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Case1 | cited | Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 | Ordinarily that discretion will be exercised so that costs follow the event and are awarded on a party and party basis. A departure from normal practice to award indemnity costs requires some special or unusual feature in the case: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 1... |
Case2 | cited | Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386 | The general principles governing the exercise of the discretion to award indemnity costs after rejection by an unsuccessful party of a so called Calderbank letter were set out in the judgment of the Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386. In summary those principles are: 1. Mere refusal of a ... |
Case3 | cited | Colgate Palmolive Co v Cussons Pty Ltd (1993) 47 FCR 225 | Ordinarily that discretion will be exercised so that costs follow the event and are awarded on a party and party basis. A departure from normal practice to award indemnity costs requires some special or unusual feature in the case: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 1... |
Case4 | cited | Dais Studio Pty Ltd v Bullett Creative Pty Ltd [2008] FCA 42 | The general principles governing the exercise of the discretion to award indemnity costs after rejection by an unsuccessful party of a so called Calderbank letter were set out in the judgment of the Full Court in Black v Lipovac [1998] FCA 699 ; (1998) 217 ALR 386. In summary those principles are: 1. Mere refusal of a ... |
Case5 | cited | Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 | The preceding general principles inform the exercise of the discretion. That discretion is not to be fettered by transformation of approaches and practices developed through the cases into quasi statutory rules. In John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 , Hill J said ... |
Case6 | cited | GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 | I accept that the making of a rolled up offer inclusive of costs and interest may detract from the weight to be given to its refusal in the exercise of the discretion. Finn J referred to authorities on the point in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688 ; (2003) 201 ALR 55 at [3... |
Case7 | cited | John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 | The preceding general principles inform the exercise of the discretion. That discretion is not to be fettered by transformation of approaches and practices developed through the cases into quasi statutory rules. In John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 , Hill J said ... |
Case8 | cited | Seven Network Limited v News Limited (2007) 244 ALR 374 | On the question of the level of unreasonableness necessary to attract the discretion, I respectfully agree with the comment of Sackville J in Seven Network Limited v News Limited (2007) 244 ALR 374 at [62] questioning the utility of substituting a requirement that rejection be "plainly unreasonable" for the requirement... |
Case9 | applied | Australian Broadcasting Corporation v O'Neill [2006] HCA 46 | recent decision of the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 clarifies this issue. Gleeson CJ and Crennan J (at [19]), after referring to various cases dealing with the grant of interlocutory injunctions in cases of defamation, formulated the general principles governing the grant of... |
Case10 | followed | Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325 | Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325, the likelihood of irreparable harm was regarded by Stone J as, indeed, a separate element that had to be established by an applicant for an interlocutory injunction. Her Honour cited the well-known passage from the judgment of Mason ACJ in Castlemaine ... |
Case11 | cited | Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 | Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325, the likelihood of irreparable harm was regarded by Stone J as, indeed, a separate element that had to be established by an applicant for an interlocutory injunction. Her Honour cited the well-known passage from the judgment of Mason ACJ in Castlemaine ... |
Case12 | cited | R v McFarlane; Ex parte O'Flannagan and O'Kelly [1923] HCA 39 ; (1923) 32 CLR 518 | quia timet proceedings, the court will have regard to the degree of probability of the apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties. In R v McFarlane; Ex parte O'Flannagan and O'Kelly [1923] HCA 39 ; (1923) 32 CLR 518 Isaacs J observed (at 539): "T... |
Case13 | followed | National Australia Bank v KDS Construction Services Pty Ltd [1987] HCA 65 ; (1987) 163 CLR 668 | It was not suggested in this proceeding that, so far as a Commonwealth revenue debt is concerned, there is any express statutory provision which alters the usual position which prevails as between creditor and debtor when a cheque is given in payment of a debt. That usual position was expressed by Mason CJ, Brennan, De... |
Case14 | followed | George v Cluning (1979) 53 ALJR 767 (note) | Strictly speaking, a cheque, even a bank cheque, is not a form of legal tender. Subject to some particular contractual or statutory provision, the only forms of legal tender remain Australian notes or, subject to the limits specified, Australian coins see s 36 of the Reserve Bank Act 1959 and s 16 of the Currency Act 1... |
Case15 | followed | Australian Mid-Eastern Club Limited v Yassim (1989) 1 ACSR 399 | None of this is to suggest that the Deputy Commissioner was under any obligation to accept the proffered cheque. When the history of Ganter's endeavours to pay the debt after the filing of the winding up application is recalled and that the company was, by operation of s 459C(2)(a) the Corporations Act 2001 presumed to... |
Case16 | followed | Deputy Commissioner of Taxation v Visidet Pty Ltd [2005] FCA 830 | None of this is to suggest that the Deputy Commissioner was under any obligation to accept the proffered cheque. When the history of Ganter's endeavours to pay the debt after the filing of the winding up application is recalled and that the company was, by operation of s 459C(2)(a) the Corporations Act 2001 presumed to... |
Case17 | followed | Deputy Commissioner of Taxation v Guy Holdings Pty Ltd [1994] TASSC 126 ; (1994) 116 FLR 314; (1994) 14 ACSR 580 | The true position is that the applicant's status as a creditor at the time when the application was made and the presumption flowing from the company's failure to comply with the terms of a statutory demand are sufficient to give the Court jurisdiction to order the winding up of the company. That was the conclusion rea... |
Case19 | cited | Motor Terms Co Pty Ltd v Liberty Insurance Ltd [1967] HCA 9 ; (1967) 116 CLR 177 | Assuming that the Deputy Commissioner ought presently to be regarded as an applicant whose debt has been paid, it does not, with respect, seem to me to follow that the application must therefore necessarily be dismissed. In his judgment in Motor Terms Co Pty Ltd v Liberty Insurance Ltd [1967] HCA 9 ; (1967) 116 CLR 177... |
Case21 | referred to | Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 | am satisfied that the finding of the third Tribunal that the two appellants are not, and were not, homosexuals was not made in the exercise of honest fact finding, but was deliberately calculated to "get around" difficulties in the factual circumstances of the appellants' case, thrown up by the judgment of the High Cou... |
Case22 | cited | Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 | is plain that, where an order is set aside, and a matter is remitted to the Tribunal for reconsideration, there is nothing on which any issue estoppel can be founded: Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334 ; (1998) 82 FCR 374 ; Minister for Immigration and Multicultural Affairs v Wa... |
Case23 | cited | Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334 ; (1998) 82 FCR 374 | is plain that, where an order is set aside, and a matter is remitted to the Tribunal for reconsideration, there is nothing on which any issue estoppel can be founded: Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334 ; (1998) 82 FCR 374 ; Minister for Immigration and Multicultural Affairs v Wa... |
Case25 | referred to | Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 | J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 said, at [67]: ... a finding as to whether the prosecutor should be believed in his claim a finding on credibility ... [is] the function of the primary decision-maker par excellence. If the primary ... |
Case26 | cited | TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 829 | I find that the decision was perverse to such an extent as to exhibit a serious failure in the decision making process, with the consequences that the decision was so unreasonable that it was beyond power: see TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 829 at 861. |
Case28 | referred to | Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 | J, as he then was, said in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 , at 77: There is no error of law simply in making a wrong finding of fact. A finding, which purports to be a finding of fact, is not rendered immune from judicial examination, if it is not made in good faith, but for an ulterior purp... |
Case29 | followed | Elderslie Finance Corp Ltd v Australian Securities Commission (1993) 11 ASCR 157 | null |
Case30 | related | Hayes, in the matter of Estate Property Group Limited (Administrators Appointed) [2007] FCA 935 | On 15 June 2007 I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Corporations Act 2001 (Cth) (the Act) to midnight 23 July 2007 in relation to a number of companies, being the members of what is known as the Estate Property Group (the Group), together wit... |
Case31 | related | Australian Capital Reserve Limited (Administrators Appointed) v High Tower Investments Pty Limited (Administrators Appointed); in the matter of High Tower Investments Pty Limited (Administrators Appointed) [2007] FCA 1028 | On 15 June 2007 I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Corporations Act 2001 (Cth) (the Act) to midnight 23 July 2007 in relation to a number of companies, being the members of what is known as the Estate Property Group (the Group), together wit... |
Case32 | related | Hall, in the matter of Australian Capital Reserve Limited (Administrators Appointed) [2007] FCA 1328 | On 15 June 2007 I made orders extending the convening period for the meeting of creditors required to be held under s 439A of the Corporations Act 2001 (Cth) (the Act) to midnight 23 July 2007 in relation to a number of companies, being the members of what is known as the Estate Property Group (the Group), together wit... |
Case33 | cited | Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey [2006] FCA 366 | On 30 March 2006 Siopis J made interim orders restraining the defendants from removing any of their property from Australia or from otherwise dealing with it except to the extent set out in the order. He also directed the surrender of their passports. His Honour published his reasons for those orders on 5 April 2006 Au... |
Case34 | cited | ASIC v Mauer-Swisse Securities Ltd (2002) 20 ACLC 1530 | There is a variety of ways in which the interests of persons, to whom liabilities may be owed, can be protected by orders made under the section. The nature of the protection can vary according to the nature of the risks assessed. As Palmer J said in ASIC v Mauer-Swisse Securities Ltd (2002) 20 ACLC 1530 at [37]: '... ... |
Case35 | cited | CAC v Lone Star Exploration NL (1988) 14 ACLR 499 | The orders that can be made under the section are directed, inter alia, to the preservation of assets against which recovery may be sought in the event that liability to an 'aggrieved person' is established on the part of a 'relevant person'. The orders are made in circumstances where 'an investigation is being carried... |
Case36 | cited | Corporate Affairs Commission v ASC Timber Pty Ltd (1989) 7 ACLC 467 | The circumstances in which the Court may make orders under s 1323(1) are wide as indicated by the words 'necessary or desirable ... for the purpose of protecting the interests of a person ...'. There is an element of risk assessment and risk management in the judgment the Court is called on to make. It follows, and has... |
Case37 | cited | Australian Securities and Investments Commission v Adler (2001) 38 ACSR 266 | The circumstances in which the Court may make orders under s 1323(1) are wide as indicated by the words 'necessary or desirable ... for the purpose of protecting the interests of a person ...'. There is an element of risk assessment and risk management in the judgment the Court is called on to make. It follows, and has... |
Case38 | cited | ASIC v Burke [2000] NSWSC 694 | It is not a necessary consequence of an order appointing a receiver that the receiver should deal with or liquidate the assets in question. The interlocutory and protective character of orders made under s 1323 must be borne in mind when defining the powers of the receiver. The appointment of a receiver has rightly bee... |
Case39 | considered | Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 | In Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at 574 (" Pegasus "), Davies AJ addressed the question whether the sole director of the company which promoted and operated a managed investment scheme should also be considered to be a person operating the ... |
Case40 | cited | Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488 | Mansfield J reached a similar conclusion in Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488. In that case, the individual in question was one of the directors of the company managing the scheme. His Honour found that the person in question formulated and directed the scheme, and was activ... |
Case41 | cited | Australian Securities and Investments Commission v Giann & Giann Pty Ltd [2005] FCA 81 ; (2005) 141 FCR 278 | Numerous cases have held that s 911A of the Act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an Australian financial services licence: see Australian Securities and Investments Commission v Giann & Giann Pty Ltd [2005] FCA 81 ; (2005) ... |
Case42 | cited | Australian Securities and Investments Commission v Manito Pty Ltd (2005) 53 ACSR 56 | Numerous cases have held that s 911A of the Act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an Australian financial services licence: see Australian Securities and Investments Commission v Giann & Giann Pty Ltd [2005] FCA 81 ; (2005) ... |
Case43 | cited | Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68 | Numerous cases have held that s 911A of the Act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an Australian financial services licence: see Australian Securities and Investments Commission v Giann & Giann Pty Ltd [2005] FCA 81 ; (2005) ... |
Case44 | cited | Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 | In Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564, at 581-582, Mason CJ, Dawson, Toohey and Gaudron JJ said that superior courts have inherent power to grant declaratory relief. Their Honours added that it is a discretionary power which it is neither possible nor desirable to fetter by layin... |
Case45 | cited | Australian Softwood Forest Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121 | Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW ) [1981] HCA 49 ; (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Tr... |
Case46 | cited | Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596 | Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW ) [1981] HCA 49 ; (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Tr... |
Case47 | cited | Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 | Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW ) [1981] HCA 49 ; (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Tr... |
Case48 | cited | Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 80 | Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW ) [1981] HCA 49 ; (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Tr... |
Case49 | cited | OD Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500 | Section 1324 permits the Court to grant an injunction "on such terms as the court thinks appropriate". These words echo the concluding words of s 80(1) of the Trade Practices Act 1974 ("TPA") which state that the Court may grant an injunction in such terms as the Court determines to be appropriate. These words were int... |
Case50 | considered | ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 | The operation of s 80(1) of the TPA was canvassed by the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 (" ICI "). Lockhart J described s 80(1) as a public interest provision which attracts special considerations; it represents a primary means of ensuring com... |
Case51 | cited | Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617 | The operation of s 80(1) of the TPA was canvassed by the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 (" ICI "). Lockhart J described s 80(1) as a public interest provision which attracts special considerations; it represents a primary means of ensuring com... |
Case52 | cited | ACCC v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 at 202 | In ACCC v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 at 202 at [D]-[E], after referring to these passages in ICI , Merkel J said: "The width of the power conferred by s 80 and its public interest character obviously give the Court great amplitude in determining appropriate injunctive orders in a particular case. However ... |
Case53 | cited | ACCC v Real Estate Institute (WA) [1999] FCA 1387 ; (1999) 95 FCR 114 | It is implicit in Merkel J's judgment that an injunction under s 80 may extend beyond the specific conduct proven to constitute a contravention by s 80 and may, in appropriate cases, extend to conduct of the same kind or class. There must, however, be a sufficient nexus or relationship between the conduct that is the s... |
Case54 | discussed | Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 | Most recently, in Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 , a Full Court (comprising Ryan, Finn and Allsop JJ) noted the apparent tension between the view expressed by Lockhart and Gummow JJ in ICI . Their Honours said at [30]-[31]: "His Honour's reference to terms having 'an operation o... |
Case55 | cited | Australian Securities and Investments Commission v Takaran Pty Ltd (No 2) (2003) 194 ALR 743 | In ASIC v Takaran Pty Ltd (No 2) (2003) 194 ALR 743 at 747-748, at [15], Barrett J made the following observation, with which I agree: "The fact that a scheme is being operated by its existing operators in contravention of statute activates a public interest in favour of not only its being wound up under s 601EE ( Aust... |
Case56 | cited | Australian Securities and Investment Commission v Chase Capital Management Pty Ltd (2001) 36 ACSR 778 | ASIC does not seek an order that BTS be wound up, even though there is some evidence that it might be insolvent. In many cases, it may be appropriate, and it may further investor protection, to make winding up orders in respect of both the unregistered managed investment scheme and the company which administered the sc... |
Case57 | referred to | Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 | It has been said that s 31A lowers the bar in terms of summary judgment applications. The operation of s 31A was considered by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720. I do not think it necessary to enter into the interesting questions ... |
Case58 | applied | Commonwealth Bank of Australia v Gargan [2004] FCA 707 ; (2004) 140 FCR 1 | Insofar as the argument is advanced based upon s 13 of the Crimes Act 1914 (Cth), that is, on the common informer provisions, I respectfully adopt what was said by Hely J in Commonwealth Bank of Australia v Gargan [2004] FCA 707 ; (2004) 140 FCR 1 , where his Honour dismissed the same argument. I should note for comple... |
Case59 | cited | Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45 | Mr Gargan also argued that he had an entitlement to the issue of orders in the nature of mandamus against the Official Trustee. There may be a question in my mind as to whether that kind of right is a right which would vest, or would be property which is capable of vesting, in the Official Trustee. There are decisions ... |
Case60 | referred to | Gargan v Scott (unreported, NSWSC, 27 October 2003) | Insofar as the argument is advanced based upon s 13 of the Crimes Act 1914 (Cth), that is, on the common informer provisions, I respectfully adopt what was said by Hely J in Commonwealth Bank of Australia v Gargan [2004] FCA 707 ; (2004) 140 FCR 1 , where his Honour dismissed the same argument. I should note for comple... |
Case61 | considered | Gye v McIntyre [1991] HCA 60 ; (1991) 171 CLR 609 | However, if authority were needed, the Full Court of this Court has decided in Heinrich v Commonwealth Bank of Australia [2001] FCA 661 that Mr Gargan's argument was unsound. I note that Mr Gargan had some involvement in that case. I refer particularly to [7], [8] and [19]. Nothing in Gye v McIntyre [1991] HCA 60 ; (19... |
Case62 | considered | Heinrich v Commonwealth Bank of Australia [2001] FCA 661 | However, if authority were needed, the Full Court of this Court has decided in Heinrich v Commonwealth Bank of Australia [2001] FCA 661 that Mr Gargan's argument was unsound. I note that Mr Gargan had some involvement in that case. I refer particularly to [7], [8] and [19]. Nothing in Gye v McIntyre [1991] HCA 60 ; (19... |
Case63 | applied | Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315 | That operation of s 153B was confirmed by Flick J in this Court in Samootin v Wagner [2008] FCA 1066 at [32] and [33]. His Honour applied what had fallen from Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315 at [20] : The Court must first consider whether the sequestration order ... |
Case64 | referred to | Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 ; (1996) 189 CLR 51 | Fourthly, Mr Gargan relied upon the proposition that the Australian Capital Territory Local Court was a State court and that through various procedural alterations to the jurisdictions of State courts over the last 20 years, they had become unfit receptacles for federal jurisdiction within the meaning of the High Court... |
Case65 | referred to | Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172 | As to the annulment of the 1994 bankruptcy, this Court has vested in it, by s 27 of the Bankruptcy Act 1966 (Cth), exclusive jurisdiction in bankruptcy. The meaning of that expression has recently been considered by a Full Court of this Court in the decision of Meriton Apartments Pty Ltd v Industrial Court of New South... |
Case66 | referred to | Re Gargan; Ex parte Official Trustee in Bankruptcy (unreported, FCA, Kiefel J, 23 August 1996) | As I understood his submissions, the central proposition was that whilst he accepted he had consented to the making of the sequestration order in 1994, he had done so in circumstances where he was naïve about the operation of the legal system. His admission that the sequestration order had been by consent is recor... |
Case67 | referred to | Samootin v Wagner [2008] FCA 1066 | That operation of s 153B was confirmed by Flick J in this Court in Samootin v Wagner [2008] FCA 1066 at [32] and [33]. His Honour applied what had fallen from Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315 at [20] : The Court must first consider whether the sequestration order ... |
Case68 | considered | Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 | On this basis, the response of the respondent to the letters of Ms Nicholson-Brown's solicitors was appropriate and adequate. The respondent replied to the complaints of Ms Nicholson-Brown by reference to the policy decision, and did not bring into consideration the specific conduct of Ms Nicholson-Brown as this was no... |
Case69 | cited | Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 | My own view is that s 21R confers a power to appoint, not a power to make, grant or issue any instrument. Section 21R does not talk in terms of the relevant act (the appointment) being made "by" or "pursuant to" any form of writing, but confers a power to make a decision to appoint, which incidentally to that decision,... |
Case70 | cited | Bond v WorkCover Corporation (SA) (2005) 93 SASR 315 | I should indicate that even if I came to the conclusion that there was a failure to adhere to a requirement of consultation with a local Aboriginal community prior to suspension or removal, I would not consider that such failure would vitiate the decision to remove or suspend. I readily accept that the Act has given ex... |
Case71 | cited | Dennis Willcox Pty Ltd v Commissioner of Taxation (1998) 79 ALR 267 | On this basis, the response of the respondent to the letters of Ms Nicholson-Brown's solicitors was appropriate and adequate. The respondent replied to the complaints of Ms Nicholson-Brown by reference to the policy decision, and did not bring into consideration the specific conduct of Ms Nicholson-Brown as this was no... |
Case72 | cited | Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348 | My own view is that s 21R confers a power to appoint, not a power to make, grant or issue any instrument. Section 21R does not talk in terms of the relevant act (the appointment) being made "by" or "pursuant to" any form of writing, but confers a power to make a decision to appoint, which incidentally to that decision,... |
Case73 | cited | Hot Holdings Pty Ltd v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 | Matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the Victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. In Minister for Immig... |
Case74 | cited | Jarratt v Commissioner of Police (NSW) [2005] HCA 50 ; (2005) 224 CLR 44 | I am prepared to assume for the purposes of this case that natural justice or procedural fairness needed to be accorded to each applicant. The real question to determine is the practical content of natural justice or procedural fairness in this case: see, e.g. Jarratt v Commissioner of Police (NSW) [2005] HCA 50 ; (200... |
Case75 | applied | Laurence v Chief of Navy [2004] FCA 1535 ; (2004) 139 FCR 555 | The second matter is whether the Act confers a power to make, grant or issue such an instrument or merely confers a power on the Minister to make a decision which is to be evidenced in writing: see Laurence v Chief of Navy [2004] FCA 1535 ; (2004) 139 FCR 555. In that case, at 558, Wilcox J drew the following distincti... |
Case76 | cited | Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 | Matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the Victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. In Minister for Immig... |
Case77 | cited | Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 | It is well established that, in the absence of any express limitation in a statute, a consideration will be considered irrelevant only where there is "in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard": Minister for Ab... |
Case78 | cited | Murphyores Incorporated Pty Ltd v Commonwealth [1976] HCA 20 ; (1976) 136 CLR 1 | Matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the Victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. In Minister for Immig... |
Case79 | considered | Nguyen v Minister for Health and Ageing [2002] FCA 1241 | The applicants relied upon the decisions in Nguyen v Minister for Health and Ageing [2002] FCA 1241 and Registrar for Liquor Licences v Iliadis (1988) 19 FCR 311 in support of the proposition that an implied power to revoke or suspend an appointment should not be construed as capable of being exercised with less constr... |
Case80 | cited | Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 | I should indicate that even if I came to the conclusion that there was a failure to adhere to a requirement of consultation with a local Aboriginal community prior to suspension or removal, I would not consider that such failure would vitiate the decision to remove or suspend. I readily accept that the Act has given ex... |
Case81 | cited | R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27 ; (1965) 113 CLR 177 | There are many instances where important and significant decisions need to be made, and full-time public servants or servants of the Crown are regarded as capable of exercising independent judgements in making such decisions. Without statutory permission, it is not to be assumed that a public servant or servant of the ... |
Case82 | cited | Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 | My own view is that s 21R confers a power to appoint, not a power to make, grant or issue any instrument. Section 21R does not talk in terms of the relevant act (the appointment) being made "by" or "pursuant to" any form of writing, but confers a power to make a decision to appoint, which incidentally to that decision,... |
Case83 | considered | Registrar for Liquor Licences v Iliadis (1988) 19 FCR 311 | The applicants relied upon the decisions in Nguyen v Minister for Health and Ageing [2002] FCA 1241 and Registrar for Liquor Licences v Iliadis (1988) 19 FCR 311 in support of the proposition that an implied power to revoke or suspend an appointment should not be construed as capable of being exercised with less constr... |
Case84 | cited | South Australia v O'Shea [1987] HCA 39 ; (1987) 163 CLR 378 | Matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the Victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. In Minister for Immig... |
Case85 | followed | X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 | There are two matters requiring consideration before it can be held that s 33(3) applies to s 21R. The first matter is whether an appointment made under s 21R of the Act is an "instrument" within the meaning of s 33(3). In X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 at 421, Finn J made the foll... |
Case86 | cited | Australian Postal Commission v Hayes (1989) 87 ALR 283 | It may be accepted as a general statement of principle that if directions are given by a court or tribunal that have the effect of fettering cross-examination so that a witness's evidence on relevant issues cannot be properly tested, there is a denial of procedural fairness. But it must be emphasised that this proposit... |
Case87 | cited | Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Limited [2003] FCAFC 244 ; (2003) 133 FCR 290 | Whilst not opposed to the filing of the supplementary notice, CRS points out that many of the seventeen questions stated in the original and supplementary notice do not state questions of law; see TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Birdseye v Austral... |
Case88 | cited | Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 | Whilst not opposed to the filing of the supplementary notice, CRS points out that many of the seventeen questions stated in the original and supplementary notice do not state questions of law; see TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Birdseye v Austral... |
Case89 | referred to | Lawrance v President, Administrative Appeals Tribunal [2005] FCA 79 | The assumption is without foundation. I refused interlocutory relief on 10 February 2005; see [2005] FCA 79. Leave to appeal from my judgment was refused by Hely J on 3 May 2005; see [2005] FCA 541. |
Case90 | referred to | Lawrance v Administrative Appeals Tribunal [2005] FCA 541 | The assumption is without foundation. I refused interlocutory relief on 10 February 2005; see [2005] FCA 79. Leave to appeal from my judgment was refused by Hely J on 3 May 2005; see [2005] FCA 541. |
Case91 | referred to | Lawrance v President, Administrative Appeals Tribunal [2006] FCA 342 | Most of the background facts, as well as the decision of Senior Member Kelly, have been set out in my judgment in matter NSD 55 of 2005, handed down contemporaneously with this judgment; see Lawrance v President, Administrative Appeal Tribunal [2006] FCA 342. 5 It is necessary to add only briefly to what I have already... |
Case92 | cited | Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304 | In Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304 at 314, Weinberg J observed that the duty to act fairly may be breached if a party is not given a reasonable opportunity to make relevant submissions, to give evidence and to call witnesses. But his Honour went on to say:- "At the same time,... |
Case93 | cited | R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 | It may be accepted as a general statement of principle that if directions are given by a court or tribunal that have the effect of fettering cross-examination so that a witness's evidence on relevant issues cannot be properly tested, there is a denial of procedural fairness. But it must be emphasised that this proposit... |
Case94 | cited | TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 | Whilst not opposed to the filing of the supplementary notice, CRS points out that many of the seventeen questions stated in the original and supplementary notice do not state questions of law; see TNT Skypak International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Birdseye v Austral... |
Case95 | followed | Purchas, in the matter of Estore Pty Limited (in liq) [2006] FCA 1222 | material facts in Purchas, in the matter of Estore Pty Limited (in liq) [2006] FCA 1222 and Purchas, in the matter of Worldwide Workers Pty Limited (in liq) [2006] FCA 1223 are indistinguishable in substance from this case. Directions will be given and an order for costs will be made for the same reasons as those appea... |
Case96 | followed | Purchas, in the matter of Worldwide Workers Pty Limited (in liq) [2006] FCA 1223 | material facts in Purchas, in the matter of Estore Pty Limited (in liq) [2006] FCA 1222 and Purchas, in the matter of Worldwide Workers Pty Limited (in liq) [2006] FCA 1223 are indistinguishable in substance from this case. Directions will be given and an order for costs will be made for the same reasons as those appea... |
Case97 | cited | Deputy Commissioner of Taxation v ACN 080 122 587 Pty Ltd [2005] NSWSC 1247 | both propositions are of some novelty in circumstances such as the present, counsel is correct in submitting that there is some support to be derived from the decisions of Young CJ in Eq in Deputy Commissioner of Taxation v ACN 080 122 587 Pty Ltd [2005] NSWSC 1247 and Austin J in Re Currabubula Holdings Pty Ltd (in li... |
Case98 | cited | Re Currabubula Holdings Pty Ltd (in liq); Ex parte Lord (2004) 48 ACSR 734; (2004) 22 ACLC 858 | both propositions are of some novelty in circumstances such as the present, counsel is correct in submitting that there is some support to be derived from the decisions of Young CJ in Eq in Deputy Commissioner of Taxation v ACN 080 122 587 Pty Ltd [2005] NSWSC 1247 and Austin J in Re Currabubula Holdings Pty Ltd (in li... |
Case99 | referred to | Australian Postal Corporation v Forgie and Another [2003] FCAFC 223 ; (2003) 130 FCR 279 | 94(1) of the EMDG Act provides that the provisions of subsection (2) thereof apply if the requirements specified in ss 94(1)(a) and 94(1)(b) are satisfied. The fulfilment of the requirements in s 94(1)(b)(ii) is conditional upon the satisfaction of the CEO of Austrade, and such satisfaction is to be determined by the a... |
Case100 | referred to | Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 | Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522 at 527 the Full Court considered the nature of an appeal under s 44(1) of the AAT Act and determined that an appeal 'on a question of law' is narrower than an appeal 'that merely involves a question of law' . The Court at 527 referred to the observatio... |
Case101 | referred to | Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 | Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522 at 527 the Full Court considered the nature of an appeal under s 44(1) of the AAT Act and determined that an appeal 'on a question of law' is narrower than an appeal 'that merely involves a question of law' . The Court at 527 referred to the observatio... |
Case102 | referred to | Collins v Administrative Appeals Tribunal and Another [2007] FCAFC 111 ; (2007) 163 FCR 35 | Court concludes that, since no factual questions are involved in such determination, the question as submitted is one solely of law 'directing the Court's attention to the manner in which the Tribunal failed to discharge its obligations according to law...' : see Collins v Administrative Appeals Tribunal and Another [2... |
Case103 | referred to | Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522 | Comcare v Etheridge and Others [2006] FCAFC 27 ; (2006) 149 FCR 522 at 527 the Full Court considered the nature of an appeal under s 44(1) of the AAT Act and determined that an appeal 'on a question of law' is narrower than an appeal 'that merely involves a question of law' . The Court at 527 referred to the observatio... |
Case104 | referred to | Corporation of the City of Enfield v Development Assessment Commission and Another [2000] HCA 5 ; (1999) 199 CLR 135 | Corporation of the City of Enfield v Development Assessment Commission and Another [2000] HCA 5 ; (1999) 199 CLR 135 at [28] the High Court of Australia observed: The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the... |
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