mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mitsui &amp; Co Ltd v Hanwha (HK) Co Ltd [2007] FCA 2070
Outcome: referred to
The preliminary issue has been determined, in effect upholding the Cash Sum Objection ( Mitsui &amp; Co Ltd v Hanwha (HK) Co Ltd [2007] FCA 2070). Mitsui accordingly cannot, without further order of the Court, seek to compulsorily acquire the ordinary shares, as the 6 month period for issuing a notice of compulsory acquisition has ended. The Court now requires to determine Mitsui's application for the Extension of Time Order in this proceeding, to enable it to lodge with ASIC and despatch to Hanwha and Sempurna further compulsory acquisition notices. 20 By consent orders made on 25 October 2007, Mitsui was granted leave to refer to and rely, in this action, on the affidavit of Hirofumi Matsuyama sworn 27 March 2007, the affidavit of Mark Frank Gerus sworn 26 April 2007 and the second affidavit of Hirofumi Matsuyama sworn 9 October 2007, all filed in Federal Court Action No WAD 63 of 2007. In the course of the hearing the third affidavit of Hirofumi Matsuyama sworn 9 November 2007 in the other action was , without objection, also read. 21 Part 6A.2 Division 1 of the Act provides for the compulsory acquisition of minority securities by a 90% holder of securities in the subject entity. The procedure took effect from 13 March 2000. 124 Furthermore, in this case there is no evidence of a blatant disregard by Mitsui of the requirements of the Act : Re Wave Capital Ltd at [29]. Rather, the need for this application is the consequence of the determination of the preliminary issue in the related proceeding, where I found that the Notice did not contain a "cash sum", for which Mitsui, as a 90% holder, proposed to acquire Hanwha's ordinary shares in SAH, as provided in s 664C(2) of the Act : Mitsui &amp; Co Ltd v Hanwha (HK) Co Ltd [2007] FCA 2070.
Case: Newtronics Pty Ltd v Gjergja (2007) 63 ACSR 611
Outcome: discussed
In Newtronics Pty Ltd v Gjergja (2007) 63 ACSR 611, Byrne J in the Supreme Court of Victoria held that s 1322(4)(d) could not be called in aid to extend the 6 year time limit imposed by the then Corporations Act s 1317HD(2) for the commencement of proceedings under that section. 49 Section 1317HD(2) was in these terms: '(2) Proceedings under this section may only be begun within 6 years after the contravention.' 52 In concluding that s 1322(4)(d) had to yield to the specific provisions of s 1317HD(2), Byrne J followed not only David Grant but also BP Australia Ltd , which was very similar to Newtronics, involving as it did an attempt to rely upon s 1322(4)(d) in order to extend the statutory time limit prescribed by s 588FF(3) of the Act for liquidators bringing an application to the Court for orders with respect to voidable transactions. 62 Accordingly, the use of the word "only" is but one ingredient in the constructional spectrum: cf Newtronics at [29]. 63 David Grant and the other cases, involving as they did statutory provisions concerning applications to a Court, may be distinguished from cases such as the present, on the basis that conformity with the procedural time limit was a pre-condition to the jurisdiction of the Court from which relief was claimed: David Grant at 276-277; Emanuele at 152 per Kirby J; Newtronics at [25]. 82 It is for the plaintiff to satisfy the Court that the justice of the case requires that the extension sought be granted: Newtronics at [40]; cf Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ; (1996) 186 CLR 541 at 554.
Case: Pinnacle VRB Ltd v Reliable Powerline [2001] VSC 262
Outcome: cited
It is of significance too, in arriving at this conclusion, that wide curative powers are found in s 1325D(1)(a) of the Act which enables the Court to declare, for example, a document not to be invalid merely because a person contravened a provision of Chapter 6, 6A, 6B or 6C. Pt 6A.2 in which s 664AA(b) sits is within Chapter 6A. This was a matter which was also considered to be significant by Mandie J when the offer period under s 650C(1) of the Act and the period for giving notices under s 650D(1)(c)(ii) of the Act were extended pursuant to s 1322(4)(d). In so concluding, David Grant was distinguished: Pinnacle VRB Ltd v Reliable Powerline [2001] VSC 262 at [17] - [20] . A similar approach was taken by Warren J in Capricorn at [260].
Case: Re Infomedia Pty Ltd (2000) 34 ACSR 682
Outcome: cited
However, "although s 1322 has been held to be a very wide provision which is to be construed liberally .... there are limits as to what the court can do under it ...." per Young J in Re Infomedia Pty Ltd (2000) 34 ACSR 682 at [9].
Case: Re Testro Bros Consolidated Ltd [1965] VR 18
Outcome: cited
The majority were not persuaded, despite the strength of that language that the failure to comply with the relevant time limit should be rigidly applied. An order nunc pro tunc was made. Re Testro Bros Consolidated Ltd [1965] VR 18 is another case where despite emphatic statutory language: "Except by leave of the Court ... no action or proceeding shall be proceeded with or commenced ...", a nunc pro tunc order was made.
Case: Re Wave Capital Ltd [2003] FCA 969
Outcome: referred to
It has been said in a number of cases that s 1322(4) is a remedial provision to be construed liberally: Winpar Holdings Ltd v Goldfields Kalgoorlie Ltd [2001] NSWCA 427 at [74] ; Re Wave Capital Ltd [2003] FCA 969 at [29] . 83 In relation to the discretion afforded to the Court under s 1322 , French J said in Re Wave Capital Ltd at [29] that: 'Each application for the exercise of the court's relieving power will require consideration of all circumstances of the case to ensure that the indulgence sought is appropriate and does not undermine the requirements of the Act . ... the power conferred by s 1322 must be exercised having regard to the requirements of the purposes of the Corporations Act ... It must also be exercised having regard to the interests of all parties affected and the public interest in ensuring compliance with statute law and company constitutions. Evidence of a blatant disregard of the provisions of the Act or the constitution of the company may lead to refusal of relief ...' 84 I will now consider the events which occurred from the time of acquisition by Mitsui of the securities in SAH through to September 2007. These events bear on the question of the exercise of the Court's discretion. 85 On 31 July 2006, Mitsui and Mitsui Australia acquired their aggregate 94.2% interest in the ordinary shares of SAH (and the A class shares of SAH). By operation of s 664AA(b) of the Act , Mitsui had until 31 January 2007 to lodge compulsory acquisition notices with ASIC concerning Hanwha and Sempurna's ordinary (and A class) shares in SAH. 124 Furthermore, in this case there is no evidence of a blatant disregard by Mitsui of the requirements of the Act : Re Wave Capital Ltd at [29]. Rather, the need for this application is the consequence of the determination of the preliminary issue in the related proceeding, where I found that the Notice did not contain a "cash sum", for which Mitsui, as a 90% holder, proposed to acquire Hanwha's ordinary shares in SAH, as provided in s 664C(2) of the Act : Mitsui &amp; Co Ltd v Hanwha (HK) Co Ltd [2007] FCA 2070.
Case: R v Wallis ; Ex parte Employers Association of Wool-Selling Brokers and H V McKay Massey Harris Pty Ltd [1949] HCA 30 ; (1949) 78 CLR 529
Outcome: cited
Against the legislative background outlined above, the issue is whether the 6 month time limit on exercising the compulsory acquisition power is a condition and restriction "which must be observed" ( Anthony Hordern &amp; Sons Ltd v Amalgamated Clothing &amp; Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1 at 7) or a "condition, limitation or direction" which has the effect of "appointing a course to be followed" ( R v Wallis ; Ex parte Employers Association of Wool-Selling Brokers and H V McKay Massey Harris Pty Ltd [1949] HCA 30 ; (1949) 78 CLR 529 at 550), in each case, to the exclusion of the general power in s 1322(4)(d).
Case: The Crown v McNeil [1922] HCA 33 ; (1922) 31 CLR 76
Outcome: cited
Section 1322(4)(d) was found to have no application. The s 459G time limit was held to "define the jurisdiction of the court in respect of an application to set aside a statutory demand" (p 276) and "... attach a limitation or condition upon the authority of the court to set aside the demand" (p 277). The force of the term "may only" was: 'to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil [1922] HCA 33 ; (1922) 31 CLR 76 at 100-1, it is a condition of the gift in subs (1) of s 459G that subs (2) be observed and, unless this is so, the gift can never take effect. The same is true of subs 3.' 47 It was also germane to the High Court's decision that the statutory scheme within Pt 5.4 contained its own powers and procedures for the Court to extend time, thereby introducing a degree of flexibility to mitigate hardship or unfairness which otherwise might flow from the strict application of s 459G. 54 To adapt what was said by Gummow J in David Grant (p 277) in relation to the time limits in s 459G(2) and (3) of the Act , the issue is whether an integer or element of the power created by s 664A is its exercise by lodging the compulsory acquisition notice for the acquisition with ASIC within the time specified. Again, to adapt what was said by Isaacs J in The Crown v McNeil [1922] HCA 33 ; (1922) 31 CLR 76 at 100-101, referred to by Gummow J in David Grant at p 277, is it a condition of the gift in s 664A that the time period in s 664AA be observed and, unless this is so, the gift can never take effect?
Case: Winpar Holdings Ltd v Goldfields Kalgoorlie Ltd [2001] NSWCA 427
Outcome: cited
It has been said in a number of cases that s 1322(4) is a remedial provision to be construed liberally: Winpar Holdings Ltd v Goldfields Kalgoorlie Ltd [2001] NSWCA 427 at [74] ; Re Wave Capital Ltd [2003] FCA 969 at [29] .
Case: Kelly v Fitzpatrick [2007] FCA 1080
Outcome: cited
The parties are agreed that, generally speaking, the matters which might be relevant in cases of this kind were summarised by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 , adopted by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080. The parties have put the submissions on that basis.
Case: Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Outcome: cited
The parties are agreed that, generally speaking, the matters which might be relevant in cases of this kind were summarised by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 , adopted by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080. The parties have put the submissions on that basis.
Case: Commonwealth of Australia v Rocklea Spinning Mills Pty Ltd [2005] FCA 902 ; (2005) 145 FCR 220
Outcome: discussed
for the plaintiffs has pointed out that there is an apparent division of opinion in the authorities upon the critical question. The decisions of Austin J in Dean-Willcocks v ACG Engineering Pty Ltd (in liq) (2003) 45 ACSR 290; (2003) 21 ACLC 1226; [2003] NSWSC 353 and Campbell J in Sports Mondial favour the conclusion that the fund is held on trust for the deed creditors. After those decisions, Finkelstein J, in Commonwealth of Australia v Rocklea Spinning Mills Pty Ltd [2005] FCA 902 ; (2005) 145 FCR 220, drew attention to the possibility of an inconsistency between them and the earlier decision of Davies J in Federal Commissioner of Taxation v All Suburbs Car Repairs Pty Ltd (1994) 14 ACSR 753; (1994) 94 ATC 4712; (1994) 29 ATR 329. Davies J held that payments to the administrator were payments to him in his capacity as the agent of the company and consequently the sums received were the property of that company.
Case: Federal Commissioner of Taxation v All Suburbs Car Repairs Pty Ltd (1994) 14 ACSR 753; (1994) 94 ATC 4712; (1994) 29 ATR 329
Outcome: applied
for the plaintiffs has pointed out that there is an apparent division of opinion in the authorities upon the critical question. The decisions of Austin J in Dean-Willcocks v ACG Engineering Pty Ltd (in liq) (2003) 45 ACSR 290; (2003) 21 ACLC 1226; [2003] NSWSC 353 and Campbell J in Sports Mondial favour the conclusion that the fund is held on trust for the deed creditors. After those decisions, Finkelstein J, in Commonwealth of Australia v Rocklea Spinning Mills Pty Ltd [2005] FCA 902 ; (2005) 145 FCR 220, drew attention to the possibility of an inconsistency between them and the earlier decision of Davies J in Federal Commissioner of Taxation v All Suburbs Car Repairs Pty Ltd (1994) 14 ACSR 753; (1994) 94 ATC 4712; (1994) 29 ATR 329. Davies J held that payments to the administrator were payments to him in his capacity as the agent of the company and consequently the sums received were the property of that company.
Case: Gidley Re Aliance Motor Body Pty Ltd [2006] FCA 102 ; (2006) 150 FCR 345
Outcome: cited
of the proceeding has been given to the interested creditors and none appears to oppose the grant of relief. However, there are no other parties to the proceedings. In particular, there are no parties representing the different interests involved. There is no contradictor. In my opinion, the proceeding is not constituted appropriately for the making of a declaration of right. The limits of the exercise of that jurisdiction in circumstances such as the present have been explained in Mentha v GE Capital Limited (1997) 154 ALR 565 at 571 575 (cf Gidley Re Aliance Motor Body Pty Ltd [2006] FCA 102 ; (2006) 150 FCR 345 at 347; Shepard v Sports Mondial of Australia Pty Ltd (in liq) (2005) 53 ACSR 746, [2005] NSWSC 432 at [18] [19]). However, those authorities establish that it is appropriate that the liquidators be given directions pursuant to s 511 of the Act as to the manner in which they can act in relation to the Administration Fund.
Case: Lombe v Wagga Leagues Club Ltd (2006) 56 ACSR 387; (2006) 24 ACLC 298; [2006] NSWSC 3
Outcome: followed
J needed to consider the differences in the reasoning in those authorities in Lombe v Wagga Leagues Club Ltd (2006) 56 ACSR 387; (2006) 24 ACLC 298; [2006] NSWSC 3 at [53] [77]. In circumstances which I cannot distinguish in substance from the present facts, Barrett J in a careful and reasoned decision applied the reasoning of Davies J. It is appropriate to follow the decision of Barrett J unless I am satisfied that it is clearly wrong. Consistency of decision in relation to the Act is desirable. As I am not satisfied that the decision of Barrett J is clearly wrong, I propose to follow it and give directions accordingly. It is unnecessary for me to independently consider the alternative ground of the decision in Lombe , namely, the effect of termination of the deed of company arrangement. It was held that immediately after termination of the deed of company arrangement, the fund in question was the property of the Club no longer affected by any provision of that deed. It was, accordingly, applicable by the liquidator in the due course of winding up of the Club. The application is properly brought by the plaintiffs as liquidators. They should have their costs out of the assets of the company as an expense of the winding up but on the basis that this proceeding has been heard together with two others. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 8 September 2006 Counsel for the Plaintiffs: Ms V Whittaker Solicitor for the Plaintiffs: Kemp Strang Date of Hearing: 21 August 2006 Date of Judgment: 8 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1222.html
Case: Mentha v GE Capital Limited (1997) 154 ALR 565
Outcome: cited
of the proceeding has been given to the interested creditors and none appears to oppose the grant of relief. However, there are no other parties to the proceedings. In particular, there are no parties representing the different interests involved. There is no contradictor. In my opinion, the proceeding is not constituted appropriately for the making of a declaration of right. The limits of the exercise of that jurisdiction in circumstances such as the present have been explained in Mentha v GE Capital Limited (1997) 154 ALR 565 at 571 575 (cf Gidley Re Aliance Motor Body Pty Ltd [2006] FCA 102 ; (2006) 150 FCR 345 at 347; Shepard v Sports Mondial of Australia Pty Ltd (in liq) (2005) 53 ACSR 746, [2005] NSWSC 432 at [18] [19]). However, those authorities establish that it is appropriate that the liquidators be given directions pursuant to s 511 of the Act as to the manner in which they can act in relation to the Administration Fund.
Case: Alexander v Home Office [1988] 2 All ER 118
Outcome: cited
In this case, the submission of the applicant is that the damage caused to the applicant was in the form of hurt feelings, humiliation and embarrassment suffered as a result of the unlawful discriminatory behaviour on the part of the respondent. Both Mr O'Gorman SC and Mr Murdoch have referred me in this respect to comments of May LJ in Alexander v Home Office [1988] 2 All ER 118 at 122. Although the comments of his Lordship in that case were referable to a claim for racial discrimination, nonetheless they are in my view of assistance in the case before me: "As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss such as the refusal of a job, then the damages referable to this can be readily calculated. For the injury to feelings, however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the [Act] gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, and in many cases for life."
Case: Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121
Outcome: cited
Clearly each case turns on its own facts, and Counsel acknowledged that damages awarded in other cases are of limited use only. Indeed, a review of cases where damages have been awarded in respect of discriminatory conduct reveal a considerable variance in the sums awarded. Relevant cases include the following: &#8226; in Clarke 202 ALR 340 a deaf child who had been refused enrolment at a religious school thereby removing him from his primary school peers and friends at the time of his transition to high school was awarded damages of $20,000 plus interest. Madgwick J was of the view that the child would have been distressed and confused by the events, and viewed the respondent's conduct as hurtful, but that the harm to the child was likely to have been transient and not extreme. The sum of $20,000 was described by Sackville and Stone JJ on appeal as "relatively modest": Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 149 &#8226; in Commonwealth of Australia v Evans [2004] FCA 654 an intelligence analyst who was transferred to a position with lesser responsibilities because she was perceived as showing insufficient commitment to her work because she took time off to care for her sick child was awarded damages of $12,000 &#8226; in Leslie v Graham [2002] FCA 32 where the applicant was subject to extreme sexual advances by her employer in the middle of the night and subsequently suffered emotional trauma, the court awarded her $16,000 &#8226; in Sheehan [2002] FMCA 95 , a member of a club who was prevented from entering the club with an assistance dog not on a lead was awarded $1,500 damages &#8226; in Grovenor [2000] FCA 1574 a woman with a guide dog who was the subject of verbal abuse by the owner of a furniture store, and who subsequently suffered a skin rash related to her distress, was awarded $1,000 damages &#8226; in Haar v Maldon Nominees (2000) 184 ALR 83 a woman with a guide dog who sat in the "party area" of McDonalds, and was told by a member of the staff that it would be better if she sat elsewhere in the restaurant because of the presence of her dog, was awarded $3,000 damages in circumstances where the Federal Magistrate was satisfied that the incident had caused the applicant to have diminished self-worth which continued three years after the incident.
Case: Commonwealth of Australia v Evans [2004] FCA 654
Outcome: considered
Clearly each case turns on its own facts, and Counsel acknowledged that damages awarded in other cases are of limited use only. Indeed, a review of cases where damages have been awarded in respect of discriminatory conduct reveal a considerable variance in the sums awarded. Relevant cases include the following: &#8226; in Clarke 202 ALR 340 a deaf child who had been refused enrolment at a religious school thereby removing him from his primary school peers and friends at the time of his transition to high school was awarded damages of $20,000 plus interest. Madgwick J was of the view that the child would have been distressed and confused by the events, and viewed the respondent's conduct as hurtful, but that the harm to the child was likely to have been transient and not extreme. The sum of $20,000 was described by Sackville and Stone JJ on appeal as "relatively modest": Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 149 &#8226; in Commonwealth of Australia v Evans [2004] FCA 654 an intelligence analyst who was transferred to a position with lesser responsibilities because she was perceived as showing insufficient commitment to her work because she took time off to care for her sick child was awarded damages of $12,000 &#8226; in Leslie v Graham [2002] FCA 32 where the applicant was subject to extreme sexual advances by her employer in the middle of the night and subsequently suffered emotional trauma, the court awarded her $16,000 &#8226; in Sheehan [2002] FMCA 95 , a member of a club who was prevented from entering the club with an assistance dog not on a lead was awarded $1,500 damages &#8226; in Grovenor [2000] FCA 1574 a woman with a guide dog who was the subject of verbal abuse by the owner of a furniture store, and who subsequently suffered a skin rash related to her distress, was awarded $1,000 damages &#8226; in Haar v Maldon Nominees (2000) 184 ALR 83 a woman with a guide dog who sat in the "party area" of McDonalds, and was told by a member of the staff that it would be better if she sat elsewhere in the restaurant because of the presence of her dog, was awarded $3,000 damages in circumstances where the Federal Magistrate was satisfied that the incident had caused the applicant to have diminished self-worth which continued three years after the incident.
Case: De Simone v Bevacqua (unreported, Supreme Court of Victoria, McDonald J, 15 September 1994)
Outcome: cited
While courts in human rights cases have sometimes ordered that apologies be made (for example, De Simone v Bevacqua (unreported, Supreme Court of Victoria, McDonald J, 15 September 1994), Zheng v Beamish [2004] FMCA 61 , Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34) , like many other judges before me, I consider that a court-ordered apology serves little purpose: Jones on behalf of the Executive Council of Australian Jewry v The Bible Believers' Church [2007] FCA 55 at [65] , Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931 at [101] , Jones v Toben [2002] FCA 1150 at [106] , Jones v Scully [2001] FCA 879 ; (2001) 113 FCR 343.