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Into which category does this case fall based on its content? certain laws have been held to fall outside s 51(xxxi) and within another supporting head of power. examples include laws which impose a fine or penalty or laws effecting or authorising seizure of the property of enemy aliens or the condemnation of prize. the test for determining if a law falls outside the scope of s 51(xxxi) has been variously stated. in mutual pools and staff pty ltd v the commonwealth ca 9 ; (1994) 179 clr 155 brennan j said (at 179-180): 'although s 51(xxxi) abstracts from other heads of power the power of acquisition which that paragraph itself confers, it does not thereby abstract the power to prescribe the means appropriate and adapted to the achievement of an objective falling within another head of power where the acquisition of property without just terms is a necessary or characteristic feature of the means prescribed. in each of the cases in which laws for the acquisition of property without the provision of just terms have been held valid, such an acquisition has been a necessary or characteristic feature of the means selected to achieve an objective within power, the means selected being appropriate and adapted to that end. therefore a law which selects and enacts means of achieving a legitimate objective is not necessarily invalid because the means involve an acquisition of property without just terms. what is critical to validity is whether the means selected, involving an acquisition of property without just terms, are appropriate and adapted The legal case is titled:

Mutual Pools and Staff Pty Ltd v The Commonwealth CA 9

Into which category does this case fall based on its content? since australian softwood forest pty ltd v attorney-general (nsw ) ca 49 ; (1981) 148 clr 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as asic may serve important law enforcement purposes: see corporate affairs commission (nsw) v transphere pty ltd (1988) nswlr 596 at 603; australian securities and investments commission v sweeney swsc 114 at [30] - [31] ; and pegasus at 571. asic is charged with the administration and enforcement of the act, and there will be many cases where it is in the public interest for the courts to make a declaration on asic's application that the act has been contravened in specified respects. the making of such a declaration does not simply record the outcome of enforcement proceedings; it may also be an appropriate way of marking the court's disapproval of the contravening conduct: see tobacco institute of australia ltd v australian federation of consumer organisations inc (no 2) (1993) 41 fcr 80 at 97-99, 106 and 110. The legal case is titled:

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc

Into which category does this case fall based on its content? ordinarily that discretion will be exercised so that costs follow the event and are awarded on a party and party basis. a departure from normal practice to award indemnity costs requires some special or unusual feature in the case: alpine hardwood (aust) pty ltd v hardys pty ltd (no 2) ca 224 ; (2002) 190 alr 121 at [11] (weinberg j) citing colgate palmolive co v cussons pty ltd (1993) 46 fcr 225 at 233 (sheppard j). The legal case is titled:

Colgate Palmolive Co v Cussons Pty Ltd

Into which category does this case fall based on its content? no stay is sought if the first and third applicants fail to provide the security. rather, if i were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. submissions of the applicants 8 in response, mr perry on behalf of the applicants has submitted, in essence: 1. neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. accordingly the threshold for the making of an order has been established consistently with the decision of the full court in these proceedings. 2. however the question before the court is whether the court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. in particular: (a) the notice was served on friday 3 november 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm frida The legal case is titled:

Bell Wholesale Co Pty Ltd v Gates Export Corporation

Into which category does this case fall based on its content? mr spencer also drew attention to a similar statement of principle by mchugh j in re minister for immigration and ethnic affairs; ex parte lai qin ca 6 ; (1997) 186 clr 622 at 626. 19 mr spencer argued that he had at all times acted reasonably in relation to the complaint brought against him by the accc. when the matter was first drawn to his attention, by a letter dated 14 april 2003 setting out the accc's concerns, he had caused his solicitors to reply to that letter, on 20 may 2003, responding in detail to the allegations. on 11 june 2003, the accc had written to his solicitors, thanking them for his response. that letter went on to say: "this office is currently assessing the information provided by you on behalf of your client. however, it is apparent a number of issues remain, therefore as soon as this office has completed its assessment of your response i will contact you to arrange a mutually suitable time to meet with you and your client to discuss this matter further." 20 it appears from the correspondence that was tendered before me that, despite the suggestion that there would be a meeting between the accc and mr spencer to discuss the matter further, no such meeting took place. instead, on 11 august 2004, deacons, acting on behalf of the accc, wrote to mr spencer's solicitors informing them that the matter had now been "fully investigated" and that the accc had determined to pursue it further. the letter went on to say that a proceeding had been instituted in the The legal case is titled:

Re Minister for Immigration and Ethnic Affairs

Into which category does this case fall based on its content? it was not suggested in this proceeding that, so far as a commonwealth revenue debt is concerned, there is any express statutory provision which alters the usual position which prevails as between creditor and debtor when a cheque is given in payment of a debt. that usual position was expressed by mason cj, brennan, deane, dawson and toohey jj in national australia bank v kds construction services pty ltd ca 65 ; (1987) 163 clr 668, at 676 to be as follows: generally speaking, when a cheque is given in payment of a debt, it operates as a conditional payment. the payment is subject to a condition that the cheque be paid on presentation. if it is dishonoured the debt revives. although it is sometimes said that the remedy for the primary debt is suspended, the suspension is no more than a consequence of the conditional nature of the payment: tilley v official receiver in bankruptcy ca 86 ; (1960) 103 clr 529, at pp 532-533, 535-536, 537. the condition is a condition subsequent so that, if the cheque is met, it ranks as an actual payment from the time it was given. subject to non-fulfilment of the condition subsequent, the payment is complete at the time when the cheque is accepted by the creditor: thomson v moyse (1961) ac 967, at p 1004. 14 it was submitted for the deputy commissioner that, in the events which had transpired in this case, that usual position had been altered by the signification by the deputy commissioner that he would agree to the dismissal of the winding u The legal case is titled:

National Australia Bank v KDS Construction Services Pty Ltd CA 65

Into which category does this case fall based on its content? there are two matters requiring consideration before it can be held that s 33(3) applies to s 21r. the first matter is whether an appointment made under s 21r of the act is an "instrument" within the meaning of s 33(3). in x v australian crime commission ca 1475 ; (2004) 139 fcr 413 at 421, finn j made the following observation in considering the term "instrument" for the purposes of s 33(3): there are two streams of federal court authority which have taken inconsistent views on this question. one stream would limit the class of instruments to which the term applies to instruments of a legislative character. the other would extend it to executive or administrative instruments. this conflict has recently been reviewed at length by emmett j in heslehurst v government of new zealand ca 429 ; (2002) 117 fcr 104 at [12] ff (for the purposes of s 33(3)) and by the victorian court of appeal in r v ng (for the purposes of s 46). both decisions rejected the limitation of these provisions to legislative instruments. ng, i would note, has recently been applied by ryan j in glaxsmithkline australia pty ltd v anderson ca 617 ; (2003) 130 fcr 222 at [28]. in my respectful view, the conclusions of emmett j and of the court of appeal are compelling and ought be followed. i am prepared to accept in favour of the applicant that the conclusions of emmett j and of the court of appeal ought to be followed by me for the purposes of these proceedings. The legal case is titled:

X v Australian Crime Commission CA 1475

Into which category does this case fall based on its content? strictly speaking, a cheque, even a bank cheque, is not a form of legal tender. subject to some particular contractual or statutory provision, the only forms of legal tender remain australian notes or, subject to the limits specified, australian coins see s 36 of the reserve bank act 1959 and s 16 of the currency act 1965 respectively. however, in general trade and commerce, as mason j observed in george v cluning (1979) 53 aljr 767 (note) by reference to canadian authority, a payment by cheque can amount to sufficient payment if not objected to on that account. in this case there was no objection made by the deputy commissioner on account of ganter's endeavouring to settle its indebtedness by the tendering of a cheque only, as i have noted a signification that it was accepted subject to a condition that the cheque would be paid on presentation The legal case is titled:

George v Cluning

Into which category does this case fall based on its content? mr spencer submitted that he had sought on a number of occasions to suggest a reasonable basis upon which this proceeding could be settled, and that the accc had acted unreasonably in refusing to engage with him. he referred to australian securities commission v aust-home investments limited (1993) 44 fcr 194 at 201 where hill j summarised the principles that would ordinarily apply with regard to costs when a proceeding has not gone to trial. his honour said: "these cases seem to me support the following propositions being made. (1) where neither party desires to proceed with litigation the court should be ready to facilitate the conclusion of the proceedings by making a cost order: stratford [ j t stratford & son ltd v lindley (no 2) [1969] 1 wlr 1547] and the seqeb case [ south east queensland electricity board v australian telecommunications commission (unreported, federal court, 10 february 1989, pincus j)]. (2) it will rarely, if ever, be appropriate, where there has been no trial on the merits or, for a court determining how the costs of the proceeding should be borne to endeavour to determine the outcome of a hypothetical trial: stratford. this will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) in determining the question of costs it would be appropriate, however, for the court to determine whether the applicant acted reasonably in commencing the proceedings and whether the responden The legal case is titled:

Australian Securities Commission v Aust-Home Investments Limited

Into which category does this case fall based on its content? the second matter is whether the act confers a power to make, grant or issue such an instrument or merely confers a power on the minister to make a decision which is to be evidenced in writing: see laurence v chief of navy ca 1535 ; (2004) 139 fcr 555. in that case, at 558, wilcox j drew the following distinction in relation to the power in question: i see a conceptual distinction between a power to issue an instrument, which itself has an operative legal effect, and a power to make a statutory decision which is immediately operative but, in the interests of good administration, is thereafter recorded in writing. 28 however, even if i am wrong about this matter and the focus of s 21r is upon the document being the operative act of appointment, in my view, s 33(3) does not operate to constrain the type of power referred to in s 33(4) of the acts interpretation act. in laurence 139 fcr at 558, wilcox j briefly discussed the distinction between the type of power referred to in s 33(3) and the type of power referred to in s 33(1) of the acts interpretation act. he concluded that the two subsections referred to different types of power, and therefore operated exclusively of each other. this distinction is similarly applicable as between s 33(3) and 33 (4), the former relating to the general making, granting or issuing of an instrument, the latter relating to the making of an appointment. 29 section 33(3) is an enabling provision, which may or may not need to be relied upon in an The legal case is titled:

Laurence v Chief of Navy CA 1535

Into which category does this case fall based on its content? the general principles governing the exercise of the discretion to award indemnity costs after rejection by an unsuccessful party of a so called calderbank letter were set out in the judgment of the full court in black v lipovac ca 699 ; (1998) 217 alr 386. in summary those principles are: 1. mere refusal of a "calderbank offer" does not itself warrant an order for indemnity costs. in this connection it may be noted that jessup j in dais studio pty ltd v bullet creative pty ltd ca 42 said that (at [6]): if the rejection of such an offer is to ground a claim for indemnity costs, it must be by reason of some circumstance other than that the offer happened to comply with the calderbank principle. 2. to obtain an order for indemnity costs the offeror must show that the refusal to accept it was unreasonable. 3. the reasonableness of the conduct of the offeree is to be viewed in the light of the circumstances that existed when the offer was rejected. The legal case is titled:

Dais Studio Pty Ltd v Bullett Creative Pty Lt

Into which category does this case fall based on its content? it is presently important to emphasise, as hayne j did in minister for immigration and multicultural affairs v jia legeng ca 17 ; (2001) 205 clr 507 at [184] that the development and application of the test of reasonable apprehension avoids the need for a court:... to attempt some analysis of the likely or actual thought processes of the decision-maker. it objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question. 35 because of the manner in which the case was originally put, it is appropriate to refer as well to the further observation of hayne j in jia legeng (at [185]) that: saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. first, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. most important The legal case is titled:

Minister for Immigration and Multicultural Affairs v Jia Legeng CA 17

Into which category does this case fall based on its content? the circumstances in which the court may make orders under s 1323(1) are wide as indicated by the words 'necessary or desirable... for the purpose of protecting the interests of a person...'. there is an element of risk assessment and risk management in the judgment the court is called on to make. it follows, and has been accepted, that there is no requirement on the part of asic to demonstrate a prima facie case of liability on the part of the relevant person or that the person's assets have been or are about to be dissipated corporate affairs commission v asc timber pty ltd (1989) 7 aclc 467 at 476 (powell j); australian securities and investment commission v adler (2001) 38 acsr 266 at [7] (santow j). The legal case is titled:

Corporate Affairs Commission v ASC Timber Pty Ltd

Into which category does this case fall based on its content? first, in my opinion, to relitigate the events of 27 march 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 march 2006. the court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: walton v gardiner ca 77 ; (1993) 177 clr 378 at 392-393 per mason cj, deane and dawson jj. it seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata, issue estoppel in the strict sense or an anshun estoppel are made out: coffey v secretary, department of social security ca 375 ; (1999) 86 fcr 434 at 443 [25] ; spalla v st george motor finance ltd (no 6) ca 1699 at [58] - [70] per french j; szajb v minister for immigration and citizenship (2008) 168 fcr 410 at 423 [37]-[39] per french j (with whom tracey j agreed at 437 [114]); brock v minister for home affairs (2008) 170 fcr 434 at 447 [74] per lindgren and tracey jj. the claim for unlawful discrimination represents an attempt to relitigate the events of 27 march 2006 and is an abuse of process. i am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that i have expressed. The legal case is titled:

Coffey v Secretary, Department of Social Security CA 375

Into which category does this case fall based on its content? save and except for the alleged breaches of the deed of settlement (see the earlier judgment at [15]), all the causes of action in the present proceeding are different from those advanced in the earlier proceeding. nevertheless, all the causes of action are based on the conduct of the second respondent acting for the first respondent on 27 march 2006 and its aftermath. the doctrine of res judicata may apply in relation to the cause of action in the present proceeding based on breaches of the deed of settlement but it does not apply to the other causes of action in the present proceeding. the doctrine of issue estoppel in the strict sense may apply to those causes of action, although it is difficult to be at all certain because of the lack of coherence in the applicant's pleadings in the present proceeding. the extended doctrine of issue estoppel as articulated in port of melbourne authority v anshun pty ltd ca 45 ; (1981) 147 clr 589 ("anshun estoppel") certainly applies in relation to all of the other claims and there is no reason they could not have been brought in the earlier proceeding. in the circumstances, the pursuit of the other claims is an abuse of process. 33 i turn now to consider the claim for unlawful discrimination. 34 in his amended statement of claim, the applicant alleges breaches or contraventions by the respondents of ss 5, 6, 22 and 24 of the dd act. section 22(1) plainly does not apply because, on any view, the alleged discrimination is not of a type The legal case is titled:

Port of Melbourne Authority v Anshun Pty Ltd CA 45

Into which category does this case fall based on its content? none of this is to suggest that the deputy commissioner was under any obligation to accept the proffered cheque. when the history of ganter's endeavours to pay the debt after the filing of the winding up application is recalled and that the company was, by operation of s 459c(2)(a) the corporations act 2001 presumed to be insolvent the deputy commissioner would have been entitled not to accept the cheque. a refusal to accept the cheque would not have eliminated the debt in question: australian mid-eastern club ltd v yassim (1989) 1 acsr 399, at 403 (nswca); deputy commissioner of taxation v visidet pty ltd ca 830 at [3] per gyles j. 21 in my opinion, the date for the determination of standing to apply for the winding up of a company is the date when the application is made. as it was when motor terms v liberty insurance (supra) was decided, the process for the winding up of a company remains today entirely statutory. by s 459a(1)(b) of the corporations act a creditor is one of the persons who may apply for the winding up of a company. the application for the winding up of ganter was made by the deputy commissioner upon the filing of the application in this court on 20 august 2008. at that time, the deputy commissioner was, on any view, a creditor. like gyles j in deputy commissioner of taxation v visidet pty ltd (at [5]), i am not persuaded that there is any requirement flowing from the corporations act that the applicant must continue to be a creditor at the time when the w The legal case is titled:

Deputy Commissioner of Taxation v Visidet Pty Ltd

Into which category does this case fall based on its content? no stay is sought if the first and third applicants fail to provide the security. rather, if i were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. submissions of the applicants 8 in response, mr perry on behalf of the applicants has submitted, in essence: 1. neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. accordingly the threshold for the making of an order has been established consistently with the decision of the full court in these proceedings. 2. however the question before the court is whether the court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. in particular: (a) the notice was served on friday 3 november 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm frida The legal case is titled:

James v Australia and New Zealand Banking Group Ltd

Into which category does this case fall based on its content? numerous cases have held that s 911a of the act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an australian financial services licence: see australian securities and investments commission v giann & giann pty ltd ca 81 ; (2005) 141 fcr 278; australian securities and investments commission v manito pty ltd (2005) 53 acsr 56; australian securities and investments commission v drury management pty ltd sc 68. The legal case is titled:

Australian Securities and Investments Commission v Manito Pty Ltd

Into which category does this case fall based on its content? claims must be determined in a practical and common sense manner: nesbit v impro at 95; minnesota mining at 274. in cleveland graphite bronze co v glacier metal co ltd (1950) 67 rpc 149 at 154 it was said that the claims must be as precise "as the subject admits of". the fact that dr stark had no problems on first reading is of significance. it is not the role of an independent expert to seek out difficulties or to read a patent with, to borrow an expression from administrative law, "an eye keenly attuned to the perception of error": collector of customs v pozzolanic enterprises pty ltd ca 322 ; (1993) 43 fcr 280 at 287 quoted in minister for immigration and ethnic affairs v wu shan liang ca 6 ; (1996) 185 clr 259 at 272. this episode reflects on dr stark's credibility as an independent expert. generally i found dr stark lacked objectivity and detachment. he appeared keen to raise every conceivable argument in favour of the party which retained him. The legal case is titled:

Collector of Customs v Pozzolanic Enterprises Pty Ltd CA 322

Into which category does this case fall based on its content? the operation of s 80(1) of the tpa was canvassed by the full court of this court in ici australia operations pty ltd v trade practices commission (1992) 38 fcr 248 (" ici "). lockhart j described s 80(1) as a public interest provision which attracts special considerations; it represents a primary means of ensuring compliance with commercial regulation legislation: at 254-255. after referring to subss 80(4) and (5), lockhart j said: "injunctions are traditionally employed to restrain repetition of conduct. a statutory provision that enables an injunction to be granted to prevent the commission of conduct that has never been done before and is not likely to be done again is a statutory enlargement of traditional equitable principles. but this is because traditional doctrine surrounding the grant of injunctive relief was developed primarily for the protection of private proprietary rights. public interest injunctions are different. parts iv and v of the act involve matters of high public policy. parts iv and v relate to practices and conduct that legislatures throughout the world in different forms and to different degrees, have decided are contrary to the public interest (contracts, arrangements or understandings affecting competition adversely (s 45)), the misuse of market power (s 46), the practice of exclusive dealing (s 47), resale price maintenance (s 48), price discrimination (s 49), anti-competitive mergers (s 50) and unfair practices with respect to consumers (pt v The legal case is titled:

ICI Australia Operations Pty Ltd v Trade Practices Commission

Into which category does this case fall based on its content? i accept that the making of a rolled up offer inclusive of costs and interest may detract from the weight to be given to its refusal in the exercise of the discretion. finn j referred to authorities on the point in gec marconi systems pty ltd v bhp information technology pty ltd ca 688 ; (2003) 201 alr 55 at [34]. his honour cited single judge decisions to the effect that such offers ought not to be a relevant consideration on the question of costs and would not be considered in the same way as a calderbank letter. his honour was invited to depart from that line of first instance authority. however he was not prepared to say it was clearly wrong. notwithstanding that, in the circumstances of the case he had to decide, his honour found that: the fact that the offer gave no indication at all of the breakdown... between the claim, interest and costs blunts significantly the weight to be given the offer. 35 while respecting the general approach to rolled up offers reflected in the cases to which finn j referred, such approaches cannot be calcified into rules of law which fetter a general discretion. they simply reflect a common sense proposition that generally speaking such an offer is not unreasonably refused. there may, however, be circumstances where a rolled up offer, refused by an applicant who is unsuccessful, may support a claim for indemnity costs. The legal case is titled:

GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd CA 688

Into which category does this case fall based on its content? mr gargan also argued that he had an entitlement to the issue of orders in the nature of mandamus against the official trustee. there may be a question in my mind as to whether that kind of right is a right which would vest, or would be property which is capable of vesting, in the official trustee. there are decisions of the new south wales court of appeal which indicate that the right to seek mandamus may be a right which vests in the trustee: cf. daemer v industrial commission (nsw) (1988) 12 nswlr 45 at 54. however, for present purposes, it is not necessary to explore that proposition. on any view, the duties which are capable of being litigated in a mandamus application are duties of a public kind. i do not think that even if the difficulties in s 86 could be overcome by mr gargan that the duty thereby created could be described as public duty. accordingly, i do not think that a case for issue of orders in the nature of mandamus has any prospects of success. 38 it is then necessary to say a little bit about the nature of the applications which are currently before the court. the first is an application pursuant to s 31a of the federal court of australia act 1976 (cth). section 31a of that act provides: summary judgment (1) the court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the court is satisfied that the other party has The legal case is titled:

Daemar v Industrial Commission

Into which category does this case fall based on its content? the assumption is without foundation. i refused interlocutory relief on 10 february 2005; see ca 79. leave to appeal from my judgment was refused by hely j on 3 may 2005; see ca 541. The legal case is titled:

Lawrance v Administrative Appeals Tribunal

Into which category does this case fall based on its content? it may be accepted as a general statement of principle that if directions are given by a court or tribunal that have the effect of fettering cross-examination so that a witness's evidence on relevant issues cannot be properly tested, there is a denial of procedural fairness. but it must be emphasised that this proposition is subject to the discretion of the decision maker to control cross-examination so as to ensure relevance and to guard against repetition and prolixity; see r v australian broadcasting tribunal; ex parte hardiman ca 13 ; (1980) 144 clr 13 at 34-35; australian postal commission v hayes (1989) 87 alr 283 at 289 per wilcox j. The legal case is titled:

Australian Postal Commission v Hayes

Into which category does this case fall based on its content? i should indicate that even if i came to the conclusion that there was a failure to adhere to a requirement of consultation with a local aboriginal community prior to suspension or removal, i would not consider that such failure would vitiate the decision to remove or suspend. i readily accept that the act has given express and considerable prominence to the role of the local aboriginal communities, and that the act envisages that consultation with such communities be undertaken in defined circumstances. however, i must look at the power here being exercised, which is not one of appointment, but of suspension and removal. such powers may need to be exercised in a variety of circumstances, without there necessarily being any relevance in seeking the views of local aboriginal communities, such as for instance if a particular inspector was considered no longer to be a fit and proper person. i do not accept that the input of the local aboriginal community is of the same significance in circumstances of suspension or removal, or that consultation would be regarded as an essential or mandatory requirement to effect a suspension or removal. if necessary to decide, i would take the view that if there was a requirement of consultation with a local aboriginal community prior to suspension or removal, breach of that requirement would not lead to the invalidity of such a suspension or removal: see generally project blue sky inc v australian broadcasting authority ca 28 ; (1998) 194 clr 3 The legal case is titled:

Bond v WorkCover Corporation

Into which category does this case fall based on its content? the applicants relied upon the decisions in nguyen v minister for health and ageing ca 1241 and registrar for liquor licences v iliadis (1988) 19 fcr 311 in support of the proposition that an implied power to revoke or suspend an appointment should not be construed as capable of being exercised with less constraints than the express power to appoint. these cases do not assist in the interpretation of the power to suspend or remove as conferred by s 21r as affected by s 33(4) of the acts interpretation act, and do not stand for the broad proposition contended for by the applicants. The legal case is titled:

Nguyen v Minister for Health and Ageing

Into which category does this case fall based on its content? numerous cases have held that s 911a of the act extends to a company director who conducts or is involved in a company's carrying on of a financial services business without an australian financial services licence: see australian securities and investments commission v giann & giann pty ltd ca 81 ; (2005) 141 fcr 278; australian securities and investments commission v manito pty ltd (2005) 53 acsr 56; australian securities and investments commission v drury management pty ltd sc 68. The legal case is titled:

Australian Securities and Investments Commission v Drury Management Pty Lt

Into which category does this case fall based on its content? in xyz v the commonwealth ca 25 ; (2006) 80 aljr 1036 the high court considered the validity of provisions of the crimes act 1914 (cth) which made it an offence for a person defined as an australian citizen or a resident of australia while outside australia to engage in sexual intercourse with a person under 16 years of age, or to commit an act of indecency on a person under 16 years of age. by a majority of five to two, the court held that the legislation was valid under the external affairs power. of the majority, gleeson cj and kirby j each wrote separate judgments and gummow, hayne and crennan jj prepared joint reasons. callinan and heydon jj dissented. The legal case is titled:

XYZ v The Commonwealth CA 25

Into which category does this case fall based on its content? in re director of public prosecutions; ex parte lawler (1994) 179 clr 271, deane and gaudron jj said (at 285): 'it is not necessary to repeat what we say in mutual pools with respect to the effect of the words "for any purpose in respect of which the parliament has power to make laws". however, it is necessary to elaborate a little on the phrase "acquisition of property on just terms". because s 51(xxxi) operates as a constitutional guarantee, the words "acquisition" and "property" are to be construed liberally. however, the power conferred by s 51(xxxi) is one with respect to "acquisition of property on just terms". that phrase must be read in its entirety and, when so read, it indicates that s 51(xxxi) applies only to acquisitions of a kind that permit of just terms. it is not concerned with laws in connexion with which "just terms" is an inconsistent or incongruous notion. thus, it is not concerned with a law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorizing seizure of the property of enemy aliens or the condemnation of prize. laws of that kind do not involve acquisitions that permit of just terms and, thus, they are not laws with respect to "acquisition of property", as that expression is used in s 51(xxxi). it follows that a law which effects or authorizes forfeiture of property in consequence of its use in the commission of an offence against the laws of the commonwealth stands outside s 51(xxxi).' this passage from the reaso The legal case is titled:

Theophanous v Commonwealth of Australia CA 18

Into which category does this case fall based on its content? matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. in minister for immigration and multicultural affairs v jia legeng ca 17 ; (2001) 205 clr 507 at 565 per hayne j (with whom gleeson cj and gummow j agreed at 538-539) discussed the nature of the types of matters a minister with a discretionary power might take into account: conferring power on a minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which ministers are legitimately subject. see also murphyores incorporated pty ltd v commonwealth ca 20 ; (1976) 136 clr 1 at 13-14; hot holdings pty limited v creasy ca 51 ; (2002) 210 clr 438; south australia v o'shea ca 39 ; (1987) 163 clr 378. The legal case is titled:

South Australia v O'Shea CA 39

Into which category does this case fall based on its content? no stay is sought if the first and third applicants fail to provide the security. rather, if i were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. submissions of the applicants 8 in response, mr perry on behalf of the applicants has submitted, in essence: 1. neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. accordingly the threshold for the making of an order has been established consistently with the decision of the full court in these proceedings. 2. however the question before the court is whether the court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. in particular: (a) the notice was served on friday 3 november 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm frida The legal case is titled:

State of Queensland v JL Holdings Pty Ltd CA 1

Into which category does this case fall based on its content? my own view is that s 21r confers a power to appoint, not a power to make, grant or issue any instrument. section 21r does not talk in terms of the relevant act (the appointment) being made "by" or "pursuant to" any form of writing, but confers a power to make a decision to appoint, which incidentally to that decision, is to be in writing: see discussion in re brian lawlor automotive pty ltd and collector of customs (nsw) (1978) 1 ald 167 at 172; affirmed by the full court in collector of customs (nsw) v brian lawlor automotive pty ltd (1979) 24 alr 307; barton v croner trading pty ltd (1984) 3 fcr 95 at 110; and edenmead pty ltd v commonwealth (1984) 4 fcr 348 at 352-353. The legal case is titled:

Edenmead Pty Ltd v Commonwealth

Into which category does this case fall based on its content? the operation of s 80(1) of the tpa was canvassed by the full court of this court in ici australia operations pty ltd v trade practices commission (1992) 38 fcr 248 (" ici "). lockhart j described s 80(1) as a public interest provision which attracts special considerations; it represents a primary means of ensuring compliance with commercial regulation legislation: at 254-255. after referring to subss 80(4) and (5), lockhart j said: "injunctions are traditionally employed to restrain repetition of conduct. a statutory provision that enables an injunction to be granted to prevent the commission of conduct that has never been done before and is not likely to be done again is a statutory enlargement of traditional equitable principles. but this is because traditional doctrine surrounding the grant of injunctive relief was developed primarily for the protection of private proprietary rights. public interest injunctions are different. parts iv and v of the act involve matters of high public policy. parts iv and v relate to practices and conduct that legislatures throughout the world in different forms and to different degrees, have decided are contrary to the public interest (contracts, arrangements or understandings affecting competition adversely (s 45)), the misuse of market power (s 46), the practice of exclusive dealing (s 47), resale price maintenance (s 48), price discrimination (s 49), anti-competitive mergers (s 50) and unfair practices with respect to consumers (pt v The legal case is titled:

Mikasa (NSW) Pty Ltd v Festival Stores CA 69

Into which category does this case fall based on its content? while judges of the high court have questioned the actual suitability to private and non-curial proceedings, of the test for reasonably apprehended bias that has evolved in curial settings: see re refugee review tribunal; ex parte h ca 28 ; (2001) 179 alr 425 at [27] - [28] ; it is that "double might" test that is to be applied, albeit with the understanding that the hypothetical fair-minded lay observer in question requires some informed appreciation of the nature of the processes and proceeding of the body whose judgment is being called into question. the test to be applied is whether a fair-minded lay observer might reasonably apprehend that the tribunal member might not have brought an impartial mind to the resolution of the question to be decided: ebner, at [6]. The legal case is titled:

Re Refugee Review Tribunal

Into which category does this case fall based on its content? it is not a necessary consequence of an order appointing a receiver that the receiver should deal with or liquidate the assets in question. the interlocutory and protective character of orders made under s 1323 must be borne in mind when defining the powers of the receiver. the appointment of a receiver has rightly been described as 'an extraordinary step' asic v burke swsc 694 at [8] (austin j). however depending upon the nature of the powers conferred on the receiver it may be less drastic than a freezing order which can only be varied by order of the court. the interlocutory history of this case has already demonstrated that circumstances not contemplated when the original interim freezing orders were made have required their variation from time to time. i accept, with respect, the observation made by austin j in burke at [8]: 'without wishing to lay down any general rules, it appears to me that the extraordinary step of appointing a receiver may be justified, even though mareva orders are in place, in a case where there is real doubt about the existence and location of assets such as investments, and about the number and identity of claimants and the nature of their claims, and additionally the defendants are engaged in business activities which entail that any mareva orders must allow assets to be turned over in the course of business. where these circumstances exist in combination, and especially where there are allegations of serious fraud involved, the court may concl The legal case is titled:

ASIC v Burke S

Into which category does this case fall based on its content? insofar as the argument is advanced based upon s 13 of the crimes act 1914 (cth), that is, on the common informer provisions, i respectfully adopt what was said by hely j in commonwealth bank of australia v gargan ca 707 ; (2004) 140 fcr 1, where his honour dismissed the same argument. i should note for completeness that at [11] hely j relied upon what adams j had said in gargan v scott (unreported, supreme court of new south wales, 27 october 2003) and i respectfully adopt what adams j said at [4]. i do not think that the argument based upon s 13 has any substance whatsoever. The legal case is titled:

Commonwealth Bank of Australia v Gargan CA 707

Into which category does this case fall based on its content? in light of the delegate's decision adverse to mr islam which, seemingly, relied upon the 1 may 2008 charge in relation to the likelihood of re-offending. mr islam ought have expected that that charge would be an issue arising in the tribunal that was potentially prejudicial to him: cf szbel v minister for immigration and multicultural and indigenous affairs ca 63 ; (2006) 228 clr 152 at [35] (a refugee review tribunal review under part 7 of the migration act ). accordingly he would have been entitled, if such was an issue against him, "to be given an opportunity of replying to it": kioa v west ca 81 ; (1985) 159 clr 550 at 582. the existence of the charge was raised by the applicant and he asserted his innocence. the tribunal member, first told him "we don't want to go into too much detail about that", but then later told mr islam that as he had not been convicted of it "i will not be taking that into account". whether or not the tribunal erred by so excluding this information (given the requirements of direction no 21) is not in issue before me and i express no view on it. The legal case is titled:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs CA 63

Into which category does this case fall based on its content? an alternative ground for the conclusion that i should not disqualify myself from hearing the present application on the ground of apparent bias is this. the test for apparent bias is well-known and it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": johnson v johnson (2000) 201 clr 488 at 492 [11] per gleeson cj, gaudron, mchugh, gummow and hayne jj. in this case, if there is apparent bias, it takes the form of prejudgment. that form of bias was considered by the high court in livesey v the new south wales bar association ca 17 ; (1983) 151 clr 288. in assessing that form of apparent bias in this case, the nature of the respondents' application is important. the respondents' application is not one in which i was called upon to make findings as to credit or, indeed, to make any findings of fact. the applicant's allegations of fact may be accepted for the purposes of the respondents' application. the questions raised by the respondents' application are, in substance, questions of law, and, having regard to all the circumstances, i do not think it can be said that a fair-minded lay observer might reasonably apprehend that i might not bring an impartial and unprejudiced mind to the question i am required to decide: sydney refractive surgery centre pty ltd v federal commissioner of taxation (2007) 68 atr 19 ; commonwealth bank of a The legal case is titled:

Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation

Into which category does this case fall based on its content? hexal australia pty ltd v roche therapeutics inc (2005) 66 ipr 325, the likelihood of irreparable harm was regarded by stone j as, indeed, a separate element that had to be established by an applicant for an interlocutory injunction. her honour cited the well-known passage from the judgment of mason acj in castlemaine tooheys ltd v south australia ca 58 ; (1986) 161 clr 148 (at 153) as support for that proposition. The legal case is titled:

Castlemaine Tooheys Ltd v South Australia CA 58

Into which category does this case fall based on its content? as i understood his submissions, the central proposition was that whilst he accepted he had consented to the making of the sequestration order in 1994, he had done so in circumstances where he was naïve about the operation of the legal system. his admission that the sequestration order had been by consent is recorded in the reasons of kiefel j in re gargan; ex parte official trustee in bankruptcy ca 685 (unreported, kiefel j, 23 august 1996). those proceedings involved an earlier attempt by mr gargan to annul the bankruptcy. 14 her honour recited an affidavit (at [21]) which had been filed by mr gargan and which recorded the fact that he no longer opposed the making of the sequestration order. i did not understand mr gargan to cavil with that in the course of argument but instead, as it were, he sought to admit and avoid. 15 notwithstanding his, at times, ingenious submissions, i am not persuaded that the circumstances surrounding the making of the sequestration order in 1994 are such that i could now be satisfied that it ought not to have been made. it seems, therefore, that the power under s 153b to annul the 1994 bankruptcy does not arise. 16 although it is unnecessary in those circumstances to consider the likely disposition of the exercise of the discretionary power thereby conferred if it had arisen, i should say for completeness, even if the power in s 153b had been enlivened, i would not have exercised the discretion in mr gargan's favour. this is because first, The legal case is titled:

Re Gargan

Into which category does this case fall based on its content? the applicant lodged an appeal against the order i made dismissing the proceeding but, on 4 december 2007, the full court of this court dismissed the appeal and ordered that the appellant in the appeal pay the respondent's costs thereof: rana v university of south australia cafc 188. 12 the applicant then applied to the high court for special leave to appeal against the orders made by the full court but, on 15 may 2008, that application was dismissed. 13 one other point to note about the earlier proceeding is this. before the present proceeding was instituted, the applicant made a complaint about the respondent's conduct to the human rights and equal opportunity commission ("the commission") (as it then was). in the course of a directions hearing in the earlier proceeding held on 14 july 2006, i fixed 17 and 18 august 2006 for the trial of the earlier proceeding. those dates were subsequently vacated and, as i have said, the proceeding was heard on 5 and 6 october 2006. the point to be made is that at the directions hearing held on 14 july 2006, the applicant said that he had a complaint of "disability discrimination on the same fact by the university". he said that the complaint had been lodged with the commission. he said that the first respondent had asked for an extension of time to respond. the applicant raised the possibility of the proceeding then before the court (that is, the earlier proceeding) being delayed so that it could be dealt with at the same time as any pro The legal case is titled:

Rana v University of South Australia C

Into which category does this case fall based on its content? it is implicit in merkel j's judgment that an injunction under s 80 may extend beyond the specific conduct proven to constitute a contravention by s 80 and may, in appropriate cases, extend to conduct of the same kind or class. there must, however, be a sufficient nexus or relationship between the conduct that is the subject of the restraint and the conduct that was alleged to constitute a contravention of the act. as french j pointed out in accc v real estate institute (wa) ca 1387 ; (1999) 95 fcr 114 at 131, the question whether there is a sufficient nexus between the orders sought and the contraventions alleged involves an evaluative judgment by the court which will depend heavily upon the circumstances of the particular case. The legal case is titled:

ACCC v Real Estate Institute (WA) CA 1387

Into which category does this case fall based on its content? gmca submitted that both patents were but an "attempt to re-design a known tool so as to achieve impermissibly, a patent monopoly over what is really a marketing idea". the alleged invention, so the argument went, citing maugham j in adelmann & ham boiler corporation v llanrwst foundry co (1928) 45 rpc 413 at 420, was simply the application of a well known and well understood piece of mechanism to achieve an obvious advantage. the mere "positioning" of the handle for a known tool in order to achieve a known result was not a manner of manufacture. The legal case is titled:

Adelmann &amp

Into which category does this case fall based on its content? in kioa, it was also made clear that an applicant entitled to natural justice is entitled to be told of adverse information obtained by the decision-maker from third parties and which he or she proposes to take into account and to be given the opportunity to respond to that information. brennan j referred to the obligation and identified its limits in the following passage (at 628-629) (footnotes omitted): 'a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: kanda v government of malay ; ridge v baldwin per lord morris; de verteuil v knaggs. the person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. as lord diplock observed in bushell v environment secretary : "to 'over-judicialise' the inquiry by insisting on observance of the procedures of a cou The legal case is titled:

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd

Into which category does this case fall based on its content? in light of the delegate's decision adverse to mr islam which, seemingly, relied upon the 1 may 2008 charge in relation to the likelihood of re-offending. mr islam ought have expected that that charge would be an issue arising in the tribunal that was potentially prejudicial to him: cf szbel v minister for immigration and multicultural and indigenous affairs ca 63 ; (2006) 228 clr 152 at [35] (a refugee review tribunal review under part 7 of the migration act ). accordingly he would have been entitled, if such was an issue against him, "to be given an opportunity of replying to it": kioa v west ca 81 ; (1985) 159 clr 550 at 582. the existence of the charge was raised by the applicant and he asserted his innocence. the tribunal member, first told him "we don't want to go into too much detail about that", but then later told mr islam that as he had not been convicted of it "i will not be taking that into account". whether or not the tribunal erred by so excluding this information (given the requirements of direction no 21) is not in issue before me and i express no view on it. The legal case is titled:

Kioa v West CA 81

Into which category does this case fall based on its content? comcare v etheridge and others cafc 27 ; (2006) 149 fcr 522 at 527 the full court considered the nature of an appeal under s 44(1) of the aat act and determined that an appeal 'on a question of law' is narrower than an appeal 'that merely involves a question of law'. the court at 527 referred to the observations in birdseye v australian securities and investments commission cafc 232 ; (2003) 38 aar 55 which expressed approval of the observation of ryan j in australian telecommunications corporation v lambroglou (1990) 12 aar 515 at 527 where his honour said: if the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. The legal case is titled:

Birdseye v Australian Securities and Investments Commission CAFC 232

Into which category does this case fall based on its content? it is not in dispute that gmca has offered for sale and sold in australia two allegedly infringing products, referred to in this case as t1 and t2. black & decker has to show that the gmca products take each and every essential integer of the claims relied on (claims 1 and 3 to 8 of the standard patent): nicaro holdings pty ltd v martin engineering co (1990) 16 ipr 545 at 559-560. 73 a photograph of t1: 74 the only integers in contest are those designated 1.8 and 1.9 in claim 1 of the patent. integer 1.8 it will be recalled is as follows (emphasis added): and wherein the handle is positioned such that a force applied thereto by the user in a first of the said plurality of positions comprises a major vector transmitted along a line of action extending substantially parallel to the line of linear reciprocation. integer 1.9 is in the same terms save only that the word "parallel" is replaced by the word "transverse". these integers obviously relate to the operation of the device in its panel saw (integer 1.8) and jigsaw (integer 1.9) modes. The legal case is titled:

Nicaro Holdings Pty ltd v Martin Engineering Co

Into which category does this case fall based on its content? the applicant contends that the act does not apply to her and therefore the divestiture order is invalid because s 4(6)(a) is not a valid law of the federal parliament. in the alternative the applicant contends that if it is a valid law, nevertheless, the power in s 21a(4) was not engaged in this case because the requirements of s 25(1d) were not met and therefore the divestiture order is invalid. the applicant further contends that even if these two contentions fail, the divestiture order made by the respondent is invalid because, before it was made, the applicant was not accorded procedural fairness. in the further alternative, the applicant contends that the order is invalid because the respondent was not in fact satisfied that the acquisition is contrary to the national interest within s 21a(4). in her application and statement of claim the applicant also contended that the divestiture order is invalid because the respondent applied a policy and did not genuinely consider the merits of the matter before him or because his decision was unreasonable in the wednesbury sense ( associated provincial picture houses ltd v wednesbury corporation wca civ 1 ; [1948] 1 kb 223). at the hearing of the application, those two submissions were abandoned. 25 in relation to the applicant's first contention, the contention may be dealt with by reference to the facts stated to this point. in relation to the applicant's other contentions, i will need to set out the facts in more detail when c The legal case is titled:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation WCA Civ 1

Into which category does this case fall based on its content? claims must be construed in a practical, common sense manner, and are valid so long as they provide a workable standard suitable to the intended use: minnesota mining & manufacturing co v beiersdorf (aust) ltd ca 9 ; (1980) 144 clr 253 at 273; nesbit evans group australia pty ltd v impro ltd (1997) 39 ipr 56 at 95. 78 claims must be determined in a practical and common sense manner: nesbit v impro at 95; minnesota mining at 274. in cleveland graphite bronze co v glacier metal co ltd (1950) 67 rpc 149 at 154 it was said that the claims must be as precise "as the subject admits of". the fact that dr stark had no problems on first reading is of significance. it is not the role of an independent expert to seek out difficulties or to read a patent with, to borrow an expression from administrative law, "an eye keenly attuned to the perception of error": collector of customs v pozzolanic enterprises pty ltd ca 322 ; (1993) 43 fcr 280 at 287 quoted in minister for immigration and ethnic affairs v wu shan liang ca 6 ; (1996) 185 clr 259 at 272. this episode reflects on dr stark's credibility as an independent expert. generally i found dr stark lacked objectivity and detachment. he appeared keen to raise every conceivable argument in favour of the party which retained him. The legal case is titled:

Minnesota Mining &amp

Into which category does this case fall based on its content? that operation of s 153b was confirmed by flick j in this court in samootin v wagner ca 1066 at [32] and [33]. his honour applied what had fallen from carr, finn and sundberg jj in heinrich v commonwealth bank of australia cafc 315 at [20] : the court must first consider whether the sequestration order ought not to have been made. if it so finds, then the court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: re deriu (1970) 16 flr 420. later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. that is, the court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. the court excludes those facts which have occurred since the order was made. later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not have been made: re frank; ex parte piliszky (1987) 16 fcr 396 ; stankiewicz v plata ca 1185 at [19] ; re williams (1968) 13 flr 10 at 23; re ditfort; ex parte deputy commissioner of taxation (1988) 19 fca 347. these authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law. The legal case is titled:

Samootin v Wagner

Into which category does this case fall based on its content? ordinarily that discretion will be exercised so that costs follow the event and are awarded on a party and party basis. a departure from normal practice to award indemnity costs requires some special or unusual feature in the case: alpine hardwood (aust) pty ltd v hardys pty ltd (no 2) ca 224 ; (2002) 190 alr 121 at [11] (weinberg j) citing colgate palmolive co v cussons pty ltd (1993) 46 fcr 225 at 233 (sheppard j). The legal case is titled:

Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) CA 224

Into which category does this case fall based on its content? the authorities most immediately relevant in a factual setting such as the present on the applicant's contentions are r v eastman (1994) 121 flr 150 and r v george (1987) 9 nswlr 527. in each case, at some time prior to the criminal proceedings in question, the judge who respectively became the trial judge authorised the use of a listening device in relation to the person who was ( eastman ), or subsequently became ( george ), the accused in the proceedings. in george the particular matter before the judge under the listening devices act did not involve anything to do with the subject of the later charges. in eastman the contrary was the case and, when the matter was drawn to his attention, the trial judge disqualified himself on the ground of reasonable apprehension of bias. as he said (at 153): what distinguishes this application from the application made in r v george is that the warrants were issued by me on the application of one or more police officers so as to facilitate the acquisition of evidence against the accused. in two instances the exercises were successful, because the crown proposes to lead evidence of having installed listening devices under the authority of two warrants and the evidence thereby obtained. the ground for disqualifying myself is much stronger than that confronted by the trial judge in r v george. in george in contrast, an appeal challenging a conviction of the ground of apprehended bias was dismissed, the court having regard to the nature of The legal case is titled:

R v George

Into which category does this case fall based on its content? the true position is that the applicant's status as a creditor at the time when the application was made and the presumption flowing from the company's failure to comply with the terms of a statutory demand are sufficient to give the court jurisdiction to order the winding up of the company. that was the conclusion reached by zeeman j in deputy commissioner of taxation v guy holdings pty ltd (1994) 116 flr 314 at 318. as did gyles j in deputy commissioner of taxation v visidet pty ltd (at [6]), i agree with that conclusion. as zeeman j observed in the guy holdings case (at 320), "in the case of an application under s 459p where the debt the subject of the statutory demand has been paid after the filing of the application, the application ought to be dismissed unless there is established some positive reason that a winding up order ought to be made". his honour is there referring to the way in which, in those circumstances, the discretion vested in the court on the hearing of a winding up application by s 467 of the corporations act would ordinarily be exercised. The legal case is titled:

Deputy Commissioner of Taxation v Guy Holdings Pty Ltd ASSC 126

Into which category does this case fall based on its content? i also agree with the respondent's second submission that in any event the degree of impairment of the applicant's rights with respect to the property is insufficient to attract the operation of s 51(xxxi). in waterhouse v minister for the arts and territories (1992) 43 fcr 175 the power of a minister to grant or withhold a permit for an object to be exported to a purchaser under the protection of movable cultural heritage act 1986 (cth) was held to be an insufficient impairment of the rights of the owner of a valuable australian painting to attract the operation of s 51(xxxi) (see the discussion of black cj and gummow j at 180-185; smith v anl ltd ca 58 ; (2000) 204 clr 493 per gaudron and gummow jj at 505 [23]). in my opinion, similar reasoning can be applied here. the applicant is required to sell the property, but the class to whom she cannot sell the property is very limited (s 21a(7)). The legal case is titled:

Smith v ANL Ltd CA 58

Into which category does this case fall based on its content? in those circumstances, it is not strictly necessary for me to consider the respondent's alternative submission that in 2004 there was an acquisition within s 21a(4) when the applicant's former husband transferred his interest in the property to the applicant, who then became the sole registered proprietor of the property. the submissions on this issue went no further than the question of whether or not there had been an 'acquisition' within s 21a(4) in 2004. the applicant submits that by reference to general concepts of real property law there was no acquisition in 2004 because the applicant, who was a joint tenant of the property, was already (ie, prior to becoming the sole registered proprietor) seised of the whole of the estate or interest: bradbrook maccallum and moore, australian real property law (3 rd ed, 2002) 340 [10.02]. it has been said that a joint tenant cannot assign his or her interest but, rather, one of two joint tenants may enter into a transaction by way of release of the estate: burton v mayor etc of london borough of camden khl 8 ; [2000] 2 ac 399. in response to this submission of the applicant, the respondent referred to s 12a of the act. that section relevantly provides: '(3) for the purposes of this act, a person acquires an interest in australian urban land even if: (a) the person acquires the interest jointly with another person or persons; (b) the person has previously acquired an interest in australian urban land; or (c) the interest is an incr The legal case is titled:

Burton v Mayor etc of London Borough of Camden KHL 8

Into which category does this case fall based on its content? allsop j applied this principle in navarrete v minister for immigration and multicultural and indigenous affairs ca 1723. The legal case is titled:

Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs

Into which category does this case fall based on its content? it is unnecessary to refer separately here to the applicable principles other than to note, as i do below, the applicant's primary reliance on the decision of the high court in applicant veal of 2002 v minister for immigration and multicultural and indigenous affairs ca 72 ; (2005) 225 clr 88. 39 as i earlier indicated, the two grounds of this application are that, first, the tribunal's decision was affected by reasonably apprehended bias and, secondly, denial of procedural fairness. as to the latter ground, as formulated in the application it was that: 4.2.1 the issue of whether the applicant had committed a criminal offence on 1 may 2008 was credible, relevant and significant to the decision on whether or not to affirm the refusal of the visa. as such, the tribunal was required, as a matter of procedural fairness, to give the applicant an opportunity to respond to information regarding the allegation that he had committed an offence on 1 may 2008. 4.2.3 during the hearing of the application before the tribunal on 28 november 2008 the tribunal repeatedly denied the applicant an opportunity to provide a detailed or adequate response to the allegation that he had committed an offence on 1 may 2008. 40 during the course of the hearing there was some movement in, and a coming together of, the grounds. this will become apparent in what follows. (a) apprehended bias 41 the applicant's case in its initial form and prior to its being brought within the shadow of eastman, was founde The legal case is titled:

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs CA 72

Into which category does this case fall based on its content? first, in my opinion, to relitigate the events of 27 march 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 march 2006. the court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: walton v gardiner ca 77 ; (1993) 177 clr 378 at 392-393 per mason cj, deane and dawson jj. it seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata, issue estoppel in the strict sense or an anshun estoppel are made out: coffey v secretary, department of social security ca 375 ; (1999) 86 fcr 434 at 443 [25] ; spalla v st george motor finance ltd (no 6) ca 1699 at [58] - [70] per french j; szajb v minister for immigration and citizenship (2008) 168 fcr 410 at 423 [37]-[39] per french j (with whom tracey j agreed at 437 [114]); brock v minister for home affairs (2008) 170 fcr 434 at 447 [74] per lindgren and tracey jj. the claim for unlawful discrimination represents an attempt to relitigate the events of 27 march 2006 and is an abuse of process. i am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that i have expressed. The legal case is titled:

Walton v Gardiner CA 77

Into which category does this case fall based on its content? a narrower view of the aliens power has been taken on occasion (see gaudron j in chu kheng lim v minister for immigration, local government and ethnic affairs ca 64 ; (1992) 176 clr 1 at 57) but i am satisfied that the views expressed by brennan j in cunliffe v commonwealth (supra) are the principles binding on me. the applicant argued the matter by reference to those principles. The legal case is titled:

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs CA 64

Into which category does this case fall based on its content? in ainsworth v criminal justice commission ca 10 ; (1992) 175 clr 564, at 581-582, mason cj, dawson, toohey and gaudron jj said that superior courts have inherent power to grant declaratory relief. their honours added that it is a discretionary power which it is neither possible nor desirable to fetter by laying down rules as to the manner of its exercise, although it must be recognised that it is a power confined by the considerations which mark out the boundaries of judicial power. in the same case, brennan j emphasised that the making of a declaration, and the terms in which it is to be made, are in the court's discretion: at 596. The legal case is titled:

Ainsworth v Criminal Justice Commission CA 10

Into which category does this case fall based on its content? a natural person may be a citizen of australia or a non-citizen. in the case of a natural person who is a citizen, there is no definition in the act of'resident' or 'ordinarily'. there are a large number of cases which have examined the meaning of those words in various statutory contexts. it seems that the words are not terms of art and the question is one of fact and degree and that a person may have two places of residence: re vassis; ex parte leung (1986) 9 fcr 518 at 524-525 per burchett j; re taylor; ex parte natwest australia bank limited (1992) 37 fcr 194 at 197 per lockhart j. the particular problem of a person possibly being ordinarily resident in two places does not arise here because the criterion in s 4(6) is 'not ordinarily in australia'. The legal case is titled:

Vassis, Re

Into which category does this case fall based on its content? section 1324 permits the court to grant an injunction "on such terms as the court thinks appropriate". these words echo the concluding words of s 80(1) of the trade practices act 1974 ("tpa") which state that the court may grant an injunction in such terms as the court determines to be appropriate. these words were introduced into s 80(1) by a 1983 amendment to the tpa, which, to adapt the language used by french j in od transport pty ltd v wa government railways commission (1987) 13 fcr 500 at 508, freed the power conferred by s 80 from the previous constraint that the injunction granted under it must restrain a person from engaging in conduct that constitutes or would constitute a contravention of part iv of part v of the tpa or one of the species of accessorial participation there listed. 67 french j said that s 80 was a widely drawn remedial provision which was available to restrain conduct which may infringe upon the public interest by contravening the provisions of the tpa in part iv and part v. his honour added at 268: "there is room within the statutory framework and the policy that underlies it for an injunction which is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. that deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court. the possibility remains open, by virtue of s 80(3), that after a suitable period unmark The legal case is titled:

OD Transport Pty Ltd v WA Government Railways Commission

Into which category does this case fall based on its content? no stay is sought if the first and third applicants fail to provide the security. rather, if i were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. submissions of the applicants 8 in response, mr perry on behalf of the applicants has submitted, in essence: 1. neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. accordingly the threshold for the making of an order has been established consistently with the decision of the full court in these proceedings. 2. however the question before the court is whether the court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. in particular: (a) the notice was served on friday 3 november 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm frida The legal case is titled:

Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd

Into which category does this case fall based on its content? the applicant submits that the question whether the treasurer is satisfied that an acquisition is contrary to the national interest is a jurisdictional fact and that it is not made out if the matters the treasurer took into account do not support a reasonable and rational conclusion to that effect. she referred to the reasons for judgment of kirby j in re patterson; ex parte taylor (2001) 207 clr 291, in particular at 504-505 [338]. the reasons of kirby j do seem to support the submission advanced by the applicant, but i would not apply them in this case. none of the other justices in re patterson; ex parte taylor (supra) took a similar approach. for example, gaudron j, who did discuss the concept of national interest, decided the case on the basis that the minister asked herself the wrong question (at 417-420 [74]-[82]). if there is a jurisdictional fact in this case it is not whether the acquisition is contrary to the national interest but, rather, whether the treasurer was satisfied that the acquisition is contrary to the national interest. a question of that nature would not turn, ordinarily at least, on the court's conclusion as to whether the material before the minister provided a reasonable or rational foundation for the conclusion reached by the minister. 122 i reject the applicant's submission that the respondent was not in fact satisfied that the acquisition is contrary to the national interest. 123 for these reasons i make the following orders: 1. an order in the The legal case is titled:

Patterson, Re

Into which category does this case fall based on its content? is plain that, where an order is set aside, and a matter is remitted to the tribunal for reconsideration, there is nothing on which any issue estoppel can be founded: morales v minister for immigration and multicultural affairs ca 334 ; (1998) 82 fcr 374 ; minister for immigration and multicultural affairs v wang (2003) 215 clr 518. it is perhaps understandable, in the light of the history of the proceedings from the decision of the delegate all the way to the high court, but very unfortunate, that counsel for the appellants should have sought to argue issue estoppel. The legal case is titled:

Minister for Immigration and Multicultural Affairs v Wang

Into which category does this case fall based on its content? none of this is to suggest that the deputy commissioner was under any obligation to accept the proffered cheque. when the history of ganter's endeavours to pay the debt after the filing of the winding up application is recalled and that the company was, by operation of s 459c(2)(a) the corporations act 2001 presumed to be insolvent the deputy commissioner would have been entitled not to accept the cheque. a refusal to accept the cheque would not have eliminated the debt in question: australian mid-eastern club ltd v yassim (1989) 1 acsr 399, at 403 (nswca); deputy commissioner of taxation v visidet pty ltd ca 830 at [3] per gyles j. The legal case is titled:

Australian Mid-Eastern Club Limited v Yassim

Into which category does this case fall based on its content? first, in my opinion, to relitigate the events of 27 march 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 march 2006. the court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: walton v gardiner ca 77 ; (1993) 177 clr 378 at 392-393 per mason cj, deane and dawson jj. it seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata, issue estoppel in the strict sense or an anshun estoppel are made out: coffey v secretary, department of social security ca 375 ; (1999) 86 fcr 434 at 443 [25] ; spalla v st george motor finance ltd (no 6) ca 1699 at [58] - [70] per french j; szajb v minister for immigration and citizenship (2008) 168 fcr 410 at 423 [37]-[39] per french j (with whom tracey j agreed at 437 [114]); brock v minister for home affairs (2008) 170 fcr 434 at 447 [74] per lindgren and tracey jj. the claim for unlawful discrimination represents an attempt to relitigate the events of 27 march 2006 and is an abuse of process. i am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that i have expressed. The legal case is titled:

SZAJB v Minister for Immigration and Citizenship

Into which category does this case fall based on its content? the trial of the earlier proceeding was held on 5 and 6 october 2006. on 31 may 2007, i made an order that the proceeding be dismissed and i delivered reasons for judgment: rana v university of south australia ca 816. i will refer to those reasons as the earlier judgment. 9 one point to note, and the relevance of this will become apparent, is that in the course of the earlier judgment i said (at [4]) that i found the applicant "a most unsatisfactory witness" and that i did not accept his evidence except where it accorded with other evidence which i accepted. i said that the applicant's evidence as to important events changed during the course of the proceeding, that some of his evidence was highly improbable and a good deal of his evidence was inconsistent with evidence which i accepted. The legal case is titled:

Rana v University of South Australia

Into which category does this case fall based on its content? i am not prepared to infer that the respondent was not in fact satisfied that the acquisition is contrary to the national interest. in the notice of the order dated 23 february 2005 ([7] above) the respondent states that he is satisfied that the acquisition 'is contrary to the national interest'. the minute refers to the provisions of s 21a(4) and to that part of the subsection which refers to the national interest. it is clear that it was a matter which was brought to the respondent's attention. it is true that in terms of the minute the particular matters relevant to the national interest are not clearly identified. furthermore, the respondent did not give reasons for his decision and he did not give evidence. however, care needs to be exercised in this area because of the broad nature of the concept of the national interest. a court will be slow to interfere with a minister's decision as to what is in the national interest on the ground that a matter not taken into account was relevant to the national interest or a matter taken into account was irrelevant to the national interest: leisure entertainment pty ltd v willis (1996) 64 fcr 205 at 220; conwest global communications corporation v treasurer of the commonwealth of australia (1997) 147 alr 509 at 525. a court will also be slow to interfere with a minister's decision as to what is in the national interest under the guise of an argument that it should be inferred from the material before the decision-maker that he or sh The legal case is titled:

Conwest Global Communications Corporation v Treasurer of the Commonwealth of Australia

Into which category does this case fall based on its content? on this basis, the response of the respondent to the letters of ms nicholson-brown's solicitors was appropriate and adequate. the respondent replied to the complaints of ms nicholson-brown by reference to the policy decision, and did not bring into consideration the specific conduct of ms nicholson-brown as this was not a matter for consideration. it cannot be said, in these circumstances, that the response was inadequate, because on my analysis the matters raised that were not adequately responded to from ms nicholson-brown's point of view, could not have affected the outcome of the decision; see generally dennis willcox pty ltd v commissioner of taxation (1988) 79 alr 267 at 276-277. there was no material which was relevantly taken into account which was not made available to each applicant, as was the case in applicant veal of 2002 v minister for immigration and multicultural and indigenous affairs ca 72 ; (2005) 225 clr 88. in view of the opportunity provided to and availed by each applicant to respond to the respondent after the suspension decision, the decision-making process, including the respondent's response to ms nicholson-brown's solicitors letter, viewed in its entirety and in the circumstances of the implementation of a policy decision, did accord natural justice and procedural fairness. The legal case is titled:

Dennis Willcox Pty Ltd v Commissioner of Taxation

Into which category does this case fall based on its content? submission of santos, delhi petroleum and the state that the application has no reasonable prospects of success is, in summary: (a) the applicants do not seek a determination of native title in the present proceeding; (b) the definition of "future act" in s 233(1) of the nta is that it is an act which, apart from the nta, either validly affects (in the sense that word is to be understood in light of in s 227 of the nta) native title in relation to the land or would, if valid, affect native title; (c) in light of full court's judgment in the lardil peoples v queensland ca 414 ; (2001) 108 fcr 453 ( lardil ), to secure final relief of the kind sought by the applicants it is not sufficient to establish only that an act might affect native title if native title were found to exist; (d) a corollary of this is that mere status as a registered native title claimant can never supply the requisite element in the definition of future act, which is also an element in any entitlement to the relief sought. the applicants, in summary, make the following submission in response: (a) lardil is distinguishable because it related to procedural rights conferred by s 24ha and s 24na of the nta and not the right to negotiate under subdiv p of div 2 of pt 3 of that act; (b) in any event, the declaration that the grant of a petroleum lease would not constitute a pre-existing rights based act does not require the applicants to establish that they have native title because, if there is no valid atp, i The legal case is titled:

The Lardil Peoples v Queensland CA 414

Into which category does this case fall based on its content? in cunliffe v the commonwealth ca 44 ; (1994) 182 clr 272 (at 315-316) brennan j (as he then was) made the following observations as to the aliens power (at 315-316) (footnotes omitted): 'the power to make laws with respect to aliens, unlike the majority of the powers conferred by s 51 of the constitution, is not a power to make laws with respect to a function of government, a field of activity or a class of relationships: it is a power to make laws with respect to a class of persons. if, in its operation, a law affects a class of persons with respect to whom there is a power to make laws, the law may have the character of a law with respect to persons of that class. but it is neither necessary nor sufficient that the law should change, regulate or abolish the rights, duties, powers and privileges of the relevant class treated merely as members of the general public or of a substantially wider class than the class of persons who constitute the subject matter of the power. for example, a law which requires notification of symptoms of a disease after entry to australia by aliens and citizens indifferently is not a law with respect to aliens though it may be a law with respect to quarantine. but if and to the extent that the law discriminates between the public at large and the relevant class of persons (whether textually or in its operation), there is an indicium that the law is a law with respect to persons of that class. that indicium may suffice to give the law the characte The legal case is titled:

Cunliffe v The Commonwealth CA 44

Into which category does this case fall based on its content? in accc v z-tek computer pty ltd (1997) 78 fcr 197 at 202 at [d]-[e], after referring to these passages in ici, merkel j said: "the width of the power conferred by s 80 and its public interest character obviously give the court great amplitude in determining appropriate injunctive orders in a particular case. however there are limitations on the court's power under the section. confinement of the power by reference to the scope and purpose of the tpa, and in particular s 80, is one limitation on the power. however, there are at least two further limitations. the power to make orders under s 80 is only enlivened in a proceeding which alleges that there has been a contravention of a provision of pt iv, iva or v of the tpa. as was said by gummow j in ici at 267, the terms of an injunction granted under s 80 must, on their face, operate upon a range of conduct which has 'the relationship required by s 80 with contravention of the act. irrespective of whether the injunction is sought or granted under s 80(1) or 80 (1aa) there must be a nexus between the conduct alleged or found to constitute the relevant contraventions and the injunctions granted." The legal case is titled:

ACCC v Z-Tek Computer Pty Ltd

Into which category does this case fall based on its content? in polyaire pty ltd v k-aire pty ltd ca 32 ; (2005) 221 clr 287 the high court considered the concept of fraudulent imitation under the 1906 act. their honours held (at [36]) that in order to find a fraudulent imitation it was not necessary to show that the differences between alleged infringement and design had been made to disguise the copying. in this respect their honours at [28] qualified the statement in malleys limited v j w tomlin pty ltd ca 77 ; (1961) 180 clr 120 at 127. in polyaire their honours at [17] accepted the submission that the application of a "fraudulent imitation" requires that the application of the design be with knowledge of the existence of the registration and of the absence of consent to its use, or with reason to suspect those matters, and that the use of the design produces what is an "imitation" within the meaning of para (a) [of s 30(1)]. this... is the knowledge, belief or intent which renders the conduct fraudulent. in a footnote to that passage their honours say: see as to the permissible inference by a jury of fraud against a party who "wilfully shuts his eyes" the judgment of lord esher mr in english and scottish mercantile investment co ltd v brunton [1892] 2 qb 700 at 707-708. 114 as the submissions of black & decker appear to accept, the knowledge, belief or intent which does or does not render the conduct fraudulent is that of the chinese manufacturer. it is the manufacturer who is said to have "applied" the design outside australi The legal case is titled:

Polyaire Pty Ltd v K-Aire Pty Ltd CA 32

Into which category does this case fall based on its content? my own view is that s 21r confers a power to appoint, not a power to make, grant or issue any instrument. section 21r does not talk in terms of the relevant act (the appointment) being made "by" or "pursuant to" any form of writing, but confers a power to make a decision to appoint, which incidentally to that decision, is to be in writing: see discussion in re brian lawlor automotive pty ltd and collector of customs (nsw) (1978) 1 ald 167 at 172; affirmed by the full court in collector of customs (nsw) v brian lawlor automotive pty ltd (1979) 24 alr 307; barton v croner trading pty ltd (1984) 3 fcr 95 at 110; and edenmead pty ltd v commonwealth (1984) 4 fcr 348 at 352-353. The legal case is titled:

Re Brian Lawlor Automotive Pty Ltd and Collector of Customs

Into which category does this case fall based on its content? insofar as the argument is advanced based upon s 13 of the crimes act 1914 (cth), that is, on the common informer provisions, i respectfully adopt what was said by hely j in commonwealth bank of australia v gargan ca 707 ; (2004) 140 fcr 1, where his honour dismissed the same argument. i should note for completeness that at [11] hely j relied upon what adams j had said in gargan v scott (unreported, supreme court of new south wales, 27 october 2003) and i respectfully adopt what adams j said at [4]. i do not think that the argument based upon s 13 has any substance whatsoever. The legal case is titled:

Gargan v Scott

Into which category does this case fall based on its content? however, s 127(1) is not mandatory. section 127(4) provides that the section does not limit the ways in which a company may execute a document (including a deed). as to authority to execute, persons dealing with bda, including bdi, were entitled to assume that the company's constitution had been complied with and that a director had been duly appointed and had authority to exercise the powers customarily performed by a director of a similar company: s 129(1), (3), the statutory equivalent of the rule in turquand's case ( royal british bank v turquand (1856) 6 e & b 327). section 128(1) provides that a person is entitled to make the assumptions in s 129 and a person is not entitled to make an assumption under s 129 if they knew the assumption was incorrect. while there is no evidence in the present case as to the powers of a director of a similar company to bda, the onus is on gmca to establish the contrary. in any event, it seems inherently likely that a director of a company similar to bda, a wholly owned subsidiary of an overseas company, would have authority to execute on the company's behalf a document of the kind executed by ms armstrong. a degree of informality is to be expected. the reality is that ms armstrong was not, in the time-honoured expression, engaged on a frolic of her own. 145 in relation to bdi, mr pratt was authorized, by virtue of his office, to execute the deed. the deed was clearly in the ordinary course of business of bdi in that it dealt with the The legal case is titled:

Royal British Bank v Turquand (1856) 6 E &amp

Into which category does this case fall based on its content? i also agree with the respondent's second submission that in any event the degree of impairment of the applicant's rights with respect to the property is insufficient to attract the operation of s 51(xxxi). in waterhouse v minister for the arts and territories (1992) 43 fcr 175 the power of a minister to grant or withhold a permit for an object to be exported to a purchaser under the protection of movable cultural heritage act 1986 (cth) was held to be an insufficient impairment of the rights of the owner of a valuable australian painting to attract the operation of s 51(xxxi) (see the discussion of black cj and gummow j at 180-185; smith v anl ltd ca 58 ; (2000) 204 clr 493 per gaudron and gummow jj at 505 [23]). in my opinion, similar reasoning can be applied here. the applicant is required to sell the property, but the class to whom she cannot sell the property is very limited (s 21a(7)). The legal case is titled:

Waterhouse v Minister for the Arts and Territories

Into which category does this case fall based on its content? an effective notice not having been given, the second question is whether the operation of s 25(1d) is contingent upon the giving of an effective notice. the circumstances in which an act done in breach of a condition regulating the exercise of a statutory power will invalidate that exercise were considered by the high court in project blue sky inc v australian broadcasting authority ca 28 ; (1998) 194 clr 355 at 388-390 per mchugh, gummow, kirby and hayne jj. their honours said that the relevant question is not whether the condition is mandatory or directory, but whether, by reference to the language of the relevant provision or provisions and the scope and object of the statute as a whole, it was a purpose of the legislation to invalidate an act done in breach of the condition. 71 in my opinion, by reason of the terms of s 25, the operation of s 25(1d) is contingent upon the giving of an effective notice. section 25(1) provides that the section has effect where the treasurer receives a notice. section 25(1d) refers to 'advice' given under s 25(1b). the 'advice' is of a decision under s 25(1a), and a decision under s 25(1a) relates to 'the acquisition... specified in the notice' and the decision which may be made is that there is 'no objection to the proposal specified in the notice'. furthermore, the offence of contravening a condition referred to in s 25(1c) is linked to the advice of a decision under s 25(1b). in my opinion, there was no effective decision and therefor The legal case is titled:

Project Blue Sky Inc v Australian Broadcasting Authority CA 28

Into which category does this case fall based on its content? the principles governing the applicant's third submission are relatively clear, although they can give rise to difficulties in terms of application. ordinarily, a decision-maker is not required to invite comment from an applicant as to the decision-maker's provisional views or mental processes ( f hoffman-la roche and co ag v secretary for trade and industry c 295 per lord diplock at 369). however, a decision-maker may be under an obligation to invite comment from an applicant on an adverse conclusion based on known material if that conclusion is not an obvious and natural conclusion from that material. in alphaone, the full court of this court (northrop, miles and french jj) put the matter in the following way (at 591-592): 'where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. that entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. it also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. the decision-maker is required to advise of any adverse conclusion which has been arrived at The legal case is titled:

F Hoffman-La Roche and Co AG v Secretary for Trade and Industr

Into which category does this case fall based on its content? i was referred to the authorities which have considered the circumstances in which a legislative provision which is partially invalid will be read down: pidoto v the state of victoria ca 37 ; (1943) 68 clr 87 per latham cj at 108-111; victoria v the commonwealth (supra) per brennan cj, toohey, gaudron, mchugh and gummow jj at 501-503. but for s 5a there might have been some difficulties in the way of reading down s 4(6)(a) so that it applied only to non-citizens not ordinarily resident in australia. for example, there would be the difficulty of a law expressed in general terms and arguably no clear guide as to parliament's intention as to an appropriate limitation. however, i do not think that those types of difficulties arise here, because by providing in s 5a what is in effect a statutory statement or definition of non-citizens who do and do not fall within the definition of natural persons caught by s 4(6)(a) the federal parliament has sufficiently revealed an intention that that subsection should operate in relation to non-citizens even if it is otherwise invalid. section 4(6)(a) insofar as it applies to non-citizens is a valid exercise of the aliens power. 56 the applicant made reference to the federal parliament's power to make laws with respect to the acquisition of property on just terms from any state or person for any purpose in respect of which the parliament has power to make laws (s 51(xxxi)). initially, the applicant contended that ss 4(6) and 21a of the act cou The legal case is titled:

Pidoto v The State of Victoria CA 37

Into which category does this case fall based on its content? much of this argument overlapped with gmca's case on description, utility, novelty and obviousness. to the extent that it did not, it must be rejected. the alleged invention did not involve an abstract idea, like that considered in grant v commissioner of patents (2006) 69 ipr 221. it concerned machines and their operation and thus "something of a corporeal and substantial nature": r v wheeler (1819) 2 b & ald 345 at 350, cited in lockwood security products pty ltd v doric products pty ltd (no 2) ca 21 ; (2007) 72 ipr 447 at [66] ( lockwood 2 ). The legal case is titled:

Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) CA 21

Into which category does this case fall based on its content? in australian securities and investments commission v pegasus leveraged options group pty ltd (2002) 41 acsr 561 at 574 (" pegasus "), davies aj addressed the question whether the sole director of the company which promoted and operated a managed investment scheme should also be considered to be a person operating the scheme. his honour said at [55]-[57]: "the word 'operate' is an ordinary word of the english language and, in the context, should be given its meaning in ordinary parlance. the term is not used to refer to ownership or proprietorship but rather to the acts which constitute the management of or the carrying out of the activities which constitute the managed investment scheme. the oxford english dictionary gives these relevant meanings: 5. to effect or produce by action or the exertion of force or influence; to bring about, accomplish, work. 6. to cause or actuate the working of; to work (a machine, etc). chiefly u.s. 7. to direct the working of; to manage, conduct, work (a railway, business, etc); to carry out or through, direct to an end (a principle, an undertaking, etc) orig. u.s. i have concluded that mr mckim operated the managed investment scheme. he was the living person who formulated and directed the scheme and he was actively involved in its day to day operations. he supervised others in their performance. i have also concluded that mr mckim is not exempted by s601ed(6). he did not'merely' act as agent or employee of pegasus. he was the directing mind The legal case is titled:

Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd

Into which category does this case fall based on its content? am satisfied that the finding of the third tribunal that the two appellants are not, and were not, homosexuals was not made in the exercise of honest fact finding, but was deliberately calculated to "get around" difficulties in the factual circumstances of the appellants' case, thrown up by the judgment of the high court in appellant s395/2002 v minister for immigration and multicultural affairs; appellant s396/2002 v minister for immigration and multicultural affairs ca 71 ; (2003) 216 clr 473 ( appellant s395/2002 ). the appellants are bangladeshi nationals. they came to australia, arriving on 19 february 1999. they sought protection visas on 4 march 1999, claiming that they were homosexuals who had lived together as a couple since 1994, and that they had been subjected to persecution in bangladesh because of their homosexuality. a delegate of the minister for immigration and citizenship found, on 23 april 1999, that the applicant born on 1 july 1973 (naox, or the younger bangladeshi), was a "citizen of bangladesh", accepted "as plausible the applicant's claim that he is a homosexual", but was "unable to accept there is a real chance that he will be persecuted on that ground in bangladesh". the delegate said: in his circumstances, if he believes that his homosexuality, and his relationship, would not be acceptable to the community in which he is living, it is only reasonable to believe that he should be discreet about such matters. it is important to have regard to the issu The legal case is titled:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

Into which category does this case fall based on its content? much of this argument overlapped with gmca's case on description, utility, novelty and obviousness. to the extent that it did not, it must be rejected. the alleged invention did not involve an abstract idea, like that considered in grant v commissioner of patents (2006) 69 ipr 221. it concerned machines and their operation and thus "something of a corporeal and substantial nature": r v wheeler (1819) 2 b & ald 345 at 350, cited in lockwood security products pty ltd v doric products pty ltd (no 2) ca 21 ; (2007) 72 ipr 447 at [66] ( lockwood 2 ). The legal case is titled:

Grant v Commissioner of Patents

Into which category does this case fall based on its content? a natural person may be a citizen of australia or a non-citizen. in the case of a natural person who is a citizen, there is no definition in the act of'resident' or 'ordinarily'. there are a large number of cases which have examined the meaning of those words in various statutory contexts. it seems that the words are not terms of art and the question is one of fact and degree and that a person may have two places of residence: re vassis; ex parte leung (1986) 9 fcr 518 at 524-525 per burchett j; re taylor; ex parte natwest australia bank limited (1992) 37 fcr 194 at 197 per lockhart j. the particular problem of a person possibly being ordinarily resident in two places does not arise here because the criterion in s 4(6) is 'not ordinarily in australia'. The legal case is titled:

Taylor, Re

Into which category does this case fall based on its content? while the evidence in the matter is that the tribunal member who issued the listening device warrant was named in an afp statement of facts given to the applicant in august 2008, it has not been suggested that he was aware at the time of the tribunal hearing that the member hearing the review application was the person who issued the warrant. neither did the tribunal member disclose that fact if he was then actually aware of it. in consequence, and counsel for the minister accepted, there was no issue of waiver of bias in this matter: see vakauta v kelly ca 44 ; (1989) 167 clr 568 at 572-573; see also shingles v defence force retirement and death benefits authority ca 1211. The legal case is titled:

Vakauta v Kelly CA 44

Into which category does this case fall based on its content? my own view is that s 21r confers a power to appoint, not a power to make, grant or issue any instrument. section 21r does not talk in terms of the relevant act (the appointment) being made "by" or "pursuant to" any form of writing, but confers a power to make a decision to appoint, which incidentally to that decision, is to be in writing: see discussion in re brian lawlor automotive pty ltd and collector of customs (nsw) (1978) 1 ald 167 at 172; affirmed by the full court in collector of customs (nsw) v brian lawlor automotive pty ltd (1979) 24 alr 307; barton v croner trading pty ltd (1984) 3 fcr 95 at 110; and edenmead pty ltd v commonwealth (1984) 4 fcr 348 at 352-353. The legal case is titled:

Barton v Croner Trading Pty Ltd

Into which category does this case fall based on its content? the assumption is without foundation. i refused interlocutory relief on 10 february 2005; see ca 79. leave to appeal from my judgment was refused by hely j on 3 may 2005; see ca 541. The legal case is titled:

Lawrance v President, Administrative Appeals Tribuna

Into which category does this case fall based on its content? an alternative ground for the conclusion that i should not disqualify myself from hearing the present application on the ground of apparent bias is this. the test for apparent bias is well-known and it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": johnson v johnson (2000) 201 clr 488 at 492 [11] per gleeson cj, gaudron, mchugh, gummow and hayne jj. in this case, if there is apparent bias, it takes the form of prejudgment. that form of bias was considered by the high court in livesey v the new south wales bar association ca 17 ; (1983) 151 clr 288. in assessing that form of apparent bias in this case, the nature of the respondents' application is important. the respondents' application is not one in which i was called upon to make findings as to credit or, indeed, to make any findings of fact. the applicant's allegations of fact may be accepted for the purposes of the respondents' application. the questions raised by the respondents' application are, in substance, questions of law, and, having regard to all the circumstances, i do not think it can be said that a fair-minded lay observer might reasonably apprehend that i might not bring an impartial and unprejudiced mind to the question i am required to decide: sydney refractive surgery centre pty ltd v federal commissioner of taxation (2007) 68 atr 19 ; commonwealth bank of a The legal case is titled:

Livesey v The New South Wales Bar Association CA 17

Into which category does this case fall based on its content? however, statutory rights to damages or an account of profits conferred on owners or exclusive licensees of intellectual property only have effect for the period that a plaintiff in fact has the relevant status. thus in colbeam palmer ltd v stock affiliates pty ltd ca 50 ; (1968) 122 clr 25 windeyer j held (at 36) that an account of profits should be taken to terminate as at the date the plaintiff assigned the trade mark in question and (at 41) that the assignee, having been joined as a plaintiff, should be entitled to an account of profits from the date of assignment. similarly in stack v brisbane city council (1996) 35 ipr 296 at 302 drummond j held that where an equitable title had been converted into legal title by assignment, the assignor would have the right to an account of profits made by the infringers in the period up to the assignment and that the assignee alone would have the right to any profits made by the infringers after that date. likewise, if an election were made for damages the assignee is the proper claimant for that relief, but only as from the date its equitable ownership became converted by registration into full legal and beneficial ownership of the patent. The legal case is titled:

Colbeam Palmer Ltd v Stock Affiliates Pty Ltd CA 50

Into which category does this case fall based on its content? power conferred by s 47a(1) of the act is, subject to the court and judge being satisfied that the conditions of s 47c(1) are met in relation to the video-link, an exercise of discretion that would not be ordered unless the court or judge was satisfied that recourse to such a link was, in the particular circumstances of the case, appropriate. so understood, what was done in other cases is only of limited assistance, if any. so much was recognised by the supreme court of new south wales (austin j) in australian securities & investments commissioner v rich & ors (2004) 49 acsr 578 at [16], although his honour went on to observe that there are broadly two approaches exhibited by the observations in the cases one generally in favour of the use of audiovisual absent any impediment telling against its use; and the other a more cautious approach requiring good reason to be shown before leave to give evidence by means of video-link was granted. at [19] his honour observed: apart from dealing with obvious practical matters such as comparative costs and the difficulty created by differences in time zones, the cases touch upon some recurring themes: the appropriateness of audiovisual facilities for centrally important evidence, the assessment of credit where evidence is given by audiovisual link, difficulties raised by the use of documents for cross-examination in audiovisual evidence, technological difficulties due to lapse of time between transmission and receipt of questions The legal case is titled:

Australian Securities &amp

Into which category does this case fall based on its content? matters of policy and implementation of policy (including change in qualifications for appointment), and the views of the victorian community or the respondent's perception about those views, are ones which the respondent, upon which a discretionary power has been conferred, may take into account. in minister for immigration and multicultural affairs v jia legeng ca 17 ; (2001) 205 clr 507 at 565 per hayne j (with whom gleeson cj and gummow j agreed at 538-539) discussed the nature of the types of matters a minister with a discretionary power might take into account: conferring power on a minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which ministers are legitimately subject. see also murphyores incorporated pty ltd v commonwealth ca 20 ; (1976) 136 clr 1 at 13-14; hot holdings pty limited v creasy ca 51 ; (2002) 210 clr 438; south australia v o'shea ca 39 ; (1987) 163 clr 378. The legal case is titled:

Murphyores Incorporated Pty Ltd v Commonwealth CA 20

Into which category does this case fall based on its content? on 30 march 2006 siopis j made interim orders restraining the defendants from removing any of their property from australia or from otherwise dealing with it except to the extent set out in the order. he also directed the surrender of their passports. his honour published his reasons for those orders on 5 april 2006 australian securities and investments commission, in the matter of richstar enterprises pty ltd (acn 099 071 968) v carey ca 366. 16 on 7 april 2006 i made orders extending the operation of the interim injunctions granted by siopis j (subject to some undisputed variations) until 5pm on 12 april 2006 which was the date set down for the hearing of the substantive application. following the hearing of the substantive application those orders were further extended to 5pm on thursday 20 april 2006 subject to further agreed variations. judgment on the substantive application was reserved to 2.15pm on thursday 20 april 2006. 17 there was an application made on behalf of the second defendant for an order setting aside the ex parte orders made by siopis j on the basis that there had not been full disclosure by asic of relevant evidence to the court. the second defendant submitted that asic's evidence predominately related to transactions involving other defendants which were not relevant to the second. i am not satisfied that any material non disclosure is shown. in any event the interim freezing orders lapse today. The legal case is titled:

Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd

Into which category does this case fall based on its content? this is an appeal from a decision of the federal magistrates court which dismissed an application for review of a decision of the refugee review tribunal affirming a decision of a delegate of the minister to refuse the appellant a protection visa. the nature of the appellant's protection visa application, the reasons of the tribunal and the federal magistrate are set out in more detail in the federal magistrate's decision, szjxc v the minister for immigration and citizenship mca 545, which is available on the internet. 2 the appellant is a citizen of the people's republic of china and his claim to be a refugee rests on an alleged fear of persecution based on his involvement in the practice of falun gong. 3 in his protection visa application he claimed to have been a member of falun gong since 1999. he said that after falun gong was banned by the authorities he would transport members for meetings and gatherings and provide emergency transportation. he claimed that in march 2005 while assisting the leader to escape from detention he was caught by police and held and interrogated for eight days and suffered "serious mental and physical torment". he claimed to have been forced to attend re-education classes and be supervised by what was called the 610 office. his job was "interfered many times," [ sic ] the truck he drove was checked frequently, members of his family were questioned many times and "we all lost our freedom". The legal case is titled:

SZJXC v the Minister for Immigration and Citizenship

Into which category does this case fall based on its content? the principle was referred to in passing by gleeson cj, gummow and heydon jj in re minister for immigration and multicultural and indigenous affairs, ex parte palme ca 56 ; (2003) 216 clr 212 at 219 [21] - [22] (footnotes omitted): 'further, it does not readily appear how the principles of procedural fairness could be engaged in the manner contended for by the prosecutor. it may be accepted, as the prosecutor submitted, that his entitlement extended to the rebuttal of, and comment by way of submission upon, adverse material received by the decision-maker from other sources. that stops short of supporting a complaint of the nature essentially involved here of the "pitch" or "balance" in the statement of relevant considerations in the submission. further, as indicated above, there is no substance in any complaint of unfair or prejudicial "lack of balance". reference was made by the prosecutor to the decision of the full court of the federal court in commissioner for australian capital territory revenue v alphaone pty ltd. nothing there said supports any different conclusion to that just expressed. the full court's statement of principle was as follow: "where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. that entitlement extends to the right to rebut or qualify by fu The legal case is titled:

Minister for Immigration and Multicultural and Indigenous Affairs, Re, ex parte Palme CA 56

Into which category does this case fall based on its content? it has been said that s 31a lowers the bar in terms of summary judgment applications. the operation of s 31a was considered by rares j in boston commercial services pty ltd v ge capital finance australasia pty ltd ca 1352 ; (2006) 236 alr 720. i do not think it necessary to enter into the interesting questions of what the particular standard imposed by the new version of s 31a might be. this is because whatever the bar is, the current applications pass well beneath it. that is, i find that they are, despite their creativity, devoid of merit. it follows, in my opinion, that there should be orders under s 31a. that makes it unnecessary for me to consider the operation of order 20 rule 5 or to consider the operation of order 11 rule 16 in so far as the statement of claim is concerned. 40 mr gargan argued that s 31a was constitutionally invalid. normally s 78b of the judiciary act 1903 (cth) would impose upon this court an obligation not to proceed to deal with mr gargan's constitutional argument without adjourning the proceeding in order to allow the various attorneys-general for the states and of the commonwealth a chance to intervene. however, s 78b operates on constitutional matters. i do not think that a constitutional argument which is completely devoid of merit amounts to a constitutional matter within the meaning of those provisions. to make good that point, it is necessary to take account of what the argument is. 41 the argument is that s 31a operates to "dictate" to the The legal case is titled:

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd CA 1352

Into which category does this case fall based on its content? an alternative ground for the conclusion that i should not disqualify myself from hearing the present application on the ground of apparent bias is this. the test for apparent bias is well-known and it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": johnson v johnson (2000) 201 clr 488 at 492 [11] per gleeson cj, gaudron, mchugh, gummow and hayne jj. in this case, if there is apparent bias, it takes the form of prejudgment. that form of bias was considered by the high court in livesey v the new south wales bar association ca 17 ; (1983) 151 clr 288. in assessing that form of apparent bias in this case, the nature of the respondents' application is important. the respondents' application is not one in which i was called upon to make findings as to credit or, indeed, to make any findings of fact. the applicant's allegations of fact may be accepted for the purposes of the respondents' application. the questions raised by the respondents' application are, in substance, questions of law, and, having regard to all the circumstances, i do not think it can be said that a fair-minded lay observer might reasonably apprehend that i might not bring an impartial and unprejudiced mind to the question i am required to decide: sydney refractive surgery centre pty ltd v federal commissioner of taxation (2007) 68 atr 19 ; commonwealth bank of a The legal case is titled:

Commonwealth Bank of Australia v Tayl

Into which category does this case fall based on its content? the preceding general principles inform the exercise of the discretion. that discretion is not to be fettered by transformation of approaches and practices developed through the cases into quasi statutory rules. in john s hayes & associates pty ltd v kimberly-clark australia pty ltd (1994) 52 fcr 201, hill j said (at 203): care must be taken not to circumscribe the discretion by reference to closed categories. it is not a necessary condition of the power to award costs that a collateral purpose be shown. the categories warranting the exercise of the discretion are not closed... see also goldberg j in dr martens australia pty ltd v figgins holdings pty ltd (no 2) ca 602 at [15]. The legal case is titled:

Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd

Into which category does this case fall based on its content? the orders that can be made under the section are directed, inter alia, to the preservation of assets against which recovery may be sought in the event that liability to an 'aggrieved person' is established on the part of a'relevant person'. the orders are made in circumstances where 'an investigation is being carried out', 'a prosecution has been begun' or 'a civil proceeding has been begun'. that is to say the orders can be made before liability is established and indeed before the evidence necessary to establish liability has been collected. while an application under the section is not interlocutory in an existing criminal or civil proceeding, it is interlocutory in a wider sense. it preserves the status quo and the assets of the relevant person pending the outcome of the investigation, prosecution or civil proceedings which are on foot cac v lone star exploration nl( no 2) (1988) 14 aclr 499 at 504. at the stage an order is sought the court may not be in a position to identify with precision any particular liability owed by the person the subject of the proposed order. this consideration applies to final orders made under the section as well as to interim orders for which it expressly provides in s 1323(3). the final orders made under the section are necessarily of a temporary or holding character rather than finally disposing of the rights and liabilities of the relevant persons affected by them. The legal case is titled:

CAC v Lone Star Exploration NL