case_text: (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 (22 August 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1106 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 (22 August 2006) Last Updated: 23 August 2006 FEDERAL COURT OF AUSTRALIA Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 BANKRUPTCY creditor's petition for administration of estate of deceased person pending applications in State court for probate and letters of administration whether bar to creditor's petition - whether leave of the court is required "proceedings for the administration of a deceased person's estate". PRACTICE AND PROCEDURE precedent whether previous decision of single Judge should be followed whether previous decision 'plainly wrong'. Bankruptcy Act 1966 (Cth): s 244(13) Rules of the Supreme Court of Victoria : Pt 54 Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205 followed Gonzalez v Maria de Luz Marmentini (unreported, Federal Court of Australia, Emmett J, 7 July 1998) followed McLean v Burns Philp Trustee Co Pty Ltd (1985 ) 2 NSWLR 623 applied Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586 followed SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 followed MEINHARDT (HONG KONG) LTD v WILLIAM EDWARD MEINHARDT (DECEASED) & ORS VID838 OF 2006 JESSUP J 22 AUGUST 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID838 OF 2006 BETWEEN: MEINHARDT (HONG KONG) LTDApplicant AND: WILLIAM LINDSAY MEINHARDT (DECEASED)First RespondentWILLIAM EDWARD MEINHARDTSecond RespondentVICTORIA BARBARA TREYVAUDThird Respondent JUDGE : JESSUP J DATE: 22 AUGUST 2006 PLACE: MELBOURNE RULING William Lindsay Meinhardt died on 23 November 2003 leaving a will which named Timonthy Jonathan Browne and Roderick Charles McKenzie as executors. The residuary beneficiaries were William Meinhardt's three children, Victoria Treyvaud, Sally Veall, and William Edward Meinhardt. No application for probate had been made when, on 23 November 2005, William Meinhardt Jr commenced proceedings in the Supreme Court of Victoria against the executors under s 15 of the Administration and Probate Act 1958 (Vic) in which they sought orders that the executors show cause why they should not renounce probate of the will and why administration of the will should not be granted to State Trustees Ltd. On 22 December 2005 the executors commenced their own proceeding in the Supreme Court in which they applied for probate of the will. On 16 March 2006 the Supreme Court ordered that the two proceedings be heard together. In the period leading to about the middle of the nineteenth century in England, the Court of Chancery exercised a jurisdiction whereby it undertook the general administration of a trust, or a deceased estate. A decree for general administration was made as of course upon application by a beneficiary. The history of the proceeding is set out in the judgment of Young J in McLean v Burns Philp Trustee Co Pty Ltd (1985 ) 2 NSWLR 623. His Honour said (at 633): "[By] 1850 the law was that if any beneficiary came to the court at all and asked for general administration, general administration would be decreed as of course. The court would order that the trust was to be specifically performed under its supervision, that nothing was to be done without its imprimatur, that accounts should be taken to see what the trust assets were and the court would give directions as to how the trust would be carried out." I have also been referred to Williams, Mortimer and Sunnucks , Executors, Administrators and Probate, 18 th ed , 2000. In that edition, the authors say (at p38): "In the nineteenth century the main business of the Chancery Masters was the administration of the estates of deceased persons. It was common for estates to be administered in Chancery and testators sometimes even directed in their wills that the estate should be so administered. If the assistance of the court was required, the only relief available was the making of a full administration order. This terminated the authority of the representative to administer and put the whole of the administration in the hands of the court, a necessarily expensive and slow matter. A full administration order required (and still requires, if one were to be made) accounts to be taken of the testator's debts, and of his property come to the hands of the representatives and an inquiry as to what part of his property was outstanding or undisposed of, and whether it was subject to incumbrances. There was (and theoretically still is) machinery for advertising for creditors, requiring creditors to come in and prove their claims, and for examining the representatives' accounts." For reasons explained both by Young J and by Williams et al , proceedings for the general administration of trusts became increasingly less frequent in the second half of the nineteenth century, and are today all but unknown. There is a simpler and more flexible procedure under which a beneficiary may obtain particular relief in relation to a deceased estate or a trust, without the need to place the whole estate or trust under the general administration of the court. In Victoria, that procedure is established by Pt 54 of the Rules of the Supreme Court of Victoria . However, courts of equity retain their jurisdiction to make general administration decrees, even if the existence of that jurisdiction may be regarded, in contemporary times, as theoretical. Indeed, in McLean itself, although Young J ultimately did not make the (interlocutory) general administration order which had been sought in the proceedings before him, his refusal to do so depended in no sense upon a view that jurisdiction was lacking, or that an order for general administration could no longer be made by a court of equity. In the proceedings before me, Mr Sifris argued that a proceeding for administration by the court, of either the traditional, general, kind or the more flexible and specific kind for which Pt 54 of the Rules of the Supreme Court of Victoria provides, is the kind of proceeding to which s 244(13) of the Bankruptcy Act refers. He said that a proceeding of this kind was conformable with the natural meaning of the phrase 'proceedings ... in a court for the administration of a deceased person's estate'. Mr Bigmore submitted that so to construe subs (13) was to narrow down the natural meaning of the words found therein without any apparent grammatical or contextual justification. While accepting, as I understood him, that the subsection did extend to proceedings for general administration or under Pt 54 , he submitted that the natural meaning of the words extended also to a situation in which someone had applied for a grant of probate, or for letters of administration, in relation to a deceased estate. In these situations, the estate would be administered by or under the direction of the person to whom the grant had been made, and proceedings in a court were necessary to obtain the grant.


case_outcome: followed

case_text: (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 (22 August 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 1106 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 (22 August 2006) Last Updated: 23 August 2006 FEDERAL COURT OF AUSTRALIA Meinhardt (Hong Kong) Ltd v William Edward Meinhardt (Deceased) & Ors [2006] FCA 1106 BANKRUPTCY creditor's petition for administration of estate of deceased person pending applications in State court for probate and letters of administration whether bar to creditor's petition - whether leave of the court is required "proceedings for the administration of a deceased person's estate". PRACTICE AND PROCEDURE precedent whether previous decision of single Judge should be followed whether previous decision 'plainly wrong'. Bankruptcy Act 1966 (Cth): s 244(13) Rules of the Supreme Court of Victoria : Pt 54 Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205 followed Gonzalez v Maria de Luz Marmentini (unreported, Federal Court of Australia, Emmett J, 7 July 1998) followed McLean v Burns Philp Trustee Co Pty Ltd (1985 ) 2 NSWLR 623 applied Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586 followed SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 followed MEINHARDT (HONG KONG) LTD v WILLIAM EDWARD MEINHARDT (DECEASED) & ORS VID838 OF 2006 JESSUP J 22 AUGUST 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID838 OF 2006 BETWEEN: MEINHARDT (HONG KONG) LTDApplicant AND: WILLIAM LINDSAY MEINHARDT (DECEASED)First RespondentWILLIAM EDWARD MEINHARDTSecond RespondentVICTORIA BARBARA TREYVAUDThird Respondent JUDGE : JESSUP J DATE: 22 AUGUST 2006 PLACE: MELBOURNE RULING William Lindsay Meinhardt died on 23 November 2003 leaving a will which named Timonthy Jonathan Browne and Roderick Charles McKenzie as executors. The residuary beneficiaries were William Meinhardt's three children, Victoria Treyvaud, Sally Veall, and William Edward Meinhardt. No application for probate had been made when, on 23 November 2005, William Meinhardt Jr commenced proceedings in the Supreme Court of Victoria against the executors under s 15 of the Administration and Probate Act 1958 (Vic) in which they sought orders that the executors show cause why they should not renounce probate of the will and why administration of the will should not be granted to State Trustees Ltd. On 22 December 2005 the executors commenced their own proceeding in the Supreme Court in which they applied for probate of the will. On 16 March 2006 the Supreme Court ordered that the two proceedings be heard together. Mr Bigmore's second submission was that Gonzalez was plainly wrong. He accepted that I should follow the judgment of another single judge of this Court unless I was persuaded that it was plainly wrong: see Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205, [46]; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586, [38]. When speaking of a like test in the context of a later Full Court being asked to depart from the judgment of an earlier Full Court, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214, [148], Weinberg J said (with the assent of Allsop J): "The word "plainly" does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable."


case_title: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214


case_text: Even though the text of s 9(1)(e) and of s 70(5)(d) are similar, this circumstance does not detract from the conclusion that the wrong test was applied by the Tribunal. The failure of the Tribunal to refer to the correct statutory provision demonstrates that the Tribunal asked itself the wrong question. Jurisdictional error therefore exists in its decision: see Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6 ; [1969] 2 AC 147 at 171; Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179. Whether such error is by itself sufficient to warrant the setting aside of the Tribunal's decision is a matter within the Court's discretion.


case_outcome: referred to

case_text: In view of the above findings of error in the decision of the Tribunal, the Court is not of the opinion that it would be 'futile to remit the matter' : see Arnott v Repatriation Commission [2001] FCA 262 ; (2001) 106 FCR 83 at [36] . Rather the Court considers that there is a possibility that a different result would be reached on such remitter: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540; and Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214.


case_text: The Court is not satisfied that if the Tribunal had addressed the correct questions, its decision would be the same, irrespective of the error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 384. The errors of the Tribunal include the reference to eligible service under s 9(1) when the correct test was contained in s 70(5) of the Act; the reference to 'war service' when the only service relevant was Mr Robertson's 'defence service'; the failure to refer to the correct provisions in s 70(5) of the Act; and the finding made in the absence of evidence of Mr Robertson's alcohol dependence. The Tribunal did not identify the correct issues which it was required to determine and accordingly fell into jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 347-348.


case_title: Comcare v Sahu-Khan [2007] FCA 15 ; (2007) 156 FCR 536

case_text: Mr Robertson agrees with the Commission's submission and agrees that the Tribunal erroneously referred to s 9(1)(e) of the Act. It is also agreed that the Tribunal erroneously referred to 'war caused' disease of Mr Robertson in its decision instead of 'defence caused'. Mr Robertson acknowledges that because his PTSD was found to have had its clinical onset in 1994 (after termination of Mr Robertson's defence service), the Tribunal's reference to 'the contribution, to a material degree' adopting the wording of s 9(1)(e) and s 70(5)(d) was irrelevant as the issue raised by these sections is whether an injury or disease was contributed to in a material degree or was aggravated by any eligible war service or defence service respectively rendered after the injury was suffered or the disease was contracted. Mr Robertson refers to Comcare v Sahu-Kahn [2007] FCA 15 ; (2007) 156 FCR 536 at [16] and submits that the adoption by the Tribunal of the wording in s 9(1)(e) and s 70(5)(d) required a more onerous test than that required by s 70(5)(a) of the Act which Mr Robertson submits is the section to which the Tribunal should have had regard. Such provision renders an injury 'defence-caused' if it arose out of, or was attributable to, defence service. 21 The Commission submits that Clauses 5(b) and 6 of the SoP for PTSD give effect to s 70(5)(d) of the Act. Accordingly s 70(5)(d) precluded the Tribunal from finding that Mr Robertson's PTSD was defence caused unless either Mr Robertson developed PTSD during, or prior to, his defence service and the PTSD was contributed to or was aggravated by his defence service. Because the Tribunal did not refer to s 70(5)(d) it failed to apply the correct test for determining whether Mr Robertson's condition was contributed to in a material degree or was aggravated by defence service rendered after he developed PTSD. 22 Mr Robertson submits such errors made no difference because the statutory provisions which establish the necessary causal relationships between the service and disease or injury contained in s 9(1) and s 70(5) respectively are virtually the same for 'eligible war service' and 'defence service'. The relevant SoP all applied to 'eligible service' which is defined in clause 8 of each SoP to include 'eligible war service' and 'defence service' with the result that the factors required by the SoP for both forms of service were identical.


case_title: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163


case_title: Deledio v Repatriation Commission (1997) 25 AAR 396

case_text: Since the Tribunal found that Mr Robertson's PTSD had its clinical onset in 1994 namely after his defence service had concluded there could be no scope for any contribution to or aggravation of his PTSD by the subsequent stressors suffered during his defence service as considered in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 unless they were severe stressors which caused the PTSD: see the observations of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 with whom the Full Court agreed (see Repatriation Commission v Deledio (1998) 83 FCR 82 at 95-96). See also Repatriation Commission v Bendy (1989) 18 ALD 144 at 146.


case_text: The term 'clinical onset' is not defined in the Act. The parties accept the definition provided in Re Robertson v Repatriation Commission (1998) 50 ALD 668 at 670 that: there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time. See also Repatriation Commission v Cornelius [2002] FCA 750 ; and Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331. 43 The clinical onset of such a condition is a diagnostic issue requiring medical opinion: see Cornelius [2002] FCA 750 at [28] ; Lees [2002] FCAFC 398 ; 125 FCR 331; Repatriation Commission v Milenz (2006) 43 AAR 565 at [34]; Repatriation Commission v Brady [2007] FCA 1087 at [36] .


case_text: As was recognised by Gray J in Mines v Repatriation Commission (2004) 40 AAR 238 at [39], one or more possible traumatic events might exist and the making of a determination as to which of the events was responsible for the condition may be required: see also Bendy 18 ALD 144. However it is essential to identify the stressor occurring during defence service which resulted in the PTSD to satisfy Clause 5(a) of the SoP for PTSD. Unless such stressor or stressors experienced during defence service led to such clinical onset, they are irrelevant.


case_title: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 32


case_title: Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206


case_text: The term 'clinical onset' is not defined in the Act. The parties accept the definition provided in Re Robertson v Repatriation Commission (1998) 50 ALD 668 at 670 that: there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time. See also Repatriation Commission v Cornelius [2002] FCA 750 ; and Lees v Repatriation Commission [2002] FCAFC 398 ; (2002) 125 FCR 331.


case_text: Since the Tribunal found that Mr Robertson's PTSD had its clinical onset in 1994 namely after his defence service had concluded there could be no scope for any contribution to or aggravation of his PTSD by the subsequent stressors suffered during his defence service as considered in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 unless they were severe stressors which caused the PTSD: see the observations of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 with whom the Full Court agreed (see Repatriation Commission v Deledio (1998) 83 FCR 82 at 95-96). See also Repatriation Commission v Bendy (1989) 18 ALD 144 at 146. 35 As was recognised by Gray J in Mines v Repatriation Commission (2004) 40 AAR 238 at [39], one or more possible traumatic events might exist and the making of a determination as to which of the events was responsible for the condition may be required: see also Bendy 18 ALD 144. However it is essential to identify the stressor occurring during defence service which resulted in the PTSD to satisfy Clause 5(a) of the SoP for PTSD. Unless such stressor or stressors experienced during defence service led to such clinical onset, they are irrelevant.


case_text: The clinical onset of such a condition is a diagnostic issue requiring medical opinion: see Cornelius [2002] FCA 750 at [28] ; Lees [2002] FCAFC 398 ; 125 FCR 331; Repatriation Commission v Milenz (2006) 43 AAR 565 at [34]; Repatriation Commission v Brady [2007] FCA 1087 at [36] .


case_title: Repatriation Commission v Cornelius [2002] FCA 750


case_title: Repatriation Commission v Deledio (1998) 83 FCR 82


case_title: Repatriation Commission v Milenz (2006) 43 AAR 565


case_title: Santa Sabina College v Minister for Education (1985) 58 ALR 527


case_text: However the Tribunal found that Mr Robertson's PTSD did not have its clinical onset until 1994. The Tribunal concluded that if such incident was the sole cause of the PTSD, it occurred outside his period of 'eligible service' because the incident occurred before 7 December 1972 (see s 68 of the Act). Accordingly it was not related to his 'eligible service'. The Tribunal also considered that other incidents namely the diving incident in Hong Kong in 1974 while on board HMAS Stuart, the stress episodes which occurred at least three to six times per year suffered by Mr Robertson whilst continuing to serve on HMAS Melbourne, and a fire on HMAS Supply, were each severe stressors ('the subsequent stressors'). The Tribunal found: On the basis of the expert evidence I am satisfied that the later stressors "add their measure" to the final manifestation of Mr Robertson's post traumatic stress disorder in 1994 ( Treloar v Australian Telecommunications Commission ). In any event, the SoP operates, by factor 5(a) to establish a connection to service (experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder). Section 120B of the Act establishes war causation where there is material that raises a connection between a disease and service and a SoP upholds that connection. Both requirements are met here and so Mr Robertson's post traumatic stress disorder is war caused. 16 As to Mr Robertson's claims of alcohol dependence, the Tribunal considered the relevant factor for alcohol dependence to be that the person was 'suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse' : see clause 5(a) of the SoP for Alcohol Dependence. The Tribunal found that Mr Robertson's alcohol dependence ' had its clinical onset sometime in the 1990s but no later than 1997' when it was formally diagnosed. The Tribunal concluded that 'on the balance of probabilities, Mr Robertson had post traumatic stress disorder at the time of the clinical onset of his alcohol dependence' . 17 The relevant factor for major depression as found by the Tribunal, requires the claimant to 'have a clinically significant psychiatric condition within the one year immediately before the onset of depressive disorder' : see clause 5(b) the SoP for Depressive Disorder. The Tribunal found that Mr Robertson's major depression 'had its clinical onset in the mid 1990s' and continued: Given this time range and the clinical onset of post traumatic stress disorder in 1994, I find it more probable than not that Mr Robertson had post traumatic stress disorder within one year immediately before the clinical onset of major depression. 33 Since the Tribunal found that Mr Robertson's PTSD had its clinical onset in 1994 namely after his defence service had concluded there could be no scope for any contribution to or aggravation of his PTSD by the subsequent stressors suffered during his defence service as considered in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 unless they were severe stressors which caused the PTSD: see the observations of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 with whom the Full Court agreed (see Repatriation Commission v Deledio (1998) 83 FCR 82 at 95-96). See also Repatriation Commission v Bendy (1989) 18 ALD 144 at 146.


case_outcome: cited

case_text: In Munnings v Australian Government Solicitor [1994] HCA 12 ; (1994) 120 ALR 586 at 589 Mason CJ and Brennan and Toohey JJ observed: ... Although a plaintiff is often granted leave to re-plead if a statement of claim is struck out, there are some cases where the plaintiff so misconceives the cause of action that the action ought to be brought to an end. 17 In this case I am not satisfied that the application and the statement of claim disclose no reasonable cause of action or that the applicant so misconceives the cause of action that the action should be brought to an end at this stage. At present, however, the case the seventh respondent faces is not pleaded with sufficient clarity for the seventh respondent to meet it. In Court this morning the applicant indicated that she is currently seeking legal advice and would require at least two and a half weeks to do so. 18 In my view the appropriate orders, in addition to the consent order which I have already made this morning concerning the second respondent, are as follows: 1. The application and the statement of claim so far as the applicant seeks relief against the first, third, fourth, fifth and sixth respondents, should be struck out. 2. The applicant be given leave to file and serve an amended application and an amended statement of claim by 4.00 pm on 29 October 2008, in default of which the application so far as the seventh respondent is concerned stands dismissed. 19 Counsel for the third, fourth, fifth, sixth and seventh respondents submitted that their clients did not seek any orders as to costs. No such submission was made by the first respondent. In relation to the first respondent I order that costs be reserved. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 17 October 2008 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr M Downey of Sparke Helmore Counsel for the Second Respondent: Mr M Cooke Solicitor for the Second Respondent: McInnes Wilson Counsel for the Third, Fourth, Fifth, Sixth and Seventh Respondents: Mr P Travis Solicitor for the Third, Fourth, Fifth, Sixth and Seventh Respondents: Elliott May Date of Hearing: 10 October 2008 Date of Judgment: 10 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1523.html


case_text: It is well-known that the provisions of the ASIC Act regulating consumer protection resulted from the transfer of consumer protection functions in relation to financial services from the regulatory responsibility of the Australian Competition and Consumer Commission to the Australian Securities and Investments Commission: Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth), Second reading speech, Treasurer, the Hon Peter Costello MP; Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth) Explanatory Memorandum, paras 4.11-4.14; Cassidy v Saatchi & Saatchi Australia Pty Ltd [2004] FCAFC 34. 26 It is also clear that the provisions of the ASIC Act under consideration in this case replicate the equivalent provisions of the Trade Practices Act : Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth) Explanatory Memorandum, paras 4.33-4.39, Miller R, Annotated Trade Practices Act (28th ed, Thomson, 2007) at 516. 27 I am not persuaded that, by substituting the consumer protection provisions of the ASIC Act for the equivalent provisions of the Trade Practices Act in her claim, the applicant's case in paras 1-4 and 6-7 under "Details of Claim" and paras 2-3 under "Claim for Interlocutory Relief" is any different from the case which was before Spender J. Indeed, these pleadings are otherwise identical to those before Spender J, and no relevance has been ascribed either in the pleadings before me or by the applicant at the hearing to the conduct of the respondents so far as it relates specifically to financial services (to which the ASIC Act applies), as distinct from other goods or services (to which the Trade Practices Act applies). The applicant relies on the same facts, matters and circumstances in the application before me as she did in QUD525/2005 before Spender J. The applicant is attempting to re-litigate issues already decided by Spender J. In this respect the application is an abuse of process and should be dismissed pursuant to O 20 r 2 Federal Court Rules .


case_text: Section 31A Federal Court Act applies to all cases commenced on or after 1 December 2005. The nature of the provision and its overlap with O 20 r 2 Federal Court Rules have been considered in a number of cases in this Court, including the recent decision of Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511. In that case, his Honour articulated a number of principles including: • Section 31A of the Federal Court Act, like O 20 of the Rules, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form (at [50]). • Section 31A(2) is comparable to O 20 r 2 in that they are both concerned with dismissals of proceedings (at [50]). • The only difference that suggests itself between the concept of no reasonable cause of action being disclosed (O 20 r 2(1)(a)) and no reasonable prospect of successfully prosecuting a proceeding (s 31A(2)) is that the latter makes plain that there may be taken into account the unavailability of evidence necessary to bring success at trial, whereas it is arguable that the former does not permit the unavailability of such evidence to be taken into account (at [51]). • It appears that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 (at [54]). (To that extent the test in s 31A appears less stringent than that in O 20 r 2: Spender J in Rogers v Asset Loan Co Pty Ltd (2007) FCA 1371 at [55] ). • The "no reasonable prospects of success" formula of s 31A reflects the approach adopted in r 24.2 of the United Kingdom's Civil Procedure Rules (at [53]). In the United Kingdom it has been held in the context of that equivalent rule that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects (at [59]). • The same test has been adopted in r 292(2) and r 293(2) of Queensland's Uniform Civil Procedure Rules 1999 (at [53]). The Queensland Court of Appeal has similarly held that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 (at [59]).


case_title: Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62


case_outcome: applied

case_text: As stated by the High Court (Dixon CJ, McTiernan and Windeyer JJ) in Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 29 ; (1960) 104 CLR 339 at 350: "The debtor clearly must satisfy the Court that there exists in him a counter-claim, set-off or cross demand.... In Re A Debtor [1958] 1 Ch 81 Roxburgh J said: 'But not every demand will suffice. A demand made in bad faith would not be good enough. The debtor must satisfy the Court that he has a genuine demand... But in my opinion a demand must be more than bona fide: the Court must be satisfied that it has a reasonable probability of success' (at 99). Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand." 36 Having reviewed the material before me, and read: • the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 • the application filed in QUD525/2005 (which is annexed to the affidavit of Mr Whittle sworn 19 June 2007 in these proceedings) and • the affidavits (including that of the applicant) filed in support of that application (which are annexed to the affidavit of Mr Whittle sworn 6 September 2007 in these proceedings). it is clear that the facts, matters and circumstances upon which the applicant is relying in the substantive proceedings before me to have the relevant bankruptcy notice set aside - and which relate to a set off or counterclaim for damages for financial loss and psychological or mental damage caused by conduct of the respondents - are exactly the same facts, matters and circumstances which were before Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371. I note that Spender J dismissed the claim of the applicant for damages for economic loss and mental damage as a result of the conduct of the respondents. It is inappropriate to allow the application before me to continue, on the basis that there is a set off or counterclaim for damages for financial loss and psychological or mental damage as a result of the conduct of the respondents, which identical claim has already been dismissed. In this respect, I accept the submission of the respondents that there is, in fact, no setoff or counterclaim as envisaged by ss 40(1)(g) and 41 (7) Bankruptcy Act 1966 (Cth) and the High Court in Ebert 104 CLR at 350.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_text: More recently, as Jessup J observed in Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491 at 500: "There is, of course, no shortage of authority for the proposition that it is an abuse of process for a party to seek to contest, in later proceedings, a point which it has lost, or substantially lost, in earlier proceedings, even where there may not be complete overlap between all facts, parties, and causes of action...: see, for example, Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 ; (2001) 53 NSWLR 198." (cf the Full Court in Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ; Finn J in Lidden and Anor v Composite Buyers Ltd & Ors (1996) 139 ALR 549; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414) Section 31A


case_title: Lidden and Anor v Composite Buyers Ltd & Ors (1996) 139 ALR 549


case_title: Re A Debtor [1958] 1 Ch 81

case_text: As stated by the High Court (Dixon CJ, McTiernan and Windeyer JJ) in Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 29 ; (1960) 104 CLR 339 at 350: "The debtor clearly must satisfy the Court that there exists in him a counter-claim, set-off or cross demand.... In Re A Debtor [1958] 1 Ch 81 Roxburgh J said: 'But not every demand will suffice. A demand made in bad faith would not be good enough. The debtor must satisfy the Court that he has a genuine demand... But in my opinion a demand must be more than bona fide: the Court must be satisfied that it has a reasonable probability of success' (at 99). Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand."


case_title: Reichel v Magrath (1889) 14 App Cas 665

case_text: That an attempt to re-litigate matters already determined is an abuse of process and should not be entertained by the Court is a principle of long-standing authority. In Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Lord Halsbury LC said that it would be: "...a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceeding to set up the same case again. ...it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action."


case_text: An order for costs in the proceeding." 5 The applicant also claims the following: " B. Claim for Interlocutory Relief AND the applicant claims by way of interlocutory relief: 1. An order extending time to comply with a Bankruptcy Notice served by the Second Respondent dated 19 April 2007 served on 25 May 2007 2. An order that the respondents do not harass, intimidate or coerce the applicant or her immediate family 3. Any other orders that the court deems fit." 6 There is history to this dispute which has involved both the applicant and her husband bringing a number of claims in this Court against the respondents. The applicant and Mr Handran for the respondents have drawn my attention to: • the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 • the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 • the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 • my decision in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708. 7 The application filed in QUD525/2005, upon which judgment was given by Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , is annexed to the affidavit of Mr Sean Whittle sworn 19 June 2006 and filed 20 June 2006 in these proceedings. The application in that matter stated that it was a "Claim for Relief under the Trade Practices Act ". The Details of Claim were described as: "A. Details of Claim On the grounds stated in the accompanying affidavit or statement of claim the applicant claims. 1. An order that any loan agreements, mortgages and deeds of settlement are void 2. An order that any or all security documents in relation to a property at 2 Crown Street Fingal Head, NSW are void 3. An order for damages 4. Any other orders that the court deems fit 5. An order for the return of interest paid, return of costs incurred as a result of any or all agreements between the parties 6. An order for costs in the proceeding."


case_title: Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708


case_text: An order for costs in the proceeding." 5 The applicant also claims the following: " B. Claim for Interlocutory Relief AND the applicant claims by way of interlocutory relief: 1. An order extending time to comply with a Bankruptcy Notice served by the Second Respondent dated 19 April 2007 served on 25 May 2007 2. An order that the respondents do not harass, intimidate or coerce the applicant or her immediate family 3. Any other orders that the court deems fit." 6 There is history to this dispute which has involved both the applicant and her husband bringing a number of claims in this Court against the respondents. The applicant and Mr Handran for the respondents have drawn my attention to: • the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 • the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 • the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 • my decision in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708. 7 The application filed in QUD525/2005, upon which judgment was given by Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , is annexed to the affidavit of Mr Sean Whittle sworn 19 June 2006 and filed 20 June 2006 in these proceedings. The application in that matter stated that it was a "Claim for Relief under the Trade Practices Act ". The Details of Claim were described as: "A. Details of Claim On the grounds stated in the accompanying affidavit or statement of claim the applicant claims. 1. An order that any loan agreements, mortgages and deeds of settlement are void 2. An order that any or all security documents in relation to a property at 2 Crown Street Fingal Head, NSW are void 3. An order for damages 4. Any other orders that the court deems fit 5. An order for the return of interest paid, return of costs incurred as a result of any or all agreements between the parties 6. An order for costs in the proceeding." 17 The applicant has submitted that the current proceedings have been commenced under the ASIC Act instead of the Trade Practices Act in light of the comments of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 at [44] that the ASIC Act was the relevant legislation in respect of financial services. The applicant has further submitted that the matters are different because they are brought under different statutory schemes and that since QUD525/2005 was commenced "new breaches" had occurred (TS p 20, ll 43-44). 18 The application before me asserts that it is brought pursuant to ss 12DA and 12DJ ASIC Act . There is no reference to any particular sections of the Trade Practices Act in the application file in QUD525/2005 however, the comparable sections in the Trade Practices Act are s 52 and s 60 respectively. 19 Sections 12DA and 12DJ ASIC Act are found in Pt 2 Div 2 Subdiv D which is entitled "Consumer Protection". Sections 52 and 60 Trade Practices Act are found in Pt V Div 1 which is entitled "Unfair Practices".


case_outcome: related

case_text: An order for costs in the proceeding." 5 The applicant also claims the following: " B. Claim for Interlocutory Relief AND the applicant claims by way of interlocutory relief: 1. An order extending time to comply with a Bankruptcy Notice served by the Second Respondent dated 19 April 2007 served on 25 May 2007 2. An order that the respondents do not harass, intimidate or coerce the applicant or her immediate family 3. Any other orders that the court deems fit." 6 There is history to this dispute which has involved both the applicant and her husband bringing a number of claims in this Court against the respondents. The applicant and Mr Handran for the respondents have drawn my attention to: • the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 • the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 • the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 • my decision in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708. 7 The application filed in QUD525/2005, upon which judgment was given by Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , is annexed to the affidavit of Mr Sean Whittle sworn 19 June 2006 and filed 20 June 2006 in these proceedings. The application in that matter stated that it was a "Claim for Relief under the Trade Practices Act ". The Details of Claim were described as: "A. Details of Claim On the grounds stated in the accompanying affidavit or statement of claim the applicant claims. 1. An order that any loan agreements, mortgages and deeds of settlement are void 2. An order that any or all security documents in relation to a property at 2 Crown Street Fingal Head, NSW are void 3. An order for damages 4. Any other orders that the court deems fit 5. An order for the return of interest paid, return of costs incurred as a result of any or all agreements between the parties 6. An order for costs in the proceeding." 9 The respondents seek dismissal or stay of the substantive proceedings before me on the basis that: 1. First, in relation to paras1-4 and 6-7 under the heading "Details of Claim" and paras 2-3 in the "Claim for Interlocutory Relief": • the proceedings are identical to those previously before Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , are attempt to re-litigate matters already determined by his Honour, and as such constitute an abuse of process; and • in any event, the applicant's application has no reasonable prospects of success and should be dismissed pursuant to s 31A Federal Court of Australia Act 1976 (Cth). 2. Second, in relation to para 5 under the heading "Details of Claim" and para 1 in the "Claim for Interlocutory Relief", the applicant does not have an existing counterclaim or set off upon which to set aside the bankruptcy notice and as such this claim should be dismissed. Relevant principles Abuse of process 10 It is not in contention that the Federal Court has power to dismiss or permanently stay proceedings as an abuse of process. This is clear from O 20 r 2 Federal Court Rules which provides: (1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1). 14 Section 31A Federal Court Act applies to all cases commenced on or after 1 December 2005. The nature of the provision and its overlap with O 20 r 2 Federal Court Rules have been considered in a number of cases in this Court, including the recent decision of Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511. In that case, his Honour articulated a number of principles including: • Section 31A of the Federal Court Act, like O 20 of the Rules, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form (at [50]). • Section 31A(2) is comparable to O 20 r 2 in that they are both concerned with dismissals of proceedings (at [50]). • The only difference that suggests itself between the concept of no reasonable cause of action being disclosed (O 20 r 2(1)(a)) and no reasonable prospect of successfully prosecuting a proceeding (s 31A(2)) is that the latter makes plain that there may be taken into account the unavailability of evidence necessary to bring success at trial, whereas it is arguable that the former does not permit the unavailability of such evidence to be taken into account (at [51]). • It appears that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 (at [54]). (To that extent the test in s 31A appears less stringent than that in O 20 r 2: Spender J in Rogers v Asset Loan Co Pty Ltd (2007) FCA 1371 at [55] ). • The "no reasonable prospects of success" formula of s 31A reflects the approach adopted in r 24.2 of the United Kingdom's Civil Procedure Rules (at [53]). In the United Kingdom it has been held in the context of that equivalent rule that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects (at [59]). • The same test has been adopted in r 292(2) and r 293(2) of Queensland's Uniform Civil Procedure Rules 1999 (at [53]). The Queensland Court of Appeal has similarly held that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 (at [59]). 28 In any event, having regard to the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , it is clear that the applicant would be no more successful on the material before me in claiming relief under the ASIC Act than she was before his Honour in claiming relief under the Trade Practices Act . In light of the principles articulated by Lindgren J in White Industries [2007] FCA 511 , it is plain that the claim has no reasonable prospects of success in terms of s 31A Federal Court Act. 34 Mr Handran submitted further that the facts, matters and circumstances which the applicant relies on in support of the counterclaim or set off, are the same facts, matters and circumstances which were before Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 and which have been dismissed by his Honour. Mr Handran submits that this is also evident from the supporting affidavit filed by the applicant in support of both her application in this case and that in QUD525/2005. 35 It is useful to compare this affidavit of the applicant, with an affidavit sworn by her on 30 November 2005 and filed in QUD525/2005. In particular I note that: • paragraphs 9-35 of the applicant's affidavit sworn 13 June 2007 and filed in these proceedings are identical to paras 4-30 of her affidavit sworn 30 November 2005 and filed in QUD525/2005 (before Spender J), and in summary, set out the applicant's version of the background to and nature of the dispute between herself and the respondents which gives rise to the relevant set off or counterclaim • the only different paragraphs paras 2-8 (set out above in this judgment) and paras 36-43 of the applicant's affidavit sworn 13 June 2007 and filed in these proceedings - concern the applicant's version of the events surrounding the service of the bankruptcy notice filed by the respondents on 19 April 2007 and the fact that this application has been brought under the ASIC Act . 36 Having reviewed the material before me, and read: • the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 • the application filed in QUD525/2005 (which is annexed to the affidavit of Mr Whittle sworn 19 June 2007 in these proceedings) and • the affidavits (including that of the applicant) filed in support of that application (which are annexed to the affidavit of Mr Whittle sworn 6 September 2007 in these proceedings). it is clear that the facts, matters and circumstances upon which the applicant is relying in the substantive proceedings before me to have the relevant bankruptcy notice set aside - and which relate to a set off or counterclaim for damages for financial loss and psychological or mental damage caused by conduct of the respondents - are exactly the same facts, matters and circumstances which were before Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371. I note that Spender J dismissed the claim of the applicant for damages for economic loss and mental damage as a result of the conduct of the respondents. It is inappropriate to allow the application before me to continue, on the basis that there is a set off or counterclaim for damages for financial loss and psychological or mental damage as a result of the conduct of the respondents, which identical claim has already been dismissed. In this respect, I accept the submission of the respondents that there is, in fact, no setoff or counterclaim as envisaged by ss 40(1)(g) and 41 (7) Bankruptcy Act 1966 (Cth) and the High Court in Ebert 104 CLR at 350.


case_title: Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491


case_text: Section 31A Federal Court Act applies to all cases commenced on or after 1 December 2005. The nature of the provision and its overlap with O 20 r 2 Federal Court Rules have been considered in a number of cases in this Court, including the recent decision of Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511. In that case, his Honour articulated a number of principles including: • Section 31A of the Federal Court Act, like O 20 of the Rules, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form (at [50]). • Section 31A(2) is comparable to O 20 r 2 in that they are both concerned with dismissals of proceedings (at [50]). • The only difference that suggests itself between the concept of no reasonable cause of action being disclosed (O 20 r 2(1)(a)) and no reasonable prospect of successfully prosecuting a proceeding (s 31A(2)) is that the latter makes plain that there may be taken into account the unavailability of evidence necessary to bring success at trial, whereas it is arguable that the former does not permit the unavailability of such evidence to be taken into account (at [51]). • It appears that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 (at [54]). (To that extent the test in s 31A appears less stringent than that in O 20 r 2: Spender J in Rogers v Asset Loan Co Pty Ltd (2007) FCA 1371 at [55] ). • The "no reasonable prospects of success" formula of s 31A reflects the approach adopted in r 24.2 of the United Kingdom's Civil Procedure Rules (at [53]). In the United Kingdom it has been held in the context of that equivalent rule that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects (at [59]). • The same test has been adopted in r 292(2) and r 293(2) of Queensland's Uniform Civil Procedure Rules 1999 (at [53]). The Queensland Court of Appeal has similarly held that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 (at [59]). 15 I respectfully adopt this articulation of principles of Lindgren J. 16 It is clear that the substantive application before me is almost identical to that which was before Spender J in QUD525/2005, and upon which his Honour has given judgment. This suggests immediately a possible abuse of process by the applicant in these proceedings. However, there are clearly two differences between the substantive application before Spender J upon which his Honour has given judgment, and the substantive application before me, namely: 1. First, the substantive application in QUD525/2005 purported to be a claim for relief under the Trade Practices Act 1974 (Cth) while the proceedings before me purport to be brought under the Australian Securities and Investments Commission Act 2001 (Cth) ("ASIC Act"). 2. Second, whereas in the substantive application before me the applicant seeks as relief an order to set aside a bankruptcy notice filed by the second respondent on the grounds of a set off or counterclaim, and by way of interlocutory relief an order extending time to comply with that bankruptcy notice, no such relief was sought in the substantive application in QUD525/2005. 28 In any event, having regard to the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , it is clear that the applicant would be no more successful on the material before me in claiming relief under the ASIC Act than she was before his Honour in claiming relief under the Trade Practices Act . In light of the principles articulated by Lindgren J in White Industries [2007] FCA 511 , it is plain that the claim has no reasonable prospects of success in terms of s 31A Federal Court Act.


case_title: Wilson v Commonwealth of Australia [1999] FCA 1308


case_text: respondent has objected to the competency of the application. The application, he submits, is not within the jurisdiction of this Court due to the operation of s 476A of the Act. That section limits the Court's jurisdiction in migration matters to those set out in s 476A(1) ; see Beyazkilinc v Manager, Baxter Immigration Reception & Processing Centre (2006) 155 FCR 465 at [51] [52] per Besanko J. See also Raikua v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 370 ; (2007) 158 FCR 510 at [64] per Lindgren J.


case_title: Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510


case_title: Mobil Oil Australia Limited v Guina Developments Pty Limited [1996] 2 VR 34

case_text: This sort of question has arisen before, and in particular is the subject of a decision of the Court of Appeal of Victoria, Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34. The decision of the court was given by Hayne JA. His Honour pointed out at 38 that when the question of disclosure of confidential information to a trade rival arises, it must be remembered that confidential information once received cannot be forgotten, and may be used in a way in which the party disclosing the information never becomes aware. 5 I think that is an important consideration in the present case. I am satisfied that the information in question is genuinely confidential. The evidence in the substantive hearing disclosed there is very close competition in the project homes market. Knowledge to a competitor of costings and margins would be very valuable for the purpose of setting prices. 6 I do not think Barrett are seriously disadvantaged for the purpose of making its election because, as already mentioned, their Chief Financial Officer will have access to the report. If they wish, they could also retain some independent expert with knowledge of this particular industry. 7 I note in particular that Mr Roberts is a person who is involved in the day-to-day operations of the business, and so the more likely to be in a position to take advantage of the information. This is not necessarily a case of any dishonest or improper use of information. As is stressed in Mobil Oil , once information is disclosed it becomes part of the person's stock of knowledge and it is unrealistic to expect that knowledge to be ignored. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 17 June 2008 Counsel for the Applicants: C D Golvan SC Solicitor for the Applicants: Middletons Counsel for the Respondent: S M Rebikoff Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: 17 June 2008 Date of Judgment: 17 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/930.html


case_text: Marine argued that the making of a choice between having disputes determined by arbitration or curially was not an election by a party to an arbitration agreement. It relied on what Austin J had said in ACD Tridon v Tridon Australia [2002] NSWSC 896 at [58] , [68]-[69]. He held that mere delay in invoking a reference to arbitration by a party to an arbitration agreement, who had been sued by the other party in curial proceedings, was not an election or waiver: see too Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl-ing Burkhardt GmbH [2001] 1 Qd R 461 at 469 [25]. But that is quite distinct from the position, here, where the party asserting the binding obligation to arbitrate later initiated the Boomerang I 's arrest without, at that time, seeking or foreshadowing a claim for curial assistance in those proceedings in enforcing the arbitration agreement.