case_outcome: applied

case_title: O'Neill v Mann [2000] FCA 1680

case_text: In my opinion, the proper approach under O 22 r 2(1)(d) is to take the view that it is not the function of the Court to make a prediction as to the outcome of a hypothetical case. I am of opinion that Mrs Clark's application for leave to discontinue is not an acknowledgement by her of likely defeat. Nor is there a basis on which it can be said that on any objective view of the case, she would have failed against Adept: see the discussion by Finn J in O'Neill v Mann [2000] FCA 1680 [11]-[13] and JH Lever & Co Pty Ltd v Maniotis (2005) 215 ALR 773 at 774-775 [3]-[4] per Mansfield J. In the appeal in the latter case, Maniotis v JH Lever & Co Pty Ltd [2006] FCAFC 7 , Finn, Emmett and Bennett JJ, said at [74]: 'There is no absolute rule with respect to the exercise of the power to award costs that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at [40] . A successful party may be ordered to bear the costs of the unsuccessful party. There may be prima facie rules that a successful party is entitled to costs or that a successful party should receive its costs unless good reason is shown to the contrary (at [35]) but that is subject to the "myriad circumstances" in the institution and conduct of litigation.' They also said: 'Usually the circumstances in which a successful party is denied all or part of its costs have to do with the conduct of proceedings.' However, in that case the resolution was made by the Court rather than by a withdrawal of the proceedings from the field of litigation. 20 In Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37 at 47-50 [36] - [49] Stone J examined a number of cases in which the principles had been explored. She noted that Finn J had said in O'Neill [2000] FCA 1680 at [13] that while there is an underlying policy that a party who discontinues proceedings is to be held liable for the costs of the other parties unless the Court otherwise orders, the reasons for, and circumstances of, discontinuance are so various that the policy cannot safely be said to have hardened into a usual rule. Finn J had observed that this was different to the usual rule which exists where there has been a determination of a claim on its merits.


case_outcome: cited

case_text: In my opinion, the proper approach under O 22 r 2(1)(d) is to take the view that it is not the function of the Court to make a prediction as to the outcome of a hypothetical case. I am of opinion that Mrs Clark's application for leave to discontinue is not an acknowledgement by her of likely defeat. Nor is there a basis on which it can be said that on any objective view of the case, she would have failed against Adept: see the discussion by Finn J in O'Neill v Mann [2000] FCA 1680 [11]-[13] and JH Lever & Co Pty Ltd v Maniotis (2005) 215 ALR 773 at 774-775 [3]-[4] per Mansfield J. In the appeal in the latter case, Maniotis v JH Lever & Co Pty Ltd [2006] FCAFC 7 , Finn, Emmett and Bennett JJ, said at [74]: 'There is no absolute rule with respect to the exercise of the power to award costs that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at [40] . A successful party may be ordered to bear the costs of the unsuccessful party. There may be prima facie rules that a successful party is entitled to costs or that a successful party should receive its costs unless good reason is shown to the contrary (at [35]) but that is subject to the "myriad circumstances" in the institution and conduct of litigation.' They also said: 'Usually the circumstances in which a successful party is denied all or part of its costs have to do with the conduct of proceedings.' However, in that case the resolution was made by the Court rather than by a withdrawal of the proceedings from the field of litigation. 18 It is inappropriate to read provisions such as s 43(2) of the Act, which confer jurisdiction or grant powers to a court, by making conditions or imposing limitations which are not to be found in the words used: The Owners of The Ship ' Shin Kobi Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ. 19 Of course, the discretion must be exercised judicially. Parties should be encouraged to engage in sensible attempts to resolve disputes having regard to all the circumstances of the case at the time at which resolution is proposed. The purpose of an order for costs is not solely to compensate one party at the expense of the other: Oshlack 193 CLR at 89 [43]. Where there is no delinquency or misconduct on the part of the party seeking to discontinue in a situation such as the present, and there has been no determination of the proceedings on the merits, it is not usually appropriate for the Court to engage in predicting the outcome or assigning responsibility for the conduct of the proceedings in a way which attributes blameworthiness, unless there is a solid foundation for doing so.


case_outcome: referred to

case_text: So, in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 662 at 624-625, McHugh J commented on the difficulties inherent in a court seeking to allocate costs in circumstances such as the present. As he pointed out, when there has been no hearing on the merits, a court is necessarily deprived of the factor that usually determines whether or how it should make a costs order. 22 In the circumstances which I have briefly described it is also conceivable that Mrs Clark may have had claims under each policy, depending on the precise way in which the facts came out, particularly, what advice or other services may or may not have been given or performed by Adept in accordance with its professional obligations to her. On the pleadings and material before me, there was a sufficient basis for Mrs Clark to bring these proceedings and pursue them to judgment against both the respondents which she chose to sue, even if, properly advised, she may have been better advised to have sued Suncorp, either alone or with ING and Adept as additional respondents. 23 Mrs Clark suffered the trauma of breast cancer. That trauma was one risk in respect of which she had contracted to have the protection of insurance cover while bringing up a young family. It is not something that can be put to one side as an irrelevant consideration in determining the reasonableness of her course of action. If a person, in the position of Mrs Clark, has to deal with a life threatening illness or condition, such as cancer, she cannot be expected to take immediately every logical, rational or commercial decision which a large corporation with adequate resources and insurance might. Such a decision is particularly difficult for a person in her position, where as an individual, she would be required to take on the burden of litigation against well-resourced insurance companies and insurance brokers, who are entitled to resist the claims made against them.


case_text: In Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37 at 47-50 [36] - [49] Stone J examined a number of cases in which the principles had been explored. She noted that Finn J had said in O'Neill [2000] FCA 1680 at [13] that while there is an underlying policy that a party who discontinues proceedings is to be held liable for the costs of the other parties unless the Court otherwise orders, the reasons for, and circumstances of, discontinuance are so various that the policy cannot safely be said to have hardened into a usual rule. Finn J had observed that this was different to the usual rule which exists where there has been a determination of a claim on its merits.


case_text: It is inappropriate to read provisions such as s 43(2) of the Act, which confer jurisdiction or grant powers to a court, by making conditions or imposing limitations which are not to be found in the words used: The Owners of The Ship ' Shin Kobi Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ.


case_text: The first question of construction which arises is whether the prefatory words of subs 255(1): 'With respect to every person having the receipt control or disposal of money belonging to a non-resident', require the person to have that receipt, control or disposal at the time of being served with a notice of requirement pursuant to par (a), or whether it is sufficient that the person subsequently has that receipt, control or disposal even though he did not have that receipt, control or disposal at the time of service of the notice. While the matter is not free from doubt, I have come to the conclusion that it is not necessary for the person to have the receipt, control or disposal of money belonging to the non-resident at the time of service of the notice and that the operative provisions of pars (b), (c) and (d) will be triggered if and when the person, subsequent to service of the notice of requirement pursuant to par (a), has that receipt, control or disposal. Such a construction promotes the section's undoubted legislative function and purpose as a tax collection mechanism. The contrary view would mean that the Commissioner would have to know when a person had the receipt, control or disposal of money belonging to the non-resident and serve him with a notice of requirement pursuant to par (a) before he ceased to have that receipt, control or disposal. In many cases the Commissioner will know that a person will, or is likely to, have the receipt, control or disposal of money belonging to the non-resident, but not when he will have it. The conclusion to which I have come avoids that dilemma. This question was left open by Lindgren J in Commissioner of Taxation v Wong [2002] FCA 756 ; (2002) 121 FCR 60 where his Honour said at [24]: 'In order to decide the present case, I need not, and therefore I do not, decide whether, in order for parts (b), (c) and (d) to be enlivened, a person served with a notice under s 255(1)(a) must satisfy the description in the prefatory words at the time of service, or whether it suffices that he does so later and before action is brought. The reason is that in my opinion the recipient of a notice is required to satisfy that description (be a Controller) either at the first, or at either of those two times, but Mr Wong did not satisfy either formulation of the requirement.' Although, a little later his Honour said at [27]: 'The prefatory words are themselves indefinite in point of time. Is see no reason why notional words such as "at any time and from time to time" should not be understood to qualify "having" and "derives" in the prefatory words.' which suggests, in my view, that his Honour may well have come to the same conclusion as I have. 52 His Honour went on to say at [28]: 'Consistently with this view, par (a)'s reference to "the tax due and payable by the non-resident" is a reference to the tax due and payable by the non-resident on the "income, or profits or gains of a capital nature" derived by him at any time and from time to time. In other words, a notice given under par (a) can be expressed to have an ambulatory or ongoing operation and to require the recipient to pay not only tax that is already due and payable, but tax which may become due and payable in the future, and will do so if the non-resident derives further income. This construction apparently treats "when" not as referring to a time for payment, but as meaning "if". The construction is supported by par (b).' I agree that a notice given under par (a) can be expressed to have an ambulatory or ongoing operation and to require the recipient to pay not only tax that is already due and payable, but tax which may become due and payable in the future. As his Honour says, such construction is supported by par (b). 53 However, in Wong , Lindgren J made it quite clear (at [23]) that, in his view, notice or other communication of requirement pursuant to par (a) is the 'trigger' which activates the operative provision of subs 255(1), in particular that without that requirement, the provisions of pars (b), (c) and (d) are not activated. I entirely agree with his Honour's view in this regard. 54 One issue which arises from the terms of subs 255(1) is, in what circumstances, outside circumstances which attract the deeming operation of subs 255 (2), will money in the receipt, control or disposal of a person belong to another person, being a non-resident.


case_text: The concept of money 'belonging to' someone is a reference to money as a form of property; either coins and notes as chattels in possession; alternatively in the case of bank notes they may also be choses in action; negotiable instruments as choses in action; commercially acceptable forms of payment such as bank transfers, credit cards and debit cards, although not charge cards; and even deposits and credit balances to current accounts with banks and comparable institutions: See generally Mann on the Legal Aspect of Money , Sixth Edition, by Charles Proctor, 2005, Oxford University Press, Chapter 1: The Concept of Money. See too Conley & Anor v Commissioner of Taxation & Anor (1998) 81 FCR 24 at 27, 28 per Davies J; on appeal (1998) 88 FCR 98 at 104, 105 per Emmett J.


case_title: Deputy Commissioner of Taxation v Conley (1998) 88 FCR 98


case_text: But like all deeming provisions, they have to be construed strictly and only for the purpose to which they are resorted: Ex parte Walton; re Levy (1881) 17 Ch D 746 per James LJ at 756; Federal Commissioner of Taxation v Comber (1986) 10 FCR 88 at 96 per Fisher J. In other words, it does not operate to deem a person to have the control of money belonging to a non-resident save where the person is liable to pay money to that non-resident. So if a person [A] is liable to pay money to a non-resident [B], and B is liable to pay the same amount of money to another non-resident [C], A is not, by virtue of subs 255(2), deemed to have the control of money belonging to C. Nor, in such a case, will A have the control of money belonging to C on the analysis in [57] supra.


case_title: Federal Commissioner of Taxation v Comber (1986) 10 FCR 88


case_text: The concept of 'belonging' in the context of property, being plant and machinery, has been held in a different statutory context, to require absolute ownership of the property in law or in equity: Melluish v BMW (No. 3) Ltd (1996) AC 454. However, having regard to the different forms money can take as an item of property and to its peculiar characteristic of fungibility, there may be, depending on the circumstances, an inherent tension in referring to money in the receipt, control or disposal of one person being owned by another person; in some forms, the money will be owned by the person having the receipt, control or disposal of the money even though that person may be under some obligation to account for that money to another person; and that may explain why the legislature chose to use the phrase 'belonging to' rather than 'owned by'. The phrase 'belonging to' is a more elastic concept and better accommodates a situation where a person having the receipt, control or disposal of money is under an obligation to account for that money to another person. 57 However, outside the deeming afforded in the circumstances described in subs 255(2), for money (the relevant money) to qualify as 'belonging to' a person (the first person) where another person has the receipt, control or disposal of it, there must be an obligation annexed to the relevant money itself in favour of the first person; it would not be sufficient, in my view, that the only obligation of the person having the receipt, control or disposal of the relevant money is to pay to the first person a sum equivalent to the relevant money because, for example, the first person is a creditor of the person having the receipt, control or disposal of the relevant money. In that situation the relevant money, in the hands of the person having the receipt, control or disposal of it, would not belong to the first person, but for the deeming provided by subs 255(2). 58 Subsection 255(2) of the ITAA 1936 is a deeming provision; it deems a person who is liable to pay money to a non-resident to be a person having the control of money belonging to the non-resident; it also deems all money due by him to the non-resident to be money which comes to him on behalf of the non-resident. Without the first deeming, the person who is liable to pay may not have control of any money and, if he does, the money may not belong to the non-resident; it may well belong to the person liable to pay. Without the second deeming, the retention mandated by par (b) may not operate. These deeming provisions are obviously designed to overcome such problems.


case_title: Bryant v Commonwealth Bank of Australia (1997) FCR 545

case_text: The meaning of s 60(4)(a) was also considered by the Full Court of the Federal Court in Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545. O'Loughlin and Merkel JJ concluded that (at 564): ... Mr Bryant's causes of action, as pleaded in his statement of claim, are essentially claims which are referable to his financial and property rights. That is not to deny him his right to allege "personal injury or wrong done to" him or members of his family. But if the injury that was suffered or the wrong done arose as a direct result of the alleged infringements of his financial or property rights, as was the case in Faulkner v Bluett , then "the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt". (at 119) To apply the language of Handley JA in Manningell v Hewlett to Mr Bryant's circumstances his claims for stress and suffering were "consequential upon alleged breaches" of duty said to be owed to him by the Bank as a mortgagee or secured creditor and were not claims "without reference to [his] rights of property", within the principle stated by Dixon J in Cox v Journeaux . 41 The Court concluded that the loss complained of arose from direct pecuniary loss to the bankrupt's property.


case_text: Subsection 60(5) provides that "action" means any civil proceedings whether at law or in equity. The test as to the meaning of the words "personal injury or wrong done to the bankrupt" is whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property: see Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721 per Dixon J. 42 The respondents have in effect submitted that in determining whether s 60(4) applies to the proceedings, the proper approach is to regard the proceedings as stemming from the termination of the applicant's employment. The respondents rely upon Pelechowski v NSW Land and Housing Commission [2000] FCA 233 in support of the proposition that s 60(4) does not apply to such proceedings . In Pelechowski , a judicial registrar had dismissed an application by the applicant for relief, finding that there was no substance in the application and that the applicant had been guilty of serious misconduct. Madgwick J concluded that proceedings for unlawful termination of employment under the WRA did not fall within the Cox test and thus s 60(4) did not apply, because an essential element of the proceeding was that one's economic relations with one's former employer had been disrupted and property rights were at the heart of such proceedings. His Honour's reasons were delivered ex tempore. His Honour noted that the applicant had principally sought reinstatement, that the relief sought was essentially of an economic nature, and that the application did not appear to have made any claim for compensation in the way of damages for personal injury. I am bound to follow this judgment unless I conclude it is plainly wrong. I have not reached that view. 47 His Honour said (at 55 - 56): ... the words ["wrong done to the bankrupt"] cannot be taken in isolation. They must, in accordance with the ordinary canons of construction, be read in the context in which they appear. The meaning of the expression, taken from that context, has been explained in numerous cases. In Australia, the classic expression is that contained in the judgment of Dixon J in Cox v Journeaux ... Applying that test to the present case, the action brought by the claimant cannot be categorised as he submits. Although it is true that the claimant contends that a "wrong" has been done to him and that he has suffered hurt and even "defamation"... these contentions are irrelevant to the task of identifying, for the purpose of s 60(4)(a) of the Act, the nature of the action exempted from the stay. The exemption is limited to those cases where it has been considered appropriate to sever the personal interests of the person subsequently made bankrupt from his property, and to reserve to him the prosecution of and benefits derived from such litigation as not being legitimately entitlements of the creditors. ... 48 His Honour went on to take into account, in characterising the proceedings, the fact that the "wrong" was "the very source of the financial problems which have led to his bankruptcy" and that the proceedings involved "the very essence of the subject matter to which s 60(2) is addressed" (at 56). In the present proceedings, there is nothing to suggest that the applicant's bankruptcy was connected in any way with the "personal injury" or "wrongs" of which the applicant now complains. However, his Honour's preceding observations concerning the nature of cases in which the exemption in s 60(4) applies are of general application. 49 An issue which has arisen in a number of cases is whether it is possible to sever or separate certain causes of action which would fall within s 60(4) from other aspects of the proceedings. In Byrant , Lockhart J (at 548-549) discussed a number of cases where there were mixed causes of action, some of which were found to have vested in the trustee and others not. From the cases considered by Lockhart J, his Honour distilled the principle that a claim for damages for injury to personal and mental health will not fall within the exemption in s 60(4) where the claim cannot be made without reference to the bankrupt's rights of property. 54 The respondents submit that to the extent that the applicant has raised claims in negligence which may fall within the Cox test, the proceedings have no reasonable prospect of success. The respondents cited Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35 ; (2002) 211 CLR 317 in support of the proposition that an investigating officer does not owe a duty of care to a person whose conduct is under investigation because it is inconsistent with a police officer's duty. Investigators in internal disciplinary investigations also do not owe a duty of care to the employee being investigated: see State of New South Wales v Paige [2002] NSWCA 235 ; (2002) 60 NSWLR 371. The respondents also submit that there is no suggestion in the material filed by the applicant that the actions complained of occurred outside any officer's course of duty, and that the actions should therefore be dealt with in accordance with the authorities cited. The respondents also submit that to the extent that the applicant seeks damages for psychological injury, damages for negligence are not available for psychological injury falling short of a recognised psychiatric disorder: see Tame v State of New South Wales . The applicant has not pleaded any relevant psychiatric disorder.


case_title: Daemar v Industrial Commission of New South Wales and Another ( No 2 ) (1990) 99 ALR 789

case_text: The respondents submit that as a result of the deemed abandonment of the proceedings, the stay provided by s 60(2) continues to operate, referring to the discussion by Ipp J in Stobbart v Mocnaj (1996) 16 WAR 318 at 323. The effect of the deemed abandonment of the proceedings, where the applicant may not continue the proceedings in his own name, is that the proceedings are stayed: Daemar v Industrial Commission of New South Wales and Another (No 2) (1990) 99 ALR 789, per Kirby P at 790. 38 The respondents submit that neither of the proceedings fall within the description in s 60(4) (an action in respect of any personal injury or wrong) and thus neither may be continued by the bankrupt. The respondents also submit that to the extent that it could be said that the applicant has identified causes of action which individually fall within s 60(4)(a) , those causes of action have not been properly pleaded and should be struck out or dismissed. The respondents identified the latter causes of action as potentially being: • Causes of action for damages and other remedies for injuries allegedly done to the applicant and members of his family; • Unlawful detention and deprivation of liberty; • Unlawful interference with and possession of personal property; and • Damages for injury to credit, character and reputation (defamation).


case_title: Daemar v Industrial Commission of New South Wales and Others (1988) 79 ALR 591


case_title: Fitzpatrick v Keelty [2007] FCA 1658

case_text: The applicant is a bankrupt, pursuant to orders of the Federal Magistrates Court of 22 May 2007: see Kidney v Fitzpatrick [2007] FCMA 943. An application to set aside the bankruptcy notice had earlier been dismissed by the Federal Magistrates Court: see Fitzpatrick v Kidney [2007] FMCA 942. An appeal from those orders, and certain related orders, was dismissed by a judge of this Court (Madgwick J) on 19 September 2007: see Fitzpatrick v Keelty [2007] FCA 1658. His Honour did not "order a stay or injunction or do anything else of the kind that would prevent the ordinary operation of s 60 of the [Bankruptcy] Act" (see [38] of his Honour's reasons). Other orders had also been made by the Federal Magistrates Court on 3 August 2007 in the context of an application for annulment, which were somewhat unusual: see Fitzpatrick v Kidney [2007] FMCA 1422. The effect of the orders was to make an order for annulment, but to stay the operation of that order for 28 days and subject the annulment to the fulfilment of certain conditions. There has been no suggestion that the conditions the subject of the orders of 3 August 2007 have been satisfied. 31 Section 60 of the Bankruptcy Act relevantly concerns the stay of legal proceedings commenced by a person who subsequently becomes a bankrupt. The section provides: (1) ... (2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. (3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action. (4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of: (a) any personal injury or wrong done to the bankrupt, his or her spouse or a member of his or her family; or (b) the death of his or her spouse or of a member of his or her family. (4A) ... (5) In this section, action means any civil proceeding, whether at law or in equity. 32 Prior to the hearing before me, an affidavit was filed by the respondents' solicitor, Ms Harvey, sworn 28 August 2007, deposing that the trustee had been served with notice of the two proceedings on 27 July 2007. The trustee was asked to advise of his election to prosecute or discontinue each of the actions within 28 days. Ms Harvey deposed that no response had been received. Accordingly, the proceedings are deemed abandoned pursuant to s 60(3). The issue is whether the applicant can continue any part of the proceedings in his own name pursuant to s 60(4). 33 At the time of the hearing of the present motions on 31 August 2007, the appeal to this Court (which led to the judgment of Madgwick J of 19 September 2007) was awaiting hearing. At the hearing before me, both parties made submissions concerning the effect of the orders of the Federal Magistrates Court. After Madgwick J's judgment was given, the parties were provided with an opportunity to make written submissions concerning the effect of that judgment on the present proceedings. Submissions were received from the applicant and the respondents. 34 The applicant's submissions, made both orally at the hearing and in written form afterwards, primarily concern the propriety and legality of the Federal Magistrate's orders of 3 August 2007. However, these proceedings do not involve a challenge to the Federal Magistrate's orders, nor were those orders challenged in the proceedings before Madgwick J: see his Honour's reasons at [33]. 35 The applicant also submitted, at the hearing, that the sequestration order has no effect on these proceedings. He indicated that he relied upon s 60(4) , although he did not elaborate on these submissions, other than to make allegations of impropriety and illegality of the various orders made by the Federal Magistrates Court. 36 The applicant's written submissions on the bankruptcy issue provided post-hearing are lengthy and contain numerous allegations of impropriety and corruption variously relating to the creditor, the trustee, the respondents' solicitors, the Federal Magistrates by whom the relevant orders were made and the judge of this Court dismissing the appeal, and the processes involved. In terms of the effect of the applicant's bankruptcy, the applicant submits that it would not be appropriate for me to adjudicate on the proceedings he has brought in this Court until "all such complaints and allegations [concerning the bankruptcy action] have been subjected to full and proper independent inquiry/investigation in the interests of justice and, the integrity of our judicial system".


case_title: Hamilton v Young [2007] QSC 1

case_text: The Supreme Court of Queensland recently considered the issue of severance of claims under s 60(4) in Hamilton v Young [2007] QSC 160. The Court in Hamilton considered the issue of whether a claim for damages for the cost of raising an unplanned child can be characterised as claim for damages for "personal injury or wrong". The Court was not asked to stay the part of the bankrupt's claim for personal injuries, but was asked to stay that part of her action claiming damages for the cost of raising her child. Douglas J (at [11]) considered that the word "wrong" in s 60(4) identified a personal tort affecting the person or feelings of the bankrupt, and not, as in the circumstances in Hamilton , the loss to her of property caused by the expense of bringing up her child.


case_outcome: followed

case_title: Pelechowski v NSW Land & Housing Commission [2000] FCA 233

case_text: The respondents have in effect submitted that in determining whether s 60(4) applies to the proceedings, the proper approach is to regard the proceedings as stemming from the termination of the applicant's employment. The respondents rely upon Pelechowski v NSW Land and Housing Commission [2000] FCA 233 in support of the proposition that s 60(4) does not apply to such proceedings . In Pelechowski , a judicial registrar had dismissed an application by the applicant for relief, finding that there was no substance in the application and that the applicant had been guilty of serious misconduct. Madgwick J concluded that proceedings for unlawful termination of employment under the WRA did not fall within the Cox test and thus s 60(4) did not apply, because an essential element of the proceeding was that one's economic relations with one's former employer had been disrupted and property rights were at the heart of such proceedings. His Honour's reasons were delivered ex tempore. His Honour noted that the applicant had principally sought reinstatement, that the relief sought was essentially of an economic nature, and that the application did not appear to have made any claim for compensation in the way of damages for personal injury. I am bound to follow this judgment unless I conclude it is plainly wrong. I have not reached that view. 43 Interestingly, in Pelechowski , the applicant had been an employee of the Department of Housing. His Honour noted that "[t]hose economic relations [with one's former employer] depend upon contract, or perhaps in the case of a public servant, a statutory relationship, but nevertheless of a contractual or quasi-contractual kind, that is to say, property rights are at the heart of the proceedings" (at [5]). His Honour's view therefore was that insofar as termination proceedings were concerned, no distinction was to be made between those employed pursuant to statute and other employees in the context of s 60(4). 51 The respondents were unable to point to any authorities concerning s 60(4) in which a question concerning or relating to the termination of employment arose in the context of proceedings for judicial review. In any event, I am satisfied that the judicial review proceedings the applicant has brought bear the same general character as the proceedings considered in Pelechowski and Daemar . In my opinion, all the "decisions" which the applicant seeks to challenge (leaving aside whether they are amenable to review) directly arise from or are incidental to the termination of his employment and do not fall within the exception in s 60(4). 52 As noted at [38], the respondents submit that certain causes of action which the applicant may be seeking to raise in one or both of the two proceedings and which may fall within s 60(4) should be dealt with in accordance with the respondents' motions (that is, that they be struck out or dismissed). The ability for the applicant to continue these causes of action also depends upon these actions being severed from those parts of the proceedings which do not fall within s 60(4). I propose to deal with those causes of action on the assumption that they can be treated, individually, as falling within s 60(4), as the respondents' submissions appeared to accept. I am satisfied that the applicant has no reasonable prospect of successfully prosecuting that part of the proceedings concerning those causes of action and that judgment should be given for the respondents. 53 One of these potential actions is defamation. The pleadings filed by the applicant refer in a general sense to damage to his character and reputation and to "defamation", as well as more specifically in relation to the contents of the reports and statements made by the respondents' solicitor in Court. As the respondents have submitted, the applicant has not particularised the statements, other than in the case of the alleged statements of the solicitor in relation to which he has provided more detail. He has not particularised the effect of any statements on his reputation. As the respondents have submitted, even if statements made by the solicitor were defamatory, the express defence of absolute privilege may well apply. I am satisfied that to the extent that the applicant has raised a cause of action in defamation there is no reasonable prospect of successful prosecution.


case_text: In Commonwealth of Australia v Riley (1987) 5 FCR 8, the Full Court of this Court said, albeit in the context of the Extradition (Foreign States) Act 1966 (Cth) (at 34): 'Counsel submitted that there were two other categories of material which should also be disregarded: evidence of conversations which is not in the form of direct speech and statements of conclusions of witnesses. We disagree. Section 26(1)(a) of the Extradition (Foreign States) Act 1966 deals with the form of evidence in a proceeding under the Act namely: "a document, duly authenticated, that purports to set out testimony given on oath, or declared or affirmed to be true, by a person in a foreign state is admissible as evidence of the matter stated in the testimony". That provision is wide enough to authorise the proof of the substance of a conversation by a narrative using indirect speech. There is nothing in the Treaty to limit the application of that provision in proceedings to which the Treaty applies; Article XI(3) merely requires the transmission of "such evidence, as according to the laws of the requested state, would justify his trial or committal for trial ...". The provision deals only with the sufficiency, not the form, of evidence. The rule that evidence of conversations shall be given in direct speech is, in Australia, a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed. To apply to affidavits prepared in another country the rules of mere practice of our own courts would be substantially to diminish the utility of the Act; cf R v Governor of Pentonville Prison; Ex parte Passingham [1983] 2 AC 464.' 83 In my opinion, there is a rule of practice at common law that requires a witness to recount the actual words used in a conversation if he or she is able to do that: Commonwealth of Australia v Riley (supra); LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (supra); J H Wigmore, 3 Wigmore on Evidence SS766 (Chadbourn rev 1970). If the witness is unable to recall the actual words used, he or she can give evidence of the substance or effect of what was said. A witness might say he or she cannot remember the actual words used. I think that as a matter of practice it is also open to the Court to infer that that is the case. I would be disposed to draw that inference in the case of the relevant paragraphs in Mr Gawronski's affidavit bearing in mind the lapse of time between the conversation and the swearing of the affidavit, the apparent length and complexity of the conversation and the fact that an actual word used is from time to time identified by quotation marks. However, I do not need to finally determine the point because I think the evidence is admissible by reason of the provisions of the Evidence Act 1995 (Cth).


case_text: I turn now to examine the Federal Magistrate's reasons for judgment ( George v Hamilton-Smith (No 2) [2006] FMCA 1018). The Magistrate noted that the appellant was unsuccessful in having the bankruptcy notice issued by the respondent set aside. He referred to the proceedings between Bernsteen and the appellant. Those proceedings involved a claim by Bernsteen and a cross-claim by the appellant and had not yet come on for trial. The Federal Magistrate did not consider those proceedings to be of significance unless Bernsteen sought to be substituted for the respondent. 40 The Federal Magistrate outlined the events before the State Magistrate in the State Magistrates Court proceedings on 13 June 2006 and the circumstances leading to the entry of judgment against the appellant with costs. The Federal Magistrate discussed the arguments that the appellant said that she would put in favour of her (then) application for leave to appeal from the orders made by the State Magistrate. The Federal Magistrate described the appellant's submissions in the following way: 'The debtor argues that the decision of the learned Magistrate was so clearly wrong and so clearly appellable that I should exercise my discretion not to make a sequestration order so that what he describes as the "very real dispute between the parties" can be allowed to be litigated. He argues that given the small amount of the judgment debt this would be the appropriate course of action to take because of the lengthy delay that may occur between now and the final determination of the dispute, assuming that the Supreme Court of South Australia allows his appeal. Alternatively, he asks that the court adjourn the hearing of the petition until the matter is decided.' 41 The Federal Magistrate said that the relevant paragraphs of Mr Gawronski's affidavit were put forward to prove that there was a 'secret agreement' between the respondent and the liquidator of Bernsteen. He rejected the tender of the relevant paragraphs of Mr Gawronski's affidavit (ie, paragraphs 13.1 to 13.5 inclusive) because the paragraphs were not 'in proper form because the conversations deposed to were not set out in direct speech but consisted of a summary of the conversation'. The Federal Magistrate said that there was insufficient evidence that the creditor's petition was brought for an improper or collateral purpose.


case_title: George v Hamilton-Smith [2006] FMCA 566

case_text: The respondent applied for a review of the Registrar's decision to adjourn the hearing of the creditor's petition to 5 June 2006. On the review Federal Magistrate Raphael upheld the Registrar's decision to adjourn the hearing of the creditor's petition and in fact he altered the adjourned date from 5 June 2006 to 20 June 2006: George v Hamilton-Smith [2006] FMCA 566. The following passages from the Federal Magistrate's reasons of 21 April 2006 should be noted (at [4], [12] and [13]): '4. The debtor claims she is solvent. She says that she has tendered payment of the petitioning creditor's debt and has a substantial cross claim against Bernsteen which would effectively nullify any debt that she has to that company. Bernsteen is not in a position to make any payment to her as it is a company in liquidation. She argues that another petitioning creditor, CFS, who had initially claimed a sum in excess of $20,000.00, has had its claim reduced to some $4,297.53 which has now been paid. What the debtor does not do is provide the court with any evidence about her financial circumstances. There is no affidavit indicating what real property she owns, what is the status of her bank accounts and what other assets are owned by her. There is no evidence of other creditors. There is no evidence that it was the debtor herself who paid the CFS debt or provided the funds for the tender to the petitioning creditor. This lack of evidence meant that Registrar Christie was unable to be satisfied that the debtor was solvent and I am likewise unable to be satisfied of her solvency. As Registrar Christie said in her judgment: "The debtor has not put before me the strong and tangible evidence necessary to establish that she is able to pay all her debts as and when they fall due (see Weinberg J in Esanda Finance Corporation Limited v Velissaris [1999] FCA 1359 at [17] ." ... 12. Even though the existence of the proceedings may not constitute sufficient cause to dismiss the sequestration order their existence might bear heavily upon an application for adjournment. We are now in April. The proceedings between the debtor and Bernsteen are set down for hearing in May. The proceedings between the debtor and the creditor are set down for hearing in early June. I have heard nothing about any additional creditors but I am aware that the debtor has obtained an order for security for costs in the sum of $6,000.00 against Bernsteen in respect of those proceedings. It is possible, given the existence of these proceedings, that Bernsteen could obtain a similar (and probably larger) order against the debtor if she was permitted to pursue her cross claim. 13. I have taken all these matters into account when considering whether or not to adjourn this petition. As much as there is a public interest in bringing petitions to finality and thus preventing the possibility of insolvent trading or the incurring of debts a bankrupt is unable to repay there is also the fact that the making of a sequestration order has quasi criminal consequences: Re A Judgment Debtor [1908] 3 K.B. 474. It puts severe restraints upon a bankrupt's freedom of movement and ability to do business and it is these effects which must be weighed by a court considering an adjournment rather than the prejudice to the debtor or the prejudice to the creditor as suggested by Registrar Christie at [27] of her judgment. In truth evidence on both of these matters is sorely lacking but I note that the debtor has not been totally unsuccessful in her previous litigious skirmishes, e.g. in reducing the CFS debt down to a manageable figure. I am of the view that whilst the current timetable for the forthcoming proceedings remains fixed with hearings in May and June the petition should be adjourned to allow those proceedings to be heard. But if the debtor is unable to mount her cross claim without a significant adjournment or if the claim against the creditor is delayed then the rationale for the adjournment of the petition (the speedy resolution of outstanding disputes) will no longer apply. Registrar Christie was unaware of the date of the hearing of the claim in the Magistrates Court between the creditor and the debtor but I have been informed that it is to take place on 13 June. I will adjourn the petition until 20 June 2006 but I will grant the parties liberty to apply so that in the event that these hearing dates are not kept to an application can be made for an earlier hearing. The petition and any such application will be returnable before Registrar Christie.' 29 On 20 June 2006 Registrar Christie heard and refused an application for discovery by the appellant which had only been filed the day before and she made the sequestration order which was reviewed by the Federal Magistrate. 30 On 5 July 2006 Federal Magistrate Raphael heard the application for review and on 19 July 2006 he made the sequestration order which is the subject of this appeal.


case_text: In J D Heydon, Cross on Evidence (7 th ed, 2004) page 476, the following passage appears (footnotes omitted): 'The limits of one restriction on the form of testimony should be noted. Witnesses are commonly interrupted as they endeavour to recount conversations in indirect speech, and urged to give the actual words used. This is a counsel of virtue, but it is questionable whether it is a rule of law. A witness may give the witness's best recollection of the substance, effect or purport of what was said, even though the exact words cannot be recollected, and the witness may also recount the impression made on the witness by whatever words were used. If so, it is hard to see why witnesses must be compelled into uttering untruths on oath by giving a form of words in direct speech with which they are not happy and which they cannot actually recollect in preference to their own words in indirect speech, so long as mere conclusions are avoided. "The rule that evidence of conversations shall be given in direct speech is, in Australia a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed". This is particularly so where the conversations took place a long time ago. Similarly, there is no provision in the Cth and NSW: Evidence Acts 1995 or the Tas: Evidence Act 2001 which makes inadmissible evidence of a conversation given in indirect speech, though the possibility of discretionary rejection under s 135 is available.' See also, LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 688 ; (2001) 53 NSWLR 31 at [8] - [9] . 82 In my opinion, by and large the relevant paragraphs fall within the second form referred to above. It would appear that the Federal Magistrate considered that the paragraphs fell within the third form (see his reference to a 'summary of the conversation') and, in so doing, in my respectful opinion, he erred. No doubt there appear to be one or two objectionable passages in the relevant paragraphs and I refer, for example, to the reference to the respondent bragging. Furthermore, the evidence is clearly only admissible against the respondent and is not admissible to prove Mr Macks' state of mind. Subject to those considerations, I think the evidence in the relevant paragraphs falls within the second form identified above and the only question is whether it should have been excluded because the appellant had not established by express evidence that Mr Gawronski could not give the evidence in direct speech. It would seem that that was not the basis upon which the Federal Magistrate excluded the evidence but it is a matter that needs to be considered. 83 In my opinion, there is a rule of practice at common law that requires a witness to recount the actual words used in a conversation if he or she is able to do that: Commonwealth of Australia v Riley (supra); LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (supra); J H Wigmore, 3 Wigmore on Evidence SS766 (Chadbourn rev 1970). If the witness is unable to recall the actual words used, he or she can give evidence of the substance or effect of what was said. A witness might say he or she cannot remember the actual words used. I think that as a matter of practice it is also open to the Court to infer that that is the case. I would be disposed to draw that inference in the case of the relevant paragraphs in Mr Gawronski's affidavit bearing in mind the lapse of time between the conversation and the swearing of the affidavit, the apparent length and complexity of the conversation and the fact that an actual word used is from time to time identified by quotation marks. However, I do not need to finally determine the point because I think the evidence is admissible by reason of the provisions of the Evidence Act 1995 (Cth).


case_title: Makhoul v Barnes (1995) 60 FCR 572

case_text: The fact that the Registrar determined this question against the appellant on the application to set aside the bankruptcy notice did not give rise to an issue estoppel preventing the appellant from raising the question again on the hearing of a creditor's petition: Makhoul v Barnes (1995) 60 FCR 572. However, the Court is not bound to allow the matter to be raised again and ordinarily the Court will accept that the judgment debt is still owing. In Makhoul v Barnes the Full Court of this Court said (at 582): 'However, the Court has a discretion whether to make a sequestration order even where an act of bankruptcy has been committed. If the Court determines that the circumstances are such that the Court should go behind the judgment debt relied upon in a bankruptcy notice and having done so is not satisfied that there has been shown to be real consideration for it, it will, in the sense discussed above in the exercise of that discretion, dismiss the petition notwithstanding a proved act of bankruptcy. Where the Court has already investigated that question on an application to set aside the bankruptcy notice, it would no doubt rarely, if ever, do so again. But this is not because an issue estoppel has been raised. It is because the debt has already been investigated by the Court so that it would not be an appropriate case to revisit the matter. Rather, the Court would (at least ordinarily) accept the judgment as evidence of the debt.' 56 It is true that these remarks were made in the context of a claim to go behind a judgment debt, but I see no reason why they do not also apply in a case where the claim is that the judgment debt has been satisfied. I have read the transcript of submissions before the Federal Magistrate and it was not put to him that he should investigate and determine the question of whether there had been an accord and satisfaction. Furthermore, his reasons for judgment suggest that he was not asked to do this. He does refer to the reasons for judgment of Registrar Christie on the application to set aside the bankruptcy notice but this was in a different context, namely, in the context of considering the appellant's prospects of success in the State Magistrates Court proceedings. 57 I have given anxious consideration to whether the appellant should be able to raise this point on appeal. If she is, it is a point that cannot be determined by me. The matter would need to go back to a Federal Magistrate for determination of the point after hearing evidence in much the same way as the Registrar did when she heard the application to set aside the bankruptcy notice.


case_title: Re Sarina; Ex parte Council of the Shire of Wollondilly (1980) 43 FLR 163; 48 FLR 372

case_text: Under s 52(2)(a) of the Act the Court may dismiss a creditor's petition if it is satisfied by the debtor that he or she is able to pay his or her debts. The onus of establishing that fact is on the debtor. The debtor must establish that he or she is able to pay his or her debts within a reasonable time. If a debtor establishes his or her ability to pay his or her debts then a sequestration order should not be made even if the debtor is unwilling to pay the debt which forms the basis of the petition: Re Sarina; Ex parte Council of the Shire of Wollondilly (1980) 43 FLR 163 per Deane J; (1980) 48 FLR 372 per Bowen CJ CA, Sweeney and Lockhart JJ. It is also true, as the appellant submitted, that a debtor with few or no assets and a modest income may have no difficulty in establishing an ability to pay his or her debts. At the same time a mere assertion of solvency or ability to pay debts may not be sufficient. A Court will assess the whole of the evidence and the fact that a debtor has not produced certain evidence relevant to his or her financial situation may be relevant to the question of whether the debtor has satisfied the onus of establishing the fact that the debtor can pay his or her debts. 61 In this case, the appellant's counsel conceded before the Federal Magistrate that he was not contending that the appellant could satisfy the Court that she was able to pay her debts. The relevant passage in the transcript of the submissions is in the following terms: 'His Honour: Have you filed an affidavit giving us any idea what your client's financial circumstances are? Mr Sallis: No your Honour. His Honour: No, all right. Mr Sallis: Therefore, I can't argue with you about solvency. His Honour: No.' 62 That concession was made in the context of previous statements by the Registrar and the Federal Magistrate to the effect that the evidence of the appellant's financial circumstances was very limited. In my opinion, the concession made before the Federal Magistrate is an answer to the argument the appellant now seeks to put on the appeal. The Federal Magistrate would have been entitled to rely on the concession and simply to have noted that the submission that the appellant fell within s 52(2)(a) was not pressed. It was not a matter where the onus was on the petitioning creditor or one where the Court was under an obligation to investigate the matter; the onus was squarely on the appellant and it was open to her to abandon the point. 63 The appellant submitted that she is able to press the insolvency point on appeal because the Federal Magistrate did not rely on the concession. The focus of the Federal Magistrate's reasons is s 52(2)(b) of the Act and whether 'other sufficient cause' why a sequestration order ought not to be made had been established. He did say in the course of his reasons that although the appellant had asserted that she was able to pay her debts as and when they fell due, she had provided no evidence about her assets or liabilities. He referred to his observations in his reasons for judgment delivered on 21 April 2006 which are set out in [28] above. 64 It would not be proper to read the Federal Magistrate's reasons for judgment as if he had put the concession to one side. The concession was a concession that further evidence was required and yet had not been put forward and that, in those circumstances, the contention that the matter in s 52(2)(a) had been established could not succeed. 65 On appeal, the appellant's counsel submitted that no concession had been made or, alternatively, if it had it is irrelevant because the Magistrate did not rely on it. For the reasons I have given, I reject both of those submissions. It was not suggested that the concession was made by mistake or accident and that the appellant should be permitted to withdraw the concession on appeal for one or other of those reasons. 66 Even if I am wrong and the Federal Magistrate did not rely on a concession, in my opinion, a conclusion that the appellant had not established that she was able to pay her debts was a conclusion that was reasonably open to the Magistrate. The appellant's evidence consisted of, first, no more than assertion that she was solvent and able to pay her debts and, secondly, details relating to the claims of the respondent, CFS and Bernsteen. The evidence put forward by the appellant established the following: 1. As at 6 April 2006 the appellant was working in a business and receiving an income of about $1,200 per week. 2. The debt which she owed to CFS had been paid although there was no evidence as to the source of the moneys used to repay the debt. 3. Bernsteen has a claim against the appellant for the sum of $29,068.55 and the appellant has a counterclaim against Bernsteen which she quantifies at a figure in excess of $50,000. There was no evidence as to the strength of either the claim or counterclaim and neither has come on for trial. 4. Bernsteen has obtained orders for costs against the appellant. The making of those orders is the subject of an application for special leave to appeal to the High Court of Australia. However, the orders have given rise to existing liabilities subject to any orders staying the enforcement of the liabilities. The liability of the appellant to Bernsteen for the costs awarded by the Magistrates Court of South Australia is for the sum of $12,000. The enforcement of that judgment has been stayed by order of a State Magistrate. The liability of the appellant to Bernsteen for the costs awarded by the Supreme Court of South Australia is for the sum of $11,191.80. The enforcement of that judgment has not been stayed. 5. Bernsteen has a liability to the appellant for the costs of the appellant's successful application to set aside the bankruptcy notice and that liability has been quantified or is likely to be quantified in the sum of $6,221.78. 6. The appellant has a liability (not yet quantified) for costs to the respondent upon the discontinuance of an application for a stay of the judgment debt and the appellant may have an offsetting claim for costs against the respondent for an unsuccessful attempt by the respondent to have the appellant's State Magistrates Court proceedings struck out as an abuse of process. 67 These matters are no doubt relevant to the appellant's financial circumstances and go some way towards establishing that the appellant is able to pay her debts. However, the onus is not on the petitioning creditor; it is on the judgment debtor. Furthermore, the appellant's assertions of solvency cannot be given any great weight particularly in light of the approach she took before the Magistrate (see [61] above). 68 The appellant must have some ongoing expenses and, presumably she would say, some means of meeting some or all of those expenses. It was the absence of any evidence relevant to those matters which led the Magistrate to conclude that the appellant had not discharged the onus of establishing that she is able to pay her debts (see [28] and [42] above). That conclusion was open to him.


case_text: The relevant principles as to what constitutes an improper purpose were stated by the High Court in Rozenbes v Kronhill [1956] HCA 65 ; (1956) 95 CLR 407. The Court referred to a number of English authorities on what amounts to 'extortion'. The Court said that the question is whether the court process is being used for illegitimate purposes such as recovering a larger amount from the debtor than could be recovered by legal proceedings. The Court said (at 417): 'The case seems finally to establish that the ultimate principle involved is that a court will not allow its process to be abused. There is an abuse of process if a pending bankruptcy petition, or a threat of proceedings in bankruptcy, is used as a means of extortion. The word "extortion" is not a technical term, and it has in bankruptcy law "no special and artificial significance divorced altogether from the ordinary implication of the word". The court will look strictly at the conduct of a creditor using or threatening bankruptcy proceedings, and extortion may be held to have taken place if the creditor has used, or attempted to use, a pending petition, or a threat of a petition, in order to extract from the debtor money which the debtor is not bound to pay, or in order to obtain some secret and unfair advantage over other creditors. But extortion will not be held to have taken place "in the absence of mala fides or anything amounting to oppression in fact". There must be a real intention on the part of the creditor to use the process for some other end than its legitimate end, and there must be a real exertion of pressure.' 72 The other point which emerges from the case (at 419) is that even if an improper purpose is established it does not follow that a sequestration order will not be made. The Court retains a discretion to make such an order. 73 Although the improper purpose point was not referred to in the appellant's Notice of Intention to Oppose Petition, there is no doubt that it was raised as a ground of challenge both before the Registrar on 20 June 2006 and the Federal Magistrate on 5 July 2006.


case_text: was also submitted on behalf of Mr Watson that the privilege against self-incrimination has a role to play in related civil cases. In Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620 ; (2007) 164 FCR 32 at [9] (p 36), Finkelstein J said: In the case of self-incrimination privilege the defendant must establish that the provision of information or the production of documents in the civil case leads to a real and appreciable risk of a criminal prosecution before the privilege can be invoked: Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 574; Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 392; Sorby 152 CLR at 290, 294. That will not be difficult to show when, as here, the proceeding is aimed at proving that the directors engaged in conduct which would establish, or go a long way toward establishing, that they had also committed criminal acts. I do not disagree with these statements of principle. It must, however, be remembered that the examinations which are recorded in the transcripts were conducted as part of an investigation undertaken by ASIC pursuant to s 13 and ss 19 27 of the ASIC Act. In examinations conducted as part of such an investigation, the ASIC inspector may require the examinee to answer a question that is put to the examinee at the examination which is relevant to a matter that ASIC is investigating (s 21(3)). The examination is to take place in private (s 22) and a written record of the examination is to be created and kept (s 24). Under s 25(3), ASIC may, subject to such conditions as it may wish to impose, give to a person a copy of the written record of the examination.


case_text: for the examinees have submitted that express undertakings should be required by the Court in the circumstances of the present case and that the precise terms upon which access is to be granted should be spelled out in order to avoid any future misunderstanding as to those terms. Counsel for the applicants resists the imposition of such a term on the basis that it is unnecessary. He referred me to passages in Hearne v Street [2008] HCA 36 ; (2008) 235 CLR 125 which make clear that the implied undertaking not to use documents produced under compulsion in litigation for any purpose other than the purposes of the litigation for which they were produced is a substantive obligation and need not be incorporated into an express undertaking. Whilst the submissions advanced on behalf of the applicants in this respect may well be correct, I do think that there is some advantage in articulating with precision the precise terms upon which access is to be granted. This is not out of any concern that the legal representatives in the present case would not both understand and respect their obligations under the implied undertaking. It is simply the best way to ensure that all persons to whom access is granted have a very clear understanding of the terms upon which that access is being granted. I prefer to impose a requirement that express undertakings be given. The parties are also in broad agreement that I should provide that notice be given to the examinees if the transcripts are intended to be deployed at the trial. I will accommodate such a term in the orders which I will make. Finally, there is a dispute between the applicants, on the one hand, and the respondent, on the other hand, as to whether or not any claims for legal professional privilege intended to be made by the respondent should be dealt with by way of affidavit or by letter in the first instance. Given the fact that the commencement of the trial is fast approaching, I think that the best course is for the applicants' proposal to be adopted. I will therefore incorporate the applicants' suggested orders in this respect in the orders which I will make. For all of the above reasons, I think that the interests of justice are best served by granting access to the transcripts to certain named legal representatives of the parties and to do so on strict terms as to confidentiality. I propose to make orders accordingly.


case_title: R v Saleam [1999] NSWCCA 86

case_text: Studdy SC focussed more upon matters of confidentiality and relevance. He submitted (correctly, I think) that the applicant for the subpoena must: ... identify a legitimate forensic purpose for which access is sought and establish that it is on the cards that the documents will materially assist his case ( R v Saleam [1999] NSWCCA 86 at [11] per Simpson J (Spigelman CJ and Studdert J agreeing). There was evidence before me which satisfied me that the contents of the transcripts were very likely to be at the heart of the subject matter of the case. Originally, Mr Studdy SC urged upon me that I should send off the transcripts to an independent barrister with a request (or perhaps subject to an order) that that barrister read all of the transcripts and come to a view by reference to the pleadings which particular questions and answers might have some conceivable relevance to the issues in the case as discerned by that barrister. He or she would then mask those portions of the transcript which were considered to be irrelevant. During the course of argument, I indicated to Mr Studdy SC that I saw many difficulties with that approach. In the end, notwithstanding that he did not abandon the suggestion, he did not press it as vigorously as he had at the outset. I am not prepared to engage some third party in the manner and for the purposes suggested by Mr Studdy SC. Mr Studdy SC then urged upon me that I should perform the task that he said the independent barrister should perform. I decline to take that course. It is unnecessary. In addition, the respondent objects to my looking at the transcripts, in any event. All Counsel focussed on questions of confidentiality. These matters are more appropriately dealt with when I come to consider the terms upon which access might be granted.


case_title: Reid v Howard (1995) 184 CLR 1

case_text: for Michael Watson submitted that the privilege against self-incrimination (of which the right to silence is part) is a fundamental bulwark of liberty which is deeply ingrained in the common law of Australia. In support of that submission, Counsel cited Reid v Howard (1995) 184 CLR 1. In Reid v Howard 184 CLR 1 , former clients of a chartered accountant, having learned that he was misappropriating funds, applied for orders in the Supreme Court of New South Wales compelling him to disclose information about certain assets. The accountant claimed privilege against self-incrimination. The Court of Appeal accepted the claim for privilege but made orders compelling disclosure upon conditions intended to protect the accountant from the risk of prosecution. The Crown was not a party to the making of the orders. The High Court held that there is no scope for an exception to privilege against self-incrimination, in criminal or civil proceedings, other than by statute or waiver. At 184 CLR 5, Deane J said: Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts. In Reid v Howard 184 CLR at 11, the majority who delivered the joint judgment (Toohey, Gaudron, McHugh and Gummow JJ) said that the privilege against self-incrimination was not simply a rule of evidence but was " a basic and substantive common law right ". Their Honours went on to hold that there was no scope for an exception to the privilege other than by statute (at 184 CLR 14). In terms of principle, the ASIC Act has modified the privilege against self-incrimination to some extent. As envisaged by the relevant statements of principle in Reid v Howard 184 CLR 1, the scope of the privilege has, to some extent, been modified by statute and that modification of the privilege is effective. However, the answers to the questions asked during the course of the relevant examinations which are recorded in the transcripts cannot be used in criminal proceedings other than as permitted by s 68(3) of the ASIC Act. This is not a case of a court in a civil proceeding seeking to override the privilege before the privilege can be invoked. The simple fact is that, to the extent permitted by law, the privilege in its modified form has already been invoked. For these reasons, I do not think that the examinees have made out their submission that access to the transcripts should be denied as a matter of law.


case_outcome: affirmed

case_text: This appeal is from a judgment of the Federal Magistrates Court, published as M20 of 2003 v Minister for Immigration & Anor [2005] FMCA 902. The federal magistrate dismissed an application by the appellant, seeking relief in respect of a decision of the Refugee Review Tribunal ('the Tribunal'), dated 30 August 2001 and handed down on 21 September 2001. The proceeding before the Federal Magistrates Court had been remitted from the High Court of Australia to this Court, and from this Court to the Federal Magistrates Court. 2 The appellant is a citizen of India, who arrived in Australia on 12 September 1996 in possession of a student visa. After a renewal of that student visa in 1998, the appellant applied for a protection visa on 26 June 2000. A delegate of the first respondent, then the Minister for Immigration and Multicultural Affairs, and subsequently the Minister for Immigration and Multicultural and Indigenous Affairs, and now again the Minister for Immigration and Multicultural Affairs (in all cases, 'the Minister') refused the application for a protection visa. The appellant sought review of that decision by the Tribunal. The Tribunal conducted a hearing, at which the appellant gave evidence to it. Its decision was that the Tribunal was not satisfied that the appellant was a refugee, and the Tribunal affirmed the decision not to grant a protection visa. 3 After some significant delay, the appellant applied to the High Court, seeking to set aside the Tribunal's decision and to have the matter reheard by the Tribunal, differently constituted. Once the matter had been remitted via this Court to the Federal Magistrates Court, the appellant filed an amended application, seeking relief in the exercise of the jurisdiction conferred on that court by s 483A of the Migration Act 1958 (Cth) ('the Migration Act '). In relation to matters arising under the Migration Act , that jurisdiction is identical to that conferred on this Court by s 39B of the Judiciary Act 1903 (Cth). 4 In that amended application, the appellant made it fairly clear that he wished to assert that some of the factual conclusions of the Tribunal were incorrect. 5 The federal magistrate took the view that, in reality, the appellant's challenge to the Tribunal's decision was based on issues of fact, and that the Federal Magistrates Court had no jurisdiction to review the decision on the merits. In substance, this constituted the reasons of the federal magistrate for dismissing the amended application.


case_outcome: related

case_text: On 22 August 2007 I made orders convening a meeting of the ordinary shareholders in the plaintiff, Orion Telecommunications Limited (Orion), for the purpose of considering a scheme of arrangement proposed between Orion and its ordinary shareholders. On 4 September 2007 I gave reasons for those orders ( Orion Telecommunications Limited, in the matter of Orion Telecommunications Limited [2007] FCA 1389). At that stage I had gone through the scheme and the accompanying documents, had dealt with the matters which required attention, and concluded that the scheme was appropriate to be put forward to members for consideration. 2 That consideration has now taken place and the overwhelming response of the shareholders is in favour of the scheme being approved. Counsel yesterday took me through the items requiring proof in order to justify making an order and referred me to the evidence which established each of those matters. I need not now recite each of them beyond saying that, in my opinion, all of the formalities associated with the calling of the meeting, the conduct of the meeting and the recording of the result of the meeting, together with all the statutory preconditions, have been established. 3 Counsel drew to my attention some matters which he indicated required my attention. The first related to some voting restrictions placed on certain shareholders. I agree with counsel's submission that, in the events which have happened, that matter has no consequence because, restriction or no restriction, the overwhelming approval means that there would be no effect upon the vote no matter which view is taken. That is particularly so as not all of the shares would be governed by that restriction. The corresponding wrong calculation as to the result similarly has no effect.


case_text: The applicants' complaint under ground (c) appears to have been that the Tribunal failed to give them "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision": sub-s (1)(a). After quoting a passage from the judgment of Allsop J in SZEZI v Minister for Immigration & Citizenship [2005] FCA 1195 , the Magistrate dismissed this ground as follows at [14]-[15]: The Tribunal, having read all the material and evaluated its contents and weight, was unable to be satisfied that the applicant had a well-founded fear of persecution because of the perceived inaccuracies in the information. The reason for the Tribunal decision was no more than that. It was the applicant's lack of further assistance and explanation that was the reason for the decision. ... This Tribunal did not make positive findings of facts about the position of the applicant but, rather, rejected his claims because of its inability to be satisfied on the lack of information before it that Australia owed protection obligations to him ... 6 The Magistrate was of the view that all three grounds of appeal were adequately addressed by applying SZEZI and another case to which he referred, SZCIA v Minister for Immigration & Citizenship [2006] FCA 238. His Honour dismissed the application. The dismissal was made pursuant to Rule 44.12 of the Magistrates Court Rules , which provides that on an application for an order to show cause, the Court may, if it is not satisfied that the application has raised an arguable case, dismiss the application. Such an order is interlocutory: subrule (2). The applicants require leave to appeal. They have thus far proceeded as if they have an appeal as of right. I will treat them as applying for leave. 7 The grounds in the applicants purported "notice of appeal" to this Court are: (a) The Tribunal did not understand their fear of harm and misapplied the relevant law. The Tribunal failed to assess the cumulative effect of separate incidents suffered by them. (b) They were denied procedural fairness. The Magistrate "failed to consider [that they] did not attend the hearing due to misdirection and unawareness about the process of hearing". 8 There is no substance in ground (a). The Tribunal recorded the first applicant's claims upon which his fear of persecution was based, and said that his application was not supported by any evidence. Immediately before the passage set out at [3] the Tribunal said at page 6: The first applicant has made a number of unsubstantiated claims in relation to his membership and active involvement in the BJP; his father's involvement in the VHP and RSS; his involvement as a member of the BJP in the Gujarat election campaign which took place after the Godhra incident; and that he was part of a post election procession which was attacked by opposition members who threw stones. The first applicant also claimed that he was attacked at night when returning home from his work and then, six months later, he and the second applicant were attacked when returning to their home at night after attending a birthday party. It was then that the Tribunal said it was "unable to establish the facts of the matter", and that the applicants had not responded to its invitation to attend a hearing and provide further material. 11 Although it is not a proposed ground of appeal, I should say that the s 424A ground pursued before the Magistrate has no merit. In SZEZI Allsop J said at [29]: The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason. I agree with the Magistrate that this passage is applicable to the present case. 12 Because there is no prospect of the applicants' establishing either of their grounds of appeal, or a ground based on s 424A, the application for leave to appeal must be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 8 August 2008 The appellants appeared in person. Solicitors for the Respondents: Clayton Utz Date of Hearing: 6 August 2008 Date of Judgment: 8 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1160.html


case_text: existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: TNT Skypak International Australia Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 per Gummow J at 178. It is for the applicant to precisely identify the question of law which founds the jurisdiction of this Court to hear the appeal: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] .


case_title: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232


case_text: 7 March 2006 Lee J ordered the applicant to file particulars of grounds of appeal by 28 March 2006. On that day the applicant filed a document which purports to give particulars of the grounds of appeal. On this appeal the applicant sought to adduce further evidence. The material which is sought to be adduced did not come into existence until after the respondent had made the decision complained of. Indeed, the material did not come into existence until after the AAT decision. The applicant sought to tender the material for the purpose of inviting this Court to come to a different conclusion on the facts to that arrived at by the AAT. It should not be admitted: Servos v Repatriation Commission (1995) 56 FCR 377 per Spender J at 385. An examination of the notice of appeal and the particulars contained in that last mentioned document indicate that no question of law is raised on this appeal. Clearly, the grounds in paragraphs (b) and (c) are not questions of law. Nor, in my opinion, are the grounds in paragraphs (a), (d) and (e). In any event, the AAT was obliged to consider any relevant material which had been supplied to it by the respondent pursuant to the respondent's obligation under s 37 of the AAT Act. None of the information supplied was relevant. The complaint in paragraph (d) cannot be sustained. The AAT's reasons, to which I have already referred, show that the AAT did have regard to the applicant's evidence. The AAT was under no obligation to refer to each piece of evidence that the applicant had put before the AAT. Paragraph (e) is simply not relevant. At the time the respondent made the FTL penalty remission decision, which was subject to review before the AAT, the respondent did not know whether there was any tax payable by the applicant for the years under question because the applicant had not lodged her returns. They were still not lodged, I think, at the time that the AAT made its decision.


case_text: material facts in Purchas, in the matter of Estore Pty Limited (in liq) [2006] FCA 1222 , which has just been handed down, are indistinguishable in substance from this case. Directions will be given and an order for costs made for reasons given in that decision. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 8 September 2006 Counsel for the Plaintiffs: Ms V Whittaker Solicitor for the Plaintiffs: Kemp Strang Date of Hearing: 21 August 2006 Date of Judgment: 8 September 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1223.html


case_text: The conduct was, in all the circumstances, "unconscionable". That term, in this section, is not limited as it is in s 12CA by a connection with the unwritten law (cf s 51AA of the Trade Practices Act 1974 (Cth); Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51; GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Pty Ltd [2001] FCA 1761 ; (2001) 117 FCR 23 at [113] [126]). Section 12CB is the equivalent of s 51AB of the Trade Practices Act (as to which, see, Australian Competition and Consumer Commission (ACCC) v Radio Rentals Ltd [2005] FCA 1133 ; (2005) 146 FCR 292 at [23] [24]). The width of the concept is underlined by the factors referred to in s 12CB(2).


case_title: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51


case_title: GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Pty Ltd [2001] FCA 1761 ; (2001) 117 FCR 23


case_text: Two general points can be made. First, each of s 12CB(1) and s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (the Act) prohibits certain conduct by "a person" which, in the absence of any special definition, includes a natural person. As all of the conduct in this case occurred in the Australian Capital Territory, the sections apply according to their terms (s 4(1) together with the definitions of "Territory" and "this jurisdiction" in s 5 of the Act). Second, there is no difficulty in each of the first and second defendants being responsible for the conduct of the first defendant ( Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553). 4 Section 12CB(1) provides as follows: "A person must not, in trade or commerce, in connection with the supply or possible supply of financial services to a person, engage in conduct that is, in all the circumstances, unconscionable." 5 There is no doubt that what occurred was "in trade or commerce". "Financial service" is defined in s 12BAB of the Act. That, in turn, incorporates the definition of "financial product" in s 12BAA. A "credit facility" (within the meaning of the regulations) is such a product (s 12BAA(7)(k)). Regulation 2B of the Australian Securities and Investments Commission Regulations 2001 (Cth) defines "credit facility" in a manner that is apt to pick up what took place between the second defendant, Mr Biega and Pepper Homeloans.


case_outcome: discussed

case_text: There may also be an equitable set off available to the acquirer arising from a distribution, in the case of units, or payment of a dividend in the case of shares, such that the consideration paid at settlement is less than the cash sum in the Notice: Capricorn Diamonds Investments Pty Ltd v Catto [2002] VSC 105 ; (2002) 5 VR 61 at [99] - [100] . See also Brierley v Dextran Pty Ltd (1990) 9 ACLC 30, although the adjustment at settlement there, arose not in equity or under any statutory provision but by reason of the terms of the offer referrable to accretions, accruing for whatever reason, directly or indirectly to the shares. The offer in that case was to acquire the shares, with accretions for a cash sum. Where the offerees prior to settlement received benefits by way of accretions to the shares (an interim dividend), there was a set-off available to the offeror to that extent. There was no issue as to what was the "cash sum", or whether the offer was for a "cash sum". The "cash sum" was $2.30 per share. The question was whether at settlement, the amount payable was the cash sum less the interim dividend paid on the shares to the offerees prior to settlement. 39 Capricorn was in similar vein. The cash sum offered in the notice of compulsory acquisition was $2 for each unit. The benefit of distributions undeclared at the time of a compulsory acquisition notice accrues to an acquirer under s 664A of the Act : Capricorn at [92]. The question in that case was whether at settlement the acquirer was liable to set off against the cash sum of $2 the amount of benefit by way of distributions paid to the offerees between the date of the notice of compulsory acquisition and settlement. Neither Brierley nor Capricorn , in my opinion, assists the construction of "cash sum". 60 I have had regard to the provisions of s 664B(2) and the cases of Brierley and Capricorn relied upon by Mitsui, but for reasons which I have already explained, these do not inform the meaning of "cash sum" in s 664C(1)(a) of the Act. Rather, they are concerned with the amounts paid in due course for the securities. 63 It is not sufficient that at some indeterminate date in the future, if at all, a determinate amount of money may be calculated as the "cash sum" for the purpose of the Notice. This is a different matter from any statutory adjustment under s 664B(2) or equitable or contractual set offs to be applied to the cash amount offered in a notice of compulsory acquisition: Brierley and Capricorn.


case_text: At p 480 Gibbs J stated (relevant page numbers included): In a series of cases under the National Security (Prices) Regulations, this Court discussed the manner in which the power given by those regulations to fix prices might validly be exercised. It is enough to refer to King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 and Cann's Pty Ltd v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 . In King Gee Clothing Co Pty Ltd v The Commonwealth , Dixon J. said at p 197: "But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. In the same case, Williams J at p 208, repeated an earlier statement that "a bare power to 'fix' a price cannot be validly exercised without naming a money sum, or prescribing a certain standard by the application of which it can be calculated or ascertained definitely." In Cann's Pty. Ltd v The Commonwealth , Latham C.J. said at p 217 that where the prices are fixed by reference to a standard, "the standard must not be such that any element therein can be ascertained only by the exercise of discretion in apportionment, allotment, allocation or otherwise." 48 Gibbs J continued (p 481): A power given to one person to determine a value or fix a price will not be validly exercised by allowing another to exercise a wide and unreviewable discretion in determining that price, although the person upon whom the power is conferred may, instead of actually fixing a money sum himself, "lay down a method of finding it which will produce the same result whoever applies it, so long as he uses it correctly.": Cann's Pty Ltd v The Commonwealth at p 228. 50 Hanwha points to the same authorities in support of its submissions that "cash sum" means a specified or fixed amount of money, which is not subject to any condition or indeterminate adjustment. It conceded, as I said, that a formula or mechanism for arriving at the "cash sum" may be used but submitted that it must be one that can be calculated or ascertained definitely; King Gee Clothing Co Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 at p 208 per Williams J. It must be a "method which will produce the same result whoever applies it so long as he uses it correctly": Cann's Pty Ltd v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 at p 228.


case_text: There may also be an equitable set off available to the acquirer arising from a distribution, in the case of units, or payment of a dividend in the case of shares, such that the consideration paid at settlement is less than the cash sum in the Notice: Capricorn Diamonds Investments Pty Ltd v Catto [2002] VSC 105 ; (2002) 5 VR 61 at [99] - [100] . See also Brierley v Dextran Pty Ltd (1990) 9 ACLC 30, although the adjustment at settlement there, arose not in equity or under any statutory provision but by reason of the terms of the offer referrable to accretions, accruing for whatever reason, directly or indirectly to the shares. The offer in that case was to acquire the shares, with accretions for a cash sum. Where the offerees prior to settlement received benefits by way of accretions to the shares (an interim dividend), there was a set-off available to the offeror to that extent. There was no issue as to what was the "cash sum", or whether the offer was for a "cash sum". The "cash sum" was $2.30 per share. The question was whether at settlement, the amount payable was the cash sum less the interim dividend paid on the shares to the offerees prior to settlement. 39 Capricorn was in similar vein. The cash sum offered in the notice of compulsory acquisition was $2 for each unit. The benefit of distributions undeclared at the time of a compulsory acquisition notice accrues to an acquirer under s 664A of the Act : Capricorn at [92]. The question in that case was whether at settlement the acquirer was liable to set off against the cash sum of $2 the amount of benefit by way of distributions paid to the offerees between the date of the notice of compulsory acquisition and settlement. Neither Brierley nor Capricorn , in my opinion, assists the construction of "cash sum". 60 I have had regard to the provisions of s 664B(2) and the cases of Brierley and Capricorn relied upon by Mitsui, but for reasons which I have already explained, these do not inform the meaning of "cash sum" in s 664C(1)(a) of the Act. Rather, they are concerned with the amounts paid in due course for the securities. 61 I have so concluded because where the Court is required to evaluate whether the terms set out in a notice of compulsory acquisition give a fair value for the securities, it must determine this at or about the date that the notice was lodged with ASIC and the notice was despatched to shareholders: Capricorn at [88]-[90]. This statutory evaluation by the Court necessarily requires that the "cash sum" be ascertainable as at the date of the notice. It would be an extraordinary result if this could be evaluated by the Court by reference to information not known or capable of being ascertained as at the date of the notice. Likewise the recipient of a notice of compulsory acquisition ought be able to calculate the definite cash sum in order, importantly, to decide whether or not to object. 62 A formula or mechanism which is incapable of ascertaining a precise dollar amount for each of the shares in question at or about the date of a notice of compulsory acquisition does not, in my opinion, constitute a "cash sum", within the meaning of s 664C(1)(a) of the Act. 63 It is not sufficient that at some indeterminate date in the future, if at all, a determinate amount of money may be calculated as the "cash sum" for the purpose of the Notice. This is a different matter from any statutory adjustment under s 664B(2) or equitable or contractual set offs to be applied to the cash amount offered in a notice of compulsory acquisition: Brierley and Capricorn.


case_text: A creditors meeting had purported to fix the administration remuneration by approving specific sums of money for each of the first two weeks of the administration and prospectively approving further remuneration by reference to hourly rates set out in the creditors report subject to the committee of creditors reviewing and confirming the details of the remuneration claim. The hourly rates contained in the creditors' reports included a range of rates the administrators were entitled to charge for the same types of work. At [24] Finkelstein J said: The second reason is that even if it be permissible to "fix" remuneration prospectively by reference to a rate or scale of charges, such as an hourly rate, which is open ended and has no upper limit (which is what the administrators argue) here the resolutions go far beyond that. The natural meaning of the word "fix" in the context of an entitlement to "such remuneration as is fixed by a resolution of [creditors]" is, so it seems to me, to quantify that remuneration, that is to calculate or ascertain the amount of remuneration: Mayne v Jaques [1960] HCA 23 ; (1960) 101 CLR 169, 173, 174, 180. See also In re Gallard; Ex parte Harris [1892] 1 QB 532, 544. Thus, remuneration will be "fixed" if it is stated as a money sum, or is based on a formula which is capable of being applied according to some objective standard so the sum "can be calculated or ascertained definitely": Fraser Henleins v Cody [1945] HCA 49 ; (1945) 70 CLR 100, 128. In the case of a formula all the objective elements must be identified. 49 Fraser Henliens Pty Ltd v Cody [1945] HCA 49 ; (1945) 70 CLR 100 concerned whether particular formulative phrases embodied in a Prices Regulation Order made under the Black Marketing Act 1942 were so vague and uncertain as to make the order invalid as not fixing a price. Dixon J said (p 128) that a "bare power to "fix" a price cannot be validly exercised without naming a money sum, or prescribing a certain standard by the application of which it can be calculated or ascertained definitely. Otherwise the price is not "fixed"."


case_text: At p 480 Gibbs J stated (relevant page numbers included): In a series of cases under the National Security (Prices) Regulations, this Court discussed the manner in which the power given by those regulations to fix prices might validly be exercised. It is enough to refer to King Gee Clothing Co Pty Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 and Cann's Pty Ltd v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 . In King Gee Clothing Co Pty Ltd v The Commonwealth , Dixon J. said at p 197: "But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. In the same case, Williams J at p 208, repeated an earlier statement that "a bare power to 'fix' a price cannot be validly exercised without naming a money sum, or prescribing a certain standard by the application of which it can be calculated or ascertained definitely." In Cann's Pty. Ltd v The Commonwealth , Latham C.J. said at p 217 that where the prices are fixed by reference to a standard, "the standard must not be such that any element therein can be ascertained only by the exercise of discretion in apportionment, allotment, allocation or otherwise." 50 Hanwha points to the same authorities in support of its submissions that "cash sum" means a specified or fixed amount of money, which is not subject to any condition or indeterminate adjustment. It conceded, as I said, that a formula or mechanism for arriving at the "cash sum" may be used but submitted that it must be one that can be calculated or ascertained definitely; King Gee Clothing Co Ltd v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 at p 208 per Williams J. It must be a "method which will produce the same result whoever applies it so long as he uses it correctly": Cann's Pty Ltd v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 at p 228.


case_title: Racecourse Co-operative Sugar Association Limited v Attorney-General of the State of Queensland [1979] HCA 50 ; (1979) 142 CLR 460

case_text: Racecourse Co-operative Sugar Association Ltd v Attorney-General of the State of Queensland [1979] HCA 50 ; (1979) 142 CLR 460 at 481, concerned the meaning of "... prices ... fixed" in s 6(1) of the Sugar Acquisition Act 1915 Qld).


case_text: Re Korda; in the matter of Stockford Ltd [2004] FCA 1682 , was concerned with what is meant by "such remuneration as is fixed by a resolution of the company's creditors ..." under s 449E(1)(a) of the Act .