mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Reches Pty Ltd v Tadiran Limited [2001] FCA 1486
Outcome: cited
Section 20AB of the Crimes Act 1914 (Cth) therefore appears to have no application to such a contempt, and the range of sentencing alternatives specified in s 20AB(1) is not available. To the extent to which Moore J suggested to the contrary in Reches Pty Ltd v Tadiran Limited [2001] FCA 1486 at [22] , I respectfully disagree. His Honour's statement that a community service order fell within the range of penalties for contempt was obiter, in that his Honour did not make a community service order in the particular case. What his Honour said was based on Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309. In that case, the New South Wales Court of Appeal expressed the view that the Supreme Court of New South Wales had power to impose a community service order in respect of a contempt of court, constituted by disobedience of an order of the court in refusing to respond to a subpoena to attend as a witness. See at 319 per Kirby P, 320 per Mahoney JA agreeing with Kirby P and 320-321 per Hope A-JA, again agreeing with Kirby P. An examination of what Kirby P said indicates that his Honour saw the power as arising from the inherent power of the Supreme Court of New South Wales. The actual order was for the imposition of a fine, suspended on condition that the contemnor undertook to the court that he would perform a certain number of hours of voluntary service of a particular kind. The court did not therefore impose directly an order that the contemnor perform community service. It accepted his undertaking to do so in lieu of payment of a fine it imposed. There is no doubt that it could not have taken this step if it did not have the power to make a community service order in the first place. This Court certainly does not have the power to accept undertakings that it would not have the power to enforce by injunction: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150. As a creature of statute, pursuant to the power of Parliament in Ch III of the Constitution , this Court has a different character from the Supreme Court of a State. There is a need for caution when talking of inherent powers, particularly where specific powers are conferred on the Court by statute. The terms of s 31 of the Federal Court Act and s 24 of the Judiciary Act are so specific as to make it clear that this Court is restricted to common law penalties for contempt of court. Those penalties are limited to a fine, a term of imprisonment or a combination of the two.
Case: Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
Outcome: distinguished
Section 20AB of the Crimes Act 1914 (Cth) therefore appears to have no application to such a contempt, and the range of sentencing alternatives specified in s 20AB(1) is not available. To the extent to which Moore J suggested to the contrary in Reches Pty Ltd v Tadiran Limited [2001] FCA 1486 at [22] , I respectfully disagree. His Honour's statement that a community service order fell within the range of penalties for contempt was obiter, in that his Honour did not make a community service order in the particular case. What his Honour said was based on Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309. In that case, the New South Wales Court of Appeal expressed the view that the Supreme Court of New South Wales had power to impose a community service order in respect of a contempt of court, constituted by disobedience of an order of the court in refusing to respond to a subpoena to attend as a witness. See at 319 per Kirby P, 320 per Mahoney JA agreeing with Kirby P and 320-321 per Hope A-JA, again agreeing with Kirby P. An examination of what Kirby P said indicates that his Honour saw the power as arising from the inherent power of the Supreme Court of New South Wales. The actual order was for the imposition of a fine, suspended on condition that the contemnor undertook to the court that he would perform a certain number of hours of voluntary service of a particular kind. The court did not therefore impose directly an order that the contemnor perform community service. It accepted his undertaking to do so in lieu of payment of a fine it imposed. There is no doubt that it could not have taken this step if it did not have the power to make a community service order in the first place. This Court certainly does not have the power to accept undertakings that it would not have the power to enforce by injunction: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150. As a creature of statute, pursuant to the power of Parliament in Ch III of the Constitution , this Court has a different character from the Supreme Court of a State. There is a need for caution when talking of inherent powers, particularly where specific powers are conferred on the Court by statute. The terms of s 31 of the Federal Court Act and s 24 of the Judiciary Act are so specific as to make it clear that this Court is restricted to common law penalties for contempt of court. Those penalties are limited to a fine, a term of imprisonment or a combination of the two.
Case: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150
Outcome: cited
Section 20AB of the Crimes Act 1914 (Cth) therefore appears to have no application to such a contempt, and the range of sentencing alternatives specified in s 20AB(1) is not available. To the extent to which Moore J suggested to the contrary in Reches Pty Ltd v Tadiran Limited [2001] FCA 1486 at [22] , I respectfully disagree. His Honour's statement that a community service order fell within the range of penalties for contempt was obiter, in that his Honour did not make a community service order in the particular case. What his Honour said was based on Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309. In that case, the New South Wales Court of Appeal expressed the view that the Supreme Court of New South Wales had power to impose a community service order in respect of a contempt of court, constituted by disobedience of an order of the court in refusing to respond to a subpoena to attend as a witness. See at 319 per Kirby P, 320 per Mahoney JA agreeing with Kirby P and 320-321 per Hope A-JA, again agreeing with Kirby P. An examination of what Kirby P said indicates that his Honour saw the power as arising from the inherent power of the Supreme Court of New South Wales. The actual order was for the imposition of a fine, suspended on condition that the contemnor undertook to the court that he would perform a certain number of hours of voluntary service of a particular kind. The court did not therefore impose directly an order that the contemnor perform community service. It accepted his undertaking to do so in lieu of payment of a fine it imposed. There is no doubt that it could not have taken this step if it did not have the power to make a community service order in the first place. This Court certainly does not have the power to accept undertakings that it would not have the power to enforce by injunction: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150. As a creature of statute, pursuant to the power of Parliament in Ch III of the Constitution , this Court has a different character from the Supreme Court of a State. There is a need for caution when talking of inherent powers, particularly where specific powers are conferred on the Court by statute. The terms of s 31 of the Federal Court Act and s 24 of the Judiciary Act are so specific as to make it clear that this Court is restricted to common law penalties for contempt of court. Those penalties are limited to a fine, a term of imprisonment or a combination of the two.
Case: Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd (unreported, Federal Court of Australia, Drummond J, 6 November 1998)
Outcome: cited
That is not to say that all forms of orders ancillary to fines and imprisonment are beyond the power of the Court. For this purpose, resort may be had to the general power to make orders in relation to matters in which it has jurisdiction, granted by s 23 of the Federal Court Act. It has been recognised that the power to impose a sentence of imprisonment includes a power to suspend that sentence on conditions. See Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd (unreported, Federal Court of Australia, Drummond J, 6 November 1998) and Australian Securities &amp; Investments Commission v Matthews [1999] FCA 803 (1999) 32 ACSR 404 at [29] .
Case: Australian Securities &amp; Investments Commission v Matthews [1999] FCA 803 (1999) 32 ACSR 404
Outcome: cited
That is not to say that all forms of orders ancillary to fines and imprisonment are beyond the power of the Court. For this purpose, resort may be had to the general power to make orders in relation to matters in which it has jurisdiction, granted by s 23 of the Federal Court Act. It has been recognised that the power to impose a sentence of imprisonment includes a power to suspend that sentence on conditions. See Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd (unreported, Federal Court of Australia, Drummond J, 6 November 1998) and Australian Securities &amp; Investments Commission v Matthews [1999] FCA 803 (1999) 32 ACSR 404 at [29] .
Case: Viner v Australian Building Construction Employees' and Builders Labourers' Federation (No 1) (1981) 56 FLR 5
Outcome: followed
Although commenced by notice of motion entitled in the principal proceeding, the application for punishment for contempt of court is to be regarded as a separate proceeding in its own right. See Viner v Australian Building Construction Employees' and Builders Labourers' Federation (No 1) (1981) 5 FLR 5 at 27 32 and Australian Building Construction Employees' and Builders Labourers' Federation v Viner (1982) 63 FLR 253 at 266 per Evatt and Deane JJ. Having been found guilty of contempt of court, Ms Bell should be ordered to pay the costs of that proceeding. No occasion appears for departing from the usual order that costs follow the event, particularly as the impecuniosity of the losing party is not regarded as a ground for refraining from making an order as to costs in most circumstances. Further, it is appropriate that the order for costs in respect of the contempt proceeding be on an indemnity basis. In effect, the applicant applies for punishment for contempt of court to vindicate the authority of the Court. He, or the creditors indemnifying him in the principal proceeding, ought not be out of pocket for costs for performing their function on behalf of the Court. Although it is clear that the proceeding for contempt is to be regarded as a separate proceeding from the principal proceeding, for the avoidance of doubt, I should make an order pursuant to O 62 r 3(2) of the Federal Court Rules that the costs of the contempt proceeding be paid forthwith.
Case: Koutsakis v Director-General of Social Security (1985) 10 FCR 42
Outcome: cited
The Tribunal went on to say that that view was adopted by the Full Federal Court in Koutsakis v Director-General of Social Security (1985) 10 FCR 42. The Tribunal continued at [12]: "In McKinnon v Commonwealth of Australia [1998] FCA 1456 the Court referred to the balancing exercise between the possible harm to an applicant in undertaking treatment and the interests of the respondent in having the treatment carried out." 17 It is true, as Ms Macdonnell pointed out, that Dragojlovic and Koutsakis were concerned with different statutory criteria. In Dragojlovic the Tribunal, confirming an order for the cancellation of an invalid pension, had found as a fact that the applicant had unreasonably refused to undergo a lumbar laminectomy. Smithers J dealt first with the general provision in s 23 of the Social Security Act 1947 (Cth) (originally the Social Services Act 1947 but title amended by Act No 37 of 1982). Section 23 provided that a person shall be deemed to be permanently incapacitated for work if the degree of permanent incapacity for work is not less than 85 per cent. His Honour at 302 quoted with approval a decision of Todd DP in Re Korovesis v Director General of Social Security (1983) 6 ALD 244 to the effect that a claimant for a pension "cannot be compelled to have an operation". 21 In Koutsakis a Full Court at 45 noted: "The cases make it clear that the mere failure of a person to undertake medical or other treatment which is recommended to him does not disentitle him from receiving a pension or an award of compensation". Their Honours agreed with and adopted what as said by Smithers J in Dragojlovic and said at 45: "... there is no finding that the appellant's fears are not genuinely entertained by him. In our opinion, the mere fact that the appellant's fears are groundless does not make them unreasonable if they are genuine". 24 The Tribunal's emphasis on the lack of "grounds" indicates that it was treating the test as objective. While the Tribunal cited a passage from Dragojlovic , read as a whole Smithers J is not saying that the person seeking to obtain, or maintain, a pension must show some reason or fact external to his or her decision not to undergo the treatment in question. On the contrary, the emphasis is on subjective good faith, or the lack thereof, in the person's decision, however irrational it may seem. This view of Dragojlovic is confirmed by what the Full Court said in Koutsakis .
Case: McKinnon v Commonwealth of Australia [1998] FCA 1456
Outcome: distinguished
The Tribunal went on to say that that view was adopted by the Full Federal Court in Koutsakis v Director-General of Social Security (1985) 10 FCR 42. The Tribunal continued at [12]: "In McKinnon v Commonwealth of Australia [1998] FCA 1456 the Court referred to the balancing exercise between the possible harm to an applicant in undertaking treatment and the interests of the respondent in having the treatment carried out." 27 McKinnon had nothing to do with social security. It was a claim for damages for personal injuries allegedly caused by the negligence of the Commonwealth and New South Wales Governments (proceeding NG 518 of 1996). The question before Hill J was whether the proceeding should be stayed until the applicant attended a medical examination arranged by the respondents. The Tribunal's citing of McKinnon strongly suggests that it misunderstood the question for its decision. A point made at some length in Dragojlovic is that the objective reasonableness of proposed medical treatment will be relevant for common law in workers compensation claims but not under a social security regime.
Case: Re Korovesis v Director General of Social Security (1983) 6 ALD 244
Outcome: cited
It is true, as Ms Macdonnell pointed out, that Dragojlovic and Koutsakis were concerned with different statutory criteria. In Dragojlovic the Tribunal, confirming an order for the cancellation of an invalid pension, had found as a fact that the applicant had unreasonably refused to undergo a lumbar laminectomy. Smithers J dealt first with the general provision in s 23 of the Social Security Act 1947 (Cth) (originally the Social Services Act 1947 but title amended by Act No 37 of 1982). Section 23 provided that a person shall be deemed to be permanently incapacitated for work if the degree of permanent incapacity for work is not less than 85 per cent. His Honour at 302 quoted with approval a decision of Todd DP in Re Korovesis v Director General of Social Security (1983) 6 ALD 244 to the effect that a claimant for a pension "cannot be compelled to have an operation".
Case: VAAC v Minster for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168
Outcome: referred to
As counsel for the applicant acknowledged, the proposed ground of appeal raised a basis for a claim of jurisdictional error on the RRT's part that had not been argued before the Federal Magistrate. The court may allow such a ground to be argued on an appeal if it is satisfied that it is expedient in the interests of justice to allow the new ground to be argued and determined: see VAAC v Minster for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 (" VAAC ") at 177 [26] per North, Merkel and Weinberg JJ. It is only at this late stage in this proceeding that the applicant has had the benefit of counsel and this provides part of the explanation for the applicant's failure to raise the ground earlier. There is also the further fact that SZEEU was only delivered on 24 February 2006. In addition to this consideration, whether or not leave ought be granted depends on such matters as the prospects of success of the proposed new ground, the prejudice to the first respondent in allowing the ground to be raised, the possible serious consequences to the applicant if the leave sought is refused, and the integrity of the appellate process: see VAAC at 177 [26].
Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: referred to
The RRT's knowledge that the standard letter contained an assurance of privacy can be regarded as 'information' for the purposes of s 424A. The Court in SZEEU treated the discussion of the word 'information' in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") as a point of departure for its own consideration of the appeals before it. In VAF , Finn and Stone JJ said, at [24]: " [T] here is now a considerable body of case law concerned with the compass of the term 'information' in its s 424A(1) setting. The following propositions emerge from it: (i ) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [104] . However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC ... ; (ii) the word "information" in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3] ; irrespective of whether it is reliable or has a sound factual basis: Win , at [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25] ; approved [2002] FCAFC 120 ; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at [26] - [29] ." 24 The Court in SZEEU accepted that the word 'information' in s 424A refers to "knowledge of relevant facts or circumstances communicated to or received by the Tribunal": see SZEEU at [23]-[25] per Moore J, at [94], [157], [171] per Weinberg J and [205] per Allsop J, although Allsop J stated, at [208], that there were limits on the statement in VAF that 'information' did not encompass or extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the RRT in weighing up the evidence by reference to those gaps.
Case: Graywinter Management Pty Ltd v Deputy Commissioner of Taxation (1996) 22 ACSR 636
Outcome: referred to
Upon G &amp; J Gears' application, the Court would have had power to extend time further at any time after the registrar made the order extending time until the expiry of that time. It would have been open to the company to have made such an application before the end of this period had there been grounds, but it did not do so: see Equuscorp at 701 per French, Kiefel and Sundberg JJ; Graywinter Management Pty Ltd v Deputy Commissioner of Taxation (1996) 22 ACSR 636 at 638 per Finn J; Shakespeares Pie Co Australia Pty Ltd v Multipye Pty Ltd [2005] NSWSC 1201 (" Shakespeare Pie ") at [7] per Barrett J; Australian Beverage Distributors Pty Ltd v Cranswick Premium Wines Pty Ltd [2004] NSWSC 877 (" Australian Beverage Distributors ") at [12] per Barrett J; and Livestock Traders at 54. Once the time for compliance has passed, however, the Court has no such power. 49 This limitation upon the power to extend time is implicit in the terms of ss 459F and 459C . Section 459F(1) operates to fix the time when a company on which a statutory demand has been served is taken to fail to comply with the demand. The significance of a failure to comply with a statutory demand is the subject of s 459C(2)(a) , which provides that the Court must presume that a company is insolvent if, during or after the 3 months ending on the day when the application is made, the company fails to comply with the statutory demand. The effect of ss 459F(1) and 459C (2)(a) is that the Court can only make an order under s 459F(2)(a)(i) extending the time for compliance prior to the end of the period for compliance, i.e., before the company is presumed to be insolvent. Within this period, an order extending the time can be made where a s 459G application has been rejected and that rejection is the subject of review or appeal. This is now well-settled: compare Vista Commercial Construction Pty Ltd v Deputy Commissioner of Taxation (1997) 25 ACSR 285 at 293 per Burchett, Hill and Emmett JJ; Graywinter Management Pty Ltd v Deputy Commissioner of Taxation (1996) 22 ACSR 636 at 638 per Finn J; Graywinter Properties Pty Ltd v Dyer (1997) 15 ACLC 302 at 306 per Ryan J; Buckland Products Pty Ltd v Deputy Commissioner of Taxation [2003] VSCA 85 (" Buckland Products ") at [8] per Phillips JA; Shakespeares Pie at [7] per Barrett J; and Australian Beverage Distributors at [5] per Barrett. As Jenkinson J said in Livestock Traders at 54, ss 459F and 459C (2)(a) of the Corporations Law "premise unalterability of the time as at which a company is to be taken to have failed to comply with a statutory demand once the period for compliance has ended at a time when the demand is still in effect". This is equally true of the equivalent sections of the Corporations Act . The power to extend time after the end of the period for compliance would introduce a degree of uncertainty incompatible with the statutory regime: see also Buckland Products at [8] per Phillips JA.