mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Wilson v Commonwealth of Australia [1999] FCA 219
Outcome: considered
Section 179 requires the court to engage in a process which may involve two stages. First, the court must consider whether there is a basis to inquire into the conduct of a trustee in bankruptcy. Secondly, if an inquiry is undertaken, the court must consider what, if any, order should be made as a result of the inquiry. I note the following salient points with respect to the operation of the section in the case of the first stage. It is not necessary for me to consider the second stage because I do not think that there is a basis to inquire into the conduct of the trustee in bankruptcy. 1. The question of whether to order an inquiry is in the broad discretion of the court, and the court should be reluctant to do so unless there are "substantial grounds for believing that the trustee erred in his administration" ( Re Gault , Gault v Law (1981) 57 FLR 165 (' Re Gault ') at 173 per Ellicott J, cited in Macchia at 120 per French J). This requirement has also been put in terms of 'sufficient grounds' ( Re Gault at 173 per Ellicott J), and 'a proper cause to believe that a trustee may have failed to act in relation to a bankruptcy in the manner required by the Act or the general law' ( Wilson v Commonwealth of Australia [1999] FCA 219 at [44] per Branson J). The onus is on the applicant to establish the grounds or case for an inquiry. 2. As with s 178, the exercise of the court's discretion to order an inquiry is subject to the principle that the court will not unduly interfere with the day-to-day administration of a bankrupt's estate by a trustee in bankruptcy: Re Tyndall at 120 per French J. 3. As with s 178, s 179 is not a vehicle for a bankrupt or other person to seek damages which go beyond the making good of any loss to the bankrupt's estate caused by improper administration by the trustee in bankruptcy: Re Tyndall at 121 per French J.
Case: Wilson v Manna Hill Mining Co Pty Ltd [2004] FCA 1035
Outcome: discussed
The applicants in the proceedings were successful and a number of orders were made by Lander J on 16 July 2004 and 30 July 2004 respectively. The orders made on 30 July 2004 were orders as to the costs of the proceedings and included an order that the bankrupt pay the applicant's costs on an indemnity basis. His Honour delivered reasons for his costs orders: Wilson v Manna Hill Mining Company Pty Ltd [2004] FCA 1035.
Case: British Amusement Catering Trades Association v Westminster City Council [1989] AC 147
Outcome: cited
Contemporaneous regulations have been called in aid in construing an Act in two comparatively recent decisions of the House of Lords: see Government of Canada v Aronson [1990] 1 AC 579 at 610 (per Lord Lowry) and British Amusement Catering Trades Association v Westminster City Council [1989] AC 147 at 158; see also Elazac Pty Ltd v Commissioner of Patents [1994] FCA 1315 ; (1994) 53 FCR 86 at 90.
Case: Elazac Pty Ltd v Commissioner of Patents [1994] FCA 1315 ; (1994) 53 FCR 86
Outcome: cited
Contemporaneous regulations have been called in aid in construing an Act in two comparatively recent decisions of the House of Lords: see Government of Canada v Aronson [1990] 1 AC 579 at 610 (per Lord Lowry) and British Amusement Catering Trades Association v Westminster City Council [1989] AC 147 at 158; see also Elazac Pty Ltd v Commissioner of Patents [1994] FCA 1315 ; (1994) 53 FCR 86 at 90.
Case: Government of Canada v Aronson [1990] 1 AC 579
Outcome: cited
Contemporaneous regulations have been called in aid in construing an Act in two comparatively recent decisions of the House of Lords: see Government of Canada v Aronson [1990] 1 AC 579 at 610 (per Lord Lowry) and British Amusement Catering Trades Association v Westminster City Council [1989] AC 147 at 158; see also Elazac Pty Ltd v Commissioner of Patents [1994] FCA 1315 ; (1994) 53 FCR 86 at 90.
Case: Hanlon v The Law Society [1981] AC 124
Outcome: cited
The principles that govern the use of regulations in construing the statute under which they are made were stated by Lord Lowry in Hanlon v The Law Society [1981] AC 124 at 193-194 as follows: (1) Subordinate legislation may be used in order to construe the parent Act, but only where power is given to amend the Act by regulations or where the meaning of the Act is ambiguous. (2) Regulations made under the Act provide a Parliamentary or administrative contemporanea expositio of the Act but do not decide or control its meaning: to allow this would be to substitute the rule-making authority for the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires. (3) Regulations which are consistent with a certain interpretation of the Act tend to confirm that interpretation. (4) Where the Act provides a framework built on by contemporaneously prepared regulations, the latter may be a reliable guide to the meaning of the former. (5) The regulations are a clear guide, and may be decisive, when they are made in pursuance of a power to modify the Act, particularly if they come into operation on the same day as the Act which they modify. (6) Clear guidance may also be obtained from regulations which are to have effect as if enacted in the parent Act. Number (4) is applicable to the present case.
Case: Morton v The Union Steamship Company of New Zealand Limited [1951] HCA 42 ; (1951) 83 CLR 402
Outcome: distinguished
The respondents relied on Morton v The Union Steamship Company of New Zealand Limited [1951] HCA 42 ; (1951) 83 CLR 402. In that case the High Court held (at 410) that reg 188 of the Excise Regulations 1925 (Cth) were ultra vires the Excise Act 1901 (Cth) and void because regulations cannot vary or depart from the positive provisions made by the Act or... go outside the field of operation which the Act marks out for itself. The regulation in question was invalid because it imposed "a distinct and independent addition of liability to the liabilities which the legislature has provided" (at 412). 18 In the present case the respondents eschewed any argument that reg 2.14 was ultra vires and therefore void. 19 The present case is not like Morton where the statute covered the field and left no room for regulations. On the contrary, the scheme of both Old Act and New Act is to leave to the regulations questions of who may enforce.
Case: Thorn EMI Pty Ltd v Commissioner of Taxation (1987) 13 FCR 491
Outcome: cited
In Thorn EMI Pty Ltd v Commissioner of Taxation (1987) 13 FCR 491 at 498 Beaumont J, in the context of the sales tax legislative scheme, said: It may be accepted, as a general proposition, that "the intention of Parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised" (per Brennan J in Webster v McIntosh (1980) 49 FLR 317 at 321.) On the other hand, as Mason J observed in the course of argument in Brayson Motors Pty Ltd (In Liq) v Federal Commissioner of Taxation [1985] HCA 20 ; (1985) 156 CLR 651 at 652: One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is. In the present context, it has been settled since the decision in Deputy Federal Commissioner of Taxation (SA) v Ellis &amp; Clark Ltd [1934] HCA 54 ; (1934) 52 CLR 85 , that the Sales Tax Regulations are an essential part of the legislative scheme (see, especially, per Dixon J at 89). This approach was affirmed recently in Brayson Motors (supra, at 657) and it is unnecessary to pursue the questions which could arise in other contexts (cf Neill v Glacier Metal Co Ltd [1965] 1 QB 16 at 27; Jackson v Hall [1980] AC 854 at 884, 889; Bennion, opcit, at p 146). In my opinion, reference to the Sales Tax Regulations, including reg 14A(2), is not merely permissible; it is essential to an understanding of the legislative plan.
Case: Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (2007) ATPR p42-210
Outcome: cited
Commission relies on s 6 of the Trade Practices Act to extend the operation of s 45 to natural persons if their conduct relates to trade with Australia. This would make the liability of the individual respondents direct and not ancillary to that of the corporate respondents. There was some discussion of the availability of that section in Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (2007) ATPR p42-210. The Commission points to the various positions of employment of the individual April foreign respondents, the structure of the APRIL Group's operations, the nature of the meetings and the arrangements entered into to infer that the individuals were present on behalf of each of April FPT, April Holdings and April Management and that the relevant conduct was engaged in on behalf of those corporate respondents. Annexed to these reasons (Annexure A) is a chart provided by the Commission of the structure of the APRIL Group and the position of the individual April foreign respondents within that structure. The evidence supports the conclusions drawn in the chart as to the relationship of the corporations and individuals named. The evidence also provides the basis for an inference that Mr Lim and Mr Choo were officers of April FPT, April Holdings and April Management in the capacity of being very senior sales and marketing executives with regional, if not worldwide, responsibilities, so that the conduct of the individuals is attributable to those corporations.
Case: Beluga Shipping GmbH &amp; Co KS "Beluga Fantastic" v Headway Shipping Ltd (No 2) [2008] FCA 1770 ; (2008) 251 ALR 620
Outcome: cited
question is whether, on the material before the Court, facts are established or inferences are open which, if translated into findings of fact, would support the relief claimed. The reference in these reasons to the evidence and conclusions should be understood as referring to what the evidence establishes and what conclusions may be drawn at a prima facie level. The material relied upon by the Commission is in the form of untested allegations and evidence but it is appropriate to proceed on the basis of them in order to assess whether facts are established and inferences can be drawn which would establish a prima facie case ( Beluga Shipping GmbH &amp; Co KS "Beluga Fantastic" v Headway Shipping Ltd (No 2) [2008] FCA 1770 ; (2008) 251 ALR 620 at [32] per Rares J). The prima facie case against the April foreign respondents The Commission's case is that individuals employed within the APRIL Group and representing each of April FPT, April Holdings and April Management attended meetings of a club called the AAA Club at which price fixing agreements were made, being arrangements or understandings within the meaning of the Trade Practices Act and the Codes. The AAA Club refers to an alleged loose association or club, the members of which were the APRIL Group, the Advance Agro Group and the APP Group, as well as the Thai Paper Group and the UPM Group. The case made by the Commission is that the primary object of the AAA Club was to discuss and reach consensus about prices at which each group of companies would supply paper products in various markets, including Australia.
Case: Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317
Outcome: referred to
Commission needs to establish a prima facie case for the relief claimed. As the application for leave to serve outside the jurisdiction is interlocutory in nature, hearsay evidence is admissible ( Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 at [58]). It is not necessary to establish a prima facie case for the relief sought pursuant to each of the causes of action relied upon. It is sufficient if a prima facie case for the relief sought is made out for any one of the causes of action relied upon ( Bray at [47]-[55] per Carr J and [176]-[190] per Branson J).
Case: Brookfield Multiplex Limited v International Litigation Funding Partners PTE Ltd [2008] FCA 1769
Outcome: referred to
any event, the Commission submits that the question of discretion is not the overriding consideration in the grant of leave to serve outside the jurisdiction. It relies on what was said by Finkelstein J in Brookfield Multiplex Limited v International Litigation Funding Partners PTE Ltd [2008] FCA 1769 at [7] to the effect that, if the conditions provided for in O 8 r 3 are satisfied, it usually follows that leave to serve outside the jurisdiction will be granted. As it was put by Black CJ and Finkelstein J in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 ; (2006) 154 FCR 425 at [3] , if the required conditions for leave are fulfilled, leave should be given in the absence of some countervailing consideration. Their Honours said at [10] that, provided the jurisdiction of the Court is engaged by an action in respect of subject matter with which the Court can deal, the action is instituted by an applicant who has standing, the action is not oppressive, vexatious or otherwise an abuse of process and the Court can assume jurisdiction over the defendant, the Court cannot refuse to adjudicate the dispute. Their Honours continued at [11] to express the opinion that it would be ' curious and anomalous if matters that could not be raised in answer to the appellant's claim by a defendant served within the jurisdiction could nevertheless be taken into account when deciding whether to allow service out of the jurisdiction '.
Case: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 ; (2006) 154 FCR 425
Outcome: referred to
any event, the Commission submits that the question of discretion is not the overriding consideration in the grant of leave to serve outside the jurisdiction. It relies on what was said by Finkelstein J in Brookfield Multiplex Limited v International Litigation Funding Partners PTE Ltd [2008] FCA 1769 at [7] to the effect that, if the conditions provided for in O 8 r 3 are satisfied, it usually follows that leave to serve outside the jurisdiction will be granted. As it was put by Black CJ and Finkelstein J in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 ; (2006) 154 FCR 425 at [3] , if the required conditions for leave are fulfilled, leave should be given in the absence of some countervailing consideration. Their Honours said at [10] that, provided the jurisdiction of the Court is engaged by an action in respect of subject matter with which the Court can deal, the action is instituted by an applicant who has standing, the action is not oppressive, vexatious or otherwise an abuse of process and the Court can assume jurisdiction over the defendant, the Court cannot refuse to adjudicate the dispute. Their Honours continued at [11] to express the opinion that it would be ' curious and anomalous if matters that could not be raised in answer to the appellant's claim by a defendant served within the jurisdiction could nevertheless be taken into account when deciding whether to allow service out of the jurisdiction '.
Case: Webster Computer Systems Pty Ltd v Fujitsu Ltd [2007] FCA 825
Outcome: cited
proceeding is of a kind described in Item 13 of the Table to O 8 r 2. It is sufficient for the grant of leave if any one of the causes of action falls within an item in the Table to O 8 r 2 ( Webster Computer Systems Pty Ltd v Fujitsu Ltd [2007] FCA 825 at [11] and [12] per Conti J). The Commission relies upon other items listed in the Table to O 8 r 2. It is not necessary for the purposes of this application to consider those further. Prima facie case for the relief claimed
Case: Canadian Aero Service Ltd v O'Malley 40 DLR (3d) 371
Outcome: referred to
The principles upon which the applicants rely are not in dispute. They are established in two authorities of the High Court and by a Canadian authority. The High Court authorities are Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165 at [78] and Consul Developments Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8 ; (1975) 132 CLR 373 at 393. The Canadian authority is the decision in Canadian Aero Service Ltd v O'Malley 40 DLR (3d) 371 ( 'Canaero' ). The statements of principle in the Canaero decision were set out in the judgment of Laskin J at 382, as follows: In my opinion, this ethic disqualifies a director or senior officer from usurping for himself or diverting to another person or company with whom or with which he is associated a maturing business opportunity which his company is actively pursuing; he is also precluded from so acting even after his resignation where the resignation may fairly be said to have been prompted or influenced by a wish to acquire for himself the opportunity sought by the company, or where it was his position with the company rather than a fresh initiative that lead him to the opportunity which he later acquired.
Case: Consul Developments Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8 ; (1975) 132 CLR 373
Outcome: referred to
The principles upon which the applicants rely are not in dispute. They are established in two authorities of the High Court and by a Canadian authority. The High Court authorities are Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165 at [78] and Consul Developments Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8 ; (1975) 132 CLR 373 at 393. The Canadian authority is the decision in Canadian Aero Service Ltd v O'Malley 40 DLR (3d) 371 ( 'Canaero' ). The statements of principle in the Canaero decision were set out in the judgment of Laskin J at 382, as follows: In my opinion, this ethic disqualifies a director or senior officer from usurping for himself or diverting to another person or company with whom or with which he is associated a maturing business opportunity which his company is actively pursuing; he is also precluded from so acting even after his resignation where the resignation may fairly be said to have been prompted or influenced by a wish to acquire for himself the opportunity sought by the company, or where it was his position with the company rather than a fresh initiative that lead him to the opportunity which he later acquired.
Case: Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165
Outcome: referred to
The principles upon which the applicants rely are not in dispute. They are established in two authorities of the High Court and by a Canadian authority. The High Court authorities are Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165 at [78] and Consul Developments Pty Ltd v DPC Estates Pty Ltd [1975] HCA 8 ; (1975) 132 CLR 373 at 393. The Canadian authority is the decision in Canadian Aero Service Ltd v O'Malley 40 DLR (3d) 371 ( 'Canaero' ). The statements of principle in the Canaero decision were set out in the judgment of Laskin J at 382, as follows: In my opinion, this ethic disqualifies a director or senior officer from usurping for himself or diverting to another person or company with whom or with which he is associated a maturing business opportunity which his company is actively pursuing; he is also precluded from so acting even after his resignation where the resignation may fairly be said to have been prompted or influenced by a wish to acquire for himself the opportunity sought by the company, or where it was his position with the company rather than a fresh initiative that lead him to the opportunity which he later acquired.
Case: Ridgeway International Ltd v McCullum (unreported, Supreme Court of New South Wales (Equity Division), Bryson J, 9 April 1998)
Outcome: referred to
Canaero has been referred to in Australia with approval in the decision of Bryson J in Ridgeway International Ltd v McCullum (unreported, Supreme Court of New South Wales (Equity Division), 9 April 1998); see also Meagher R, Heydon D &amp; Leeming M, Equity Doctrines &amp; Remedies (4 th ed, Butterworths LexisNexis, 2002) at [5-100]. 8 No evidence was filed by the respondents to suggest that Mr Uhlen, or the other respondents, would suffer any hardship or inconvenience or any practical difficulties as a result of the continuation of Order 3(a). However, three matters were raised by Mr Greenwood SC who appeared for Mr Uhlen, and I will address Mr Greenwood's points. 9 First Mr Greenwood cross-examined Mr Wolfe, the Managing Director of Tennant, to suggest that the applicants would not be able to meet their undertakings as to damages. Mr Wolfe's evidence on this issue was not entirely satisfactory. It is true that he was given no advance warning, but I would have expected him to have a better knowledge of the financial position of the company than he revealed this morning. Nevertheless, I am satisfied on the basis of Mr Wolfe's evidence that the applicants are in a position to meet the undertaking.
Case: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: cited
Under s 424A "the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". However, the obligation does not apply to: &#8226; information which the applicant gives the Tribunal, regardless of when that information is given: s 424A(3)(b) , McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 175; or &#8226; all information the Tribunal receives. The section only applies to information that the Tribunal considers "would form part of its reason for refusing the application for review". Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at 40; McHugh J in SAAP 215 ALR at 175, Allsop J in SZEEU 150 FCR at 262.
Case: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) FCAFC 61
Outcome: cited
As submitted, in my view correctly, by Mr Braham for the respondent, s 422B of the Act clearly provides that the rules of natural justice are exhaustively described in the provisions of Pt 7 Div 4 of the Act (cf comments of the Full Court in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) FCAFC 61). Section 422B applies to applications for visas made on or after 4 July 2002 (Item 7 of Sch 1 of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)), including the application before me. There are no provisions in Pt 7 Div 4 requiring the Tribunal to undertake an investigation in the form sought by the appellant, or entitling the appellant to such an investigation. As pointed out by the Full Court in Applicant M164 (2006) FCAFC 16 at [75] : Although it is plain that s 427(1)(d) of the Act provides the Tribunal with a discretion to initiate an investigation and receive a report and does not impose a duty on the Tribunal to do so, it is an empowering provision that is intended to assist the Tribunal to better perform its duties as an inquisitorial body to inquire, to be informed, and to decide.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
Under s 424A "the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". However, the obligation does not apply to: &#8226; information which the applicant gives the Tribunal, regardless of when that information is given: s 424A(3)(b) , McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 175; or &#8226; all information the Tribunal receives. The section only applies to information that the Tribunal considers "would form part of its reason for refusing the application for review". Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at 40; McHugh J in SAAP 215 ALR at 175, Allsop J in SZEEU 150 FCR at 262.