mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: followed
There has been simply no compliance with the time limits imposed by s 477. The time limits imposed by s 477 are " strict and effective " and are an " essential part of the grant of jurisdiction " to the Federal Magistrates Court: cf SZICV v Minister for Immigration &amp; Citizenship [2007] FCAFC 39 at [67] per Buchanan J (Besanko J agreeing at [18]), [2007] FCAFC 39 ; 158 FCR 260 at 274. Time limits prescribed prior to the introduction of s 477 were similarly construed: WACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] HCA 50 , 210 ALR 190. It is not considered that the decision of the Federal Magistrates Court is attendant with sufficient doubt to warrant the grant of leave to appeal: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398 9.
Case: SZDGN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1543
Outcome: followed
The decision of the Federal Magistrates Court dismissing the application is, it is considered, an interlocutory decision for the purposes of appeal rights: SZDGN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1543 at [6] per Lindgren J; Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541. Accordingly, leave to appeal is required. The Applicant by the form of his Application acknowledges as much. He also acknowledges that an extension of time is also required: cf Nguyen v Minister for Immigration &amp; Citizenship [2007] FCAFC 38 at [18] .
Case: SZICV v Minister for Immigration &amp; Citizenship [2007] FCAFC 39
Outcome: considered
There has been simply no compliance with the time limits imposed by s 477. The time limits imposed by s 477 are " strict and effective " and are an " essential part of the grant of jurisdiction " to the Federal Magistrates Court: cf SZICV v Minister for Immigration &amp; Citizenship [2007] FCAFC 39 at [67] per Buchanan J (Besanko J agreeing at [18]), [2007] FCAFC 39 ; 158 FCR 260 at 274. Time limits prescribed prior to the introduction of s 477 were similarly construed: WACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] HCA 50 , 210 ALR 190. It is not considered that the decision of the Federal Magistrates Court is attendant with sufficient doubt to warrant the grant of leave to appeal: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398 9.
Case: SZKET v Minister for Immigration &amp; Citizenship [2007] FCA 1705
Outcome: followed
Section 477(1) requires " actual (as opposed to deemed) notification of the decision " of the Tribunal. And " actual notification " requires delivery by hand: Minister for Immigration &amp; Citizenship v SZKKC [2007] FCAFC 105 at [37] , [2007] FCAFC 105 ; 159 FCR 565. See also SZKET v Minister for Immigration &amp; Citizenship [2007] FCA 1705.
Case: WACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] HCA 50 , 210 ALR 190
Outcome: followed
There has been simply no compliance with the time limits imposed by s 477. The time limits imposed by s 477 are " strict and effective " and are an " essential part of the grant of jurisdiction " to the Federal Magistrates Court: cf SZICV v Minister for Immigration &amp; Citizenship [2007] FCAFC 39 at [67] per Buchanan J (Besanko J agreeing at [18]), [2007] FCAFC 39 ; 158 FCR 260 at 274. Time limits prescribed prior to the introduction of s 477 were similarly construed: WACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] HCA 50 , 210 ALR 190. It is not considered that the decision of the Federal Magistrates Court is attendant with sufficient doubt to warrant the grant of leave to appeal: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398 9.
Case: Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459
Outcome: cited
For the plaintiffs to succeed in this proceeding they will need to establish that the defendant has acted oppressively, in the sense of unfairly, to the members or to the plaintiffs: Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459.
Case: Jenkins v Enterprise Goldmines NL (1992) 6 ACSR 539
Outcome: applied
In Jenkins v Enterprise Goldmines NL (1992) 6 ACSR 539 at 550, the Full Court of the Supreme Court of Western Australia said: In our opinion the application of the test involves a question of fairness. It is for the court to decide whether in balancing the interests of the company as a whole against minority interests the directors have acted so as to unfairly prejudice the interests of the minority. The court decides this "according to ordinary standards of reasonableness and fair dealing". Whether the conduct is unfairly discriminatory will be judged on standards which reasonable directors with such skills as directors should have, acting bona fide, would think to be fair. 29 In Jenkins 6 ACSR 539 , the Court held that once the Court is satisfied that there has been oppression or unfairness within the meaning of s 232 "it is the obligation of the Court to grant whatever relief is best suited to deal with that conduct": p 561. The Court said at 562: There is nothing in any of the authorities, however, which would tend to place a limit on the grant by the court of an appropriate remedy once it is found that the conduct complained of is oppressive, unfairly prejudicial, or unfairly discriminatory. The powers given to the court are extremely wide. They include the power to make orders regulating the conduct of the affairs of the company in the future. This necessarily involves the court making orders which may interfere with the internal administration of the company. There is nothing in the language of s 320 which suggests that the court should be reluctant to interfere where that is necessary or desirable to give effective relief. There is express power to order the appointment of a receiver and manager. 30 In my respectful opinion, the Court's comments are consistent with the wide powers given to the Court by s 233 and the scheme of s 233 which gives an unfettered discretion to the Court to fashion the appropriate remedy for the particular circumstances proved at trial. 31 The plaintiffs' case is that the defendant, by reason of the conflict which its directors have as shareholders and directors of NBBC, has acted oppressively or unfairly to the members. If the plaintiffs succeed, then they will be entitled to argue for any of the relief which is available under s 233. The relief which will be granted will be determined by reference to the circumstances of the case and will be fashioned so as to ensure that the defendant does not act in such a way as to be unfair to any of its members.
Case: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401
Outcome: referred to
In Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 , French J said (at [19], [20] and [21]): The question which has to be answered in an application for judgment under s 31A is whether the party against whom the application is made has any "reasonable prospect" of successfully prosecuting or defending "the proceeding" or the "part of the proceeding" in issue. That question is not to be answered by a finding that a party's statement of claim or defence fails to disclose a reasonable cause of action or defence. A pleading may be rectified by amendment so as to raise a reasonable cause of action or defence. It follows that a finding that a pleading should be struck out under O 20 does not mean there must be judgment against the party whose pleading it is. There may yet, by amendment, be a reasonable prospect of successfully prosecuting or defending that proceeding. In order to secure judgment under s 31A it must be shown that the party prosecuting or defending the proceeding has no reasonable prospect of success. This judgment can be made, by reference to pleadings, where there is a defect in the pleadings which cannot be cured. Alternatively, it may be a judgment made by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established. ... Section 31A is not a vehicle for simply striking out parts of pleadings that are deficient. Section 31A allows for "judgment" or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of Court. ... 36 In my opinion, what the defendant here seeks to do is to strike out part of the pleading because as it is contended no court could give the relief which is sought, notwithstanding that s 233 of the Corporations Act allows for such relief. That is not an application under s 31A because it would not give rise to a judgment for the whole or part of the proceeding.
Case: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: applied
In White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 , Lindgren J said (at [50]): Section 31A of the FCA Act, like O 20 of the Rules, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form. Section 31A(1) is comparable to O 20, r 1 in that they are both concerned with summary judgment for the party who is prosecuting the proceeding. Section 31A(2) is comparable to O 20, r 2 in that they are both concerned with dismissals of proceedings. The word "judgment" in s 31A(2) is defined in s 4 of the FCA Act to mean "a judgment, decree or order, whether final or interlocutory, or a sentence". It is convenient in the context of the present case to think of the judgment to which s 31A(2) refers as an order of dismissal of a proceeding. 38 It is wrong to attempt to use s 31A for something for which it was not designed. It was not designed for the purpose of striking out an application or pleading or any part of a pleading for some defect in the application or pleading. It was designed to enable the Court to give judgment in respect of a proceeding or part of a proceeding when that proceeding or that part of the proceeding has no reasonable prospect of success. It is designed to deal with issues whether it be by way of a cause of action or an issue within a cause of action. It is not designed to attack the adequacy or the sufficiency of a pleading. 39 If any of the prayers for relief were struck out as sought, the Court would not thereby be giving judgment in favour of the defendant for the proceeding or part of the proceeding. The Court could not on the defendant's application give judgment on any part of the proceeding.
Case: Re William Brooks &amp; Co Ltd [1962] NSWLR 142
Outcome: cited
The defendant submitted that the winding up of a publicly listed company in the absence of insolvency even for oppression is virtually unheard of, citing, so it was contended, the last reported case Re William Brooks &amp; Co Ltd [1962] NSWLR 142 where a winding up order was set aside by consent in the High Court.
Case: Re Weedmans Ltd (1974) Qd R 377
Outcome: referred to
I think that contention is incorrect. In Re Weedmans Ltd (1974) Qd R 377 the company was listed on the Brisbane Stock Exchange: p 382. The trial judge (Lucas J) found that the directors of the company had acted in the affairs of the company in their own interests rather than in the interests of the members as a whole. He found that they had failed "to observe the requisite standard of commercial morality" and their conduct "reacted unfairly and unjustly against other members": p 398. He ordered the company to be wound up as "it seems to me that no other remedy is available to them": p 399.
Case: Latimer Holdings Ltd v SEA Holdings NZ Ltd [2005] 2 NZLR 328
Outcome: distinguished
The defendant relied upon a decision of the Court of Appeal in New Zealand in Latimer Holdings Ltd v SEA Holdings NZ Ltd [2005] 2 NZLR 328 in which the Court of Appeal upheld a decision of a trial judge to enter summary judgment against plaintiffs in an application for oppression. 61 However, I do not think that that case supports the defendant's contention. It was argued in that case that the equivalent to s 232 and s 233 of the Corporations Act , s 174 of the Companies Act (NZ) , did not apply to a publicly listed company. However, the Court said (at [113]): The operative words of the provision express a general principle which is directed to "an unjust detriment to the interests of a member of the company" (Thomas at p693). That test is an objective one. The provision may be prayed in aid even if the conduct accords with the company's constitution, because even then inappropriate prejudice may still arise. Relief can be given even if the conduct complained of does not involve a want of good faith or a lack of probity. The fact that all members are treated uniformly as members will not necessarily make conduct fair. The reasonable expectations of members are distinctly relevant though this factor is not in and of itself necessarily determinative and those expectations are not necessarily restricted to purely "internal", or "formal" expectations. There are no fixed categories of cases to which s 174 apply. The provision is one of general application. Relief may be sought even with respect to a listed company. 62 In the circumstances of that case, however, the Court agreed with the trial judge that it was appropriate for him to have entered summary judgment. 63 I do not think that s 233(1)(a) is not available as a remedy because the defendant is a publicly listed company. I agree, with respect, that there is nothing in s 233 or the Corporations Act which suggests that s 233(1)(a) has no application to a publicly listed company.
Case: Cumberland Holdings Ltd v Washington H Soul Pattinson &amp; Company Ltd (1977) 2 ACLR 307
Outcome: cited
I would accept, however, that it would be a rare circumstance where an order of that kind would be made and even rarer where the company is shown to be solvent. In the absence of a strong case and a clear need for the relief, the Court would not take the extreme step of winding up a solvent company: Cumberland Holdings Ltd v Washington H Soul Pattinson &amp; Company Ltd (1977) 2 ACLR 307. 65 Now is not the time to enquire into the financial health of the defendant or to determine whether it is solvent. It is not alleged by the plaintiffs that the defendant is insolvent. It is not in the plaintiffs' interests to make such a case. 66 The following matters can be noted. First, the defendant's financial statements have been prepared upon the basis that the defendant is a going concern. Secondly, the defendant's auditor's opinion is unqualified. Thirdly, the defendant, being a publicly listed company on the ASX, has reporting requirements which would include an obligation to advise the ASX of any changes in its financial circumstances.
Case: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Outcome: applied
Jurisdictional error is not established by simply identifying an incorrect finding of fact ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ). As to the contention that the matters were trivial, even if an inference appears to have been drawn as a result of illogical reasoning, provided there is some basis for the inference, there is no jurisdictional error or error of law to support jurisdictional review ( Bond at 356). As found by Smith FM, it was open to the Tribunal to conclude that the appellant had tailored his evidence in an attempt to meet its concerns as raised with the appellant at the hearing. 28 This ground of appeal does not succeed. 29 The Tribunal determined that the appellant's claims regarding the reasons for his dismissal from employment were not credible. The appellant contends that the Tribunal committed jurisdictional error by making a credibility finding against him without asking a question it should have asked, namely whether the hotel authorities took further action against Mr S after demoting him for his political involvement with the NJP.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280
Outcome: cited
That is not to say that the Tribunal must express findings that make explicit its degree of conviction or confidence that the findings are correct ( Rajalingam at [64]). The assessment of whether the Tribunal had real doubts is to be determined by reference to the Tribunal's reasons as a whole (at [67]): Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal's] own findings to be pursued. A 'fair reading' of the reasons incorporates the principle that the [Tribunal's] reasons should receive a 'beneficial construction' and should not be 'construed minutely and finely with an eye keenly attuned to the perception of error': Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal's] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution. [emphasis added]
Case: Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118
Outcome: cited
At [25] Smith FM acknowledged the doubts expressed in Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [31] about the ability to tell truth from falsehood on the basis of appearances of witnesses, without basing conclusions as far as possible on contemporary materials, objective facts and the logic of events. His Honour found (at [26]) that: ... the difficulty facing the ... Tribunal in a case such as the present is that it must assess the applicant's evidence given in an interview, without "contemporary material" nor "objectively established facts" which can provide easy tests of the credibility of the applicant's account of persecution. This leaves an assessment of "the apparent logic of events" in a refugee applicant's history as an important part of a credibility finding, and the present Tribunal has performed that assessment ... in my opinion the present Tribunal made no jurisdictional error by also putting significant weight upon its impression of the applicant as a witness. 16 The appellant submits that the Tribunal made its first credibility finding based only on demeanour and not on ' the apparent logic of events '. He says that there were no inconsistencies or contradictions in the evidence presented to the Tribunal. 17 The Tribunal's rejection of the appellant's claims was based upon several strands of reasoning, only one of which concerned the appellant's demeanour while giving evidence and the manner in which he gave evidence. As well as finding that the appellant's testimony appeared to be rehearsed, the Tribunal determined that the appellant had changed his evidence regarding his knowledge of the charges made against Mr Ibrahim in 2001. Further, the appellant's claim that he was dismissed from his job because of his political activities was found not to be credible because he failed to give a convincing explanation for the delay of nine months between the demonstration in which he participated and his dismissal. Moreover the Tribunal did not find it believable that the appellant would be dismissed from his job while another, more politically active, staff member ('Mr S') was only demoted.
Case: Guo v Minister for Immigration &amp; Ethnic Affairs (1996) 64 FCR 151
Outcome: cited
The appellant's submission that the Tribunal must apply the real chance test to each finding of fact in relation to past events claimed is misguided. So too is the appellant's attempt to overcome the High Court's reasoning in Guo by reliance on what was said to the contrary by Einfeld J at first instance ( Guo v Minister for Immigration &amp; Ethnic Affairs (1996) 64 FCR 151).
Case: Kalala v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1594 ; (2001) 114 FCR 212
Outcome: considered
Where the reasons did not suggest that the Tribunal had any real doubt in its findings of fact, such as where it states in clear terms that it did not accept the applicant's assertions, the Tribunal is not obliged to consider the applicant's chances of persecution by references to possibilities that it did not accept ( Rajalingam at [68]). Where the Tribunal is unsure as to whether events occurred, as understood from its reasons, it is obliged to consider the possibility that its findings of fact might not have been correct. The Tribunal then considers the chance of an applicant's persecution in the future on a standard less than the balance of probabilities ( Kalala v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1594 ; (2001) 114 FCR 212 at [25] per North and Madgwick JJ). In Kalala conclusions reached by the Tribunal as to whether certain events did or did not take place were attended by significant doubt. At [6] [7] North and Madgwick JJ stated that: There may be a real and substantial basis for thinking that past events, having a character relevant for the applicant's future, may have occurred notwithstanding either that the truth of the matter cannot be established or that it is actually unlikely that those events did occur. The same is true of imputing a relevant character to past events which themselves are either not in doubt or as to which it has been recognised that there is at least a real and substantial basis for concluding that they may have occurred. If there is, in the sense mentioned, an unacceptable risk that the events occurred or had such character, they are to be taken into account in assessing whether there is a real chance of Convention-related harm to the applicant. If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded.
Case: Minister for Immigration &amp; Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: considered
In Chan, McHugh J explained that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is as small as a 10 per cent chance and even if the evidence does not show that the persecution is more likely than not to occur (at 429). In support of his argument that the Tribunal applied the wrong test (the probability test) to his evidence, the appellant points to the High Court decision in Minister for Immigration &amp; Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. In Guo , the High Court emphasised that the "real chance" test is not a substitute for the Convention term "well-founded fear" (at 572). A fear is "well-founded" when there is a real substantial basis for it. It is not well founded if it is merely assumed or if it is mere speculation ( Guo at 572).