although nothing material turns on this. See Pembroke School Incorporated v Human Rights and Equal Opportunity Commission [2002] FCA 1020 at [22] per Mansfield J. Mr Wharton submits that there is new evidence available which leads to the conclusion that the respondents perverted the course of justice. The new evidence is said to be that contained in a statutory declaration of a "key witness". Mr Wharton says that the new evidence shows that the respondents misled and deceived the witness in order to harm Mr Wharton's legal rights. Mr Wharton also says that the new evidence shows that the respondents turned the witness hostile against Mr Wharton. The relevant witness is Mrs Barbara Adams. In his substantive application, the subject of the consent order, Mr Wharton asserted that the respondents had taken his work in respect of a tourism proposal and had announced a proposal from Mrs Adams bearing a striking similarity to his proposal. In a statement filed in support of his original application, Mr Wharton said that he had met with Mrs Adams who told him, and others, that she had been approached by the respondents concerning the project. The inescapable inference from that statement is that Mr Wharton suspected strongly that Mrs Adams did not have her own plans for a tourism development but was being used by the respondents.