mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1493
Outcome: cited
Section 422B applies to applications to the Tribunal for review of a decision filed after 4 July 2002; see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 596 at [31]; see also SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 (" SZBDF") at [11]. It therefore applies to the present case. 29 As Branson J pointed out in SZBDF at [12], there is a division of opinion within the Court as to the ambit of s 422B(1). One view is that the phrase "in relation to the matters it deals with" imports a limitation upon the extent to which Div 4 is to be read as a code and doe not, in effect, completely exclude common law rules of natural justice; see WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 ( WAJR") at [47] [59] and Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170 (" Moradian") at [35] [37]. 31 Branson J preferred the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively, to that of French and Gray JJ in WAJR and Moradian; see SZBDF at [17]. Bennett J found it unnecessary to decide the question in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [46] [49].
Case: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624
Outcome: referred to
As Branson J pointed out in SZBDF at [12], there is a division of opinion within the Court as to the ambit of s 422B(1). One view is that the phrase "in relation to the matters it deals with" imports a limitation upon the extent to which Div 4 is to be read as a code and doe not, in effect, completely exclude common law rules of natural justice; see WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 ( WAJR") at [47] [59] and Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170 (" Moradian") at [35] [37]. 31 Branson J preferred the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively, to that of French and Gray JJ in WAJR and Moradian; see SZBDF at [17]. Bennett J found it unnecessary to decide the question in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [46] [49].
Case: Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249 ; (2003) 133 FCR 221
Outcome: referred to
The other view is that s422B applies to a larger subject matter than the exact text of the requirements stated in Div 4; see NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 356 (" NAQF") at [50] [87] and Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249 ; (2003) 133 FCR 221 (" Wu") at [21] [23]; see also VXDC v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 ("VXDC") at [30] [31] per Heerey J. 31 Branson J preferred the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively, to that of French and Gray JJ in WAJR and Moradian; see SZBDF at [17]. Bennett J found it unnecessary to decide the question in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [46] [49].
Case: VXDC v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562
Outcome: referred to
The other view is that s422B applies to a larger subject matter than the exact text of the requirements stated in Div 4; see NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 356 (" NAQF") at [50] [87] and Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249 ; (2003) 133 FCR 221 (" Wu") at [21] [23]; see also VXDC v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 ("VXDC") at [30] [31] per Heerey J. 32 In VXDC, Heerey J was of the view that an examination of the explanatory statement of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) and the second reading speech made it plain that the intention of the 2002 amendment was to reverse the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22 ; (2001) 206 CLR 57; it was also to provide a comprehensive code for procedural fairness which excluded the common law natural justice hearing rule.
Case: JM Properties v Strata Corporation No 13975 Inc (No 3) [2006] SADC 46
Outcome: referred to
On 28 April 2006 her Honour Judge Simpson of the District Court of South Australia directed the Registrar of that Court to issue a summons against the company JM Properties Pty Ltd (ACN 062 504 590), and Jack Balalis and Marina Balalis in their capacity as its directors and in their personal capacity, to answer a charge of contempt of court in that they failed to comply with the orders of the District Court made on 15 August 2005 and amended on 25 November 2005: see JM Properties v Strata Corporation No 13975 Inc (No 3) [2006] SADC 46. 2 The reason for the present application is that on 16 November 2006 JM Properties was ordered to be wound up in insolvency under the provisions of the Corporations Act 2001 (Cth) ("the Act ") and Nicholas David Cooper was appointed liquidator of the company. Section 471B of the Act provides that while a company is being wound up in insolvency a person cannot begin or proceed with a proceeding in a Court against the company except with the leave of the Court and in accordance with such terms, if any, as the Court imposes. The Registrar has applied under that provision for such leave. 3 The contempt proceedings against JM Properties are proceedings to which s 471B applies. That proceedings, as also parallel proceedings against Mr and Mrs Balalis, were founded on alleged breaches of Mareva orders made against them by Judge Simpson in relation to dealings with a number of the assets of JM Properties and of another company. I need not enlarge upon the orders and their breach as it is clear, as her Honour found (at [78] of her reasons for judgment), that the transactions entered into by Mr and Mrs Balalis in encumbering and otherwise dealing with properties of JM Properties constituted a wilful and therefore contumacious breach of the orders. Mr and Mrs Balalis were directors of the company at the time. 4 The immediate reason for the leave application is occasioned by provisions of the District Court Rules 1987 (SA). Rule 84.21 provides that: "A judgment or order against a body corporate which has been wilfully disobeyed may, by leave of the Court, be enforced by sequestration against the property of the body corporate or by attachment against the directors or other officers thereof or by sequestration of their property."
Case: Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87
Outcome: referred to
The view taken by the Registrar's legal advisers in reliance upon a commentary in Lunn's Civil Procedure on r 84.21 is that no order could be made against Mr and Mrs Balalis as directors of JM Properties unless the applicant could also proceed against JM Properties. Lunn's commentary relies upon the decision of Luxmoore J in Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87 where it was said of a rule in relevantly identical terms, that as the remedy given against the directors was an alternative one, the rule was not applicable unless the party seeking to enforce the order was in a position to pursue the original remedy against the company: at 98. 6 While there may be a question whether the legislative bar to proceedings against a company in insolvency ought be taken to have the consequence suggested by Luxmoore J when a party seeks to rely upon r 84.21, it is unnecessary for me to consider that matter as the Registrar is seeking (even if only as an abundance of caution) to proceed against the company as well as the directors. 7 The Registrar's lawyers wrote to the liquidator, Mr Cooper, on 15 January advising him that they had received instructions to make this leave application. They indicated in that letter that, while the Registrar wished to continue the contempt proceedings against JM Properties, "the principal reason for this is to pursue the Directors, Mr and Mrs Balalis, for attachment pursuant to r 84.21 of the District Court Rules 1987 in relation to the alleged breaches of the Mareva Injunction Order by JM Properties". The letter to Mr Cooper went on to note that "subject to our receiving final instructions, we are likely to give an undertaking to the Federal Court that we will not pursue any financial penalty against JM Properties in relation to the alleged contempt of court". 8 On 19 January 2007 Mr Cooper indicated to the Registrar's lawyers that he had no objection to the application being made and he confirmed he would not be making any submissions in relation to the matter.
Case: Tosich v Tasman Investment Management Limited [2008] FCA 377
Outcome: related
On 20 March 2008 I delivered reasons for judgment in this matter ( Tosich v Tasman Investment Management Limited [2008] FCA 377) and stood the matter over in order to consider the orders to be made and to deal with costs. Terms used in these reasons (if otherwise undefined or unexplained) are to be understood by reference to that earlier judgment. A statement of issues agreed and disputed has been provided by parties. The disputed issues requiring some determination are issues 9 15. 2 As to issue 9, whether Tosich is entitled to costs against Tasman Investment and Warne, I can see no proper basis by which the successful plaintiff should be deprived of his costs. Those costs would not include the period when he was not a plaintiff. The fact that Tosich may have been effectively funded by All Saints and the proceeding organised in a way that would enable the cross-claim to be pursued is not to the point. Even if so, that would only put him in the same position as any other plaintiff in such circumstances, including a plaintiff whose case is conducted and funded by an insurer. There is no substance to the argument that the matter should have been settled by payment. Even if that were so, that would not be to the disadvantage of Tosich. As I mention later, in the event, the necessity for litigation was, in one sense, caused by Aon. I cannot see that Aon has any legitimate interest in any orders between All Saints and the defendants at this point. 3 Issue 10, allowance for contingences. It seems to me that paragraph 10(a) is correct. It can be calculated in accordance with paragraph 17of Aon's submissions.
Case: Gudjala People #2 v Native Title Registrar [2007] FCA 1167 
Outcome: cited
The decision of the Registrar to accept or reject an application is a purely administrative function, the decision depending upon whether or not such application satisfies the prescribed criteria ( Gudjala People #2 v Native Title Registrar [2007] FCA 1167 at [15] ). Similarly, the decision by the Registrar or his delegate that he is, or is not, satisfied of the requirement under s 190C (4)(b) is an administrative decision under the Act . As French J said in Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242 at 261 in relation to the concept of "satisfaction" of the Registrar under s 190B , There is scope for evaluative judgment in an expeditious administrative process carried out by people with relevant specialist experience. It is not for the Court, in reviewing the Registrar's decision, to substitute its own view of the sufficiency of the native title rights and interests for those of the Registrar unless it can be shown that the Registrar's state of satisfaction is based upon some error of principle.
Case: Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242 
Outcome: applied
The decision of the Registrar to accept or reject an application is a purely administrative function, the decision depending upon whether or not such application satisfies the prescribed criteria ( Gudjala People #2 v Native Title Registrar [2007] FCA 1167 at [15] ). Similarly, the decision by the Registrar or his delegate that he is, or is not, satisfied of the requirement under s 190C (4)(b) is an administrative decision under the Act . As French J said in Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242 at 261 in relation to the concept of "satisfaction" of the Registrar under s 190B , There is scope for evaluative judgment in an expeditious administrative process carried out by people with relevant specialist experience. It is not for the Court, in reviewing the Registrar's decision, to substitute its own view of the sufficiency of the native title rights and interests for those of the Registrar unless it can be shown that the Registrar's state of satisfaction is based upon some error of principle.
Case: Wakaman People No 2 v Native Title Registrar [2006] FCA 1198 ; (2006) 155 FCR 107
Outcome: cited
However while Doepel may be authority that, for the purposes of section 190C (2), the Registrar is not required to look beyond the terms of the application (cf Wakaman People No 2 v Native Title Registrar [2006] FCA 1198 ; (2006) 155 FCR 107 at 118), it does not necessarily follow that the same principle applies to the satisfaction required of the Registrar or his delegate by s 190C (4)(b). Indeed in the Wiri #2 Application, although the delegate was not satisfied as required by s 190C (4)(b), after considering each of the requirements of ss 61 and 62 the delegate was satisfied that the Application contained all the details and other information required by those sections, and accordingly complied with s 190C (2). With specific reference to the native title claim group, the delegate observed : There is nothing on the face of the description of the persons in the native title claim group to indicate that not all persons in the native title claim group are included in the description or that it is in fact a sub-group of the native title claim group for the area of the application. Having said that, I do have regard to information elsewhere before me in relation to this issue in my consideration of the authorisation condition under s. 190C (4)(b). But with the authority of Doepel in mind, I do not consider this information under this condition...
Case: Second Lenbourne Pty Ltd v Beagle Management Pty Ltd [1999] FCA 486
Outcome: followed
Before considering the respondent's submissions I should make the following observations about s 1335 and the proper approach to be taken under it. First, there is no onus on the applicant to adduce evidence of its ability to pay its debts (i.e. a future costs order). Nor is the issue of whether security should be ordered to be determined on the basis of whether or not that onus has been satisfied. Rather, as Goldberg J indicated in Second Lenbourne Pty Ltd v Beagle Management Pty Ltd [1999] FCA 486 at [9] , what is required is that there be credible testimony before the Court that there is reason to believe that the applicant will be unable to pay the respondent's costs if the respondent is successful. Secondly, it now seems reasonably well accepted that the paid up capital of an applicant company is not as of course relevant in proceedings of this variety because the capital structure itself will ordinarily be irrelevant to the ability to pay. As Heerey J observed of a context in which the paid up capital of a company was only $12 in Microcorp Pty Ltd v Terran Computers Pty Ltd, Peter Desmond Nunn, Philip Robert Hempel, Phillip Andrew Grasso and Vlado Joseph Dancevic (unreported Fed Court 19 December 1991 at p 3): "Today companies with very small paid up capital may be solvent and prosperous while others with balance sheets showing impressive sums in this regard may have no more than wistful memories of past glories to show to creditors." Thirdly, for the purpose of determining whether the threshold requirement has been met, the convenient approach to adopt is that of von Doussa J in Beach Petroleum NL v Johnson (1992) 10 ACLC 525: "In my opinion the power of the Court under s 1335 arises if credible evidence establishes that there is reason to believe there is a real chance that in events which can fairly be described as reasonably possible the plaintiff corporation will be unable to pay the costs of the defendant upon service of the allocatur, if judgment goes against it. This will be so even if in other events which can also be fairly described as reasonably possible the plaintiff corporation would be able to pay the costs. The degree of likelihood of the plaintiff corporation being unable to pay the costs along with all the circumstances, actual and possible, about its financial position, would be then to be taken into account in the exercise of discretion, and in framing the orders of the court if the decision is to order security."
Case: Microcorp Pty Ltd v Terran Computers Pty Ltd, Peter Desmond Nunn, Philip Robert Hempel, Phillip Andrew Grasso and Vlado Joseph Dancevic (unreported Fed Court 19 December 1991)
Outcome: cited
Before considering the respondent's submissions I should make the following observations about s 1335 and the proper approach to be taken under it. First, there is no onus on the applicant to adduce evidence of its ability to pay its debts (i.e. a future costs order). Nor is the issue of whether security should be ordered to be determined on the basis of whether or not that onus has been satisfied. Rather, as Goldberg J indicated in Second Lenbourne Pty Ltd v Beagle Management Pty Ltd [1999] FCA 486 at [9] , what is required is that there be credible testimony before the Court that there is reason to believe that the applicant will be unable to pay the respondent's costs if the respondent is successful. Secondly, it now seems reasonably well accepted that the paid up capital of an applicant company is not as of course relevant in proceedings of this variety because the capital structure itself will ordinarily be irrelevant to the ability to pay. As Heerey J observed of a context in which the paid up capital of a company was only $12 in Microcorp Pty Ltd v Terran Computers Pty Ltd, Peter Desmond Nunn, Philip Robert Hempel, Phillip Andrew Grasso and Vlado Joseph Dancevic (unreported Fed Court 19 December 1991 at p 3): "Today companies with very small paid up capital may be solvent and prosperous while others with balance sheets showing impressive sums in this regard may have no more than wistful memories of past glories to show to creditors." Thirdly, for the purpose of determining whether the threshold requirement has been met, the convenient approach to adopt is that of von Doussa J in Beach Petroleum NL v Johnson (1992) 10 ACLC 525: "In my opinion the power of the Court under s 1335 arises if credible evidence establishes that there is reason to believe there is a real chance that in events which can fairly be described as reasonably possible the plaintiff corporation will be unable to pay the costs of the defendant upon service of the allocatur, if judgment goes against it. This will be so even if in other events which can also be fairly described as reasonably possible the plaintiff corporation would be able to pay the costs. The degree of likelihood of the plaintiff corporation being unable to pay the costs along with all the circumstances, actual and possible, about its financial position, would be then to be taken into account in the exercise of discretion, and in framing the orders of the court if the decision is to order security."
Case: Beach Petroleum NL v Johnson (1992) 10 ACLC 525
Outcome: followed
Before considering the respondent's submissions I should make the following observations about s 1335 and the proper approach to be taken under it. First, there is no onus on the applicant to adduce evidence of its ability to pay its debts (i.e. a future costs order). Nor is the issue of whether security should be ordered to be determined on the basis of whether or not that onus has been satisfied. Rather, as Goldberg J indicated in Second Lenbourne Pty Ltd v Beagle Management Pty Ltd [1999] FCA 486 at [9] , what is required is that there be credible testimony before the Court that there is reason to believe that the applicant will be unable to pay the respondent's costs if the respondent is successful. Secondly, it now seems reasonably well accepted that the paid up capital of an applicant company is not as of course relevant in proceedings of this variety because the capital structure itself will ordinarily be irrelevant to the ability to pay. As Heerey J observed of a context in which the paid up capital of a company was only $12 in Microcorp Pty Ltd v Terran Computers Pty Ltd, Peter Desmond Nunn, Philip Robert Hempel, Phillip Andrew Grasso and Vlado Joseph Dancevic (unreported Fed Court 19 December 1991 at p 3): "Today companies with very small paid up capital may be solvent and prosperous while others with balance sheets showing impressive sums in this regard may have no more than wistful memories of past glories to show to creditors." Thirdly, for the purpose of determining whether the threshold requirement has been met, the convenient approach to adopt is that of von Doussa J in Beach Petroleum NL v Johnson (1992) 10 ACLC 525: "In my opinion the power of the Court under s 1335 arises if credible evidence establishes that there is reason to believe there is a real chance that in events which can fairly be described as reasonably possible the plaintiff corporation will be unable to pay the costs of the defendant upon service of the allocatur, if judgment goes against it. This will be so even if in other events which can also be fairly described as reasonably possible the plaintiff corporation would be able to pay the costs. The degree of likelihood of the plaintiff corporation being unable to pay the costs along with all the circumstances, actual and possible, about its financial position, would be then to be taken into account in the exercise of discretion, and in framing the orders of the court if the decision is to order security."
Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
I see no error in the reasoning of the primary judge in relation to his Honour's analysis of the obligations on the Tribunal to deal with the Ombudsman report. Those conclusions were in accordance with Mason J's statement in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 39 where his Honour said: The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. 12 His Honour concluded that the Tribunal was not required to take into account the Ombudsman report in making its decision and I see no error in that conclusion, nor in the conclusion that the report could not have given rise to a legitimate expectation that the recommendations in the report would be considered by the Tribunal. 13 The applicant has not demonstrated that the decision of the primary judge is attended with sufficient doubt to warrant its reconsideration by the Full Court, nor has he established any error in his Honour's reasons. Accordingly, I consider that the appeal has no prospect of success. It follows that the application for an extension of time to file the application for leave to appeal should be refused. The applicant should pay the first respondent's costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 22 December 2008 The Applicant appeared in person Solicitor for the First Respondent: Clayton Utz Date of Hearing: 15 December 2008 Date of Judgment: 15 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1967.html