mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Scott v Geoghan &amp; Sons Pty Ltd (1969) 43 ALJR 243
Outcome: cited
I have considered whether some part of the total penalty ought not be ordered to be paid to the Union in light of what I have termed the gratuitous joinder of Professor Rickard. However, it seems to me that so to do would be wrong in principle as no part of the total penalty is referable to a penalty imposed in respect of a separate breach by Professor Rickard. The penalty proceeding did though exhibit a vice akin to that described by Taylor J in Scott v Geoghan &amp; Sons Pty Ltd (1969) 43 ALJR 243 , at 245 whose remarks were endorsed by Gibbs J (as his Honour then was) in Murphy, Minister of State for Customs and Excise v H. F. Trading Co Pty Ltd supra, at 200 the joinder of a multiplicity of charges arising out of the one transaction. The policy objectives served by a civil penalty proceeding under the Workplace Relations Act did not, in my respectful opinion, require the allegation of derivative, consequential or overlapping breaches. Of the total of the penalties imposed, I therefore propose to order that the sum of $6,600 be paid to the Union and the balance of $400 be paid to the Commonwealth of Australia pursuant to s 841(b) and 841 (a) respectively of the Workplace Relations Act .
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
As for paragraph 37, the applicants submitted that the paragraph did not plead the material facts which identified how each firm was involved in any contravention of s 1041H of the Corporations Act . They pointed out that 'involvement' requires knowledge of the essential facts, matters or things that constitute the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. 15 The cross claim by the Directors is structured in a broadly similar way, but the relevant allegations of breach of duty are much narrower. The applicants focused their criticisms on paragraphs 23 and 24 of the Directors' cross claim, which at the time of the leave application provided as follows: '23. If the Principals are found liable to the plaintiffs for the plaintiffs' damages or any part thereof as a result of the claimed conduct, the conduct was caused by Baker &amp; McKenzie and/or Munro by breaching their duty to exercise all due care and skill in the provision of legal services by failing to take the following steps: (i) advising Concept Sports and the Principals that the June 2004 financial information ought to have been included in the prospectus; (ii) advising that a revised prospectus containing the June 2004 financial information ought to have been included; (iii) advising that disclosure of the June 2004 financial information shortly after 10 June 2004; (iv) advising prior to 10 June 2004 that the IPO should not proceed; Particulars If Bakers and/or Munro had carried out their duties and provided the legal advice with the appropriate degree of care and diligence, then they would have advised the Principals to, and caused the Principals to (insofar as they were able to cause them) take such steps as would have led to the claimed conduct not occurring. 24. Further and in the alternative, if the Principals are found liable to the plaintiffs for the plaintiffs' damages or any part thereof, then to the extent that Bakers and/or Munro are liable in respect of the same damage, they are entitled to contribution from them pursuant to s.23B of the Wrongs Act 1958 (Vic).' 16 These paragraphs must be read in light of the following matters. First, the reference to 'the June 2004 Financial Information' is intended to be a reference to the management reports and management accounts which became available at the board meeting on 1 June 2004. The cross claim contains an obvious mistake in that the relevant definition does not appear in the correct place in the pleading. The mistake was corrected by counsel for the Directors in the course of argument before me. Secondly, the cross claim specifically alleges that the Directors relied upon Baker &amp; McKenzie and Munro to be satisfied that the prospectus contained all material information and did not contain anything that was misleading or deceptive in contravention of the Corporations Act or any other relevant statute, and that there was no requirement to lodge a supplementary or replacement prospectus pursuant to s 719 of the Corporations Act .
Case: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373
Outcome: cited
The grant of leave to appeal from an interlocutory order is governed by the principles stated by the Full Court in D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ( 'D&eacute;cor' ) at 398-400. These principles were recently affirmed by the Full Court in Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373 ( 'Brilliant' ). The key considerations are: (1) whether the decision to make the orders is attended with sufficient doubt to warrant it being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to make the orders to be wrong. Moreover, where the decision in question concerns a matter of practice and procedure, rather than substantive rights, the Court will ordinarily be very reluctant to grant leave to appeal: see Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 176-178. The authorities indicate that a tight rein should be kept on interlocutory appeals, particularly those involving practice and procedure or an exercise of discretion concerning the preparation of a case for trial: Brilliant at 375-376 [3]-[4]; and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 583-585 [42] - [45] .
Case: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170
Outcome: cited
The grant of leave to appeal from an interlocutory order is governed by the principles stated by the Full Court in D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ( 'D&eacute;cor' ) at 398-400. These principles were recently affirmed by the Full Court in Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373 ( 'Brilliant' ). The key considerations are: (1) whether the decision to make the orders is attended with sufficient doubt to warrant it being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to make the orders to be wrong. Moreover, where the decision in question concerns a matter of practice and procedure, rather than substantive rights, the Court will ordinarily be very reluctant to grant leave to appeal: see Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 176-178. The authorities indicate that a tight rein should be kept on interlocutory appeals, particularly those involving practice and procedure or an exercise of discretion concerning the preparation of a case for trial: Brilliant at 375-376 [3]-[4]; and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 583-585 [42] - [45] .
Case: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564
Outcome: cited
The grant of leave to appeal from an interlocutory order is governed by the principles stated by the Full Court in D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ( 'D&eacute;cor' ) at 398-400. These principles were recently affirmed by the Full Court in Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd (2004) 63 IPR 373 ( 'Brilliant' ). The key considerations are: (1) whether the decision to make the orders is attended with sufficient doubt to warrant it being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to make the orders to be wrong. Moreover, where the decision in question concerns a matter of practice and procedure, rather than substantive rights, the Court will ordinarily be very reluctant to grant leave to appeal: see Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 176-178. The authorities indicate that a tight rein should be kept on interlocutory appeals, particularly those involving practice and procedure or an exercise of discretion concerning the preparation of a case for trial: Brilliant at 375-376 [3]-[4]; and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 583-585 [42] - [45] .
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
An appeal from a discretionary decision by a trial judge attracts special principles. In such a case, the question is not whether the judges composing the appellate court, or a judge considering an application for leave to appeal, would have taken a different course if they were in the position of the primary judge; it is whether the primary judge's discretion miscarried, by reason of some error of principle: see House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 386-387; Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193 and 198; and Auspine Ltd v HS Lawrence &amp; Son Pty Ltd (unreported, Full Federal Court, von Doussa, Mansfield and Goldberg JJ, 24 July 1998) ( 'Auspine' ).
Case: Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379
Outcome: cited
An appeal from a discretionary decision by a trial judge attracts special principles. In such a case, the question is not whether the judges composing the appellate court, or a judge considering an application for leave to appeal, would have taken a different course if they were in the position of the primary judge; it is whether the primary judge's discretion miscarried, by reason of some error of principle: see House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 386-387; Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193 and 198; and Auspine Ltd v HS Lawrence &amp; Son Pty Ltd (unreported, Full Federal Court, von Doussa, Mansfield and Goldberg JJ, 24 July 1998) ( 'Auspine' ).
Case: Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191
Outcome: cited
An appeal from a discretionary decision by a trial judge attracts special principles. In such a case, the question is not whether the judges composing the appellate court, or a judge considering an application for leave to appeal, would have taken a different course if they were in the position of the primary judge; it is whether the primary judge's discretion miscarried, by reason of some error of principle: see House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 386-387; Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193 and 198; and Auspine Ltd v HS Lawrence &amp; Son Pty Ltd (unreported, Full Federal Court, von Doussa, Mansfield and Goldberg JJ, 24 July 1998) ( 'Auspine' ).
Case: Auspine Ltd v HS Lawrence &amp; Son Pty Ltd (unreported, Full Federal Court, von Doussa, Mansfield and Goldberg JJ, 24 July 1998)
Outcome: cited
An appeal from a discretionary decision by a trial judge attracts special principles. In such a case, the question is not whether the judges composing the appellate court, or a judge considering an application for leave to appeal, would have taken a different course if they were in the position of the primary judge; it is whether the primary judge's discretion miscarried, by reason of some error of principle: see House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 505; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 386-387; Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193 and 198; and Auspine Ltd v HS Lawrence &amp; Son Pty Ltd (unreported, Full Federal Court, von Doussa, Mansfield and Goldberg JJ, 24 July 1998) ( 'Auspine' ). 47 The applicants have not made out a case that they will suffer substantial prejudice if the orders are allowed to stand: cf Auspine . Finkelstein J is presently on leave, and will resume the management of this case early in August 2006. I am not persuaded that there is any real difficulty in the applicants using the time between now and early August to prepare to meet the case that is put against them. If fundamental difficulties emerge that prevent the applicants being ready for a trial commencing in November 2006, they will be able to make further applications, as may be appropriate, to the trial judge upon his return from leave. 48 For the reasons set forth above, I refuse leave to appeal. I propose to dismiss each notice of motion. I will hear the parties on the issue of costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 27 July 2006 Counsel for the Plaintiff: Dr KD Hanscombe Solicitor for the Plaintiff: Maurice Blackburn Cashman Counsel for the First Defendant: GP Harris Solicitor for the First Defendant: Lander &amp; Rogers Counsel for the Second, Fourth and Fifth Defendants: Susan Gatford Solicitor for the Second, Fourth and Fifth Defendants: Lewis &amp; Weir Counsel for the Third Defendant: There was no appearance for the Third Defendant Counsel for the Sixth Defendant: There was no appearance for the Sixth Defendant Counsel for the Seventh Defendant: There was no appearance for the Seventh Defendant Counsel for the Eighth Defendant: PG Cawthorn Solicitor for the Eighth Defendant: Moray &amp; Agnew Counsel for the First Cross Respondent: There was no appearance for the First Cross Respondent Counsel for the Second Cross Respondent: MW Shand QC and K Lyons Solicitor for the Second Cross Respondent: Hunt &amp; Hunt Counsel for the Third Cross Respondent: CM Caleo Solicitor for the Third Cross Respondent: Ebsworth &amp; Ebsworth Date of Hearing: 21 July 2006 Date of Judgment: 27 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/944.html
Case: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543
Outcome: followed
In Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 ( 'Wati' ) at 554-555, the Full Court held that it is the Court, not the applicant, that has the ultimate authority to determine whether an application for leave to appeal should be determined by a single judge or a Full Court. The Full Court observed that where an application for leave to appeal is listed before a single judge, it is open to the applicant to ask the judge to consider referring it to a Full Court. But in those circumstances it is for the judge to determine whether the matter is more appropriately dealt with by him or her, or by a Full Court. 25 In Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269 at [13] , Drummond J (Cooper and Dowsett JJ agreeing) referred to the passage in Wati at 554 and said: 'That, in my opinion, is a clear statement that there is in truth no election available to a litigant to determine which is the forum in which an application of the present kind will be held. As their Honours say, the litigant can request that the matter be heard either by a single judge or by a Full Court. But it is for the Court to determine, having regard to considerations such as the importance of the issue raised and the efficient deployment of judicial resources and other matters, which forum will in fact be constituted to deal with the application.'
Case: Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269
Outcome: applied
In Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269 at [13] , Drummond J (Cooper and Dowsett JJ agreeing) referred to the passage in Wati at 554 and said: 'That, in my opinion, is a clear statement that there is in truth no election available to a litigant to determine which is the forum in which an application of the present kind will be held. As their Honours say, the litigant can request that the matter be heard either by a single judge or by a Full Court. But it is for the Court to determine, having regard to considerations such as the importance of the issue raised and the efficient deployment of judicial resources and other matters, which forum will in fact be constituted to deal with the application.'
Case: Minister for Immigration and Multicultural and Indigenous Affairs v WAKX (2005) 218 ALR 274
Outcome: cited
French J referred to and applied these principles in Minister for Immigration and Multicultural and Indigenous Affairs v WAKX (2005) 218 ALR 274 at 280-282 [28]-[32]. French J added that s 25(2)(d) of the FCA leaves it open to a single judge before whom the matter is listed to direct that it be determined by a single judge or to refer it to a Full Court, subject to the authority of the Chief Justice to determine finally whether the matter should be heard by a Full Court: at 280 [28].
Case: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: cited
I do not read Finkelstein J's reasons for decision as departing from the application of the correct legal principles. Pleadings are a means to an end, and not an end in themselves: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 ( 'Akhil' ) at 293 per Dawson J. Their essential function is to state with sufficient clarity the case that must be met, so as to ensure the basic requirement of procedural fairness: Akhil at 286 per Mason CJ and Gaudron J. In Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664, the High Court said that pleadings and particulars have a number of functions: they furnish a statement of the case that is sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. 35 The authorities do not lay down a standard of perfection in pleadings. In Akhil , Dawson J referred, with approval, to the statement by Isaacs and Rich JJ in Gould &amp; Birbeck &amp; Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517 that the function of pleadings is discharged when the case is presented with reasonable clearness, and any want of clearness can be cured by amendment or by particulars.
Case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658
Outcome: cited
I do not read Finkelstein J's reasons for decision as departing from the application of the correct legal principles. Pleadings are a means to an end, and not an end in themselves: Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 ( 'Akhil' ) at 293 per Dawson J. Their essential function is to state with sufficient clarity the case that must be met, so as to ensure the basic requirement of procedural fairness: Akhil at 286 per Mason CJ and Gaudron J. In Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664, the High Court said that pleadings and particulars have a number of functions: they furnish a statement of the case that is sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court.
Case: Gould &amp; Birbeck &amp; Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490
Outcome: cited
The authorities do not lay down a standard of perfection in pleadings. In Akhil , Dawson J referred, with approval, to the statement by Isaacs and Rich JJ in Gould &amp; Birbeck &amp; Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517 that the function of pleadings is discharged when the case is presented with reasonable clearness, and any want of clearness can be cured by amendment or by particulars.
Case: Bruce v Odhams Press Ltd [1936] 1 KB 697
Outcome: cited
These propositions are not inconsistent with the authorities that state that particulars cannot be used to fill gaps in the material facts that must be alleged: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712 per Scott LJ; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109; and Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 ( 'Charlie Carter' ) at 419. That proposition is directed towards material facts that must be alleged to constitute a complete cause of action.
Case: H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242
Outcome: cited
These propositions are not inconsistent with the authorities that state that particulars cannot be used to fill gaps in the material facts that must be alleged: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712 per Scott LJ; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109; and Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 ( 'Charlie Carter' ) at 419. That proposition is directed towards material facts that must be alleged to constitute a complete cause of action.
Case: Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109
Outcome: cited
These propositions are not inconsistent with the authorities that state that particulars cannot be used to fill gaps in the material facts that must be alleged: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712 per Scott LJ; H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242 at 246; Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109; and Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 ( 'Charlie Carter' ) at 419. That proposition is directed towards material facts that must be alleged to constitute a complete cause of action. 37 It can be difficult to distinguish between a material fact and a particular: Charlie Carter at 417 per French J. The difference often turns upon the level of generality at which the material facts are alleged in a particular pleading. Consistently with the rules of pleading, a cause of action can be pleaded at different levels of generality, depending upon the nature of the case and the subject matter in question. A pleader is not compelled to plead primary or evidentiary facts. Most pleadings will set forth the material facts at a level which involves some element of conclusion concerning the factual ingredients of the cause of action. But, whatever level of generality is adopted in the statement of claim, it must adhere to the basic principle that the purpose of pleadings is to define the issues and thereby inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it: Charlie Carter at 417. On the other hand, a pleading will infringe the applicable practice rules if it contains nothing more than broad conclusions asserted at such a high level of generality that the opposite party cannot understand the case it has to meet: see, eg, Trade Practices Commission v David Jones (Australia) Pty Ltd, supra, at 113-115.