mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd (2007) 74 IPR 52
Outcome: referred to
According to the respondent, even that slim hope must have dissipated once the respondent's evidence was filed on 15 May 2007. This set out clearly on oath the evidence of the three key individuals associated with the design of the Villa View, namely, Mr Di Natale, Mr de Weerd, and Mr Lazarovski. They each swore that the Villa View was based on changes made to earlier plans designed by the respondent over an extended period. They denied having seen, or having been aware of, any of the applicant's plans, or having inspected any of its homes: cf Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd (2007) 74 IPR 52. 14 The respondent submitted that by that point it should have been obvious to the applicant and its advisers that its case could only succeed on the basis of subconscious copying and that this depended upon establishing sufficient points of similarity between the parties' plans to enable that inference to be drawn. However, such a case would be difficult to mount in the face of a credible and convincing explanation, supported by a clear documentary trail, of how the Villa View had independently evolved from the respondent's own earlier plans. 15 Finally, the respondent relied upon what it described as a Calderbank letter dated 17 August 2007. The purpose of such a letter is, of course, to encourage the recipient to consider carefully the consequences of proceeding further with the litigation. The party seeking a special costs order must show that the rejection of the offer that the letter contained was so unreasonable that the usual order should not be made.
Case: Dresna Pty Ltd v Linknarf Management Services Pty Ltd (in liq) (No 2) [2006] FCA 755
Outcome: cited
The applicant referred to Dresna Pty Ltd v Linknarf Management Services Pty Ltd (in liq) (No 2) [2006] FCA 755 , where I said at [18] that the Court should not readily be persuaded that a case had no chance of success. The case in question had failed and, with hindsight, it might well have been anticipated that this was precisely what would occur. Nonetheless, there were some imponderables.
Case: Black v Lipovac (by his next friend Lipovac) [1998] FCA 699 ; (1998) 217 ALR 386
Outcome: cited
With regard to the Calderbank letter, the applicant submitted that the making of such an offer, and its rejection, did not of itself justify a special order for costs. To justify such an order, the respondent bore the onus of establishing that the rejection of the offer was "imprudent" or "plainly unreasonable": Black v Lipovac (by his next friend Lipovac) [1998] FCA 699 ; (1998) 217 ALR 386. It was also necessary to consider whether, in all the circumstances, the offer by the respondent represented any real element of compromise or whether it was an "offer to capitulate" made essentially to trigger a possible claim at a later time for indemnity costs.
Case: Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121
Outcome: cited
The applicant referred to Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224 ; (2002) 190 ALR 121 , where I observed that rejection of a reasonable offer was not the same as an unreasonable refusal to compromise. It was the latter that the respondent was required to establish. 24 The applicant also submitted that the offer made to it by the respondent, namely to withdraw and pay the respondent $35,000, might be viewed as not constituting a genuine Calderbank offer. That is particularly so in the light of doubts expressed in some of the authorities as to whether a "walk-away" offer can properly be characterised as an offer of compromise. The applicant noted that, despite an assertion in the supposed Calderbank letter that the sum of $35,000 was significantly less than outgoings already incurred, there was no evidence to support that statement. It submitted that it had not acted unreasonably in refusing to accept what it justifiably regarded as an ungenerous offer. 25 The present application is finely balanced. The respondent has acted reasonably and responsibly in pointing out to the applicant, from the outset, the weaknesses in the applicant's case. It has openly flagged its defence and repeatedly warned the applicant that it would seek indemnity costs if that defence ultimately succeeded. It also made an attempt to resolve this case without the need for a trial by its offer of 17 August 2007. 26 On the other hand, it would have been irresponsible of those advising the applicant to counsel surrender merely on the basis of assertions contained in correspondence from the respondent's solicitors. The matter becomes more problematic once discovery has been completed and evidence has been filed. 27 After giving this matter anxious consideration, I am not persuaded that the case brought by the applicant was so weak that it was unreasonable to pursue it. Although the documentary trail leading back from the Villa View through to the Villa Grand and ultimately the Mawsons Lake home proved to be powerful evidence in support of the respondent's denial that copying had taken place, that trail was littered with obstacles that had to be carefully navigated. The trail was not self-evident. It had to be explained and evaluated. Mr Wines only departed from his original opinion after being cross-examined at considerable length and being taken through the earlier plans in great detail.
Case: Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137
Outcome: referred to
there is some level of uncertainty as to the burden of the "no reasonable prospect" formulae in s 31A: see e.g. Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; this is not a case in which it is necessary to explore that formula at any length. The claims made against the first and third respondents are doomed to failure as they disclose no reasonable causes of action in any event. The Amended Statement of Claim is itself embarrassing and must be struck out under O 11 r 16. As the applicant has been given every reasonable opportunity to replead and has been given adequate forewarning of what was needed and required, I will not give leave again to further amend the Amended Statement of Claim. Rather I will order the application be dismissed. I will consider the claims made against each respondent in turn.
Case: Racz v Home Office [1994] 2 AC 45
Outcome: referred to
are two bases on which relief was sought against the Minister. The first was that he was vicariously liable for the misfeasance tort of the second and third respondents. Accepting that an employer could be vicariously liable for such a tort: see Racz v Home Office [1994] 2 AC 45; Porter v OAMPS Ltd (2005) 215 ALR 327 at [108]; the applicant abandoned this claim when confronted with the constitutional reality in this country that public servants, such as the second and third respondents who are employed under the Public Service Act 1999 (Cth), are employees of the Commonwealth, not of the relevant portfolio Minister.
Case: Porter v OAMPS Ltd (2005) 215 ALR 327
Outcome: cited
are two bases on which relief was sought against the Minister. The first was that he was vicariously liable for the misfeasance tort of the second and third respondents. Accepting that an employer could be vicariously liable for such a tort: see Racz v Home Office [1994] 2 AC 45; Porter v OAMPS Ltd (2005) 215 ALR 327 at [108]; the applicant abandoned this claim when confronted with the constitutional reality in this country that public servants, such as the second and third respondents who are employed under the Public Service Act 1999 (Cth), are employees of the Commonwealth, not of the relevant portfolio Minister.
Case: Sanders v Snell (No 2) [2003] FCAFC 150 ; (2003) 130 FCR 149
Outcome: applied
is now well accepted, the misfeasance tort can take either of two forms. In one form (that of "targeted malice") it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons. In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury, or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury: see generally Sanders v Snell (No 2) [2003] FCAFC 150 ; (2003) 130 FCR 149 at [95] - [100] . The essence of the tort in either of its forms is the "dishonest abuse of power": L (a child) v Reading Borough Council [2001] EWCA Civ 346 ; [2001] 1 WLR 1575 at 1588.
Case: L (a child) v Reading Borough Council [2001] EWCA Civ 346 ; [2001] 1 WLR 1575
Outcome: referred to
is now well accepted, the misfeasance tort can take either of two forms. In one form (that of "targeted malice") it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons. In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury, or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury: see generally Sanders v Snell (No 2) [2003] FCAFC 150 ; (2003) 130 FCR 149 at [95] - [100] . The essence of the tort in either of its forms is the "dishonest abuse of power": L (a child) v Reading Borough Council [2001] EWCA Civ 346 ; [2001] 1 WLR 1575 at 1588.
Case: Re Crossland and Secretary Department of Family and Community Services [2004] AATA 864
Outcome: cited
I am willing for present purposes to assume (I do not so find) that the language of the definition of 'work' in s 94(5) admits of some qualification of the usual broad meaning of the word 'work' (but see Re Crossland and Secretary Department of Family and Community Services [2004] AATA 864). However, I do not accept that the Act discloses an intention that a person with tertiary qualifications is to be regarded as a person with a continuing inability to work, and thus as a person entitled to taxpayer funded DSP, just because the person's impairment prevents him or her from undertaking professional or other high status employment. A person able to do work of a character undertaken by a very large number of Australian taxpayers (ie customer service, call-centre or light retail work) is not, in my view, a person with a continuing inability to work within the meaning of the Act. 28 I see no reason to conclude that the Tribunal erred in its understanding of the words 'any work' in s 94(2)(a) of the Act. 29 As mentioned above, the Tribunal identified the question of whether Mr Croker's bilateral hand discomfort and his somatoform disorder are separate conditions or otherwise merit separate impairment assessment as an essential question for its determination. It gave careful consideration to this question by reference to the expert evidence before it. It noted that there was no evidence that any past examination had revealed a basis for RSI as a medical condition suffered by Mr Croker. The Tribunal concluded that Mr Croker's 'RSI' was not a separate condition from his somatoform disorder. It concluded that the only diagnosis that could be assigned a rating under the Impairment Tables was Mr Croker's somatoform disorder. In this respect the Tribunal referred to [4] of the introduction to the Impairment Table which states: 'A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.'
Case: Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517
Outcome: cited
Mr Croker's reference to work that is 'benign' appears to derive from an observation made by the Full Tribunal in Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 when considering the application, in the circumstances of that case, of s 94(2) of the Act before it was amended to its present form. At [43] the Full Tribunal said: 'When considering the issue of work in this context, the tribunal is of the view that it is the "normal" workplace against which a person's abilities are to be judged, not the workplace of the "benign employer".' 26 It appears that Mr Croker's real complaint is that the Tribunal gave consideration to types of employment that were not sufficiently intellectually challenging for him, or alternatively of an insufficient status, when it accepted evidence that he was capable of undertaking customer service, call-centre or light retail work where excessive or repetitive use of his hands would not be required. Mr Croker submitted: 'I don't think there is any real benefit in doing repetitive customer services even for 30 hours a week to a state where, well, at the moment I would say I wouldn't be using any of my intellect at all in a position like that, your Honour. ... Well, in the retail meat industry, you know, I suppose when I was working and the amount of time that has elapsed today it would not put me in a better position. I would say I would virtually be stepping back into really a position where I was doing things which I knew caused me injuries and obviously there could be potential harm or psychological harm again and even if there is a psychological injury as well the potential there would be raised even further.'
Case: Australia and New Zealand Banking Group Ltd v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1
Outcome: referred to
Whether or not one agrees with their Honours' anterior findings at [59], and I do not, that (1) there was nothing to support any conclusion that the Commissioner engaged in 'double counting' with any knowledge or belief that there was a failure in compliance with the provisions of the Act; and (2) the reasoning in Australia and New Zealand Banking Group Ltd v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 was fairly open to the construction that it supported the course taken in making the second amended assessment, the High Court's decision in Futuris reinforces the conclusion in [8] above.
Case: R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598
Outcome: referred to
No allegation is made in the pleadings that in making the assessments the Commissioner did not exercise the power of assessment in good faith or did not otherwise satisfy the Hickman test from R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 at 615, merely that: (1) The Commissioner failed to turn his mind to certain factual matters; and (2) the Commissioner had regard to information which he should not have considered. These are matters relevant to proceedings under Part IVC of the Taxation Administration Act 1953 (Cth) and it is uncontroversial that there are proceedings pending in the Administrative Appeals Tribunal seeking review of the Commissioner's objection decisions. However, neither of these matters is sufficient to challenge the validity of the assessments.
Case: CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1997) 187 CLR 384
Outcome: cited
The modern approach to statutory construction is to construe the relevant provision in its context so that it is consistent with the language and purpose of all the provisions of the statute; see CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). Recourse to extrinsic material, including the legislative history and explanatory material such as a Second Reading Speech is permitted; see Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ) and at 112 (McHugh J); Isherwood v Butler Pollnow Pty Limited (1986) 6 NSWLR 363 at 387-388 (McHugh JA).
Case: Isherwood v Butler Pollnow Pty Limited (1986) 6 NSWLR 363
Outcome: cited
The modern approach to statutory construction is to construe the relevant provision in its context so that it is consistent with the language and purpose of all the provisions of the statute; see CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). Recourse to extrinsic material, including the legislative history and explanatory material such as a Second Reading Speech is permitted; see Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ) and at 112 (McHugh J); Isherwood v Butler Pollnow Pty Limited (1986) 6 NSWLR 363 at 387-388 (McHugh JA).
Case: Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85
Outcome: cited
The modern approach to statutory construction is to construe the relevant provision in its context so that it is consistent with the language and purpose of all the provisions of the statute; see CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). Recourse to extrinsic material, including the legislative history and explanatory material such as a Second Reading Speech is permitted; see Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ) and at 112 (McHugh J); Isherwood v Butler Pollnow Pty Limited (1986) 6 NSWLR 363 at 387-388 (McHugh JA).
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
The modern approach to statutory construction is to construe the relevant provision in its context so that it is consistent with the language and purpose of all the provisions of the statute; see CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2 ; (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). Recourse to extrinsic material, including the legislative history and explanatory material such as a Second Reading Speech is permitted; see Newcastle City Council v GIO General Limited [1997] HCA 53 ; (1997) 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ) and at 112 (McHugh J); Isherwood v Butler Pollnow Pty Limited (1986) 6 NSWLR 363 at 387-388 (McHugh JA).
Case: R v Young [1999] NSWCCA 166 ; (1999) 46 NSWLR 681
Outcome: cited
Although this paragraph of the Supplementary Explanatory Memorandum refers to only two of the three types of decision referred to in s 300(4), these words can only be used as a guide to the meaning of the Act. They do not replace the statutory language; see Re Bolton; Ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514 at 518 (Mason CJ, Wilson and Dawson JJ); see also R v Young [1999] NSWCCA 166 ; (1999) 46 NSWLR 681 at [35] (Spigelman CJ).
Case: Re Bolton; Ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514
Outcome: cited
Although this paragraph of the Supplementary Explanatory Memorandum refers to only two of the three types of decision referred to in s 300(4), these words can only be used as a guide to the meaning of the Act. They do not replace the statutory language; see Re Bolton; Ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514 at 518 (Mason CJ, Wilson and Dawson JJ); see also R v Young [1999] NSWCCA 166 ; (1999) 46 NSWLR 681 at [35] (Spigelman CJ).
Case: Tanari v Migration Agents Registration Authority [2005] AATA 419
Outcome: distinguished
However, s306AA is not concerned with a stay of a decision refusing an application for registration which was deemed continuing by force of s 300(1) and (4). Rather, s 306AA deals with orders staying a decision under s 303 to cancel or suspend the registration of an agent who has already been registered for the current year; that is, prior to the cancellation or suspension. This was illustrated in Tanari v Migration Agents Registration Authority [2005] AATA 419 (" Tanari "). 58 Section 300 lays down a different regime for deemed registration. Quite plainly, a migration agent whose application for registration in the current year is granted, is no longer deemed registered; s/he is actually registered. But the registration is treated as having taken effect at the end of the expiry date; ie from the commencement of the current year; see s 300(6). 59 Section 300(4)(b) and (c) therefore deal with the situation where the MARA decides, during the period of deemed continuation of registration (but before the grant of any application for registration), to suspend or cancel the agent's registration. The relevant regime is explained by reference to s 300(2) and (3) when read with s 300(4).
Case: McKenzie v State Government of South Australia [2005] FCA 22
Outcome: cited
The native title claim group represented by the applicants has already had an application under the Native Title Act 1953 (Cth) struck out: see McKenzie v State Government of South Australia [2005] FCA 22. Before that matter was struck out (for reasons relating both to the identification of the claim group and to the alleged authority of the claimants), the applicants had amended their application on a number of occasions. Following the strike out decision, a fresh application was filed on 16 February 2006 resulting in the present proceedings. 3 Shortly thereafter the Aboriginal Legal Rights Movement ("the ALRM") notified the applicants of perceived deficiencies in its Form 1. Once again these related both to authorisation and to the composition of the claim group. Initially, the applicants sought simply to amend their application, the amendment seemingly being to change the composition of the claim group somewhat. It was then made plain to the applicants that leave was required. 4 The ALRM opposed the grant of leave on the ground that there was a reasonable basis for concluding that the Form 1 would still be defective for reasons similar to those given in the earlier McKenzie litigation. On 12 May 2006, the application for leave to amend was adjourned to allow the applicants to address the ALRM's concerns. Instead of proceeding further with that application, the respondents purported to discontinue this proceeding. They have now conceded correctly that that is not within their power to do so as of right and that the leave of the Court is required. 5 The basis of the discontinuance is set out in an affidavit of the solicitor for the applicants, Mr McDonald: "3. After the hearing before His Honour Justice Finn on 12 May 2006, which considered the ALRM's objections to the Form 1 in this matter, I took further instructions from the Applicants in Pt Augusta on the following weekend. 4. The purpose of those further instructions was to prepare supplementary affidavits of the Applicants to respond to the ALRM's objections. 5. While taking those instructions I became aware for the first time that Willy Austin should have been named as an apical ancestor as part of the claim group description. Willy Austin had been raised as a possible apical ancestor by Dr Daniel Vachon, the anthropologist for the Kuyani-Wilyaru people and his name was raised at the authorization meeting on 16 July 2005. It was decided at this meeting not to include Willy Austin as an apical ancestor but no detailed discussion as to his exclusion took place. 6. As mentioned above I only became aware on the weekend of 13 May 2006 that descendants of Willy Austin do identify themselves as Kuyani.