mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: re Barber (1886) 17 QBD 259
Outcome: discussed
re Barber (1886) 17 QBD 259 at 264 Lord Esher MR said: But, if a bill of sale is a plain and simple document which would not deceive any ordinary borrower, the Court has never said that it must be set aside because it is not in the exact form given in the schedule. In the present case, I am of opinion that the bill of sale is not so intricate, by reason either of its length or the manner in which it is expressed, as to place any real difficulty in the way of the borrower. It is in substance made in accordance with the statutory form, and I think it is not invalid on any of the grounds which have been suggested. Lopes LJ said at 265: No doubt [the bill of sale] does not servilely follow that form. But it is only necessary that it should follow the form in substance. At 270 Bowen LJ said: A bill of sale is surely in accordance with the prescribed form if it is substantially in accordance with it, if it does not depart from the prescribed form in any material respect. But a divergence only becomes substantial or material when it is calculated to give the bill of sale a legal consequence or effect, either greater or smaller, than that which would attach to it if drawn in the form which has been sanctioned, or if it departs from the form in a manner calculated to mislead those whom it is the object of the statute to protect. In estimating the effect of a divergence, one must not take into consideration for the moment the provision of s.9 , that the bill of sale if it varies from the form is to be void, for owing to this statutory penalty no material variation can in the end have any legal effect at all.
Case: Latitude Fisheries Pty Ltd v Minister for Primary Industries &amp; Energy (1993) 41 FCR 536
Outcome: discussed
Latitude Fisheries Pty Ltd v Minister for Primary Industries &amp; Energy (1993) 41 FCR 536 at 542-543 the Full Court (Black CJ, Burchett and Lee JJ) said: There was debate about the meaning of the expression "in accordance with", which it was suggested is the equivalent of "consistent with". We have no doubt that the expression connotes a substantial measure of consistency, but, beyond making that observation, we do not think it is particularly helpful to substitute for the statutory expression some other expression of closely similar meaning.
Case: Walker v Wilson (1991) 172 CLR 195
Outcome: discussed
Walker v Wilson (1991) 172 CLR 195, the High Court was concerned with a provision in relevant Workers' Compensation legislation which provided that a worker was deemed to have suffered personal injury by accident arising out of, or in the course of, his employment "if the journey is undertaken in accordance with the terms and conditions of employment ...". At 200, Brennan J said: The qualification will exclude cover for such a journey if the phrase "in accordance with" be construed as "not inconsistently with" the terms and conditions of the workers' employment. On the other hand, Deane, Dawson, Toohey and McHugh JJ said (at 207-8): In our view, however, the reference in sub-par. (iii) to a journey being "undertaken in accordance with the terms and conditions of [the workers] employment" should not be construed as requiring that the relevant journey was one which the worker was contractually bound to take. In the context of the particular circumstances to which sub-par. (iii) is confined, that is to say a case where a worker has been " required " by his employer or by the demands of his work to reside temporarily or in a particular place, it would be arbitrary and unfair to construe the requirement that the journey be "in accordance with the terms and conditions of his employment" in a way which would exclude a return journey which was in the contemplation of both employer and worker at the time the worker went to the temporary location, which was made with consent of the employer and which was consistent with the terms and conditions of the employment. In the context of sub-par. (iii) the words "in accordance with" should be construed as meaning "in conformity with" or "consistently with". In this case the adopted procedure complied substantially with the requirements of Division 2. The primary thrust of the Division is that replacement is to be effected by extraordinary resolution at a meeting called in accordance with the Act. The members of the scheme both must resolve to remove the existing responsible entity and choose a replacement. The requirement for an extraordinary resolution is significant for present purposes. Such a resolution requires the support of holders of 50% of the total number of possible votes. To achieve success in such an undertaking is no mean feat. The adoption of such a resolution says much about the wishes of the members. It is difficult to see why Parliament would have intended that a resolution having such wide support be invalid merely because there was one vote rather than two. As I have said, the absence of any clear purpose underlying the alleged requirement that there be two distinct votes militates against such a construction. However, if that construction be accepted, the same consideration militates against construing s 601FJ(2) as invalidating a resolution adopted in breach of such requirement.
Case: David Grant &amp; Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Outcome: distinguished
preliminary question arises as to the application of s 1322 to a resolution which does not comply with the requirements of s 601FM. The plaintiffs submit that s 601FJ(2) manifests an intention that any such irregularity render such resolution invalid, and so implicitly excludes the operation of s 1322. They rely upon the decision of the High Court in David Grant &amp; Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 275-279, and the decision of the New South Wales Court of Appeal in BP Australia Ltd v Brown (2003) 58 NSWLR 322. David Grant (1995) 184 CLR 265 concerned the operation of s 1322(4) upon an application to set aside a statutory demand made outside the period prescribed for so doing. The relevant provision provided that such an application "may only be made within 21 days after the demand is so served". The Court held that the clear wording of the section, its history, the purpose which the statutory demand fulfilled and the consequence of non-compliance militated against the intention that time for compliance could be extended pursuant to s 1322(4). In BP Australia Ltd v Brown (2003) 58 NSWLR 322 the Court of Appeal came to a similar conclusion concerning a specified time limit in another provision of the Corporations Act , also providing that an application "may only be made" within a specified time and with a specific provision limiting the capacity to extend time. Neither case bears much similarity to the present circumstances. The plaintiffs' case, at its highest, depends upon the proposition that s 601FJ(2) invalidates proceedings not taken in accordance with Division 2. However it is quite clear that s 1322(4) permits the remediation of invalidity, which term I take to include ineffectiveness, the word used in s 601FJ(2). Something more is needed in order to exclude the operation of s 1322. In both David Grant (1995) 184 CLR 265 and Brown (2003) 58 NSWLR 322 the relevant sections, in terms, prescribed the only circumstances in which the relevant applications could be made. In both cases other circumstances also suggested that it was not intended that s 1322 should apply.
Case: BP Australia Ltd v Brown (2003) 58 NSWLR 322
Outcome: distinguished
preliminary question arises as to the application of s 1322 to a resolution which does not comply with the requirements of s 601FM. The plaintiffs submit that s 601FJ(2) manifests an intention that any such irregularity render such resolution invalid, and so implicitly excludes the operation of s 1322. They rely upon the decision of the High Court in David Grant &amp; Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 275-279, and the decision of the New South Wales Court of Appeal in BP Australia Ltd v Brown (2003) 58 NSWLR 322. David Grant (1995) 184 CLR 265 concerned the operation of s 1322(4) upon an application to set aside a statutory demand made outside the period prescribed for so doing. The relevant provision provided that such an application "may only be made within 21 days after the demand is so served". The Court held that the clear wording of the section, its history, the purpose which the statutory demand fulfilled and the consequence of non-compliance militated against the intention that time for compliance could be extended pursuant to s 1322(4). In BP Australia Ltd v Brown (2003) 58 NSWLR 322 the Court of Appeal came to a similar conclusion concerning a specified time limit in another provision of the Corporations Act , also providing that an application "may only be made" within a specified time and with a specific provision limiting the capacity to extend time. Neither case bears much similarity to the present circumstances. The plaintiffs' case, at its highest, depends upon the proposition that s 601FJ(2) invalidates proceedings not taken in accordance with Division 2. However it is quite clear that s 1322(4) permits the remediation of invalidity, which term I take to include ineffectiveness, the word used in s 601FJ(2). Something more is needed in order to exclude the operation of s 1322. In both David Grant (1995) 184 CLR 265 and Brown (2003) 58 NSWLR 322 the relevant sections, in terms, prescribed the only circumstances in which the relevant applications could be made. In both cases other circumstances also suggested that it was not intended that s 1322 should apply.
Case: Re Westpac Banking Corporation (2004) 53 ACSR 288
Outcome: considered
their submissions concerning the applicability of s 1322 , both sides seek to rely upon s 601QA. That section authorizes ASIC to exempt a person from a provision of Ch 5C. The plaintiffs submit that it would be inconsistent with the existence of such power in ASIC for the Court to have power, pursuant to s 1322 , to remedy any non-compliance with a provision of that chapter. That submission assumes that ASIC's power may be exercised retrospectively, a proposition about which ASIC apparently has doubts. See Re Westpac Banking Corporation (2004) 53 ACSR 288 at [16]. The BT defendants submit that the existence of such a power demonstrates that compliance with the provisions of Ch 5C is not mandatory. I derive no assistance from either submission. In my view, s 1322 operates in connection with proceedings pursuant to s 601FM. I propose to deal firstly with the operation of s 1322(2) upon the basis that the alleged non-compliance is a procedural irregularity which may be validated pursuant to that section. I will then deal with the operation of s 1322(4) on the basis that s 1322(2) does not operate to validate the consequences of any irregularity. Section 1322(2)
Case: Wagner v International Health Promotions (1994) 15 ACSR 419
Outcome: distinguished
plaintiffs submit that the decision in Wagner v International Health Promotions (1994) 15 ACSR 419 is authority for the proposition that failure to comply with a mandatory requirement such as that in s 601FM cannot be characterized as a procedural irregularity. However that was a quite different case. Section 436A(1) of the Corporations Law required that an administrator might be appointed if the board had resolved to the effect that: (a) in the opinion of the directors voting for the resolution, the company is insolvent, or is likely to become insolvent at some future time; and (b) an administrator of the company should be appointed. The board resolved only that an administrator be appointed. There was simply no resolution as to insolvency. In the present case, the members resolved both that City Pacific be removed and that Trilogy be appointed.
Case: Mamouney v Soliman (1992) 9 ACSR 63
Outcome: approved
am of the view that the alleged non-compliance, that is failure to conduct two separate votes, would have been a procedural irregularity. To the extent that the purported resolution might be invalid, such invalidity would have been cured by s 1322(2). I do not understand the plaintiffs to seek a declaration of invalidity pursuant to s 1322(2). In any event, in Mamouney v Soliman (1992) 9 ACSR 63 at 71, Hodgson J (after referring to the authorities) said: Furthermore, in my view, it is necessary that the possible injustice be linked to the particular irregularities themselves. It is insufficient for the plaintiff to say that the resolutions were irregularly passed, and those resolutions have caused injustice. In my view, the plaintiff must show that there may have been a different result, if the proper notice had been given.
Case: Australian Competition &amp; Consumer Commission v Kokos International Pty Ltd (No 2) [2008] FCA 5
Outcome: cited
The facts of the case have been set out in an earlier judgment relating to the first four respondents given on 10 January 2008: Australian Competition &amp; Consumer Commission v Kokos (No 2) [2008] FCA 5. Injunctive orders were made by consent and penalties imposed after argument in respect of those respondents. Declarations offered by consent were stood over pending the finalisation of the proceedings against all respondents. In a further judgment, delivered on 17 January 2008, I made injunctive orders against the fifth and sixth respondents and again imposed penalties. Declaration orders proposed by consent were stood over until the finalisation of the proceedings as a whole: Australian Competition &amp; Consumer Commission v Kokos International Pty Ltd (No 3) [2008] FCA 20. The matter has come back before the Court for disposition as against the seventh and eighth respondents. Statements of agreed facts have been filed.
Case: Australian Competition &amp; Consumer Commission v Kokos International Pty Ltd (No 3) [2008] FCA 20
Outcome: cited
The facts of the case have been set out in an earlier judgment relating to the first four respondents given on 10 January 2008: Australian Competition &amp; Consumer Commission v Kokos (No 2) [2008] FCA 5. Injunctive orders were made by consent and penalties imposed after argument in respect of those respondents. Declarations offered by consent were stood over pending the finalisation of the proceedings against all respondents. In a further judgment, delivered on 17 January 2008, I made injunctive orders against the fifth and sixth respondents and again imposed penalties. Declaration orders proposed by consent were stood over until the finalisation of the proceedings as a whole: Australian Competition &amp; Consumer Commission v Kokos International Pty Ltd (No 3) [2008] FCA 20. The matter has come back before the Court for disposition as against the seventh and eighth respondents. Statements of agreed facts have been filed.
Case: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Outcome: followed
However, in my view, the Tribunal did not approach the ultimate issue in the way I described the task in my earlier decision and in accordance with the approach necessary in evaluating whether the appellant was a fit and proper person. In determining whether a person is a fit and proper person the enquiry is directed not only to whether improper conduct has occurred, but whether it is likely to occur again, and whether the community will have confidence that it will not occur. This will involve an evaluation of character and reputation: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 , 380 per Toohey and Gaudron JJ. The Tribunal should have considered and, more importantly, evaluated all the material which was raised as to 'special circumstances' in the context of a separate and ultimate enquiry of whether the appellant, at the time of the Tribunal's decision, was the prescribed fit and proper person. 17 In my view, the Tribunal did not undertake this task in the passages referred to above where it purported to consider the ultimate issue. To say, for example, as the Tribunal did, the appellant's explanations 'showed a lack of understanding of the reason for lodgement' of tax returns may be accepted, but this needs to be placed in the context of the evidence as to his health and general circumstances at the time, and in the context of the evaluation referred to in Australian Broadcasting Tribunal 170 CLR 321. While the Tribunal had previously accepted the appellant's medical condition proved debilitating over the years, the required evaluation necessarily involves looking at both past conduct and likelihood of future conduct, and this evaluation was simply missing from the Tribunal's analysis. The general references back to evidence and principles of law did not equate to an evaluation of the evidence in this context of the ultimate issue. 18 While the main criticism of the reasoning of the Tribunal is the lack of evaluation, there are references made in the reasoning that indicate a failure to focus on all the relevant circumstances up to the Tribunal hearing date. The Tribunal specifically referred to matters which occurred many years ago. There was a reference to the lodgement rate ('at least in the 2002 year' (at [156] of the Tribunal's decision)), correspondence on 7 July 2004 (at [159]), and conduct in 2003 (at [159]). No attempt was made to put these events in context, nor to consider them in the context of later events and circumstances. 19 As I have indicated, I propose to order the appeal be allowed.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280
Outcome: cited
In considering the approach of the Tribunal, the Tribunal's reasons must be read as a whole and fairly. I accept that I should not be concerned with looseness of language, nor review the Tribunal's reasons with an 'eye keenly attuned to the perception of error': Politis v Federal Commissioner of Taxation (1988) 20 ATR 108 , 111; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 , 287.
Case: Toohey v Tax Agents' Board of Victoria (2007) 67 ATR 522
Outcome: cited
The background to the relevant legislation has already been dealt with by me in earlier proceedings involving the parties: see Toohey v Tax Agents' Board of Victoria (2007) 67 ATR 522.
Case: Politis v Federal Commissioner of Taxation (1988) 20 ATR 108
Outcome: cited
In considering the approach of the Tribunal, the Tribunal's reasons must be read as a whole and fairly. I accept that I should not be concerned with looseness of language, nor review the Tribunal's reasons with an 'eye keenly attuned to the perception of error': Politis v Federal Commissioner of Taxation (1988) 20 ATR 108 , 111; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 , 287.
Case: Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390
Outcome: cited
From the outset I acknowledge that the Tribunal did discuss the ultimate issue of whether the applicant was the prescribed fit and proper person. Further, the Tribunal did carefully consider the appropriate date at which it needed to consider the question before it, and the issue of 'special circumstances'. On the question of the appropriate date, the Tribunal dealt with the two possibilities separately (perhaps unnecessarily), and made findings for each accordingly. We now have the advantage of the decision in Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390 , concerning the relevant time of assessment. As to the question of 'special circumstances', this was a matter of evaluation and factual analysis, upon which the Tribunal was entitled to make its 'factual classification' in the way it did: see Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439 , 477-78 at [108] per Hayne J. I find no error of law in the way the Tribunal approached these matters.
Case: Statham v Federal Commissioner of Taxation (1988) 20 ATR 228
Outcome: distinguished
The appellant desired that I determine the ultimate issue myself. The appellant relied on the approach taken in Statham v Federal Commissioner of Taxation (1988) 20 ATR 228. The question for determination in Statham was strikingly different from the question whether a person is the prescribed fit and proper person. As I have said, the determination of this issue involves an evaluation of many factors. Such an evaluation is quite different from determining the application of s 25(1) or s 26(a) of the Act to undisputed facts as was the case in Statham . To proceed in the way now pressed by the appellant would require an assessment of the appellant, and I have not had the advantage of seeing him in the witness box, being able to ask questions of him, or to make a proper evaluation of the type the relevant provisions require. 22 The appellant pressed that I could receive further evidence from the appellant, and then determine the matter of whether he is the prescribed fit and proper person. It was submitted that it was convenient and appropriate that I make whatever further findings of fact necessary, and take into account any further evidence of the appellant. 23 The appellant further contended that he would not be able to afford legal representation should the matter be remitted, and there would be an unacceptable delay if the matter were remitted. 28 Despite the history of this proceeding, in my view, it would not be convenient or appropriate for the Court to finally dispose of the matter in accordance with the power under ss 44(4) , 44 (5), (7) and (8) of the Administrative Appeals Tribunal Act 1975 (Cth) and the approach taken in Statham 20 ATR 228. I propose to make an order for remittal to the Tribunal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 27 November 2008 Counsel for the First Appellant: N Rosenbaum Solicitor for the First Appellant: Charlesworth Josem Partners Solicitor for the First Respondent: Australian Government Solicitors Counsel for the First Respondent: P D Nicholas Date of Hearing: 13 October 2008 Date of Judgment: 27 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1796.html
Case: Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439
Outcome: cited
From the outset I acknowledge that the Tribunal did discuss the ultimate issue of whether the applicant was the prescribed fit and proper person. Further, the Tribunal did carefully consider the appropriate date at which it needed to consider the question before it, and the issue of 'special circumstances'. On the question of the appropriate date, the Tribunal dealt with the two possibilities separately (perhaps unnecessarily), and made findings for each accordingly. We now have the advantage of the decision in Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390 , concerning the relevant time of assessment. As to the question of 'special circumstances', this was a matter of evaluation and factual analysis, upon which the Tribunal was entitled to make its 'factual classification' in the way it did: see Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439 , 477-78 at [108] per Hayne J. I find no error of law in the way the Tribunal approached these matters.