mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Haines (1937) 10 ABC 83
Outcome: referred to
The public and private importance of the change of status in making a party bankrupt is too well known to require detailed citation. It is not a matter merely between debtor and creditor. It affects creditors generally and the public. The bankrupt, while bankrupt, has his or her status changed. Conduct which might otherwise be innocent may become punishable at law. There remains a stigma to the person, often as a mark of failure in life, sometimes of a particularly humiliating character. Though in a dissenting judgment, the seriousness of the matter was luminously expressed by Deane J in Kleinwort Benson Australia Pty Ltd v Crowl [1988] HCA 34 ; (1999) 165 CLR 71 at 82. The public and private interest in discharge or annulment can be seen in many cases such as Re Barton (1980) 43 FLR 245, Re Stainton; Ex parte Board of Trade (1887) 19 QBD 182, Re Haines (1937) 10 ABC 83, Re Gray (1960) 19 ABC 29 and Re Prince (1961) 19 ABC 39 and see also Ex parte Selby; in the matter of Selby and Norton (1855) 43 ER 1437 per Lord Justice Knight-Bruce.
Case: Re Pepper (1969) 14 FLR 282 
Outcome: discussed
The first argument is that the first Naylor proposal was an impermissible joint or unitary composition. Section 73 , it was submitted, did not permit two bankrupts to put a proposal in one document. I do not agree. The proposal was joint and several. Section 73 requires a proposal to the bankrupts' creditors. There is no reason why one proposal cannot be put forward, as long as it was put forward to all three groups of creditors, as it plainly was and was intended to be. The proposal, if put to a meeting of an individual body of creditors, can be seen as a proposal put forward by the bankrupt for his creditors to deal with. It is said that the proposal to each estate cannot come in the same joint form and that three cases stand as authority for that proposition; Re Pepper (1969) 14 FLR 282 , Re Tynan; Ex parte Tynan (1997) 16 FCR 307 and Re Edwards (1987) 14 FCR 113. 63 In Re Pepper 14 FLR 282, Gibbs J (as he then was) decided that s 55(1) of the Bankruptcy Act , permitting a debtor to present a petition against himself, did not permit a number of debtors to present a joint petition. This construction was reached because the contrary would have permitted not only joint debtors, that is, debtors to a joint obligation, but several debtors who had no joint assets to present a petition. This case is of no particular assistance here, where as long as the proposal was one which the individual creditors of the individual bankrupt's estate can vote on, no inconvenience results therefrom. There is no inconvenience here of the kind referred to by Gibbs J in that case. 67 In Re Tynan 16 FCR 307, French J had a case before him where there were bankrupts who had been partners with no separate bankrupt estate. Some passages of the judgment of French J appear, taken literally, to prevent under s 73 any joint composition to be entered where there is more than one estate. I do not think his Honour's reasons should be so read, especially in the light of the terms of Re Edwards 119 FCR 113 in the same year. By his Honour's reference to Re Pepper 14 FLR 282 and Re Edwards 14 FCR 113 (and through it Re Forbes 24 FLR 97) and via what his Honour said at pages 312 and 313 about the need for separate meetings, I conclude that his Honour was dealing with the same essential difficulty, that is, of mixing up the voting of different creditors at different meetings.
Case: Re Prince (1961) 19 ABC 39
Outcome: referred to
The public and private importance of the change of status in making a party bankrupt is too well known to require detailed citation. It is not a matter merely between debtor and creditor. It affects creditors generally and the public. The bankrupt, while bankrupt, has his or her status changed. Conduct which might otherwise be innocent may become punishable at law. There remains a stigma to the person, often as a mark of failure in life, sometimes of a particularly humiliating character. Though in a dissenting judgment, the seriousness of the matter was luminously expressed by Deane J in Kleinwort Benson Australia Pty Ltd v Crowl [1988] HCA 34 ; (1999) 165 CLR 71 at 82. The public and private interest in discharge or annulment can be seen in many cases such as Re Barton (1980) 43 FLR 245, Re Stainton; Ex parte Board of Trade (1887) 19 QBD 182, Re Haines (1937) 10 ABC 83, Re Gray (1960) 19 ABC 29 and Re Prince (1961) 19 ABC 39 and see also Ex parte Selby; in the matter of Selby and Norton (1855) 43 ER 1437 per Lord Justice Knight-Bruce.
Case: Re Stainton (1887) 19 QBD 182
Outcome: referred to
The public and private importance of the change of status in making a party bankrupt is too well known to require detailed citation. It is not a matter merely between debtor and creditor. It affects creditors generally and the public. The bankrupt, while bankrupt, has his or her status changed. Conduct which might otherwise be innocent may become punishable at law. There remains a stigma to the person, often as a mark of failure in life, sometimes of a particularly humiliating character. Though in a dissenting judgment, the seriousness of the matter was luminously expressed by Deane J in Kleinwort Benson Australia Pty Ltd v Crowl [1988] HCA 34 ; (1999) 165 CLR 71 at 82. The public and private interest in discharge or annulment can be seen in many cases such as Re Barton (1980) 43 FLR 245, Re Stainton; Ex parte Board of Trade (1887) 19 QBD 182, Re Haines (1937) 10 ABC 83, Re Gray (1960) 19 ABC 29 and Re Prince (1961) 19 ABC 39 and see also Ex parte Selby; in the matter of Selby and Norton (1855) 43 ER 1437 per Lord Justice Knight-Bruce.
Case: Re Tynan; ex parte Tynan (1997) 16 FCR 307
Outcome: discussed
The first argument is that the first Naylor proposal was an impermissible joint or unitary composition. Section 73 , it was submitted, did not permit two bankrupts to put a proposal in one document. I do not agree. The proposal was joint and several. Section 73 requires a proposal to the bankrupts' creditors. There is no reason why one proposal cannot be put forward, as long as it was put forward to all three groups of creditors, as it plainly was and was intended to be. The proposal, if put to a meeting of an individual body of creditors, can be seen as a proposal put forward by the bankrupt for his creditors to deal with. It is said that the proposal to each estate cannot come in the same joint form and that three cases stand as authority for that proposition; Re Pepper (1969) 14 FLR 282 , Re Tynan; Ex parte Tynan (1997) 16 FCR 307 and Re Edwards (1987) 14 FCR 113. 67 In Re Tynan 16 FCR 307, French J had a case before him where there were bankrupts who had been partners with no separate bankrupt estate. Some passages of the judgment of French J appear, taken literally, to prevent under s 73 any joint composition to be entered where there is more than one estate. I do not think his Honour's reasons should be so read, especially in the light of the terms of Re Edwards 119 FCR 113 in the same year. By his Honour's reference to Re Pepper 14 FLR 282 and Re Edwards 14 FCR 113 (and through it Re Forbes 24 FLR 97) and via what his Honour said at pages 312 and 313 about the need for separate meetings, I conclude that his Honour was dealing with the same essential difficulty, that is, of mixing up the voting of different creditors at different meetings.
Case: Theissbacher v MacGregor Garrick &amp; Co [1993] 2 Qd R 223
Outcome: referred to
It goes without saying that the procedures required should be viewed from the perspective of the interests of all creditors. In a given case, which is not this one, a Court might look very carefully at any procedure leading to a composition dominated by creditors related to the bankrupt or reflecting a lack of commercial morality or sharp practice. Parliament, however, has chosen to provide in s 74(5) for the annulment and thus for the consequences that flow therefrom: Oates v Commissioner of Taxation (1990) 27 FCR 289 , Re Coyle (1993) 42 FCR 72 , Theissbacher v MacGregor Garrick &amp; Co [1993] 2 Qd R 223, Pascoe; in the matter of Hudson [2005] FCA 1421 , Worrall v Westpac Banking Corporation (1995) 51 FCR 304 and Union Club v Battenberg [2006] NSWCA 72 ; (2006) 66 NSWLR 1.
Case: Union Club v Battenberg [2006] NSWCA 72 ; (2006) 66 NSWLR 1
Outcome: referred to
It goes without saying that the procedures required should be viewed from the perspective of the interests of all creditors. In a given case, which is not this one, a Court might look very carefully at any procedure leading to a composition dominated by creditors related to the bankrupt or reflecting a lack of commercial morality or sharp practice. Parliament, however, has chosen to provide in s 74(5) for the annulment and thus for the consequences that flow therefrom: Oates v Commissioner of Taxation (1990) 27 FCR 289 , Re Coyle (1993) 42 FCR 72 , Theissbacher v MacGregor Garrick &amp; Co [1993] 2 Qd R 223, Pascoe; in the matter of Hudson [2005] FCA 1421 , Worrall v Westpac Banking Corporation (1995) 51 FCR 304 and Union Club v Battenberg [2006] NSWCA 72 ; (2006) 66 NSWLR 1.
Case: Van Reesema v Official Trustee (1983) 69 FLR 424 
Outcome: referred to
The applicants emphasise the expression used by Sheppard J in Van Reesema v Official Trustee in Bankruptcy (1983) 69 FLR 424 at 431 when his Honour used the expression "great power" of the trustee in bankruptcy in preventing a discharge from bankruptcy occurring by entering an objection to discharge. That expression was used by the Full Court in Prentice v Wood [2002] FCA 214 ; (2002) 119 FCR 296 at 300 in discussing the power in s 149C(1)(c). I do not find those expressions of any particular assistance in construing ss 73 and 74 and in ascertaining the statutory consequence of any failure to comply (if that occurred) with ss 73 and 74 .
Case: Wenkart v Pantzer [2003] FCA 432
Outcome: discussed
The next basis was that the first Naylor proposal was vague and uncertain as the proposal had no unconditional finance. The proposal was for a loan from Nation Finance. The full terms of the proposal are annexed. Inquiries of the trustee revealed a certain inadequacy as to the understanding of the finance. In my view, that did not stop there being a proposal, rather it said something as to its attractiveness. It is true, as Beaumont J said in Wenkart v Pantzer [2003] FCA 432 at [26] that s 73(2A) and (4) indicate the following: Both these paragraphs indicate that the trustee is concerned here with matters of substance and not governed by any mechanical form in deciding how to respond. Thus, if the trustee does not have sufficient material upon which the trustee could indicate one way or the other whether a proposal would benefit the bankrupt's creditors generally, then, in my opinion there is no absolut,e and certainly no unconditional obligation on the trustee to call a meeting of creditors. 70 This does not mean, however, that, if a proposal which in all the circumstances the trustee decides is sufficiently formulated to go to creditors with the view of the trustee contemplated by 73(2A), that a resolution accepting or rejecting it by creditors cannot be seen to have taken place. It will be a matter for the trustee to judge whether or not there is sufficient information for there to be a proposal requiring him or her to go to a meeting. A Court may have to assess that at a point in time before any meeting. It is unnecessary to lay down definitional criteria for that beyond the words of the Bankruptcy Act . Each individual case will be different, the circumstances of the estate and the terms of the terms of the proposal will be different.
Case: Worrall v Westpac Banking Corporation (1994) 51 FCR 304 
Outcome: referred to
It goes without saying that the procedures required should be viewed from the perspective of the interests of all creditors. In a given case, which is not this one, a Court might look very carefully at any procedure leading to a composition dominated by creditors related to the bankrupt or reflecting a lack of commercial morality or sharp practice. Parliament, however, has chosen to provide in s 74(5) for the annulment and thus for the consequences that flow therefrom: Oates v Commissioner of Taxation (1990) 27 FCR 289 , Re Coyle (1993) 42 FCR 72 , Theissbacher v MacGregor Garrick &amp; Co [1993] 2 Qd R 223, Pascoe; in the matter of Hudson [2005] FCA 1421 , Worrall v Westpac Banking Corporation (1995) 51 FCR 304 and Union Club v Battenberg [2006] NSWCA 72 ; (2006) 66 NSWLR 1.
Case: Commissioner of Taxation v Zoffanies Pty Ltd [2003] FCAFC 236 ; (2003) 132 FCR 523
Outcome: applied
These are reasons for judgment in short form for the orders that I gave today allowing in part an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act ") against a decision of the Administrative Appeals Tribunal ("the Tribunal"): for the power to allow such an appeal in part see s 44(4) and (5) of that Act: Commissioner of Taxation v Zoffanies Pty Ltd [2003] FCAFC 236 ; (2003) 132 FCR 523 at 544 and 546-547. 2 The applicant, Biago Giovanni Iacono, was a tax agent whose registration under Part VIIA of the Income Tax Assessment Act 1936 (Cth) ("the 1936 Act ") was suspended pursuant to s 251K(2) of that Act by the Tax Agents' Board of Victoria ("the Board"). Mr Iacono sought review of that decision in the Tribunal which in turn affirmed the Board's decision. 3 Subdivision H of Part VIIA of the 1936 Act has two separate regimes for the cancellation or suspension of a tax agent's registration. Section 251K(1) stipulates that in specified circumstances the Board shall suspend or cancel the registration of a tax agent and in such a case by virtue of s 251K(3B) the period of such a suspension "shall not be less than three months". That particular regime had no application in Mr Iacono's case. His suspension was effected under s 251K(2) which granted the Board a power to suspend or cancel the registration of a tax agent upon being satisfied that one of a number of stipulated matters had been demonstrated to it. Where the Board has determined that a registration should be suspended, s 251K(3) provides for present purposes "a suspension of the registration of the tax agent shall be for such period as the Board concerned thinks fit". 4 As the Tribunal recognised in its Reasons for Decision, the most important issue in the case was whether the correct decision had been made in suspending Mr Iacono's registration, i.e. the s 251K(2) question. In reaching its conclusion on this matter, the Tribunal found that the requirement of s 251K(2) had been satisfied and "accordingly the discretion exercised by the Board to suspend Mr Iacono's tax registration for a period of three months is appropriate". The Tribunal's decision to suspend is not presently in issue. 5 Turning to the question of what was the appropriate duration of the suspension, the Tribunal in its Reasons said: "[26] Mr Athanasiou [the solicitor for the applicant] submitted that Mr Iacono's suspension as a tax agent should be for a period of less than three months. However, s 251K(3B) of the ITAA provides that the period of suspension under subsection (1) shall not be less than three months. [27] Therefore the Board's decision should be affirmed." It is the above paragraph [26] which clearly gives an erroneous reason for rejecting the applicant's submission that was in issue in this appeal.
Case: Comcare v Moon (2003) 75 ALD 160
Outcome: followed
Both parties accept in this matter, as they are clearly obliged to by the weight of authority, that this provision cannot be employed to re-visit the decision made as such. As Mansfield J said in Comcare v Moon (2003) 75 ALD 160 at [65]: "There is power to correct obvious errors in the text of a decision or the reasons under s 43AA , but not to reverse or vary the decision ... Matters of expression, or inconsistency or error in calculation, could be corrected in s 43AA , but not the decision itself." 10 In my view it clearly is the case that, having committed an error of law in the manner in which it rejected the applicant's submission for a lesser suspension than three months and having just fixed the suspension imposed because of that error of law, the Tribunal cannot properly rely upon s 43AA to vary its decision in substance by excising the formal manifestation of that error of law in the manner adopted in the Direction, thus allowing its decision to be sustained inferentially by s 251K(3).
Case: Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550
Outcome: cited
There was a palpable jurisdictional error in this matter. The Tribunal simply did not address, as it was required to, what was the appropriate suspension under s 251K(3). This being the case that part of the decision is open to be set aside and remitted to the Tribunal for re-determination. Nonetheless the respondent Board has contended that the Tribunal has indicated in the Direction that if it had properly directed itself when making its decision it would have affirmed the Board's decision in any event. So it is said I should exercise my powers under s 44 of the AAT Act to affirm the Tribunal's decision: on the taking of such a course, see generally the decision of Sackville J in Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 ff. This is not a course that I am prepared to take in this matter. 12 When the Tribunal made its decision imposing the suspension that it did, it clearly did so on an improper basis and rejected categorically the applicant's submission by reason of that basis. It would, in my view, do nothing to enhance public confidence in the administration of this part of the Income Tax Assessment Act if the Tribunal having committed a palpable error, was permitted to retrieve its position by later giving a direction not authorised by s 43AA but which in turn, for Morales purposes, would have the effect of rendering remittal futile. No encouragement should be given to misusing s 43AA to such an end. It may well be the case, when the Tribunal reconsiders how it should exercise its discretion in relation to the length of the suspension, that it will arrive at the same decision. Be this as it may, I am not satisfied that that is a necessary or inevitable outcome once the Tribunal properly directs itself in relation to that question and in light of the submissions made to it on that matter: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540.
Case: Santa Sabina College v Minister for Education (1985) 58 ALR 527
Outcome: applied
When the Tribunal made its decision imposing the suspension that it did, it clearly did so on an improper basis and rejected categorically the applicant's submission by reason of that basis. It would, in my view, do nothing to enhance public confidence in the administration of this part of the Income Tax Assessment Act if the Tribunal having committed a palpable error, was permitted to retrieve its position by later giving a direction not authorised by s 43AA but which in turn, for Morales purposes, would have the effect of rendering remittal futile. No encouragement should be given to misusing s 43AA to such an end. It may well be the case, when the Tribunal reconsiders how it should exercise its discretion in relation to the length of the suspension, that it will arrive at the same decision. Be this as it may, I am not satisfied that that is a necessary or inevitable outcome once the Tribunal properly directs itself in relation to that question and in light of the submissions made to it on that matter: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540.
Case: Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551 ; (1997) 76 FCR 301
Outcome: cited
Further, the second Tribunal had already reviewed the delegate's decision. Once the Tribunal has delivered its decision free from jurisdictional error, it is functus officio . Once the statutory function is performed, there is no further function authorised under the Act for the Tribunal to carry out and it has no power to reopen the delegate's decision ( Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551 ; (1997) 76 FCR 301 per Goldberg J at 311).
Case: Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 ; (2000) 199 CLR 343
Outcome: referred to
In Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 ; (2000) 199 CLR 343 Gleeson CJ, McHugh, Gummow and Hayne JJ noted that the Act contemplates changed circumstances which might found a fresh application to the Tribunal, but imposes the limitations found in ss 48A and 48B. As their Honours said at [30]: It would be inconsistent with that scheme and contrary to the ordinary reading of Div 2 of Pt 7 of the Act to treat the decision of the Tribunal as provisional in nature. In the situation where the Tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate made on 11 October 1995, the Act did not confer upon the Tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
I asked the applicant what he would have said to the third Tribunal had he been given the opportunity to address it on the question of jurisdiction. I also asked the applicant to identify any error in the conclusion by Smith FM that the third Tribunal had not erred in finding that it had no jurisdiction to hear his present application. The applicant was unable to make any relevant submission other than his assertion that the second Tribunal made a mistake and he wished to have the second Tribunal decision reconsidered. Therefore, even if there had been a denial of natural justice or procedural fairness, no practical injustice flows from it ( Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 per Gleeson CJ at [37]). As the Minister submits, an opportunity to address the Tribunal on the question of jurisdiction was ' a hollow opportunity '. 40 In the applicant's affidavit he alleges a failure on the part of the third Tribunal to comply with s 424A of the Act. Such a complaint is misconceived in circumstances where the third Tribunal found that it had no jurisdiction to conduct a second review of the delegate's decision. Section 424A is part of those provisions of the Act which govern the procedures to be adopted in the conduct of a review (set out in Part 7 Div 4 of the Act). Those provisions were not engaged. 41 The applicant has not established any purpose in remitting the matter to the Tribunal or any practical consequence arising from any denial of procedural fairness or natural justice. The applicant has not shown any error on the part of the Federal Magistrate nor has he shown that he has any prospects of success in an appeal from that decision. No substantial injustice would result if leave to appeal is not granted. The application for leave to appeal should be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 19 December 2008 The Applicant appeared in person Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 25 November 2008 Date of Judgment: 19 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1940.html