mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: referred to
course that argument leaves unscathed the Board's conclusion on the first point that is, that CAP had acted contrary to express instructions. It follows, therefore, that the Board's power to suspend CAP arose independently of the error I have identified. However, whilst that may be so, the Board's view of the status of the cheque was obviously relevant to the extent of any suspension it imposed. That being so, it was the commission of an error of law which effected the discharge by the Board of its powers. It was, therefore, a jurisdictional error in the sense discussed in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron &amp; McHugh JJ. There are, so it seems to me, no discretionary reasons not to quash the Board's suspension. On 30 March 2009, the Board also suspended David's registration as a tax agent. A number of complaints were made about that step. For present purposes, however, it is clear that David's suspension followed on from CAP's suspension. Since I have concluded that CAP's suspension should be set aside it follows that David's must be set aside as well. (c) The natural justice issue Since I have concluded that the second suspension notice should be set aside, it is not necessary strictly to deal with CAP's arguments about natural justice. Had it been, I would have rejected them. The first argument was that the Board was obliged to permit CAP to cross-examine the complainant. Procedural fairness may so require in appropriate, if somewhat rare, circumstances. Here, however, the circumstances included the interim nature of the Board's act of suspension and the relatively short duration of the suspension.
Case: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1
Outcome: cited
an inferior statutory court the Local Court does not have any inherent jurisdiction. It does, however, have a narrower implied jurisdiction which arises upon the principle that a grant of power carries with it everything necessary for its exercise: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16-17 per Dawson J (with whom Mason CJ, Brennan and Toohey JJ agreed). In New South Wales much ink has been spilled on the question of whether that implied power extends to the making of non-publication orders which are rooted in notions of contempt: cf. John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 ; (2004) 61 NSWLR 344 at 356-366 [38] - [99] per Spigelman CJ.
Case: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Outcome: cited
submits that this second suspension should be set aside because it is, in effect, an act of double punishment. In my opinion, this contention should be rejected. I would accept that, generally speaking, an administrative power of suspension such as that conferred by s 251K(2)(b) may not be used more than once in relation to a single episode of conduct. This is so because it is appropriate if the text permits to interpret such powers in a way which is consistent with notions of good administration and finality: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 at [64] per Nettle JA (with whom Warren CJ and Chernov JA agreed). Here, there is nothing in the text of s 251K(2)(b) which would suggest that, in an ordinary case, it can be used to inflict a sanction repeatedly for the same conduct. This is not to accept any application in disciplinary matters of principles of issue estoppel, a course barred by established authority: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635 per Gleeson CJ, Meagher and Handley JJA. Rather, it is simply to give effect to the meaning of the words in s 251K(2)(b).
Case: John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 ; (2004) 61 NSWLR 344
Outcome: referred to
an inferior statutory court the Local Court does not have any inherent jurisdiction. It does, however, have a narrower implied jurisdiction which arises upon the principle that a grant of power carries with it everything necessary for its exercise: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16-17 per Dawson J (with whom Mason CJ, Brennan and Toohey JJ agreed). In New South Wales much ink has been spilled on the question of whether that implied power extends to the making of non-publication orders which are rooted in notions of contempt: cf. John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 ; (2004) 61 NSWLR 344 at 356-366 [38] - [99] per Spigelman CJ. For present purposes, what is relevant is the general acceptance that the inherent jurisdiction of the Supreme Court of a State extends to the protection of the jurisdiction of courts involved in the administration of justice in the State: John Fairfax Publications at 354 [27] per Spigelman CJ. That emerges from the Supreme Court's ultimate supervisory jurisdiction over the administration of justice. By contrast, this Court does not have a general supervisory jurisdiction over the administration of justice in New South Wales (or any other State). Thus, the mere fact that the Board's processes might constitute contempt of the Local Court is not, without more, sufficient to attract this Court's jurisdiction.
Case: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301
Outcome: applied
submits that this second suspension should be set aside because it is, in effect, an act of double punishment. In my opinion, this contention should be rejected. I would accept that, generally speaking, an administrative power of suspension such as that conferred by s 251K(2)(b) may not be used more than once in relation to a single episode of conduct. This is so because it is appropriate if the text permits to interpret such powers in a way which is consistent with notions of good administration and finality: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 at [64] per Nettle JA (with whom Warren CJ and Chernov JA agreed). Here, there is nothing in the text of s 251K(2)(b) which would suggest that, in an ordinary case, it can be used to inflict a sanction repeatedly for the same conduct. This is not to accept any application in disciplinary matters of principles of issue estoppel, a course barred by established authority: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635 per Gleeson CJ, Meagher and Handley JJA. Rather, it is simply to give effect to the meaning of the words in s 251K(2)(b). However, accepting that to be so does not assist CAP. I would not regard that principle of interpretation as preventing such an administrative power of suspension from being used on an interim basis or in a preliminary or provisional way. Where a determination is expressed to be preliminary or interim the principle upon which the submission proceeds does not apply. In such a case, there has been no 'final' determination. In Kabourakis Nettle JA, at [50], set forth a passage from the reasons for judgement of Vaisey J in Re 56 Denton Road Twickenham [1953] 1 Ch 51 at 56-57 which was in these terms: ... where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affect be altered or withdrawn by that body. (Emphasis added.)
Case: McGuinness v Attorney-General (Vic) [1940] HCA 6 ; (1940) 63 CLR 73
Outcome: cited
then that the Court has jurisdiction to entertain the contempt argument against the Board, what are the relevant principles? Five propositions should, I think, be accepted. First , the existence of a parallel administrative inquiry is capable of constituting a contempt of criminal proceedings: McGuinness v Attorney-General (Vic) [1940] HCA 6 ; (1940) 63 CLR 73 at 85; Victoria v Australian Building Constructions Employees' and Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25 ("BLF") at 54 and 72; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 at 206. Secondly, whether it does so depends upon whether there is a real risk that the pursuit of the administrative investigation will prejudice, undermine or interfere with the conduct of those criminal proceedings: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299; BLF at 96. Thirdly , where the person facing prosecution is required to answer questions by such an inquiry this risk is particularly acute because of the capacity of such questions to undermine the accused person's right against self-incrimination. Fourthly , that risk will also be more pronounced where the identity of the prosecutor and the investigating body are the same or where they are connected in some way: Hammond at 207. Fifthly, a risk may well be shown where a person other than the accused is to be examined by the administrative inquiry: Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48 at 59-60 [54] - [56] .
Case: Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298
Outcome: applied
the provisions of the second limb of s 266 permit the making of a regulation which is "necessary or convenient to be prescribed for giving effect to this Act". The power conferred by s 266 involves a well known statutory formula which authorises regulations to be made strictly ancillary to the Act but no so as to extend its scope or general application: Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 328 per French J citing Shanahan v Scott [1957] HCA 4 ; (1957) 96 CLR 245 at 253-254. As those authorities show, the criteria of necessity and convenience are not subjective. That means that the question of whether any particular regulation is authorised turns upon the Court's assessment of the regulation's necessity or convenience. Is the garnering by the Board of information necessary or convenient for the purpose of permitting the Board to carry out its duties and functions? In my opinion, it is convenient so that the answer to this question must be yes. It follows that the regulation is also supportable under the second limb of s 266. WRONG ADDRESSEE
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
number of things may be said against this submission. The Board, despite the infelicity in the double negative, did ultimately express itself in the language of s 251K(2)(b) ; the Board is an administrative body whose decisions are to be construed in a practical and robust fashion and not with an eye attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. So read, the double negative involved in the Board's statement should be understood as if it were a positive statement. Mr Wright SC, who appeared with Ms Hirschhorn for the Board, put it neatly by suggesting that the language simply showed that the Board was keeping an open mind on the matter. There is force in each of these points but ultimately I cannot escape the conclusion that the Board did regard itself as entitled to suspend CAP if it failed to satisfy the Board that it had not misappropriated the cheque. I accept, of course, that notions such as the burden of proof have a limited role to play in administrative decision-making but that, I think, only highlights how the Board has not actually discharged its function correctly. For the power to be enlivened the Board had to be satisfied that there had been one of the events referred to in s 251K(2)(b). In the critical part of its reasons as opposed to the statement of its conclusions it does not appear to have been so satisfied. There was an error of law.
Case: O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1
Outcome: cited
applicants submitted that the view that s 251G did not prescribe a topic which permitted the production of information was supported by three authorities: Smorgon v Australia and New Zealand Banking Group Ltd [1976] HCA 53 ; (1976) 134 CLR 475 ; Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 ; O'Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1.
Case: Re 56 Denton Road Twickenham [1953] 1 Ch 51
Outcome: considered
accepting that to be so does not assist CAP. I would not regard that principle of interpretation as preventing such an administrative power of suspension from being used on an interim basis or in a preliminary or provisional way. Where a determination is expressed to be preliminary or interim the principle upon which the submission proceeds does not apply. In such a case, there has been no 'final' determination. In Kabourakis Nettle JA, at [50], set forth a passage from the reasons for judgement of Vaisey J in Re 56 Denton Road Twickenham [1953] 1 Ch 51 at 56-57 which was in these terms: ... where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affect be altered or withdrawn by that body. (Emphasis added.)
Case: Victoria v Australian Building Constructions Employees' and Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25
Outcome: cited
then that the Court has jurisdiction to entertain the contempt argument against the Board, what are the relevant principles? Five propositions should, I think, be accepted. First , the existence of a parallel administrative inquiry is capable of constituting a contempt of criminal proceedings: McGuinness v Attorney-General (Vic) [1940] HCA 6 ; (1940) 63 CLR 73 at 85; Victoria v Australian Building Constructions Employees' and Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25 ("BLF") at 54 and 72; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 at 206. Secondly, whether it does so depends upon whether there is a real risk that the pursuit of the administrative investigation will prejudice, undermine or interfere with the conduct of those criminal proceedings: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299; BLF at 96. Thirdly , where the person facing prosecution is required to answer questions by such an inquiry this risk is particularly acute because of the capacity of such questions to undermine the accused person's right against self-incrimination. Fourthly , that risk will also be more pronounced where the identity of the prosecutor and the investigating body are the same or where they are connected in some way: Hammond at 207. Fifthly, a risk may well be shown where a person other than the accused is to be examined by the administrative inquiry: Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48 at 59-60 [54] - [56] .
Case: Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48
Outcome: cited
are a number of instances, of course, where this Court and the High Court in its original jurisdiction have assumed a jurisdiction in relation to criminal proceedings then pending before a State court: Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 ; Commissioner of Taxation v De Vonk (1995) 61 FCR 564 ; Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48. However, in each of those cases the proceedings pending in the State court involved the alleged commission of a crime against a law of the Commonwealth. In Hammond, Mr Hammond had been charged with conspiracy in relation to the substitution of kangaroo meat for beef in the export market, apparently an offence against s 86(1)(a) of the Crimes Act 1914 (Cth). Not only that, but the prosecuting body was the Commonwealth as were, effectively, the commissioners conducting the Royal Commission. In De Vonk , the applicant was charged with conspiring to defraud the Commonwealth as was Mr Watson in Watson . In each case, the question of whether a contempt was being committed was part of a matter arising under a law made by the Parliament or in which the Commonwealth was a party. Federal jurisdiction was, therefore, clear. Granted then that the Court has jurisdiction to entertain the contempt argument against the Board, what are the relevant principles? Five propositions should, I think, be accepted. First , the existence of a parallel administrative inquiry is capable of constituting a contempt of criminal proceedings: McGuinness v Attorney-General (Vic) [1940] HCA 6 ; (1940) 63 CLR 73 at 85; Victoria v Australian Building Constructions Employees' and Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25 ("BLF") at 54 and 72; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 at 206. Secondly, whether it does so depends upon whether there is a real risk that the pursuit of the administrative investigation will prejudice, undermine or interfere with the conduct of those criminal proceedings: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299; BLF at 96. Thirdly , where the person facing prosecution is required to answer questions by such an inquiry this risk is particularly acute because of the capacity of such questions to undermine the accused person's right against self-incrimination. Fourthly , that risk will also be more pronounced where the identity of the prosecutor and the investigating body are the same or where they are connected in some way: Hammond at 207. Fifthly, a risk may well be shown where a person other than the accused is to be examined by the administrative inquiry: Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48 at 59-60 [54] - [56] .
Case: Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886 ; (2000) 106 FCR 51 
Outcome: applied
The nature of tendency evidence was considered in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886 ; (2000) 106 FCR 51 by Sackville J, with whom Whitlam and Mansfield JJ agreed. In that case the appellant alleged that the respondent's agent had made misrepresentations which induced the appellant to lease certain premises in a shopping centre. The appellant sought to adduce evidence that the agent had made similar representations to other prospective tenants of the shopping centre. Sackville J accepted that the admissibility of the evidence sought to be adduced was to be determined by reference to s 97 as evidence that the agent had a tendency to act in a particular way. 81 In my view the affidavit evidence of Messrs Rowland, Setter and Gillogly referred to above is not relevantly distinguishable from the kind of evidence sought to be adduced in Jacara Pty Ltd v Perpetual Trustees WA Ltd . It is therefore to be regarded as tendency evidence falling within s 97. I note incidentally that in each case the evidence may, in any event, have been admissible in reply because of the evidence of Mr Adams that, in effect, he would never have said anything to the effect that 'there will be no wheat in Australia from March 2003 until the harvest begins in October '. The application on which I was invited to rule, however, was an application to adduce the evidence pursuant to s 97(1). 82 For the evidence of Messrs Rowland, Setter and Gillogly to be admissible under s 97(1) it was necessary for the requirements of both paragraphs (a) and (b) of the subsection to be satisfied. As mentioned above, Bective Station had given the notice required by paragraph (a). 83 In determining that their evidence had significant probative value I took into account that: (a) each of them gave evidence of a conversation with Mr Adams which took place within a few days of the conversation between Mr Vickery and Mr Adams; (b) each of them gave evidence of Mr Adams using language similar to the language which Mr Vickery claimed that Mr Adams had used in conversation with him; (c) each of them gave evidence of Mr Adams saying words to the effect that the supply of wheat could or would run out; and (d) Mr Adams' affidavit evidence was that he definitely did not say words to the effect that 'there will be no wheat in Australia from March 2003 until the harvest begins in October' as such a statement was, in his opinion, ridiculous because he could not conceive of any circumstances where the supply of wheat in Australia would ever run out.
Case: Port Jackson Stevedoring Proprietary Limited v Salmond &amp; Spraggon (Australia) Proprietary Limited [1978] HCA 8 ; (1978) 139 CLR 231 
Outcome: cited
A claim for damages for breach of contract must ordinarily be brought within six years from the date on which the cause of action accrued ( Limitation of Actions Act 1958 (Vic) s 5 ; Limitation Act 1969 (NSW) s 14). However, the parties to the contract may agree a shorter limitation period ( Port Jackson Stevedoring Proprietary Limited v Salmond &amp; Spraggon (Australia) Proprietary Limited [1978] HCA 8 ; (1978) 139 CLR 231 per Barwick CJ at 239-9). 36 The parties are in agreement that the time within which AWBA was obliged to institute a proceeding to recover damages from Bective Station for breach of the Second Contract is governed by the Second Contract, and in particular by the Standard Terms. However, there is a dispute between the parties as to the proper construction of the Standard Terms in this regard. 37 Bective Station placed reliance on clause 9 of the Standard Terms and argued that as the cross-claim was not filed within 12 months of the termination of the Second Contract it is time barred. The cross-claim was filed on 24 March 2005.
Case: Ronnoc Finance v Spectrum Network Systems Ltd (1997) 45 NSWLR 624 
Outcome: referred to
In Sunbird Plaza Gaudron J at 273 said: '... there is no loss of bargain whilst the contract remains on foot. It is for this reason that a vendor must bring his contractual obligation to sell to an end before he can maintain an action for damages for loss of bargain' . (citations omitted) See also Ronnoc Finance v Spectrum Network Systems Ltd (1997) 45 NSWLR 624.
Case: Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11 ; (1988) 166 CLR 245 
Outcome: cited
As Mason CJ, with whom Deane, Dawson and Toohey JJ agreed, observed in Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11 ; (1988) 166 CLR 245 at 260-261: 'Loss of bargain damages are recoverable only if the contract is at an end. Once termination due to the defendant's wrongful conduct is established the plaintiff is entitled to damages for loss of bargain ... Barwick C.J. suggested in Ogle [ Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21 ; (1976) 136 CLR 444 at 450], that termination is not an essential element in an action for loss of bargain damages, except in the case of anticipatory breach, but the preponderant opinion in Australia and England is against his view' . (citations omitted) 33 In Sunbird Plaza Gaudron J at 273 said: '... there is no loss of bargain whilst the contract remains on foot. It is for this reason that a vendor must bring his contractual obligation to sell to an end before he can maintain an action for damages for loss of bargain' . (citations omitted) See also Ronnoc Finance v Spectrum Network Systems Ltd (1997) 45 NSWLR 624.