mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Menzies v Australian Iron and Steel Limited (1952) 52 NSWSR 62
Outcome: referred to
In James v ANZ Banking Group Ltd (No 2) (1985) 9 FCR 448, Toohey J considered a similar situation and (at 9 FCR at 453) his Honour referred to decisions of the English Divisional Court in Hummerstone v Leary [1921] 2 KB 664, and of the Full Court of the Supreme Court of New South Wales in Menzies v Australian Iron and Steel Limited (1952) 52 NSWSR 62. In the latter case, at the close of the plaintiff's case, counsel for the employer applied for a verdict by direction. The trial judge said that the application was premature but that it might be renewed later and that counsel could call and not call evidence as he thought fit. Toohey J said that a practice had been approved by the Full Court, which also gave its endorsement to Hummerstone v Leary and to the passage in Glanville Williams on Joint Torts and Contributory Negligence , at 59, in the following terms: 'In actions against concurrent tortfeasors there is a further rule that if a plaintiff shows that prima facie one if not both of the defendants was negligent, the judge should not at the close of the plaintiff's evidence non suit him against one defendant only, but should hear the whole case before coming to a decision.'
Case: Rasomen v Shell Company of Australia Ltd (1997) 75 FCR 216
Outcome: followed
In Rasomen v Shell Company of Australia Ltd (1997) 75 FCR 216 at 226C-E the Full Court of this Court said: 'The cases referred to concern civil trials before a judge and jury, and the statements of principles in the judgment must be understood in that context where the trial judge is the arbiter of the law and not of the facts. In civil trials conducted before a judge alone the judge is arbiter both of the law and the facts, and the principles require modification to reflect that different considerations apply. In Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 330-331 Windeyer J said: When there is no jury, the proposition " no case" to answer may obviously mean far more than " is there evidence on which a jury could find for the plaintiff? It may mean would you, the judge, on the evidence given find for the plaintiff?" '
Case: Winterton Constructions Pty Ltd v Hambros Australia Limited (1992) 39 FCR 97
Outcome: followed
It was put that silence itself could not be misleading and that, as Hill J had said in Winterton Constructions Pty Ltd v Hambros Australia Limited (1992) 39 FCR 97 at 114: '... it is difficult to see how mere silence could, of itself, constitute conduct which was misleading or deceptive or likely to mislead or deceive.' 8 His Honour, however, went on there to say: 'However, if the circumstances are such that a person is entitled to believe that a relevant matter affecting him or her adversely would, if it existed, be communicated, then the failure to so communicate it may constitute conduct which is misleading or deceptive because the person who ultimately may act to his or her detriment is entitled to infer from the silence that no danger of the detriment existed. Thus, where a duty to speak is imposed, silence may constitute misleading and deceptive conduct. Whether such a duty exists would clearly depend upon all the circumstances of the case.' I agree. 9 Ms Williams said that a lack of the knowledge of the existence of the corporate party with whom Mr Spratt, in this circumstance, was connected, was irrelevant and that indeed, there can be situations where one is dealing, as commonly happens, with a business name that is quite dissimilar to the actual name of the corporate actor. A member of the public dealing with the business name would not have any idea whether or not it was an incorporated company, a partnership or an individual with whom he or she was trading yet it may well be that there is a responsibility able to be made out at the end of the day against the entity which ran whatever business it carried on under or through the business name. 10 Moreover, there is a further difficulty here that Ms Williams submitted and Mr Wood did not suggest to the contrary. At this stage there is no evidence that Mr Bayliss knew anything that he said was incorrect, whereas there is some evidence that representatives of the corporate entities with whom the fifth respondent was associated, namely, Furniture Australia and the fifth respondent itself through Mr Spratt, had knowledge of a different factual position of Furniture Australia from that the subject of the alleged representations.
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: cited
It is submitted that having disclosed particular legal advices, the inconsistency principle referred to in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 has the consequence that GSF must disclose all of its communications with its solicitors, Turks, relating to the same subject matter and the same issue, namely the recovery of a debt from Foodlife by giving a statutory demand. Further, the plaintiff submitted that having deployed some of the advice in support of its defence of good faith, it would be unfair for GSF to withhold the balance of the communications, dealing with the same subject matter, from scrutiny.
Case: British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197 ; (2002) 7 VR 524
Outcome: cited
GSF submitted that the advices which have been disclosed ought to be regarded as separate and distinct from the instructions that were given, and the communications that took place, in connection with or leading up to the giving of that advice. It was submitted that these other associated documents need not be considered in order to understand of the advice that has been disclosed. Further, it was submitted that documents recording instructions and the like are not to be regarded as documents that were necessary inputs into the advice that has been disclosed. Reliance was placed by GSF on the decision of the Court of Appeal in Victoria in British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197 ; (2002) 7 VR 524. 15 These submissions do not take into account the parallel principle that a party in litigation may expose its legal advice to discovery and production by making it relevant to an issue in the proceeding. In this case, by raising the defence based on s 588FG , GSF has put in issue whether it acted in good faith and without suspecting insolvency when it pursued the recommended course of serving a statutory demand. Having pleaded that matter into relevance, it has effectively exposed its legal advice on that very matter to scrutiny. The position is compounded by the disclosure of some of the advice without disclosing all of the communications that took place between GSF and its solicitors.
Case: Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Outcome: cited
The principle of issue waiver, which has application where a party pleads legal advice into issue and thereby imputedly waives privilege, is a long standing one: see Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 per Jordan CJ. The principle of issue waiver was recently considered and applied by the Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 (' Rio Tinto' ). In that case, the Commissioner of Taxation was held to have imputedly waived privilege by filing particulars that referred to advice provided by the Australian Government Solicitor and Counsel: at 363 [74].
Case: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341
Outcome: applied
The principle of issue waiver, which has application where a party pleads legal advice into issue and thereby imputedly waives privilege, is a long standing one: see Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347 per Jordan CJ. The principle of issue waiver was recently considered and applied by the Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 (' Rio Tinto' ). In that case, the Commissioner of Taxation was held to have imputedly waived privilege by filing particulars that referred to advice provided by the Australian Government Solicitor and Counsel: at 363 [74]. 17 In my opinion, whether one approaches the issues by applying the principles of associated material waiver as described in Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 482, 484, 488 and 498-499, or by applying the principles of issue waiver as discussed by the Full Court in the Rio Tinto case, one arrives at the same result. GSF has imputedly waived any legal professional privilege attaching to documents numbered 1 to 44 inclusive in its particulars of documents produced by Turks over which legal professional privilege is claimed. Accordingly, those documents must be produced pursuant to the two subpoenas.
Case: Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475
Outcome: approved
In my opinion, whether one approaches the issues by applying the principles of associated material waiver as described in Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 482, 484, 488 and 498-499, or by applying the principles of issue waiver as discussed by the Full Court in the Rio Tinto case, one arrives at the same result. GSF has imputedly waived any legal professional privilege attaching to documents numbered 1 to 44 inclusive in its particulars of documents produced by Turks over which legal professional privilege is claimed. Accordingly, those documents must be produced pursuant to the two subpoenas.
Case: Dowling v Dalgety Australia Ltd (1992) 34 FCR 109
Outcome: referred to
definition is not an exact physical exercise to identify a physical feature of the world; nor is it the enquiry after the nature of some form of essential existence. Rather, it is the recognition and use of an economic tool or instrumental concept related to market power, constraints on power and the competitive process which is best adapted to analyse the asserted anti-competitive conduct. See generally, Breyer S, "Five Questions about Australian Anti-Trust Law" (1977) 51 ALJ 28 at 33-4; Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158 per French J at 175 (with whom Spender and O'Loughlin JJ agreed see 159 and 185 respectively); Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 at 218-9 (" Queensland Wire (FC)"); Brunt M, Economic Essays on Australian and New Zealand Competition Law, Ch 5 "Market Definition Issues in Australian and New Zealand Trade Practices Litigation (1991)" especially at 203-214, 218-219 and 230-37; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 328-29; Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 132 ; Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [57] and [58]; Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [114] (" Rural Press (FC)"); and Australian Competition and Consumer Commission v Australian Safeway Stores Ltd [2003] FCAFC 149 ; (2003) 129 FCR 339 at [193] and [194].
Case: Eastern Express Ltd v General Newspapers (1992) 35 FCR 43
Outcome: referred to
referred to a strategic plan for Woolworths for liquor for the years 2003 to 2007. (See Exhibit WW, tab 157.) This document looked at the Australian retail packaged liquor market and set out national sales broken down by state. No doubt for some purposes of strategy and overall assessment, Woolworths looked at the liquor industry from a national perspective. It was a national organisation. Nevertheless, within that national and state analysis the document incorporated, for the purposes of discussion, important considerations about customer profile that conformed with the material referred to by the Commission: 2.3.1 Customer Profile General Convenience (strongest attribute by far!) Price Knowledgeable and Friendly Staff Large Product Range Easy Parking Opening Hours High Value Customers High value customers represent 40% of liquor purchases but over 90% of liquor revenue and profit Convenience is the most important factor in format choice They plan what they will buy in advance &amp; stick to familiar products They purchase over 70% of their liquor in one store One methodological aspect of the Leading Edge survey was said to detract from the utility of the results. In the analysis of the research which led to the conclusion that "convenience is about twice as important as any other customer need", there were differential weightings given for the reasons, depending on the importance of the reason and whether it was the main or other store used. It was said to be important for the SSNIP test that customers shop at a number of liquor outlets even without a price increase. I do not see why this should be so. I do not see how this submission substantially eliminates the weight to be given to this material. Woolworths made a legitimate point about Exhibit VV tab 99 at p 47-00492. This was used as the basis for the representation at [459(d)] above. Woolworths pointed out a fact relevant to the consideration of these representations and how they are to be assessed with the expert evidence . This was that the top 10% most sensitive customers were excluded. These are people most likely to travel in the face of a SSNIP. Debate took place on the meaning of the word "substantially". Great care needs to be taken in debate about the content of such words. In s 46 "substantial" means "a considerable or large degree of such power", when qualifying market power: Eastern Express Ltd v General Newspapers (1992) 35 FCR 43 at 63; and Universal Music at [131]-[132]. In relation to the word "substantial" in s 4F(a)(ii) and (b)(ii) Heerey J said the following in Monroe Topple at [97]: Did the proscribed purpose, if it existed, loom large among the objects the corporation sought to achieve?"
Case: Monroe Topple &amp; Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197 ; (2002) 122 FCR 110
Outcome: applied
do not see how the evidence is sufficient for me to conclude that it was likely (in the sense of there being a real chance or possibility: Tillmans Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 42 FLR 331 at 346-48; News Ltd v Australian Rugby Football league Ltd (1996) 64 FCR 410 at 564-65; Monroe Topple &amp; Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197 ; (2002) 122 FCR 110 at [111] ; and Universal Music at [247]) that Ettamogah would be successful in the licence application to sell takeaway liquor other than themed liquor. Debate took place on the meaning of the word "substantially". Great care needs to be taken in debate about the content of such words. In s 46 "substantial" means "a considerable or large degree of such power", when qualifying market power: Eastern Express Ltd v General Newspapers (1992) 35 FCR 43 at 63; and Universal Music at [131]-[132]. In relation to the word "substantial" in s 4F(a)(ii) and (b)(ii) Heerey J said the following in Monroe Topple at [97]: Did the proscribed purpose, if it existed, loom large among the objects the corporation sought to achieve?"
Case: News Ltd v Australian Rugby Football league Ltd (1996) 64 FCR 410
Outcome: referred to
do not see how the evidence is sufficient for me to conclude that it was likely (in the sense of there being a real chance or possibility: Tillmans Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 42 FLR 331 at 346-48; News Ltd v Australian Rugby Football league Ltd (1996) 64 FCR 410 at 564-65; Monroe Topple &amp; Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197 ; (2002) 122 FCR 110 at [111] ; and Universal Music at [247]) that Ettamogah would be successful in the licence application to sell takeaway liquor other than themed liquor.
Case: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211
Outcome: discussed
definition is not an exact physical exercise to identify a physical feature of the world; nor is it the enquiry after the nature of some form of essential existence. Rather, it is the recognition and use of an economic tool or instrumental concept related to market power, constraints on power and the competitive process which is best adapted to analyse the asserted anti-competitive conduct. See generally, Breyer S, "Five Questions about Australian Anti-Trust Law" (1977) 51 ALJ 28 at 33-4; Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158 per French J at 175 (with whom Spender and O'Loughlin JJ agreed see 159 and 185 respectively); Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 at 218-9 (" Queensland Wire (FC)"); Brunt M, Economic Essays on Australian and New Zealand Competition Law, Ch 5 "Market Definition Issues in Australian and New Zealand Trade Practices Litigation (1991)" especially at 203-214, 218-219 and 230-37; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 328-29; Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 132 ; Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [57] and [58]; Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [114] (" Rural Press (FC)"); and Australian Competition and Consumer Commission v Australian Safeway Stores Ltd [2003] FCAFC 149 ; (2003) 129 FCR 339 at [193] and [194].
Case: Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR 41-752
Outcome: discussed
content of the word "substantially" in s 45(2)(a)(ii) and (b)(ii) has been discussed in a number of cases, to some of which I referred at [86]-[89] above. It is clear that "substantially" is used in the sense of meaningful or relevant to the competitive process, and that it is necessary that the purpose be to achieve an effect of that kind. The discussion in Rural Press (HC) at [41] footnote 67 may indicate that there is a layer of meaning of "considerable" to be added to the notion of being meaningful or relevant to the competitive process. However, it is difficult to understand what purpose of the Act would be advanced by a conclusion that the purpose or effect of a provision was to lessen, prevent or hinder the competitive process, in a way which was meaningful and relevant to the competitive process, but was not sufficiently "considerable" to warrant relief. Once one recognises that the purpose must be to do something meaningful or relevant to the competitive process, adjectives, adverbs or like phrases connoting quantity, such as "considerable", "more than nominal", "more than insignificant", can be seen to be subsumed in the evaluative and functional analysis in deciding whether a purpose or conduct was of a character deserving of the intervention of the Court, in the light of the purposes of the Act, as being meaningful or relevant to the competitive process. I am not able, with respect, to express the matter more clearly than French J did in Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR 41-752 at [114]: The concept of "substantially lessening" competition is evaluative. There is only limited assistance to be derived from replacing the words with other phrases. The term is not defined in the Act and has not received extensive judicial exposition Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) ATPR 41-128 at 52,905 (Wilcox J); Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557 at 564 (Lockhart J); Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 348, the latter on the meaning of "substantial" in the collocation "substantial loss or damage" under the old s 45D. In my opinion the phrase sets a standard for judicial intervention in respect of the classes of anti competitive conduct to which it applies. It requires, before that intervention can be invoked, that there be a purpose, effect or likely effect of the impugned conduct on competition which is substantial in the sense of meaningful or relevant to the competitive process. There is, of course, a certain circularity in these attempts at exposition. It could be said that a substantial lessening of competition describes a purpose or outcome of conduct which is deserving of the intervention of the Court in the protection of the competitive process according to law. So to say, is to identify the functional character of the statutory standard.
Case: BBX Holdings Ltd v American Home Assurance Co [2007] NSWSC 549
Outcome: followed
notion of not warranting further investigation has assumed importance in a particular class of case. Where the dispute relates to a simple question of construction that can be decided following a short hearing and there is no factual issue to be resolved, the Court will decide the question and, if the construction is against the company, the dispute will not be classified as "genuine": see Delnorth Pty Ltd v State Bank of New South Wales (1995) 17 ACSR 379 at 384-5 ( Delnorth ); Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 705 at [16] - [17] ; BBX Holdings Ltd v American Home Assurance Co [2007] NSWSC 549 at [15] - [17] . In the same vein, in the earlier case of Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 , McLelland CJ in Eq said that the expression "genuine dispute" connotes "a plausible contention requiring investigation " (at 787 my emphasis).