case_text: In this matter reasons for decision were published on 20 June 2008 ( E & J Gallo Winery v Lion Nathan [2008] FCA 934) and the matter was stood over to this morning for the purpose of making final orders disposing of the proceeding. 2 There is agreement as to the form of the orders to be made with one exception. That exception is whether an order for the removal of the Gallo Winery trademark should be made as from today's date (and that order stayed for 21 days) or whether the order for removal should take effect retrospectively as from 8 May 2007. That date was the conclusion of the three-year non-use period. The stay was properly not opposed presumably upon the basis of preserving the rights of Gallo Winery should it wish to appeal. 3 The discretionary power to order removal of a mark is that conferred by s 101(2) of the Trade Marks Act 1995 (Cth). No Australian decision has apparently addressed the question now posed by the competing submissions of Lion Nathan and Gallo Winery . 4 It is considered that that discretionary power can only be exercised as from the date upon which a court makes an order for the removal of a mark from the Register and does not confer a power to order removal from a date prior to judgment. Rejected is the submission advanced on behalf of Lion Nathan that an order for the removal of a trademark for non-use should normally be an order that it be removed as from the conclusion of the non-use period otherwise than " in exceptional circumstances ". No reason was advanced as to why such a qualification should be read into the discretion otherwise conferred by s 101(2). 5 Section 101(2) is silent as to the date from which an order may be made; the sub-section simply provides that " the court may order the Registrar to remove the trade mark from the Register ". 6 The conclusion that s 101(2) should not be construed as permitting, in effect, a retrospective removal of a trade mark is primarily based upon two considerations. 8 Second, there is an absence of any indication in the terms of s 101(2) that the power may be exercised in the manner contended for by Lion Nathan. By way of contrast stand other provisions of the 1995 Act. Where the legislature has intended that action may be taken with effect from a particular date, it has expressly so provided. Reference may thus be made, by way of example, to s 79 which provides as follows: Renewal within 6 months after registration expires If, within 6 months after the registration of a trade mark has expired, a person asks the Registrar, in accordance with subsection 75(2), to renew the registration of the trade mark, the Registrar must renew the registration of the trade mark for 10 years from the day on which the registration expired. Reference may also be made to s 98 which provides as follows: Trade mark restored to Register if notice of opposition filed within extended time If: (a) the Registrar has removed a trade mark from the Register under subsection 97(1) because no notice of opposition was filed within the period provided under the regulations; and (b) the Registrar subsequently extends the period within which the notice may be filed; and (c) a notice of opposition is filed within the extended period; the Registrar must restore the trade mark to the Register. Also, the trade mark is taken not to have been removed from the Register. Neither of those provisions relate to the making of orders by this Court. But they do provide some support for the conclusion reached. 9 Although no Australian decision has been cited to support the contention of Gallo Winery , reliance is placed upon Second Sight v Novell UK [1995] RPC 423. There in issue was s 32(1) of the Trade Marks Act 1938 (UK) which provided as follows: Any person aggrieved ... by any entry made in the register without sufficient cause or by any entry wrongly remaining on the register ... may apply in the prescribed manner to the Court ... or to the Registrar, and the tribunal may make such order for ... expunging or varying the entry as the tribunal may think fit. Of that provision, Lightman J observed at 428 9: The issue is (by common consent) one of statutory construction of sections 26 and 32 in the context of the Trade Marks Act 1938 as a whole. Specific provision is made in the Trade Marks Act 1938 where an event or decision is to have retrospective effect (see: e.g. section 19). Likewise specific provision is made in the Trade Marks Act 1994 (see e.g. section 46(6)). I can find neither in the language used nor in principle any grounds upon which it can sensibly be held that such a determination under an application under section 26 or section 32 can have any retrospective effect. ... This decision also provides some support for the conclusion reached. Lion Nathan did not point to any Australian decision in which an order of the kind that it now seeks has previously been made (even if the question of statutory construction now in issue was not debated). 11 If this construction of s 101(2) be wrong, and should it be concluded that that sub-section confers a discretion unconfined as to the time from which a mark may be ordered to be removed from the Register, it is considered in the circumstances of the present case that, as a matter of discretion, any order should operate only as from today's date. The hearing of the proceeding was expedited and there has been no delay that can be attributed to Gallo Winery perhaps indicating that it has had the benefit of registration for an inappropriate period of time. 12 Before leaving the matter and before making final orders, it should be noted that in the reasons for decision as published on 20 June 2008, the question as formulated in paragraph [23(iv)] expressed the question as being whether the Radler beers of Lion Nathan were goods of the same description as the "BAREFOOT wine " of Gallo Winery . Although that is the manner in which the question was there expressed, it is not the question which was resolved at paragraphs [65] [88] inclusive of those reasons. The question, as answered, is understood to be the question as properly framed, namely whether the Radler beers of Lion Nathan were goods of the same description as " wine ". 13 For these reasons, the proposed Order 3 will not have added to it the words urged by Lion Nathan , namely " with effect as from 8 May 2007 ". 14 The orders of the Court are: 1. The Amended Application be dismissed. 2. The Applicant to pay the Respondent's costs of the Amended Application . 3. The Registrar of Trade Marks remove the Australian Trade Mark No 787765 from the Register of Trade Marks. 4. The operation of Order 3 be stayed for: (a) 21 days from the date hereof; or (b) in the event that the Applicant/Cross-Respondent within that time files a Notice of Appeal , until determination of the appeal, on the Applicant/Cross-Respondent's undertaking to pursue any such appeal with all due expedition. 5. The Cross-Respondent pay the Cross-Claimant's costs of the Cross-Claim . I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 2 July 2008 Counsel for the Applicant: M J Darke Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: N R Murray Solicitor for the Respondent: Mallesons Stephen Jacques Date of Hearing: 27 June 2008 Date of Judgment: 27 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1005.html


case_outcome: followed

case_title: Second Sight v Novell UK [1995] RPC 423

case_text: Although no Australian decision has been cited to support the contention of Gallo Winery , reliance is placed upon Second Sight v Novell UK [1995] RPC 423. There in issue was s 32(1) of the Trade Marks Act 1938 (UK) which provided as follows: Any person aggrieved ... by any entry made in the register without sufficient cause or by any entry wrongly remaining on the register ... may apply in the prescribed manner to the Court ... or to the Registrar, and the tribunal may make such order for ... expunging or varying the entry as the tribunal may think fit. Of that provision, Lightman J observed at 428 9: The issue is (by common consent) one of statutory construction of sections 26 and 32 in the context of the Trade Marks Act 1938 as a whole. Specific provision is made in the Trade Marks Act 1938 where an event or decision is to have retrospective effect (see: e.g. section 19). Likewise specific provision is made in the Trade Marks Act 1994 (see e.g. section 46(6)). I can find neither in the language used nor in principle any grounds upon which it can sensibly be held that such a determination under an application under section 26 or section 32 can have any retrospective effect. ... This decision also provides some support for the conclusion reached. Lion Nathan did not point to any Australian decision in which an order of the kind that it now seeks has previously been made (even if the question of statutory construction now in issue was not debated).


case_text: On the hearing there was some discussion as to whether the 21 day period expires today 7 February 2007 or tomorrow 8 February 2007. The period of 21 days expires today, 7 February 2007 because references in statutes to periods 'beginning on' or 'commencing on' a particular day or date, are calculated on the basis that that day or date is counted as the first day of the period: Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 at 526-527; Watson v Uniframes Limited (1994) 55 FCR 556 at 560; Re Madden (1996) 131 FLR 430 at 432-434. Neither s 105 of the Act nor s 36(1) of the Acts Interpretation Act 1901 (Cth) is relevant, because they are concerned with the expressions 'before' and 'after' (s 105) and 'from' (s36(1)). I note, however, that the line of authority in the cases just cited is consistent with s 3(2) of the Acts Interpretation Act 1901 (Cth), which provides that where an Act or instrument is expressed to come into operation 'on' a particular day, it shall come into operation 'immediately on the expiration of the last preceding day'. Similarly, the 21 day period here began immediately on the expiration of 17 January 2007 and ends immediately before the beginning of 8 February 2007.


case_title: Watson v Uniframes Limited (1994) 55 FCR 556


case_outcome: referred to

case_text: Counsel for Mr Hamilton and Newpage in liquidation, Mr Johnson, submitted that Mr Parson's attitude supported the applicants' claim that the money paid into Casino Busters' bank account should be subject to an asset preservation order while the issues surrounding its payment to Casino Busters were sorted out. The power of the Federal Court to grant such relief was recognised by the High Court in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612 at 623 per Deane J (with whom Mason CJ, Wilson and Dawson JJ agreed). It is important to bear in mind, however, that the purpose of such an order is to protect the processes of the Court from abuse not to provide security for the applicant for such an order; see generally Jackson v Sterling Industries Limited. 15 Applications for such relief are often, as in this case, made ex parte. The Court does not have the benefit of hearing argument as to why such an order should not be made from the person against whom the order is sought. For this reason the Court needs to be circumspect in making such orders. In this case, however, I am satisfied that on the evidence before me the applicants have made a prima facie case that the payment by Newpage to Casino Busters is a voidable transaction under s 588FE of the Corporations Act . Given Mr Parson's refusal to assist the provisional liquidator in the exercise of his duties and his denial of any knowledge of the transaction, there is reason to suspect that any order of the Court made to recover the money paid to Casino Busters and apparently still held in its bank account may be frustrated by prior dispersal of the assets. In the circumstances it is appropriate that I make the orders sought by the applicants, in the form of the penal notice that is annexed to these reasons, freezing the relevant bank account of Casino Busters up to but not exceeding the amount of $2,137,000 and requiring Mr Parson to give disclosure of the circumstances under which Casino Busters received the two payments mentioned above at [11]. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 6 February 2007 On the application for a winding up order: Counsel for the Plaintiffs: J Johnson Solicitor for the Plaintiffs: Kemp Strang Counsel for the Defendant: There was no appearance for the Defendant. On the application for a freezing order: Counsel for the Applicants: J Johnson Solicitor for the Applicants: Kemp Strang Counsel for the Respondents: There was no appearance for the Respondents. Date of Hearing: 25 January 2007 Date of Judgment: 6 February 2007 PENAL NOTICE TO: Casino Busters International Pty Ltd ACN 108 453 809 AND TO: Roumald Charles Parsons (aka Ron Parsons) IF YOU: (A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. TO: Casino Busters International Pty Ltd ACN 108 453 809 AND TO: Roumald Charles Parsons (aka Ron Parsons) This is a ' freezing order ' made against Casino Busters International Pty Ltd and a ' disclosure order' made against both of you on 25 January 2007 by Justice Stone at a hearing without notice to you after the Court was given the undertakings set out in Schedule A to this order and after the Court read the affidavits listed in Schedule B to this order. THE COURT ORDERS: INTRODUCTION 1. (a) The application for this order is made returnable immediately. (b) The time for service of the application, supporting affidavits and originating process is abridged and service is to be effected by 4.00pm Monday 29 January 2007. 2. Subject to the next paragraph, this order has effect up to and including 9 February 2007 (' the Return Date '). On the Return Date at 10.15 am there will be a further hearing in respect of this order before the Corporations Judge, Sydney Registry of the Federal Court of Australia. 3. Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified. 4. In this order: (a) 'Account' means BSB 033 390 Account number 210 011 in the name of Casino Busters International Pty Ltd held at Westpac Banking Corporation, Shop 39, Waverley Gardens Shopping Centre, Melgrave Victoria 3170. (b) 'applicant', if there is more than one applicant, includes all the applicants; (c) 'you', where there is more than one of you, includes all of you and includes you if you are a corporation; (d) 'third party' means a person other than you and the applicant; 5. (a) If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions. (b) If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way. FREEZING OF ACCOUNT 6. (a) You must not remove from, transfer out of or in any way dispose of, deal with or diminish any amounts standing to the credit of the Account up to the amount of AUD$2,137,000.00 (' the Relevant Amount '). (b) If the amount standing to the credit of the Account exceeds the Relevant Amount, you may deal with or remove that surplus in the Account, so long as the total amount standing to the credit of the Account still exceeds the Relevant Amount. PROVISION OF INFORMATION 7. Subject to paragraph 8, you must: (a) file and serve on the applicants within 14 days an affidavit disclosing the facts and circumstances under which the sums of $610,000.00 and $1,527,000.00 were received by Casino Busters International Pty Ltd from Newpage Pty Ltd on 1 June 2006 and 22 September 2006 respectively and as to any disposition or use by Casino Busters International Pty Ltd of the said amounts since those dates and as to the present whereabouts of the proceeds of those amounts. 8. (a) This paragraph (8) applies if you are not a corporation and you wish to object that compliance with paragraph 7 may tend to incriminate you or make you liable to a civil penalty; (b) This paragraph (8) also applies if you are a corporation and all of the persons who are able to comply with paragraph 7 on your behalf and with whom you have been able to communicate, wish to object that compliance may tend to incriminate them respectively or make them respectively liable to a civil penalty; (c) You must, at or before the further hearing on the return date (or within such further time as the Court may allow), notify the applicants in writing that you or all the persons referred to in (b) wish to take such objection and identify the extent of the objection; (d) If you give such notice, you need comply with paragraph 8 only to the extent, if any, that it is possible to do so without disclosure of the material in respect of which the objection is taken; and (e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in (b) wish to place before the Court in support of the objection. EXCEPTIONS TO THIS ORDER 9. This order does not prohibit you from: (a) Otherwise dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and (b) in relation to matters not falling within (a), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made. 10. You and the applicants may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicants or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicants and you, and the Court may order that the exceptions are varied accordingly. 11. (a) This order will cease to have effect if you: (i) pay the sum of $2,137,000.00 into Court; or (ii) pay that sum into a joint bank account in the name of your solicitor and the solicitor for the applicants as agreed in writing between them; or (iii) provide security in that sum by a method agreed in writing with the applicants to be held subject to the order of the Court. (b) Any such payment and any such security will not provide the applicants with any priority over your other creditors in the event of your insolvency. (c) If this order ceases to have effect pursuant (a), you must as soon as practicable file with the Court and serve on the applicants notice of that fact. COSTS 12. The costs of this application are reserved to the judge hearing the application on the Return Date. PERSONS OTHER THAN THE APPLICANTS AND RESPONDENTS 13. Set off by banks: This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order. 14 . Bank withdrawals by the respondent: No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order. SCHEDULE A UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANTS 1. The applicants and the First Plaintiff undertake to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order. 2. As soon as practicable, the applicants will file and serve upon the respondents copies of: (a) this order; (b) the application for this order for hearing on the return date; (c) the following material in so far as it was relied on by the applicants at the hearing when the order was made: (i) affidavits; (ii) exhibits capable of being copied; (iii) any written submission; and (iv) any other document that was provided to the Court. (d) a transcript, or, if none is available, a note, of any exclusively oral allegation of fact that was made and of any exclusively oral submission that was put, to the Court; (e) the originating process.. 3. As soon as practicable, the applicants will cause anyone notified of this order to be given a copy of it. 4. The applicants will pay the reasonable costs of anyone other than the respondents which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets. 5. If this order ceases to have effect the applicants will promptly take all reasonable steps to inform in writing anyone to who has been notified of this order, or who he has reasonable grounds for supposing may act upon this order, that it has ceased to have effect. 6. The applicants will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding. 7. The applicants will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondents or the respondents' assets. 8. The applicants will on or before 2 February 2007 file either an Interlocutory Process in these proceedings or an Originating Process seeking final relief for the repayment by Casino Busters International Pty Ltd and/or Roumald Parsons of the debt constituted by the payments totalling $2,137,000.00 made by Newpage Pty Ltd to Casino Busters International Pty Ltd, namely $610,000.00 on 1 June 2006 and $1,527,000.00 on 22 September 2006, or alternatively as an uncommercial transaction under Section 588FB of the Corporations Act, 2001 . AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/61.html


case_outcome: cited

case_title: Jess v Scott (1986) 12 FCR 187

case_text: Order 52 rule 15(2) of the Federal Court Rules 1979 gives the Court power to grant leave to an applicant to file and serve a notice of appeal at any time for special reasons. The principles to be applied in consideration of such an application are set out in Jess v Scott (1986) 12 FCR 187. 12 In his affidavit filed in support of the application, the applicant acknowledges he has made an error because he thought an appeal from the judgment of the Federal Magistrate could be made within 28 days. The Minister submits this explanation is insufficient to justify a departure from the ordinary rule prescribing the period within which an appeal must be filed and served. Reference is made to what was said in Jess v Scott at 195 concerning the phrase 'special reasons': 'It is an expression describing a flexible discretionary power but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.' 13 The Minister further observed that his Honour delivered judgment ex tempore and made orders dismissing the application at the conclusion of the hearing which the applicant attended, assisted by an interpreter, and submits that the applicant was immediately put on notice of the orders made and the decision reached from which any appeal was to be made. 14 There are two 'grounds' set out in the draft notice of appeal, neither of which, the Minister submits, raise any error of law in the judgment of the Federal Magistrates Court or in the decision of the Tribunal. 15 In the first ground, the applicant complains that his Honour erred in not finding that the Tribunal had not complied with s 420 of the Migration Act 1958 (Cth) ('the Act'). This was not a ground explicitly relied upon by the applicant in the proceedings below but was put forward by the Court as a possible basis for the applicant's complaint that the Tribunal had not complied with s 424(1) of the Act. 16 For the reasons given by his Honour at [13], the Minister submits no error is revealed by this suggestion of his Honour below or in the Tribunal's decision. I agree. This ground, as raised, cannot succeed. 17 In the second ground, the applicant complains his Honour erred in his ultimate finding that the Tribunal had not erred in reaching the decision made. No further particulars are given. Without more, this ground also cannot succeed. 18 In determining whether to grant the applicant's present application, one matter which the Court is entitled to have regard to is the prospect of any appeal succeeding if that application was granted. In the present case, the Minister submits that the judgment of his Honour below is not affected by any error and that the grounds set out in the draft notice of appeal would have no prospect of success. I agree. 19 The applicant filed no written submissions in support of his application. On the hearing of his application he said, through a mandarin interpreter, that he relied on what he said to the court below. 20 For the reasons set out above, the applicant's application for an extension of time to file and serve a notice of appeal must be refused with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 5 March 2008 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Ms E Knight Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 3 March 2008 Date of Judgment: 5 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/225.html


case_text: Ms Klewer has had every opportunity to present submissions, including numerous written submissions, in support of the appeal. Other than to reassert the fact that she holds the Korora property on trust for Robert Klewer which his Honour did not accept, she has not suggested any error on the part of the Federal Magistrate in respect of his Honour's finding that there was no trust. Ms Klewer has not suggested that his Honour's findings of fact in relation to the alleged trust were ' glaringly improbable ' or that his Honour had in some way ' failed to use or ... palpably misused his advantage ' as the trial judge ( Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118). 45 In her oral submissions on 8 October 2008, Ms Klewer asserts the existence of a trust, express, implied or constructive. She also asserts that there is a written will, which accords with a testamentary disposition of the Korora property. 46 Ms Klewer maintains that she made a 'living will' and intended to and did transfer the Korora property to Robert Klewer, so that she held the property in trust for him. However, apart from an assertion that a written version must exist somewhere on a computer disk which she has not been able to locate, there is nothing in writing evidencing such a trust.


case_text: As the respondent has pointed out, there is an inconsistency between Ms Klewer's continued assertion that she created a testamentary trust and her statements to the effect that she intended the trust over the Korora property to take effect while she was still alive. If Ms Klewer's intention was to create a testamentary trust, then even if the will were in writing, this would not give rise to any legal or equitable right on the part of Robert Klewer while Ms Klewer remains alive. A ' beneficiary under [a] will derives, while the testator remains alive, no legal or equitable right or title from the will: all the beneficiary has is the prospect of acquiring a right or title if the testator dies in the lifetime of the prospective beneficiary without revoking or altering the will ' (R Meagher, J Heydon and M Leeming, Meagher, Gummow and Lehane's Equity: Doctrines & Remedies (4 th ed, LexisNexis Butterworths, 2002) at [6-190]). As was stated In re Parsons; Stockley v Parsons (1890) 45 Ch D 51 at 55 per Kay J (approved in Ogden Industries Pty Limited v Lucas [1968] UKPCHCA 1 ; (1968) 118 CLR 32 at 37): It is indisputable law that no one can have any estate or interest, at law or in equity, contingent or other, in the property of a living person to which he hopes to succeed as heir at law or next of kin of such living person. During the life of such person no one can have more than a spes successionis, an expectation or hope of succeeding to his property.


case_outcome: considered

case_text: The appellants appeal from a decision of Raphael FM dismissing their application for a declaration that the Korora property is non-divisible among Ms Klewer's creditors ( Klewer v Official Trustee in Bankruptcy [2008] FMCA 274). Ms Klewer argued before Raphael FM that the Korora property is not divisible amongst her creditors for two reasons: that the moneys used to purchase the property constituted "protected money" within the meaning of s 116(2D) of the Act and that the Korora property was held in trust by Ms Klewer for Robert Klewer and was therefore not property divisible amongst Ms Klewer's creditors by virtue of the operation of s 116(2)(a) of the Act. 3 On 11 March 2008, the appellants filed a notice of appeal ' from part of the judgment of the Federal Magistrates Court '. The ground of appeal was: ' That the evidence supports the existence of a trust '. On 18 June 2008, an amended notice of appeal was filed from the whole of the judgment of Raphael FM. The sole ground of appeal is: ' Procedural unfairness '. No particulars are provided. 4 At the hearing of this appeal, Ms Klewer says that her grounds of appeal are: • Procedural unfairness, because: - She appeared by telephone before the Federal Magistrate; - She was unable to hear everything that was said during the hearing before the Federal Magistrate; - The Federal Magistrate did not cross-examine her other children who had filed affidavits; - The Federal Magistrate "assumed" what the other children had meant from their statements and drew the wrong conclusions from those statements; - She and her son did not have legal representation. • That the evidence established an express trust in favour of Robert Klewer, or, in the alternative, an implied or constructive trust.


case_title: Ogden Industries Pty Limited v Lucas [1968] UKPCHCA 1 ; (1968) 118 CLR 32


case_text: I raised with counsel appearing for the Commonwealth the possibility that the Tribunal may have taken into account an irrelevant consideration by considering the deterrent effect that the applicant's deportation may have on other non-citizens with criminal records. Mr Potts correctly pointed out that the Tribunal was required to take that into account by Direction No. 21. Further, two decisions of the Full Court of this Court establish that it is permissible to take into account general deterrence where it is not the sole or substantial factor justifying deportation: see Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 312 [76] per Tamberlin, Sackville and Stone JJ; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [42] - [45] per Moore, Branson and Emmett JJ. It was not the sole or substantial factor in this case. Accordingly no error is thereby disclosed.


case_outcome: applied

case_text: Secondly, one view of the matter is that by the mere act of departing the country for three days the applicant has effectively done himself out of a right to reside in Australia. I have no doubt that the Tribunal would have been within its rights to take that misfortune into consideration in dealing with the application before it. However, I do not think that it can be said that the Tribunal was bound to take that matter into account in the sense used in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors [1986] HCA 40 ; (1985) 162 CLR 24 at 39 per Mason J. The Minister may now wish to consider this aspect of the matter. He is not bound to do so. If the matter is considered it may make no difference. It may be one does not know that the applicant's reason for the three day departure may be relevant. It may be that the applicant's prior actions were such that his visa should still be cancelled. In any event, these are not matters for the Court and are entirely for the Minister in whom these functions are reposed. 38 The application must be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 22 December 2008 Counsel for the Applicant: The applicant appeared in person. Counsel for the First Respondent: Mr JAC Potts Solicitors for the First Respondent: Clayton Utz Date of Hearing: 29 September 2008 Date of Judgment: 22 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1950.html


case_text: There are, I think, two arguments contained in this letter. The first is the claim that the applicant is an Australian citizen. I have already dealt with that matter above. The second is the suggestion that the applicant was entitled to an absorbed person's visa pursuant to s 34 of the Act so that when the Minister and, inferentially, the Tribunal purported to cancel his visa it erroneously cancelled the incorrect visa. Presumably the consequence of that error would be that the applicant continues to be entitled to reside in Australia pursuant to the absorbed person's visa. The history and effect of s 34 was explained by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 228 CLR 566 at 576-578 [18] - [22] . It is not necessary to revisit that history here. It sufficies rather to note that s 34(1) provides for there to be a class of permanent visa to "remain in", but not re-enter, Australia, to be known as "absorbed person visas". It will be apparent from the applicant's letter to the Court that there is no dispute that he did in fact leave the country for 72 hours which, for present purposes, is sufficient to dispose of the present argument. Having departed even for that brief period, the right of re-entry was lost. 36 There are two further matters which relate to that conclusion which should be mentioned. First, it is unclear how the argument fits into an application for prerogative writs against the Tribunal (as I have treated the application). The argument was not put to the Tribunal and it may be that there is a real question as to whether a jurisdictional error was committed by the Tribunal in failing to appreciate that which was not put to it. However, given my conclusions that the argument is unsound it is not necessary to reach a view on that matter.


case_title: Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172


case_outcome: discussed

case_title: Agar v Hyde (2000) 201 CLR 552

case_text: the judicature system form of pleading, a plaintiff must plead the material facts which are relied on to entitle the plaintiff to the relief claimed. There is no need also to assert or identify a legal category or cause of action that the material facts pleaded may illustrate, involve or demonstrate. The role of pleaded material facts is to evince (at a high level) the factual basis on which the Court can grant the relief sought; it is not a set of submissions demonstrating the legal pathway to the desired result. In Agar v Hyde (2000) 201 CLR 552 at 577-578 [64] Gaudron, McHugh, Gummow and Hayne JJ noted there that it may be difficult for a court to say from the pleadings that a claim by a plaintiff that a defendant is liable in negligence is bound to fail because it is not arguable that the defendant owed the plaintiff a duty of care. In that example, the material facts pleaded will frequently be an assertion of the broad relationship between the parties and that in that scenario the defendant owed a duty of care to the plaintiff. Often the evidence given at the trial will become critical in ascertaining whether the material facts pleaded can be established. I am of opinion that a party granted leave to bring proceedings in a company's name under s 511 is not authorised under the grant to make a substantive expansion of the proceedings by adding new parties or significant new material facts (which may give rise to a new cause of action). The role of the Court in giving its authorisation requires it, not the party, to determine whether the proposed use of the company's name by the applicant is appropriate. The grant of authority to a party to bring proceedings in a company's name is not a delegation of the important role the Court plays in determining how the winding up is conducted. The later joinder of a new party, or the exploration of significantly new material facts, outside the broad area for which the authorisation was sought, involve the assertion, in the company's name, of rights that the Court has not examined. Under the Act, the liquidator remains in control of the company's other assets, including its other choses in action against a new defendant/respondent or the existing defendant/respondent. The grant of leave to commence proceedings in the company's name is a specific authorisation for a particular purpose that has been established to the Court's satisfaction in accordance with the tests that I have discussed above.


case_text: Aliprandi v Griffith Vintners Pty Ltd (in liq) (1991) 6 ACSR 250 at 252 McLelland J applied what their Lordships had said in Lloyd-Owen [1936] 4 DLR at 276 as to the approach to be taken by the Court. His Honour had noted in an earlier decision ( Wenham v General Credits Ltd (unreported 16 December 1988 Supreme Court of New South Wales at pp 21-22; BC8801203)) that there were two procedural methods by which the joinder as a plaintiff or co-plaintiff of a company being wound up could be made. The first method was by the Court giving a direction to the liquidator to cause the company to be joined as a co-plaintiff pursuant to the analogue of ss 477(6) or 511 (2). The second method was to order that the creditor or contributory be authorised to use the company's name as a co-plaintiff in the proceedings. McLelland J said that that procedure was "... of respectable antiquity and is sanctioned by high authority" citing among others the decisions in Lloyd-Owen [1936] 4 DLR 273 and Cape Breton Co v Fenn (1881) 17 Ch D 198 at 207, 208, where Jessel MR had said that the principle was based on the same one in the old Court of Chancery that permitted a beneficiary to bring a bill against his trustee so as to use the trustee's name to recover trust property. McLelland J said that ordinarily the first course (of directing the liquidator to sue in the name of the company) would be preferable to the second, "... in order that the conduct of the litigation may remain under the control or supervision of an officer of the Court". He pointed out that, in particular circumstances, the alternative course of permitting the creditor or contributory to sue in the name of the company could also have advantages. He said that the making of an order could be supported where the company was not to be the only plaintiff or applicant and, in practical terms, the conduct of the litigation would be in the hands and at the expense and risk of the other plaintiff (or applicant) and its solicitors. His Honour also considered it may be relevant that if the liquidator had expressed an unwillingness to take the proceedings and, if ordered to do so, would no doubt obey, it may be convenient to permit the creditor or contributory to bring the proceedings in the company's name. He applied similar reasoning in Aliprandi 6 ACSR at 252. There he said that the second method had the disadvantage that the conduct of the litigation in the name of the company would be taken out of the control and supervision of the liquidator as an officer of the Court.


case_text: Commissioner and Mr Beames argued that the Court's jurisdiction to make an order authorising the Commissioner to bring the proceedings in the name of PAAN was part of its inherent powers as a superior court of record and a court of law and equity created pursuant to s 5(2) of the Federal Court of Australia Act 1976 (Cth). Because of the conclusion to which I have come, it is not necessary for me to determine whether the power is inherent or implied as an incident of the Court's jurisdiction. Jurisdiction and power are not discreet concepts as Gleeson CJ, Gaudron and Gummow JJ explained in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at 590 [64] - [65] . The Commissioner raised an argument that if s 5(2) did not apply, these proceedings could be brought in the inherent jurisdiction of the Supreme Court of the Australian Capital Territory and, in turn, in this Court under s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). That provides that this Court may exercise jurisdiction conferred on it by s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT). In my opinion this argument is not to the point. The Court is exercising federal jurisdiction in this matter because claims for relief are being sought under the Corporations Act . Proceedings are in federal jurisdiction where, as here, they involve rights, liabilities and obligations that arise under, or owe their existence to, or depend upon, federal law for their enforcement: LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31 ; (1983) 151 CLR 575 at 581 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ; see also Edensor 204 CLR at 585-586 [51]-[52] per Gleeson CJ, Gaudron and Gummow JJ, 638 [216] per Hayne and Callinan JJ. Here, the Commissioner also seeks to exercise rights to recover preference payments under Pt 5.7B of the Corporations Act through use of the liquidator's rights, or in the Commissioner's own right as a creditor. Those rights exist solely as a result of an Act of the Parliament, the Corporations Act . In addition, the right of the Commissioner to bring the proceedings in the name of PAAN, including relief in the form of authorising proceedings to be taken in the name of PAAN against its directors and officers and advisers in respect of the conduct of its affairs, arises pursuant to a law made by the Parliament: s 511 of the Corporations Act . This Court has jurisdiction to decide any matter arising under any law made by the Parliament (except in respect of certain criminal matters) pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth).


case_text: is important to appreciate that the procedure is an incident of the winding up and has been treated as being distinct from an action either, at general law under what was known as the rule in Foss v Harbottle [1843] EngR 478 ; (1843) 2 Hare 461 ; 67 ER 189 and, since that rule's abolition, under Pt 2F.1A of the Corporations Act ; Chahwan v Euphoric Pty Ltd [2008] NSWCA 52 ; (2008) 245 ALR 780 at 815-817 [124] - [125] per Tobias JA, with whom Beazley and Bell JJA agreed; see also Promaco Conventions Pty Limited v Dedline Printing Pty Limited [2007] FCA 586 ; (2007) 159 FCR 486 at 496-497 [37] - [38] per Siopis J.


case_text: Magarditch 32 ACSR at 377 [43], 384 [70]-[72] Spender, French and Kenny JJ applied the above authorities and principles. They held that the Court had a responsibility to see that any action taken in the company's name under the Court's authority was not vexatious or merely oppressive, even where there would be no drain on the assets of the company. The Court had to consider whether the action proposed to be taken in the company's name had some arguable foundation; see also Christianos v Aloridge Pty Limited (1995) 59 FCR 273 at 281B-282B, 284A-B per Beaumont, Whitlam and Tamberlin JJ.


case_text: Honours held that in the case of the winding up of the company, the legal title to all company property, including trust property, remains in the company and does not pass to the liquidator: Octavo 144 CLR at 371; see also Federal Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) [2005] HCA 20 ; (2005) 220 CLR 592 at 612-163 [54] - [55] , 614 [58] per Gleeson CJ Gummow, Hayne, Callinan and Heydon JJ; Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at 246-247 [48] - [51] per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. Because the right of indemnity is a proprietary right of the trustee, it follows that the retirement of a trustee does not extinguish that retired trustee's proprietary right to resort to the assets of the trust, including any chose in action against overpaid beneficiaries to indemnify a trustee for liabilities properly incurred in the execution of the trust while the trustee held office.


case_title: Federal Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) [2005] HCA 20 ; (2005) 220 CLR 592


case_title: Ferguson v Wallbridge [1935] 3 DLR 66

case_text: statutory predecessors of these provisions were identified by the Privy Council in Ferguson v Wallbridge [1935] 3 DLR 66 at 83-84 (in a quotation cited in related proceedings by their Lordships in Lloyd-Owen v Bull [1936] 4 DLR 273 at 275-276) as evincing a statutory policy that all claims competent to a company should be brought within the scope and control of the winding up. In Lloyd-Owen [1936] 4 DLR at 276 Lords Blanesburgh, Thankerton and Roche said that the approach of the Court to an application under the analogue of s 511 was as follows: "A Judge in winding-up is the custodian of the interests of every class affected by the liquidation. It is his duty even if it be in a voluntary liquidation that opportunity offers to see to it that all assets of the company are brought into the winding-up. In authorizing proceedings, especially if they may or will involve some drain upon the assets, he must satisfy himself as to their probable success; where, as in the present case, they involve no possible charge on assets, he will nevertheless be careful to see that any action taken in the company's name under his authority is not vexatious or merely oppressive ." (emphasis added) In that case, proceedings had been taken earlier by minority shareholders claiming fraud and oppression against them by members of the majority. Those proceedings had been dismissed as incompetent by the Privy Council in Ferguson [1935] 3 DLR 66 because the company had not been party to the proceedings and, subsequent to their commencement, it had gone into liquidation. The judge to whom the later application had been made to bring the action in the company's name (following the failure of the earlier proceeding) took into account all of the evidence tendered in the previous proceedings and concluded from the success of the majority shareholders there that the action proposed in the new proceedings would equally fail. Their Lordships held that the approach of that judge was wrong. Their Lordships' reference to vexatious or oppressive proceedings that I have emphasised above, had regard to unsustained allegations of conspiracy and fraud in the previous proceedings. They took the view that there was enough in the arguments presented to them to warrant allowing the contributories to bring the action in the name of the company because the liquidator had refused to do so. It is significant that the principle applied by their Lordships derived from the analogue of s 511. I am satisfied that that section is the source of the Court's undoubted jurisdiction and power to permit a person other than the liquidator to commence proceedings in the company's name when it is in voluntary liquidation. Likewise, where the liquidation is compulsory, s 477(6) is the source of the Court's jurisdiction and power in such a matter.


case_title: Lloyd-Owen v Bull [1936] 4 DLR 273

case_text: statutory predecessors of these provisions were identified by the Privy Council in Ferguson v Wallbridge [1935] 3 DLR 66 at 83-84 (in a quotation cited in related proceedings by their Lordships in Lloyd-Owen v Bull [1936] 4 DLR 273 at 275-276) as evincing a statutory policy that all claims competent to a company should be brought within the scope and control of the winding up. In Lloyd-Owen [1936] 4 DLR at 276 Lords Blanesburgh, Thankerton and Roche said that the approach of the Court to an application under the analogue of s 511 was as follows: "A Judge in winding-up is the custodian of the interests of every class affected by the liquidation. It is his duty even if it be in a voluntary liquidation that opportunity offers to see to it that all assets of the company are brought into the winding-up. In authorizing proceedings, especially if they may or will involve some drain upon the assets, he must satisfy himself as to their probable success; where, as in the present case, they involve no possible charge on assets, he will nevertheless be careful to see that any action taken in the company's name under his authority is not vexatious or merely oppressive ." (emphasis added) In Aliprandi v Griffith Vintners Pty Ltd (in liq) (1991) 6 ACSR 250 at 252 McLelland J applied what their Lordships had said in Lloyd-Owen [1936] 4 DLR at 276 as to the approach to be taken by the Court. His Honour had noted in an earlier decision ( Wenham v General Credits Ltd (unreported 16 December 1988 Supreme Court of New South Wales at pp 21-22; BC8801203)) that there were two procedural methods by which the joinder as a plaintiff or co-plaintiff of a company being wound up could be made. The first method was by the Court giving a direction to the liquidator to cause the company to be joined as a co-plaintiff pursuant to the analogue of ss 477(6) or 511 (2). The second method was to order that the creditor or contributory be authorised to use the company's name as a co-plaintiff in the proceedings. McLelland J said that that procedure was "... of respectable antiquity and is sanctioned by high authority" citing among others the decisions in Lloyd-Owen [1936] 4 DLR 273 and Cape Breton Co v Fenn (1881) 17 Ch D 198 at 207, 208, where Jessel MR had said that the principle was based on the same one in the old Court of Chancery that permitted a beneficiary to bring a bill against his trustee so as to use the trustee's name to recover trust property. These proceedings are not a rehearsal for a trial. The limited question, identified in the authorities, is whether a sufficiently arguable claim has been brought by a proper applicant to warrant the exercise of the power to authorise that person to litigate in the company's name. It would be wrong, as their Lordships pointed out in Lloyd-Owen [1936] 4 DLR at 277, to pour over the examination transcripts or other material with a view to determining prospects of success. That is not the role of the Court in such applications. Rather, the Court's role is to be satisfied that it is a proper use of the procedure afforded in the winding up to allow the company or its name to be used to recover debts, damages or assets, or to otherwise protect the interests of the company so as to realise the company's property for the purposes of the winding up. I am satisfied that the claim sought to be made against each of the proposed respondents by PAAN in the draft statement of claim is not vexatious or oppressive. I am satisfied that I should make an order to the effect that, subject to the Commissioner providing an indemnity to the liquidator and to PAAN in respect of costs to be incurred by PAAN or which it may be ordered to pay in the proposed proceedings and providing security in respect of that indemnity, the terms of such indemnity and the nature and amount of such security to be agreed between the Commissioner, the liquidator and PAAN or, failing agreement, settled by the registrar: (a) the Commissioner be authorised at his own expense and risk as to costs, to use the name of PAAN as a plaintiff or co-plaintiff in the proposed proceedings; (b) the Commissioner indemnify the liquidator for all costs reasonably incurred by PAAN in respect of the proposed proceedings. The Commissioner should be allowed to file a pleading in the form of the draft statement of claim. There was no accompanying draft application in evidence. Before the draft statement of claim is filed some typographical and consequential amendments may need to be made to it that will not affect the substance of the pleading. Once the proceedings are commenced they will be in the control of the Court which will be able to regulate any subsequent applications to amend and, if necessary, any consequential requirement to vary the authorisation I have granted.


case_text: Court is exercising federal jurisdiction in this matter because claims for relief are being sought under the Corporations Act . Proceedings are in federal jurisdiction where, as here, they involve rights, liabilities and obligations that arise under, or owe their existence to, or depend upon, federal law for their enforcement: LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31 ; (1983) 151 CLR 575 at 581 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ; see also Edensor 204 CLR at 585-586 [51]-[52] per Gleeson CJ, Gaudron and Gummow JJ, 638 [216] per Hayne and Callinan JJ. Here, the Commissioner also seeks to exercise rights to recover preference payments under Pt 5.7B of the Corporations Act through use of the liquidator's rights, or in the Commissioner's own right as a creditor. Those rights exist solely as a result of an Act of the Parliament, the Corporations Act . In addition, the right of the Commissioner to bring the proceedings in the name of PAAN, including relief in the form of authorising proceedings to be taken in the name of PAAN against its directors and officers and advisers in respect of the conduct of its affairs, arises pursuant to a law made by the Parliament: s 511 of the Corporations Act . This Court has jurisdiction to decide any matter arising under any law made by the Parliament (except in respect of certain criminal matters) pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth).


case_text: Commissioner applied to the Court for leave to commence proceedings in the company's name, as part of proceedings he wishes to bring in his own name. Mr Beames applied under r 2.13(1) of the Federal Court (Corporations) Rules 2000 for, and I granted him, leave to appear to oppose the relief sought by the Commissioner. This application raises the following issues: (1) Whether this Court has jurisdiction to make an order that a person other than the liquidator be authorised to bring proceedings in the name of a company in liquidation under s 511 of the Act or has an inherent or implied power to make orders ancillary to the conduct of a winding up. (2) Whether the Commissioner has established that it is appropriate for the Court to grant the relief so as to displace the liquidator in discharge of his functions. (3) Whether the Commissioner has established that the action proposed to be taken by him in the company's name has some arguable foundation: Magarditch v Australian & New Zealand Bank Group Limited (1999) 32 ACSR 367 at 384 [70]-[71] per Spender, French and Kenny JJ. The Commissioner relied in support of his application on evidence given by his solicitor, Russell Bayliss. I was taken to only a few of over 850 pages of the transcripts of the public examinations in the course of the hearing. The following account of facts is based on Mr Bayliss' assertions in his affidavit so as to provide the background in which the application can be considered and the passages in the transcripts to which I was taken. There was no cross-examination or other evidence. Thus, any findings or opinions on the evidence that I express in these reasons should not be understood as final conclusions arrived at after a contested trial. Rather, I have assumed the material on which the Commissioner relied could be proved in a trial in order to assess whether it established that the claims have some arguable foundation: Magarditch 32 ACSR at 384 [70]-[71]. Between about 1992 and 1 September 2003 PAAN conducted a security business, called Star Security. Mr Georgiou became a director of PAAN in 1995 and has remained in office since according to a company extract of the Australian Securities and Investments Commission in evidence. Mr Bayliss said that Mrs Georgiou was a director and company secretary from around 1996 until 2000. When she ceased to hold office, Mr Georgiou also assumed the role of company secretary. Each of Mr and Mrs Georgiou held 10 of the 20 issued ordinary shares in PAAN. In either 1995 or 1998, PAAN established a trading trust of which it was trustee. Mr and Mrs Georgiou were beneficiaries of the trust. Mr Bayliss said that PAAN, as trustee, purported to grant a licence to itself in its own right, to operate the security business. Thus, it appeared that PAAN, as trustee, held the assets of the security business on trust, and obtained a licence, from itself, to operate the business for its own benefit in consideration of the payment of the consideration due under the licence. Mr Bayliss said that this arrangement had led Mr and Mrs Georgiou to be confused about how to implement the differing rights of PAAN as operator of the business in its own right and trustee. He said that this confusion was evident from the public examination of Mr Georgiou. In Magarditch 32 ACSR at 377 [43], 384 [70]-[72] Spender, French and Kenny JJ applied the above authorities and principles. They held that the Court had a responsibility to see that any action taken in the company's name under the Court's authority was not vexatious or merely oppressive, even where there would be no drain on the assets of the company. The Court had to consider whether the action proposed to be taken in the company's name had some arguable foundation; see also Christianos v Aloridge Pty Limited (1995) 59 FCR 273 at 281B-282B, 284A-B per Beaumont, Whitlam and Tamberlin JJ.


case_text: trustee of the trading trust who has incurred liabilities in the performance of the trust is entitled to be indemnified against those liabilities out of trust property and for that purpose is entitled to retain possession of the property as against the beneficiaries. The trustee's interest in the trust property amounts to a proprietary interest because it is no longer property held solely in the interest of the beneficiaries of the trust. The trustee's interest in that property passes, in the case of a bankruptcy, to a trustee in bankruptcy. In the case of a trading trust, the trustee of which is a corporation, the corporate trustee's interest remains the property of that company under the power of the liquidator: see Octavo Investments Pty Ltd v Knight [1979] HCA 61 ; (1979) 144 CLR 360 at 369-370 per Stephen, Mason, Aickin and Wilson JJ. Their Honours continued ( Octavo 144 CLR at 370): "The fact that the trust property itself cannot be taken in execution by the creditors of the trustee is not to the point. Those creditors are nevertheless subrogated to the rights of the trustee in relation to that property, and in the event of the trustee becoming bankrupt, it is those rights which are to be realized in their favour." Their Honours held that in the case of the winding up of the company, the legal title to all company property, including trust property, remains in the company and does not pass to the liquidator: Octavo 144 CLR at 371; see also Federal Commissioner of Taxation v Linter Textiles Australia Ltd (in liq) [2005] HCA 20 ; (2005) 220 CLR 592 at 612-163 [54] - [55] , 614 [58] per Gleeson CJ Gummow, Hayne, Callinan and Heydon JJ; Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at 246-247 [48] - [51] per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. Because the right of indemnity is a proprietary right of the trustee, it follows that the retirement of a trustee does not extinguish that retired trustee's proprietary right to resort to the assets of the trust, including any chose in action against overpaid beneficiaries to indemnify a trustee for liabilities properly incurred in the execution of the trust while the trustee held office.


case_text: is no reason to read down the statutory power in s 511 of the Corporations Act or to search elsewhere for some other explanation of a source of power to make the orders sought by the Commissioner, when the clear words of the statute are apt to ensure that the Court may do justice in the case. It is quite inappropriate to construe provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words of the statute: Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. I am of opinion that the power which the Court is exercising in an application such as the present is now to be found in s 511 of the Corporations Act , in the case of a voluntary winding up, and s 477(6) , in the case of a winding up by the Court. The power conferred by these provisions is ample to ensure that, where a liquidator does not cause the company to bring proceedings, the Court can permit those proceedings to be brought so as to achieve the purposes discussed in the authorities to which I have referred. For these reasons I am satisfied that the Court has power to make the orders sought. Because I was not satisfied that the liquidator had had a proper opportunity in which to consider his role in bringing the proposed proceedings on behalf of the company, the proceedings were adjourned on 2 June 2009 to allow him to consider and inform the Court of his position. I did not consider it appropriate, having regard to the then state of the evidence, to act on the liquidator merely submitting to whatever order the Court might make. His responsibility was to consider for himself whether the proceedings ought properly be bought in the name of the company. I am now satisfied that the liquidator has exercised that responsibility having regard to his solicitors' letter of 1 July 2009.


case_title: Promaco Conventions Pty Limited v Dedline Printing Pty Limited [2007] FCA 586 ; (2007) 159 FCR 486


case_text: reject this argument. It appears that a part of the defence likely to be raised by Mr and Mrs Georgiou will be to allege that they acted on Mr Beames' advice. Also the case that the Commissioner seeks to bring in PAAN's name against Mr Beames alleges that he did advise the company to act in the way it did. Thus, Mr Beames will be a proper and necessary party to the proceedings. The controversy between the other parties will involve an examination of Mr Beames' role in the events leading to the payments of the various sums complained of to Mr and Mrs Georgiou and of the company's failure to pay or provide for the payment of payroll tax at various times. The other claims which the Commissioner seeks to bring in his own right appear also to be part of the one matter or controversy: see Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585-586 [140] - [142] , 587-588 [145]-[147] per Gummow and Hayne JJ, with whom Gleeson CJ and Gaudron J agreed at 546 [25]-[26]. Mr Beames argued that there was not enough evidence that there was a real dispute to which he was a party and that the affidavit of Mr Bayliss went no further than a series of unsubstantiated assertions which did not identify the facts upon which they were made with any precision. During the course of argument, I was taken to passages in the transcript of the examinations which indicated, as I have set out above, a sufficiently arguable basis on which the claims could be made. In the examinations, Mr Georgiou swore that he acted in reliance upon Mr Beames advice. That raises a sufficiently arguable case to justify Mr Beames' joinder in the proposed proceedings.


case_text: Russell v Westpac Banking Corporation [1994] SASC 4479 ; (1994) 61 SASR 583 at 586 King CJ, with whom Bollen and Mullighan JJ agreed, discussed the rationale of permitting a creditor or contributory to bring proceedings in the name of the company in liquidation where the liquidator had refused to do so. He said that the failure of a liquidator to institute proceedings to recover assets or debts of the company ought not to operate to the prejudice of the persons in whose interests the winding up is carried out and who are entitled to benefit from the assets of the company. The Chief Justice concluded that where an applicant sought an authorisation, entirely at its own risk and expense, to join the companies as plaintiffs and upon it providing a satisfactory indemnity to the companies and liquidators, the companies' assets would then be at no risk. He held that the absence of any potential benefit to third persons, other than the applying creditor or contributory, was not relevant to the exercise of the power: Russell 61 SASR at 587.


case_title: Wenham v General Credits Ltd (unreported 16 December 1988 Supreme Court of New South Wales; BC8801203)

case_text: Aliprandi v Griffith Vintners Pty Ltd (in liq) (1991) 6 ACSR 250 at 252 McLelland J applied what their Lordships had said in Lloyd-Owen [1936] 4 DLR at 276 as to the approach to be taken by the Court. His Honour had noted in an earlier decision ( Wenham v General Credits Ltd (unreported 16 December 1988 Supreme Court of New South Wales at pp 21-22; BC8801203)) that there were two procedural methods by which the joinder as a plaintiff or co-plaintiff of a company being wound up could be made. The first method was by the Court giving a direction to the liquidator to cause the company to be joined as a co-plaintiff pursuant to the analogue of ss 477(6) or 511 (2). The second method was to order that the creditor or contributory be authorised to use the company's name as a co-plaintiff in the proceedings. McLelland J said that that procedure was "... of respectable antiquity and is sanctioned by high authority" citing among others the decisions in Lloyd-Owen [1936] 4 DLR 273 and Cape Breton Co v Fenn (1881) 17 Ch D 198 at 207, 208, where Jessel MR had said that the principle was based on the same one in the old Court of Chancery that permitted a beneficiary to bring a bill against his trustee so as to use the trustee's name to recover trust property.


case_text: Nor does the language of the section suggest that, where there is more than one trust higher than the status-seeking trust, the higher trusts must be of the same level. The only requirement is that they be "of a higher level" than the status-seeking trust. For example, suppose trust A is on level (a). Since the section contemplates that there could be relevant trusts on as many as three levels higher, there could be a situation where trust B is on level (b), trust C is on level (c) and trust D is on level (d). Of each of trusts B, C and D it can be said that it is on a "higher" level than A's, that is to say on a level which has the quality or characteristic of being higher than (a). 9 At first blush, it may seem odd that the section provides that, where there is more than one trust, each must have fixed entitlements to all of the income and capital of the status-seeking trust. How can two or more each be entitled to all the income and capital? 10 The answer is to be found in the words "directly or indirectly". A fixed entitlement may be held indirectly where there is entitlement via interposed companies, partnerships or trusts: s 272-20. Thus, to take the example above, if trust B owns 100 percent of trust A and in turn trust C owns 100 per cent of trust B, and trust D owns 100 per cent of trust C, each of B, C and D has a fixed entitlement to all of the income and capital of A. In the case of B, it has its entitlement directly; each of C and D has its entitlement indirectly. 15 The ordinary and grammatical meaning of the section is as submitted by the Commissioner. The result could not be said to be arbitrary or capricious. To confer the benefit of the higher status only where the status-seeking subsidiary is wholly owned by the trust of that higher status is a rational legislative objective. That objective has been achieved in the language of the statute, which admits of only one meaning. The merits or otherwise of the objective are not a matter for the Court: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297 at 304-305. 16 The appeal will be dismissed with costs, including reserved costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 29 April 2008 Counsel for the Applicant: T F Bathurst QC and S H P Steward Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: P J Hanks QC and S Sharpley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 April 2008 Date of Judgment: 29 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/557.html


case_text: 20 August 2008, I delivered judgment in both of these matters, finding for the applicants in each case: Australian Workers' Union of Employees, Queensland and Others v Etheridge Shire Council and Another (2008) 171 FCR 102 ; (2008) 250 ALR 485 ; and (2008) 175 IR 383. At that time, I indicated that I would hear the parties as to costs in the matters. In proceedings QUD 481 of 2006, the applicants filed a submission on costs on 27 August 2008. On 3 September 2008, the first respondent filed submissions on costs, and on 5 September 2008, the applicants filed a submission in reply. In proceedings QUD 39 of 2007, the applicant filed submissions on costs on 27 August 2008, and on 3 September 2008, the first respondent filed submissions on costs. Those submissions were the same as had been filed in the other proceedings. Proceedings QUD 481 of 2006


case_text: Etheridge Shire Council refers, in particular, to the decision of French J (as he then was) in BGC Contracting v CFMEU (No 2) [2005] FCA 908 ; (2005) 143 FCR 409 ( BGC Contracting ), where his Honour found that s 824 applied. In BGC Contracting , the applicant instituted proceedings seeking declarations that representatives of the CFMEU, a state registered union, had no right under the Industrial Relations Act 1979 (WA) (the IRA) to enter a construction site for an ammonia plant in Western Australia. The basis for that application was that the workers at the site were employed under Australian Workplace Agreements made under the Workplace Relations Act . Rights of entry created by that Act in respect of those employees were said to be inconsistent with the IRA, and therefore rendered inoperative the rights of entry conferred under the IRA, in so far as they purported to apply to the construction site. The application was dismissed and the CFMEU sought an order for costs, which was opposed by the applicants and the Minister. The respondents contended that the proceedings were proceedings in a matter arising under the Workplace Relations Act and that the then s 347 of the Workplace Relations Act confined the power to award costs to circumstances in which the proceedings had been instituted frivolously or vexatiously. French J concluded that the proceedings were proceedings in a matter arising under the Workplace Relations Act , and, for that reason, no order for costs should be made. The applicants seek to distinguish the BGC Contracting case submitting that: In BGC Contracting , the rights sought to be invoked were rights conferred upon an employer bound by that Act, in respect of employees who were undoubtedly the subject of regulation by that Act, by reason of the existence of AWAs lawfully made under that Act. That matter was, so the applicants submit, clearly one to which the Workplace Relations Act applied. In this case, however, the applicants argue the Workplace Relations Act had no application to the first respondent at all, and the matter did not, therefore, arise under the Act. The answer to these questions, in my judgment, relies on a precise identification of the "matter" in the present case. "Matter" in that sense, means the judicial controversy between the parties. The applicants asserted that the Etheridge Shire Council was not a constitutional corporation, and was therefore not an "employer" under the Workplace Relations Act , and was therefore not entitled to register a Workplace Agreement with its employees pursuant to the Workplace Relations Act . In my judgment, each proceeding was a "matter arising under the Workplace Relations Act ". The Etheridge Shire Council asserted that it was an "employer" under the Workplace Relations Act , being a constitutional corporation and therefore was entitled to register the Workplace Agreement, pursuant to the Workplace Relations Act . The right claimed by the Etheridge Shire Council, and denied by the respective applicants, was a right conferred by an order of the Workplace Relations Act , and therefore arose under that Act. It follows that the prohibition against the ordering of costs contained in s 824(1) applies in each of the present proceedings. It does not affect my conclusion that the exception referred to in s 824(1) is directed at the "institution" of proceedings. The Etheridge Shire Council did not institute either proceeding. It therefore follows that it could not have instituted either proceeding vexatiously, or have instituted either proceeding without reasonable cause. As a respondent in each proceeding, it has an immunity from an order to pay costs, if either proceeding was a matter arising the Workplace Relations Act . In my opinion, each proceeding was such a matter. That conclusion is consistent, in my view, with the conclusion and reasoning of French J in the BGC Contracting case. That is sufficient to dispose of the application for costs. For completeness, were my conclusion to be contrary to that expressed above, the contention that each matter was something of a "test" case, would not be a basis on which I would refrain from following the usual principle that costs follow the event.


case_title: R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141

case_text: addition to McJannet , Etheridge Shire Council also noted R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141 , where Latham CJ said at 154, " If a right claimed is conferred by or under a Federal statue, the claim arises under the statute. "


case_title: Re McJannet; Ex parte Australian Workers' Union of Employees (Q) [No 2] (19970 [1997] HCA 40 ; 189 CLR 654

case_text: applicant in each proceeding submits that that proceeding is not a proceeding "arising under" the Workplace Relations Act and that therefore s 824 has no application. Each of the applicants relies on Re McJannet; Ex parte Australian Workers' Union of Employees (Q)[No 2] [1997] HCA 40 ; (1997) 189 CLR 654 ( McJannet ), which, the applicants assert, contains the relevant test. The High Court in McJannet said, at 656, that the test was " whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act." The applicants submit that, as they sought declarations to the effect that the first respondent had no right under the Workplace Relations Act , to act as it did, s 824 has no application. The applicants do not address the contention by the first respondent in each proceeding, that the first respondent had a right pursuant to the Workplace Relations Act to enter into a Workplace Agreement with its employees, and register it pursuant to the Workplace Relations Act . The Etheridge Shire Council argues that it had asserted that it was "an employer" within the meaning of the Workplace Relations Act and was therefore entitled to register a Workplace Agreement with its employees pursuant to that Act. It was the denial of that asserted right by the respective applicants that led to the proceedings being instituted. The Etheridge Shire Council argues that a party need not, in the end result, be successful concerning a claim advanced by it, provided the claim advanced by it, or on which it relies, is a claim to a right that owes its existence to the provision of Workplace Relations Act . In addition to McJannet , Etheridge Shire Council also noted R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; (1945) 70 CLR 141 , where Latham CJ said at 154, " If a right claimed is conferred by or under a Federal statue, the claim arises under the statute. "


case_text: first respondent in this proceeding makes the same submissions as it did in QUD 481 of 2006, but argues, in addition, that the reliance by the State of Queensland on the judgment in Tristar Steering and Suspension Australia Ltd v Industrial Relations Commissioner of New South Wales (2007) 159 FCR 274 is distinguishable, it being said that that matter involved the invocation of s 109 of the Australian Constitution in the determination as to costs. QUD 481 of 2006 & QUD 39 of 2007 In each proceeding, s 43 of the Federal Court of Australia Act 1976 (Cth) is the basis for any order as to costs: (1) ... the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. ... (2) Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge. The first respondent submitted in each proceeding that it ought not to be ordered to pay costs because each proceeding was "a matter arising under the [Workplace Relations] Act" and therefore the specific exemption provided in s 824(1) applied.


case_title: Re Hayes; Estate Property Group Ltd (Administrators Appointed) [2007] FCA 935

case_text: this background, it can be seen that these proceedings raise what Gyles J described in Re Hayes ; Estate Property Group Ltd (Administrators Appointed) [2007] FCA 935 at para 1, hereafter, Hayes' case, as: ...the familiar tension between, on the one hand, the objective of having the first stage of administration dealt with promptly so as not to unduly interfere with the rights of those whom a moratorium affects and, on the other hand, giving worthwhile information to the creditors so that sensible decisions can be made at the meeting. It is well understood that in complex administrations these two objectives can often be in collision. If they are in collision then, in many cases, priority will be given to obtaining sensible information and advice from the administrators to enable the creditors to have the material before them to make an informed decision. In Hayes' case, at para 3, Gyles J voiced a concern arising from the circumstances of that case, where a period of some months by way of extension of the convening period had been proposed. He used the term, prosaically with respect, a "substantial stretch of the statutory provisions" to describe it. His Honour noted that extensions of the order propounded in that case had been granted in other cases. In the result, his Honour reached the view that it was too early to commit to such a lengthy period before the creditors had what he described as "any real say" in the matter. His Honour continued, at para 4: A course which is taken in some of these matters and was, I notice, taken in Fincorp [2007] NSWSC 363 , is to provide for a lengthy period but also, by an order under section 447A , permit foreshortening of the period if events warrant it. Other courses which can be taken are, if a case is made out, to utilise section 447A to extend the period for which the creditors can adjourn the meeting pursuant to section 439B or to utilise section 447A to grant a further extension of the convening period under section 439A. The latter course has been taken in a number of matters. It seems to me that would be the appropriate course to be taken in these matters if necessary. An order of the kind which Gyles J came to make in Hayes' case is one which has been submitted to be appropriate by ASIC. In Re Mentha; Hans Continental Smallgoods Pty Ltd (Administrators Appointed) [2008] FCA 1933 , hereafter Mentha , Jacobson J had occasion to reflect upon whether, in the circumstances of the case before him, an order of the kind made in Hayes' case ought to be made. In the result, his Honour came to grant an extension of up to 90 days, as had been sought by the administrators, rather than to adopt a form of order akin to that made in Hayes' case. Regard to his Honour's reasons for judgment at para 27 and para 28 discloses that there were three particular reasons why, in the circumstances of that case, Jacobson J determined to grant an extension of up to 90 days to the administrators rather than to make an order similar to that made in Hayes' case. Those reasons were these: (a) The first was that the cases indicate than an extension of two and a half to three months is not unusual where there is a relatively complex sale process. In this case, by way of contrast, there is no such sale process. (b) The second reason evident in Mentha was that there was a disposition, sworn, it seems on behalf of the administrators, to convene a meeting in a shorter period of time than currently anticipated if the sale process concerned were able to be completed beforehand. Here, the administrators have a disposition likewise to convene a meeting earlier if, in their judgment, there is no advantage in delaying that particular meeting to the maximum permitted by the extension primarily sought. I have no doubt that that particular statement is one seriously made by responsible practitioners. In that sense, there is a similarity as between this case and Mentha , although, again, the occasion for the foreshortening is not, as it was in Mentha , the prospect or contingency of an earlier than anticipated completion of a sale process, but rather that of an earlier than anticipated completion, or at least practical completion, of investigations considered reasonably necessary. (c) The third reason found in Mentha was that the administrators considered that there was sufficient cashflow to enable the post-appointment liabilities to be met. Here, by way of contrast, the administrators have determined not to continue the trading operations of Storm Financial. In that sense, the outgoings, by way of wages and the like, have ceased upon the termination of staff. Nonetheless, the position, it seems to me, is different from Mentha in the sense that one does not have here the cost neutral situation of a business being continued and preserved for the purpose of sale by administrators. The question becomes whether or not the alternative proposal on behalf the administrators achieves a necessary or desirable degree of expedition in that regard or whether it might be better, as ASIC has submitted, to adopt a course similar to that undertaken in Hayes' case, ie, to fix, by way of an extension, a relatively short further period, but to make provision for the further extension of that period? Obviously enough, in the context of any further extension, the receipt by the administrators of a detailed proposal for a deed of company arrangement would be a material consideration. A concern which I have in relation to the alternative proposed by the administrators is that it may admit of some debate as to what constitutes a written proposal for a deed of company arrangement in the order as proposed, and further that it may admit, at the behest of the directors or some other promoter of a deed, of an extension of the administration period to 7 May 2009 in respect of a deed which one might regard as but superficial in its content. Reflecting upon these considerations, the complexity of this particular company's operations, their spread, the need for an adequate report to be made to creditors and the statutory objects involved, it seems to me that the interests of creditors are best served by at least making provision for the prospect of a relatively early decision by them in relation to the choices offered under Pt 5.3A , while at the same time giving the administrators some further weeks to undertake their necessary task of administration.


case_text: Re Mentha; Hans Continental Smallgoods Pty Ltd (Administrators Appointed) [2008] FCA 1933 , hereafter Mentha , Jacobson J had occasion to reflect upon whether, in the circumstances of the case before him, an order of the kind made in Hayes' case ought to be made. In the result, his Honour came to grant an extension of up to 90 days, as had been sought by the administrators, rather than to adopt a form of order akin to that made in Hayes' case. Regard to his Honour's reasons for judgment at para 27 and para 28 discloses that there were three particular reasons why, in the circumstances of that case, Jacobson J determined to grant an extension of up to 90 days to the administrators rather than to make an order similar to that made in Hayes' case. Those reasons were these: (a) The first was that the cases indicate than an extension of two and a half to three months is not unusual where there is a relatively complex sale process. In this case, by way of contrast, there is no such sale process. (b) The second reason evident in Mentha was that there was a disposition, sworn, it seems on behalf of the administrators, to convene a meeting in a shorter period of time than currently anticipated if the sale process concerned were able to be completed beforehand. Here, the administrators have a disposition likewise to convene a meeting earlier if, in their judgment, there is no advantage in delaying that particular meeting to the maximum permitted by the extension primarily sought. I have no doubt that that particular statement is one seriously made by responsible practitioners. In that sense, there is a similarity as between this case and Mentha , although, again, the occasion for the foreshortening is not, as it was in Mentha , the prospect or contingency of an earlier than anticipated completion of a sale process, but rather that of an earlier than anticipated completion, or at least practical completion, of investigations considered reasonably necessary. (c) The third reason found in Mentha was that the administrators considered that there was sufficient cashflow to enable the post-appointment liabilities to be met. Here, by way of contrast, the administrators have determined not to continue the trading operations of Storm Financial. In that sense, the outgoings, by way of wages and the like, have ceased upon the termination of staff. Nonetheless, the position, it seems to me, is different from Mentha in the sense that one does not have here the cost neutral situation of a business being continued and preserved for the purpose of sale by administrators. There are, thus, distinguishing features as between that which motivated, in what was undoubtedly a complex administration in Mentha , the granting of an extension of up to 90 days and the present case. Recognising this, the administrators, by way of an alternative, submitted that the Court might instead make orders which, in effect, hung off the receipt or otherwise of a written proposal for a deed of company arrangement on or before 23 March 2009. If such a proposal were not received by that date, the submission was that the convening period be extended to 7 April. If such a proposal were received by the date suggested, the submission was that the convening period then be extended to 7 May 2009. In a sense, the administrators and ASIC share a concern in relation to any proposal for a deed of company arrangement. That is that there is a need for the persons who would promote such a deed - be they the directors, insurers of Storm Financial or others - to act with the speed and dispatch envisaged by Parliament in the enactment of Pt 5.3A. A leisurely process is not, in any way, envisaged by Parliament.


case_text: task for the court was recently summarised by Kenny J in the following way, in Re Georges; Midas Australia Pty Ltd (Administrators Appointed) [2009] FCA 38 at para 11, as follows: The authorities establish that, where an application is made under section 439A(6) for an extension of time, the court must strike a balance between the expectation that the administration be conducted relatively speedily and summarily and the need to ensure that undue speed not prejudice sensible and constructive actions directed towards maximising the return for creditors and shareholders.


case_text: administrators report that the company, prior to its being placed in administration, had instituted proceedings in this Court against the Commonwealth Bank. The nature of those proceedings is described fully in a judgment delivered by Greenwood J, Storm Financial Ltd v Commonwealth Bank of Australia [2008] FCA 1991. An application was made in those proceedings for interlocutory injunctive relief as against the bank. His Honour, for the reasons that he gave on 24 December 2008, refused that application. The substantive proceedings remain on foot. In summary, the proceedings might be described as a claim for damages in respect of alleged contraventions of s 1041E and s 1041H of the Act by the bank in the despatch of correspondence to, and other communications with, clients of Storm Financial earlier in December 2008, which are said to contain false, misleading or deceptive statements. Following adjournments, the application for leave to appeal in respect of the interlocutory injunctive aspect of the proceeding is to be heard in this Court on 6 March 2009. The administrators report that they are presently in the process of seeking to form a view as to the prospects in respect of the substantive proceeding in the court. The position at the moment is that the administrators have not yet obtained legal advice on that subject. That is a matter that they are pursuing actively. The administrators also report, by way of Mr Worrell's affidavit, claims made by investors and clients and media coverage concerning the same and the prospect of the same. They are not yet in a position to give any further assistance to the Court or creditors concerning those claims. The administrators have already travelled to Townsville and undertaken considerable investigative work with Storm Financial's two chief financial officers, and also with the directors of Storm Financial. On 12 January 2009, in the exercise of the judgment consigned to them as administrators, the administrators determined to close Storm Financial's business. In so doing, they were sensitive to the effects such a course had on the employees. The administrators report that, though unpleasant, the decision was one which, having regard to the financial information that they had obtained, was necessary; indeed, it seems, almost inevitable.


case_text: I see no reason to doubt that the Macquarie Dictionary is 'a document the authority of which cannot reasonably be questioned' within the meaning of s 144. Judges regularly refer to authoritative dictionaries such as the Macquarie Dictionary for the purpose of determining or confirming the meaning of English words. Indeed, the common law rule is that evidence is not admissible for the purpose of interpreting ordinary English words ( Camden v Commissioners of Inland Revenue [1914] 1 KB 641; Cross on Evidence , 6 th Australian Edition at [11010]). It is unnecessary to give consideration here to whether this rule has survived the enactment of the Evidence Act . 28 It was open to the Federal Magistrate to refer to the above definitions. It goes without saying that it has always been open to the Minister's legal representatives to refer to them. 29 The above definitions of 'Sindh' and 'Sindhi' confirm that an assertion by a citizen of India that he is a Sindhi is an assertion of geographic significance; it is a statement that his, or his family's, geographic origin is in Sindh province which now forms part of Pakistan. The above definition of 'caste' confirms that an assertion by a Hindu that he is of a particular caste is an assertion of social significance; it is a statement as to the social class into which, as a Hindu, he was born. The Tribunal plainly understood that the appellant claimed to be of the Dalit caste and that Dalit is a low caste.


case_text: Order 52 r 36 of the Federal Court Rules , subject to any dispensation from compliance (see O 1 r 8), governs the practice of the Court where further evidence is sought to be adduced on appeal. Ordinarily the Court requires an application to adduce further evidence on appeal to be supported by an affidavit that explains why the further evidence was not adduced below ( Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721). However, I accept the submissions of the appellant's legal representative that the circumstances in which this Court, in the exercise of its appellate jurisdiction, may receive evidence not adduced below are to be determined as a matter of statutory construction rather than by reference to common law principles ( CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ esp at [100]-[102]). The interests of justice must always be the paramount consideration ( State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 155).