mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Leighton Contractors Pty Ltd v CFMEU (2006) 164 IR 375
Outcome: cited
seems to me that when Branson J formulated in CFMEU v Coal &amp; Allied Operations Pty Ltd (No. 2) (supra at [17] of these reasons) a non-exhaustive list of considerations to be taken into account in the exercise of the discretion in respect of a contravention of what was Part XA of the Act, her Honour was not intending to convey the impression that by making reference to whether previous contraventions of Part XA of the Act had occurred, her Honour was suggesting that previous contraventions of other provisions of the Act or other contraventions relevant to the exercise of the discretion ought to be excluded from consideration. I respectfully agree with the observations on these matters of Jessup J in Williams v CFMEU (No. 2) and Dowsett J in Temple v Powell (2008) 173 IR 189 at [64]. I respectfully disagree with the approach adopted in Leighton Contractors Pty Ltd v CFMEU (2006) 164 IR 375 at 389 390 [67] per Le Miere J. I disagree in the sense that the exercise of the discretion ought not to be fettered by an exclusionary rule. Each case will turn on its own facts. Further, I do not accept that contraventions by a federally registered Union ought to be disregarded if the previous contraventions have occurred in a different geographical place from that within the area of responsibility of that part of the Union engaged in the contraventions under consideration in the imposition of a penalty. Otherwise, a Union registered under Commonwealth legislation operating nationally would be required to be treated as a collection of Balkan States rather than a nationally governed organisation conducting itself in a way consistent with the objectives of the Commonwealth legislation under which it is registered and legislation under which it operates in the modern Australian environment. In that sense, I respectfully agree with the observations of Kiefel J in Hadgkiss v CFMEU (2007) 162 IR 385 at [9] and [10]. The penalty
Case: Re Producer's Real Estate &amp; Finance Co Ltd [1936] VLR 235
Outcome: cited
new site was to be the first economically efficient green power project promoted by GPEL and thus GPEL's foundation positive cash flows. The use by Alfred Wong of the capital subscribed by JFCP to retire debt to entities related to him in the face of the representations made to JFCP is said by ASIC to demonstrate that the undertaking of GPEL 'cannot be carried on consistently with candid and straightforward dealings with the public, from whom further capital must be obtained if its existence is to be prolonged' ( Re Producer's Real Estate &amp; Finance Co Ltd [1936] VLR 235 of 246) and to reflect a willingness on the part of Alfred Wong to prefer the interests of Richland (and thus his own interests) to that of the members and creditors of GPEL. GPEL contends that capital subscribed by a shareholder can properly be used for the commercial purposes of GPEL and the application of the funds subscribed by JFCP to reduce debt and eliminate interest was both orthodox and prudential . A second contention which is said by ASIC to lead to a conclusion that the court ought to be satisfied that it is just and equitable that GPEL be wound up is that notwithstanding a decision on the part of the Board of GPEL on 11 May 2005 to place 'a freeze' upon raising money from the public by the issue of promissory notes, Alfred Wong caused a 'Second Information Memorandum' to be developed and published pursuant to which further promissory notes were issued by GPEC and monies raised from the public without the authority of the Board of Directors.
Case: Loch v John Blackwood Ltd [1924] AC 783
Outcome: cited
461(1) of the Act empowers the Court to make an order for the winding up of a company on enumerated grounds including that the Court is of the opinion that it is just and equitable that the company be wound up (s 461(1)(k)) and on the ground that directors have acted in the affairs of the company in their own interests rather than in the interests of members as a whole or in any other manner whatsoever that appears to be unfair or unjust to other members. Section 462(2) of the Act confers standing on ASIC to apply for an order to wind up a company on a ground provided for by s 461, in the circumstances contemplated by s 464. Section 464 provides that where ASIC is investigating or has investigated for the purposes of Division 1 of Part 3 of the Australian Securities &amp; Investments Commission Act 2001 (Cth) ('the ASIC Act') matters connected with the affairs of a company, ASIC may apply for a winding up order. ASIC contends that as a matter of public interest with a view to protecting the investing public whose funds have been solicited by way of the JFCP subscription and conduct in relation to the promissory notes, it is just and equitable that GPEL and GPEC be wound up as, upon a proper examination of the conduct of both companies, the Court ought to be satisfied of 'a justifiable lack of confidence in the conduct and management of the affairs' of each company ( Loch v John Blackwood Ltd [1924] AC 783 at 788 per Lord Shaw).
Case: Australian Securities Commission v A S Nominees Limited (1995 1996) 62 FCR 504
Outcome: cited
the usual applicant for an order on such a ground is a contributory , it is clear that ASIC has standing to apply for an order on the just and equitable ground in the pursuit of public interest and the Court will examine those public interest considerations to determine where the actual public interest lies ( Australian Securities Commission v A S Nominees Limited ( ASC v A S Nominees ) (1995 1996) 62 FCR 504 at 531C, per Finn J). See also Australian Securities &amp; Investments Commission v Pegasus Leveraged Options Group Pty Ltd 41 ACSR 561 per Davies AJ at [95]-[97]; Australian Securities &amp; Investments Commission v ABC Fund Managers &amp; Ors 39 ACSR 443 at [116] [129], per Warren J; and Australian Securities &amp; Investments Commission v Chase Capital Management Pty Ltd &amp; Ors 36 ACSR 778 at [75] per Owen J.
Case: Re Producers' Real Estate &amp; Finance Co Ltd (1936) VLR 235
Outcome: cited
this respect, the ground has 'a proper role to serve as an instrument of investor protection' ASC v A S Nominees at 531 and one expression of that protection is whether the affairs of the company can be carried on 'consistently with candid and straightforward dealing with the public, from whom further capital must be obtained if its existence is to be prolonged' ( Re Producers' Real Estate &amp; Finance Co Ltd (1936) VLR 235 at 246 per Mann CJ). Another is whether creditors or members can continue to have confidence in the conduct of the affairs of the company ( Re Chemical Plastics Ltd [1951] VLR 136 at 142 per Hudson A-J; ASC v A S Nominees Ltd at 531). Where the order is sought by a Regulator such as ASIC in vindication of the public interest, the Court must itself evaluate the factual matrix in order to form a view as to whether 'a sufficient reason' for making the order is demonstrated ( Re Walter L Jacob &amp; Co Ltd (1988) 5 BCC 244 at 251). In other words, what is the quality of the conduct or the burden of the misconduct. Accordingly, I have examined in some considerable detail the background circumstances concerning the subscription of the JFCP funds and their use; the events surrounding the prohibition by the Board upon the issue of any further promissory notes and the circumstances which led Alfred Wong and Andris Lielkajis to arrange for presentations of the GPEL product at various seminars by Lielkajis. I have found that the conduct in relation to those matters is misconduct for all the reasons indicated previously. I will not repeat them here. However, the assessment of that conduct and the conclusions I have reached concerning it reflects a lack of confidence in Alfred Wong and the directors in the conduct and management of GPEL and GPEC.
Case: Re Walter L Jacob &amp; Co Ltd (1988) 5 BCC 244
Outcome: cited
this respect, the ground has 'a proper role to serve as an instrument of investor protection' ASC v A S Nominees at 531 and one expression of that protection is whether the affairs of the company can be carried on 'consistently with candid and straightforward dealing with the public, from whom further capital must be obtained if its existence is to be prolonged' ( Re Producers' Real Estate &amp; Finance Co Ltd (1936) VLR 235 at 246 per Mann CJ). Another is whether creditors or members can continue to have confidence in the conduct of the affairs of the company ( Re Chemical Plastics Ltd [1951] VLR 136 at 142 per Hudson A-J; ASC v A S Nominees Ltd at 531). Where the order is sought by a Regulator such as ASIC in vindication of the public interest, the Court must itself evaluate the factual matrix in order to form a view as to whether 'a sufficient reason' for making the order is demonstrated ( Re Walter L Jacob &amp; Co Ltd (1988) 5 BCC 244 at 251). In other words, what is the quality of the conduct or the burden of the misconduct. Accordingly, I have examined in some considerable detail the background circumstances concerning the subscription of the JFCP funds and their use; the events surrounding the prohibition by the Board upon the issue of any further promissory notes and the circumstances which led Alfred Wong and Andris Lielkajis to arrange for presentations of the GPEL product at various seminars by Lielkajis. I have found that the conduct in relation to those matters is misconduct for all the reasons indicated previously. I will not repeat them here. However, the assessment of that conduct and the conclusions I have reached concerning it reflects a lack of confidence in Alfred Wong and the directors in the conduct and management of GPEL and GPEC.
Case: Australian Securities &amp; Investments Commission v Aust Timber Pty Ltd (1999) 17 ACLC 893
Outcome: cited
fact, the Board was deprived of any deliberative process on these questions as Alfred Wong caused the monies to be paid to a company he controlled in order to accommodate demands which were then made, in effect, beneficially upon him, by reason of claims made upon Richland as trustee of a trust the beneficiary of which was Alfred Wong. The conduct of causing JFCP to subscribe for capital in the company on the assumption previously described and then immediately use that money to discharge debts contended by Alfred Wong to be payable to a company related to him was both improper and misleading of JFCP. Such conduct is the expression of the character of the misconduct as Australian Securities &amp; Investments Commission v Aust Timber Pty Ltd (1999) 17 ACLC 893 per Merkel J, demonstrates.
Case: Australian Securities &amp; Investments Commission v Pegasus Leveraged Options Group Pty Ltd 41 ACSR 561
Outcome: cited
the usual applicant for an order on such a ground is a contributory , it is clear that ASIC has standing to apply for an order on the just and equitable ground in the pursuit of public interest and the Court will examine those public interest considerations to determine where the actual public interest lies ( Australian Securities Commission v A S Nominees Limited ( ASC v A S Nominees ) (1995 1996) 62 FCR 504 at 531C, per Finn J). See also Australian Securities &amp; Investments Commission v Pegasus Leveraged Options Group Pty Ltd 41 ACSR 561 per Davies AJ at [95]-[97]; Australian Securities &amp; Investments Commission v ABC Fund Managers &amp; Ors 39 ACSR 443 at [116] [129], per Warren J; and Australian Securities &amp; Investments Commission v Chase Capital Management Pty Ltd &amp; Ors 36 ACSR 778 at [75] per Owen J.
Case: Australian Securities &amp; Investments Commission v ABC Fund Managers &amp; Ors 39 ACSR 443
Outcome: cited
the usual applicant for an order on such a ground is a contributory , it is clear that ASIC has standing to apply for an order on the just and equitable ground in the pursuit of public interest and the Court will examine those public interest considerations to determine where the actual public interest lies ( Australian Securities Commission v A S Nominees Limited ( ASC v A S Nominees ) (1995 1996) 62 FCR 504 at 531C, per Finn J). See also Australian Securities &amp; Investments Commission v Pegasus Leveraged Options Group Pty Ltd 41 ACSR 561 per Davies AJ at [95]-[97]; Australian Securities &amp; Investments Commission v ABC Fund Managers &amp; Ors 39 ACSR 443 at [116] [129], per Warren J; and Australian Securities &amp; Investments Commission v Chase Capital Management Pty Ltd &amp; Ors 36 ACSR 778 at [75] per Owen J.
Case: Australian Securities &amp; Investments Commission v Chase Capital Management Pty Ltd &amp; Ors 36 ACSR 778
Outcome: cited
the usual applicant for an order on such a ground is a contributory , it is clear that ASIC has standing to apply for an order on the just and equitable ground in the pursuit of public interest and the Court will examine those public interest considerations to determine where the actual public interest lies ( Australian Securities Commission v A S Nominees Limited ( ASC v A S Nominees ) (1995 1996) 62 FCR 504 at 531C, per Finn J). See also Australian Securities &amp; Investments Commission v Pegasus Leveraged Options Group Pty Ltd 41 ACSR 561 per Davies AJ at [95]-[97]; Australian Securities &amp; Investments Commission v ABC Fund Managers &amp; Ors 39 ACSR 443 at [116] [129], per Warren J; and Australian Securities &amp; Investments Commission v Chase Capital Management Pty Ltd &amp; Ors 36 ACSR 778 at [75] per Owen J.
Case: Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378
Outcome: cited
On 6 July 1999 Sackville J in Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 made the following orders pursuant to Order 21, r 1 of the Federal Court Rules : 1. The respondent's motion to strike out the proceedings (that is, the application for an order contemplated by O 21 r 1) be dismissed; 2. The respondent shall not institute any proceedings in this court without the leave of the court; 3. Any proceedings currently instituted in this court by the respondent shall not be continued by the respondent without the leave of the court; 4. The respondent pay the applicant's costs of and incidental to the proceedings.' 14 His Honour at p 380 [2] made these observations: The applicant claims that the respondent is a "vexatious litigant", within the meaning of FCR O 21, r 1. The applicant relies on the fact that the respondent has instituted a large number of proceedings in this Court, each of which (according to the applicant) was commenced without reasonable grounds. The applicant says that in each proceeding the respondent, in one form or another, has sought, unsuccessfully, to challenge the legality of paper currency or coinage in use in Australia. Specifically, it is said that the respondent has "habitually and persistently" (to use the language of O 21, r 1) asserted that s 115 and other provisions of the Constitution prohibit the creation of legal tender in forms other than coins containing gold or silver, and that the provisions of the Reserve Bank Act 1959 (Cth) (Reserve Bank Act) and the Currency Act 1965 (Cth) (Currency Act) establishing or recognising paper money or coinage as legal tender are invalid. According to the applicant, these contentions have been conclusively and repeatedly rejected by the High Court, the Supreme Court of Queensland and this Court. In these circumstances, the applicant contends that the terms of O 21, r 1 have been satisfied and that the orders sought in the application should be made.' 15 At pp 382 389 [13] [50] Sackville J sets out the history of the various attempts made by Mr Skyring to ventilate his contention of a constitutional barrier against the issue by the Commonwealth of paper money as legal tender. See also a discussion of the steps taken by Mr Skyring recorded in the judgment of Toohey J in the High Court in Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303. An appeal from the orders of Sackville J was dismissed by the Full Court ( Skyring v Ramsey [2000] FCA 774 per Ryan, O'Connor and Weinberg JJ) on 9 June 2000.
Case: Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303
Outcome: cited
At pp 382 389 [13] [50] Sackville J sets out the history of the various attempts made by Mr Skyring to ventilate his contention of a constitutional barrier against the issue by the Commonwealth of paper money as legal tender. See also a discussion of the steps taken by Mr Skyring recorded in the judgment of Toohey J in the High Court in Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303. An appeal from the orders of Sackville J was dismissed by the Full Court ( Skyring v Ramsey [2000] FCA 774 per Ryan, O'Connor and Weinberg JJ) on 9 June 2000.
Case: Skyring v Ramsey [2000] FCA 774
Outcome: cited
At pp 382 389 [13] [50] Sackville J sets out the history of the various attempts made by Mr Skyring to ventilate his contention of a constitutional barrier against the issue by the Commonwealth of paper money as legal tender. See also a discussion of the steps taken by Mr Skyring recorded in the judgment of Toohey J in the High Court in Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303. An appeal from the orders of Sackville J was dismissed by the Full Court ( Skyring v Ramsey [2000] FCA 774 per Ryan, O'Connor and Weinberg JJ) on 9 June 2000.
Case: Re Skyring (1994) 68 ALJR 618
Outcome: cited
In Re Skyring (1994) 68 ALJR 618, Dawson J considered an application by Mr Skyring for an order that leave be granted pursuant to Order 63, r 6 of the High Court Rules to commence proceedings for prerogative relief in relation to a number of matters and in all those proposed matters the argument Mr Skyring sought to agitate: '... relied upon the proposition that it is beyond the power of the Commonwealth parliament to legislate to make paper money legal tender. This in essence is the same argument as that put by the applicant in Re Skyring's Application [No. 2] (1985) 59 ALJR 561, which was rejected by Deane J. His judgment was confirmed on appeal by the Full Court. ... The matter was concluded, in the view of the Court, by s 51(xii) and (xiii) of the Constitution and s 36(1) of the Reserve Bank Act 1959 (Cth). It would, in my view, be an abuse of process to allow the applicant to re-litigate a matter which has already been decided adversely to him'. (Mason J at pp 618 and 619).
Case: In the Matter of Skyring [2004] FCA 827
Outcome: cited
Assuming for the moment that a power to re-open an entered and therefore perfected order of the Court in the exercise of its appellate jurisdiction is conferred upon the Court by the provisions of the Federal Court of Australia Act 1976 (Cth), leave to file a motion (referable to the Full Court) to re-open the judgment must be refused for the following reasons. The issues relevant to the questions properly raised on appeal by Mr Skyring have been determined according to law. The order was made on 18 April 1984 and entered on 11 May 1984, over 23 years ago. The application made before the High Court by motion was not progressed. In my view, the arguments Mr Skyring makes and seeks to further agitate on the various grounds which I have described as his 'underlying contentions' including his proposition that s 36(2) of the Reserve Bank Act 1959 (Cth) is also invalid, are unarguable. Justices of the High Court have considered the essential integers of these contentions in various contexts with the result that the arguments have been found, to the extent of that examination, to be of no substance. Although a question of the fate of the monies paid by Mr Skyring by way of security in this appeal remains outstanding (as does the question of the reserved costs of that application) that question is not a vehicle for agitating the merits of the underlying contentions. Although Mr Skyring quite properly has a clear interest in the resolution of the two outstanding matters, the appeal proceeding (and matters relevant or irrelevant to the grounds of appeal argued by Mr Skyring before Smithers, Northrop and Beaumont JJ) is otherwise dispositively concluded in a way not shown to attract 'exceptional circumstances' supporting an exercise of a power to disturb a perfected order of the Full Court and re-open such an order and allow argument on the merits of any particular proposition including the underlying contentions. Most recently, Mr Skyring sought leave before the Federal Court to apply for annulment of his bankruptcy and removal of his trustee. Mr Skyring contended that the bankruptcy is unlawful and the argument as to unlawfulness rested upon a challenge to the constitutional validity of the provisions of the Reserve Bank Act 1959 (Cth) authorising the issue of bank notes as legal tender. In dismissing both motions on 16 June 2004, Dowsett J said this: He [Mr Skyring] argues that that placitum 51(xiii) of the Constitution which authorises the Commonwealth Parliament to make laws concerning banking and the issue of paper money, does not authorise the issue of bank notes as lawful tender. It is difficult to see how such an argument can be maintained. It implies that the words 'paper money' means something quite different from their natural meaning. In any event, the issue was considered by Deane J in Re Skyring's Application (No. 2) (1985) 59 ALJR 561. His Honour concluded that there was no substance in the point although it is true, as Mr Skyring has pointed out that his Honour did not give reasons. In my view, the matter is beyond argument. (In the Matter of Skyring [2004] FCA 827 [2]).
Case: McDermott v Richmond Sales (in liq) [2006] FCA 248
Outcome: cited
Although references occur in the Authorities to the 'inherent jurisdiction' of the Court ( McDermott v Richmond Sales (in liq) [2006] FCA 248 , per Kenny J; Plantagenet Wines v Lyon Nathan Wine Group Australia Ltd [2006] FCA 247 , per Sciopis J) the term is an inaccurate description of the 'incidental and necessary power' exercised by a statutory court ( DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 241[25], per Gleeson CJ, Gaudron J, McHugh, Gummow and Hayne JJ) as the term 'inherent jurisdiction' is a reference to a jurisdiction subsisting 'without the aid of any authorising provisions' ( R v Forbes ; ex parte Bevan per Menzies J, at p 7). The distinction between a jurisdiction or power derived by implication from statutory provisions and a jurisdiction drawn from the 'well of undefined powers available to the common law courts at Westminster'( Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16) is 'fundamental' ( DJL v Central Authority [26]).
Case: Plantagenet Wines v Lyon Nathan Wine Group Australia Ltd [2006] FCA 247
Outcome: cited
Although references occur in the Authorities to the 'inherent jurisdiction' of the Court ( McDermott v Richmond Sales (in liq) [2006] FCA 248 , per Kenny J; Plantagenet Wines v Lyon Nathan Wine Group Australia Ltd [2006] FCA 247 , per Sciopis J) the term is an inaccurate description of the 'incidental and necessary power' exercised by a statutory court ( DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 241[25], per Gleeson CJ, Gaudron J, McHugh, Gummow and Hayne JJ) as the term 'inherent jurisdiction' is a reference to a jurisdiction subsisting 'without the aid of any authorising provisions' ( R v Forbes ; ex parte Bevan per Menzies J, at p 7). The distinction between a jurisdiction or power derived by implication from statutory provisions and a jurisdiction drawn from the 'well of undefined powers available to the common law courts at Westminster'( Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16) is 'fundamental' ( DJL v Central Authority [26]).