mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mid-City Skin Cancer &amp; Laser Centre v Zahedi-Anarak [2006] NSWSC 1149
Outcome: cited
relief sought by AMC in its Further Amended Statement Claim sought declarations and orders in relation to the terms and effect of particular contractual provisions, rectification and damages for breach of contract, damages and injunctive relief at law and/or under the TP Act for, variously, misleading or deceptive conduct, passing off, copyright infringement and conversion as well as other ancillary relief. In light of my conclusions, it cannot be doubted that the judgment on AMC's claim will be less favourable to it than either of the offers made. In relation to the contractual claims for damages for breach of contract arising out of the parallel importation claim and for wrongful repudiation, AMC was claiming substantial damages. In relation to the parallel importation claim, only nominal damages were awarded. Given the apparent object of the claim made was to secure substantial damages and was not to establish a legal right irrespective of the monetary relief awarded, I do not consider that AMC could properly be regarded as having been successful on this issue for costs purposes. As was said in the Full Court in Nexus Minerals NL v Brutus Constructions Pty Ltd [1997] FCA 926 at 11-12: An award of nominal damages ought not today be regarded as a "peg on which to hang costs": cf Beaumont v Greathead [1846] EngR 257 ; (1846) 2 CB 494 at 499; see McGregor on Damages , para404-para405, Sweet &amp; Maxwell, London, (1988, 15 th ed); see also Burrows, Remedies for Tort and Breach of Contract , 269-270, Butterworths, London (2 nd ed 1994). See also Mid-City Skin Cancer &amp; Laser Centre v Zahedi-Anarak [2006] NSWSC 1149 at [48] - [52] ; Dal Pont, at [8.35].
Case: Barton v Croner Trading Pty Ltd [1984] FCA 195 ; (1984) 3 FCR 95
Outcome: applied
Reliance was placed upon the information communicated by Mr Wieland to Mr Mellor and thereafter communicated to the Applicants. Mr Mellor, it may be accepted, was for these purposes but a " convenient medium " through whom the Respondents were communicating their representations: cf Barton v Croner Trading Pty Ltd [1984] FCA 195 ; (1984) 3 FCR 95 at 107 per Bowen CJ, Beaumont and Wilcox JJ; Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 at [46] per Keane JA (Williams JA and Atkinson J agreeing).
Case: BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266
Outcome: followed
For a term to be implied into a contract, it is not sufficient that the implication of such a term would be reasonable in all of the circumstances. The requirements to be satisfied have conveniently been summarised for present purposes by the Privy Council in BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266. The Privy Council there concluded at 283: ... for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract. A term that the SLP 1100 would be " fit for purpose ", it is considered, satisfies these requirements. See also: Codelfa Construction Pty Limited v State Rail Authority of NSW [1982] HCA 24 ; (1981) 149 CLR 337 at 347 per Mason J.
Case: Cairnsmore Holdings Pty Ltd v Bearsden Holdings Pty Ltd [2007] FCA 1822
Outcome: cited
There has been some debate as to whether " knowledge of the essential elements of the contravention " requires knowledge that the conduct is misleading or deceptive: see Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 at [80] [88], 135 FCR 1 at 29 31 per Stone J; Cairnsmore Holdings Pty Ltd v Bearsden Holdings Pty Ltd [2007] FCA 1822 at [133] per Jacobson J.
Case: Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95 , 66 ACSR 359
Outcome: considered
It has not been suggested that the Applicants were " careless " in relying upon any of the representations of the Respondents. Even carelessness or negligence on the part of an applicant, it may be noted, will not deny relief -- provided the carelessness has not been such as to destroy the causal connection between the contravening conduct and the loss or damage suffered: Henville v Walker [2001] HCA 52 at [13] , [2001] HCA 52 ; 206 CLR 459 at 468 9. Gleeson CJ there observed: [13] It will commonly be the case that a person who is induced by a misleading or deceptive representation to undertake a course of action will have acted carelessly, or will have been otherwise at fault, in responding to the inducement. The purpose of the legislation is not restricted to the protection of the careful or the astute. Negligence on the part of the victim of a contravention is not a bar to an action under s 82 unless the conduct of the victim is such as to destroy the causal connection between contravention and loss or damage. ... [14] For there to be the necessary causal relationship between a contravention of s 52, and loss or damage, so as to satisfy the requirements of s 82(1), it is not essential that the contravention be the sole cause of the loss or damage. ... The present case is not a case of carelessness or negligence. In the present proceeding, the Applicants acted at all material times prudently. They retained the services of an experienced person (Mr Mellor), made their own inquiries, and carefully considered the options available. The present case is one in which representations were made by Mr Wieland for the very purpose of inducing or encouraging the purchase of his machine. Not only is there an inference available that those statements were instrumental in the execution of the contracts (cf Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 per Wilson J; Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95 at [41] , [2008] NSWCA 95 ; 66 ACSR 359 at 370), the fact is that those statements have been proven to have played a large part in the decision to acquire the SLP 1100.
Case: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364
Outcome: followed
Conduct is " likely to mislead or deceive " if there is a " real or not remote chance or possibility regardless of whether it is less or more than fifty per cent ": Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87 per Bowen CJ, Lockhart and Fitzgerald JJ (applying Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 at 346 per Deane J; Sheen v Fields Pty Ltd (1984) 58 ALJR 93) ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [97] . A corporation's state of mind is immaterial in making out a case of misleading or deceptive conduct. In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88 the Full Court relevantly observed: If a corporation is alleged to have contravened s 52(1) by making a statement of past or present fact, the corporation's state of mind is immaterial unless the statement involved the state of the corporation's mind. Whether or not s 52(1) is contravened does not depend upon the corporation's intention or its belief concerning the accuracy of such statement, but upon whether the statement in fact contains or conveys a meaning which is false; that is to say whether the statement contains or conveys a misrepresentation. Most commonly, such a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is literally true may contain or convey a meaning which is false. See also: Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197 at [79] [83], [2007] FCAFC 197 ; 248 ALR 169 at 182 3 per Buchanan J. The liability created by s 52 , it must also be recalled, was not " designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests ": Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193 at 241 per Gummow J. See also: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1981) 149 CLR 191 at 199 per Gibbs CJ ; Rawley Pty Ltd v Bell (No 2) [2007] FCA 583 at [212] , 61 ACSR 648 at 701 per Finn J; Webster v Havyn Pty Ltd [2004] NSWSC 227 at [73] per Palmer J. 94 Section 51A is a section which facilitates proof. But it is not a section which provides for an independent cause of action separate from s 52 or other sections of Part V of the 1974 Act: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [96] per Collier J. 95 There has been a division of views as to the operation of s 51A(2).
Case: Codelfa Construction Pty Limited v State Rail Authority of NSW [1982] HCA 24 ; (1981) 149 CLR 337
Outcome: considered
For a term to be implied into a contract, it is not sufficient that the implication of such a term would be reasonable in all of the circumstances. The requirements to be satisfied have conveniently been summarised for present purposes by the Privy Council in BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266. The Privy Council there concluded at 283: ... for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract. A term that the SLP 1100 would be " fit for purpose ", it is considered, satisfies these requirements. See also: Codelfa Construction Pty Limited v State Rail Authority of NSW [1982] HCA 24 ; (1981) 149 CLR 337 at 347 per Mason J.
Case: Como Investments Pty Ltd v Yenald Nominees Pty Ltd (1997) ATPR 41-550
Outcome: applied
The inquiry required by s 82 is not an inquiry into cause and effect in mathematical or philosophical terms, but is rather an inquiry into that conduct which influences action taken: Como Investments Pty Ltd v Yenald Nominees Pty Ltd (1997) ATPR 41-550. Burchett, Ryan and Nicholson JJ there concluded: The law does not consider cause and effect in mathematical or in philosophical terms. The law looks at what influences the actions of the parties. Acknowledging that people are often swayed by several considerations, influencing them to varying extents, the law attributes causality to a single one of those considerations, provided it had some substantial rather than negligible effect. As Brennan J said in San Sebastian Pty Ltd v Minister administering the Environmental Planning and Assessment Act 1979 [1986] HCA 68 ; (1986) 162 CLR 340 at 366: "The representation must be a real inducement or one of the real inducements to engage in the conduct which occasions the loss" Where a representation is relevant to the decision in question, and in its nature persuasive to induce the making of that decision, it accords with legal notions of causation to hold that it has a causative effect. And where a respondent, who may be taken to know his own business, has thought it was in his interests to misrepresent the situation in a particular respect, the Court may infer that the misrepresentation was persuasive. These inferences arise from the making of the respondent doing the thing it was calculated to induce him to do. All this is a matter of common sense. It has also been stated in the authorities. In Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 at 236 Wilson J said: "If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation." His Honour went on to say that the "inference may be rebutted", but this is to imply that in the absence of rebuttal the conclusion should stand. ...
Case: Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197 , 248 ALR 169
Outcome: cited
Conduct is " likely to mislead or deceive " if there is a " real or not remote chance or possibility regardless of whether it is less or more than fifty per cent ": Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87 per Bowen CJ, Lockhart and Fitzgerald JJ (applying Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 at 346 per Deane J; Sheen v Fields Pty Ltd (1984) 58 ALJR 93) ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [97] . A corporation's state of mind is immaterial in making out a case of misleading or deceptive conduct. In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88 the Full Court relevantly observed: If a corporation is alleged to have contravened s 52(1) by making a statement of past or present fact, the corporation's state of mind is immaterial unless the statement involved the state of the corporation's mind. Whether or not s 52(1) is contravened does not depend upon the corporation's intention or its belief concerning the accuracy of such statement, but upon whether the statement in fact contains or conveys a meaning which is false; that is to say whether the statement contains or conveys a misrepresentation. Most commonly, such a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is literally true may contain or convey a meaning which is false. See also: Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197 at [79] [83], [2007] FCAFC 197 ; 248 ALR 169 at 182 3 per Buchanan J. The liability created by s 52 , it must also be recalled, was not " designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests ": Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193 at 241 per Gummow J. See also: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1981) 149 CLR 191 at 199 per Gibbs CJ ; Rawley Pty Ltd v Bell (No 2) [2007] FCA 583 at [212] , 61 ACSR 648 at 701 per Finn J; Webster v Havyn Pty Ltd [2004] NSWSC 227 at [73] per Palmer J.
Case: Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193
Outcome: applied
Conduct is " likely to mislead or deceive " if there is a " real or not remote chance or possibility regardless of whether it is less or more than fifty per cent ": Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87 per Bowen CJ, Lockhart and Fitzgerald JJ (applying Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 at 346 per Deane J; Sheen v Fields Pty Ltd (1984) 58 ALJR 93) ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364 at [97] . A corporation's state of mind is immaterial in making out a case of misleading or deceptive conduct. In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88 the Full Court relevantly observed: If a corporation is alleged to have contravened s 52(1) by making a statement of past or present fact, the corporation's state of mind is immaterial unless the statement involved the state of the corporation's mind. Whether or not s 52(1) is contravened does not depend upon the corporation's intention or its belief concerning the accuracy of such statement, but upon whether the statement in fact contains or conveys a meaning which is false; that is to say whether the statement contains or conveys a misrepresentation. Most commonly, such a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is literally true may contain or convey a meaning which is false. See also: Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197 at [79] [83], [2007] FCAFC 197 ; 248 ALR 169 at 182 3 per Buchanan J. The liability created by s 52 , it must also be recalled, was not " designed for the benefit of persons who fail, in the circumstances of the case, to take reasonable care of their own interests ": Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193 at 241 per Gummow J. See also: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1981) 149 CLR 191 at 199 per Gibbs CJ ; Rawley Pty Ltd v Bell (No 2) [2007] FCA 583 at [212] , 61 ACSR 648 at 701 per Finn J; Webster v Havyn Pty Ltd [2004] NSWSC 227 at [73] per Palmer J.
Case: Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd [2006] FCA 1268
Outcome: cited
Section 75B provides in relevant part as follows: 75B Interpretation (1) A reference in this Part to a person involved in a contravention of a provision of Part IV, IVA, IVB, V or VC, or of section 75AU, 75AYA or 95AZN, shall be read as a reference to a person who: (a) has aided, abetted, counselled or procured the contravention; ... (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; ... Section 75B does not require that a person knew he was participating in a contravention of the Act; what is required is actual knowledge of the essential elements of the contravention and intentional participation in it: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666 70 per Mason ACJ, Wilson, Deane and Dawson JJ; Rawley Pty Ltd v Bell (No 2) [2007] FCA 583 at [40] per Finn J; Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd [2006] FCA 1268 at [267] [280]. There may be some circumstances where knowledge may be inferred from the surrounding circumstances: cf Pereira v Director of Public Prosecutions [1988] HCA 57 at [11] , [1988] HCA 57 ; 82 ALR 217 at 219 20.
Case: Gibbett v Forwood Products Pty Ltd [2001] FCA 290
Outcome: considered
Reliance upon the skill of Wieland Equipment in supplying rock crushers may not have been the only cause of the agreement being signed, but reliance was in fact placed upon the skill and judgment of Mr Wieland: cf Gibbett v Forwood Products Pty Ltd [2001] FCA 290 at [95] per Mansfield J. 133 After the conclusion of the evidence, and in particular the cross-examination of Mr Wieland, it was difficult to see how a term could not be implied to the effect that the SLP 1100 would be fit for the purpose (generally stated) of crushing rock in Indonesia. Especially is this the case where Mr Wieland regarded it as " so obvious that [it] went without saying " that " the bargain between the parties " was that he was " going to solve the problem by providing ... a brand new SLP 1100 ". It was " fundamental to that bargain " that the " machine ... was going to be able to be used for the quarry operation at Surabaya " and that " it would be able to be used effectively for that purpose ". It was to be " a top quality machine ". Such matters, Mr Wieland accepted, were " plainly obvious, plain as a pikestaff ".
Case: Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458
Outcome: applied
The contravening conduct of the Respondents may have caused loss or damage if that conduct was an inducement to the decision to purchase the SLP 1100: Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 477 8 per Gleeson CJ (Samuels AJA and Meagher JA agreeing). The " causative threshold " remains a matter of judgment: Ricochet Pty Ltd v Equity Trustees Executors and Agency Co Ltd [1993] FCA 99 ; (1993) 41 FCR 229 at 235. Lockhart, Gummow and French JJ there observed (at 235): A finding that a misrepresentation might have induced a decision will not of itself establish as a matter of probability that it did. Consistently with that finding, it may be that, on the balance of probabilities, a party was induced to make a decision by a combination of factors including the misrepresentation. Assuming a non-trivial contribution to the causative process by the misrepresentation, then it may be actionable. Ultimately, the "causative threshold" beyond which liability attaches to a misrepresentation which is one of a number of factors inducing a decision that produces loss, will be a question of judgment. This is a familiar process adverted to in various related contexts by Mason CJ in March v E &amp; M H Stramare Pty Ltd (supra) and in this Court in Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) [1987] FCA 230 ; (1987) 16 FCR 410 at 418 419 and Pavich v Bobra Nominees Pty Ltd [1988] ATPR 49 ,849. (See also Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700 at 712). But the mere possibility that a misrepresentation might have induced a course of action by the representee can never of itself attach liability under s 82 to the making of it.
Case: Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494
Outcome: followed
The quantum of such loss or damage to which the Applicants, or either of them, may be entitled pursuant to s 82 thus remains a matter to be assessed. For present purposes it is sufficient to note that that task will be " to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case ": Henville v Walker [2001] HCA 52 at [18] , [2001] HCA 52 ; 206 CLR 459 at 470 per Gleeson CJ. The measure of the relief available under s 82 is not to be confined by an analogy with damages in contract or tort or equitable remedies: Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494. The task will be to ascertain the loss suffered by the contravening conduct and to assess the amount necessary to compensate for that loss: Henville v Walker [2001] HCA 52 at [66] , [2001] HCA 52 ; 206 CLR 459 at 482 per McHugh J. Although not confined by those analogies, they will usually be of " great assistance ": [2001] HCA 52 at [130] per McHugh J. But such analogies should not distract " attention from the primary task of construing the relevant provisions of the Act ": Murphy v Overton Investments Pty Ltd [2004] HCA 3 at [44] , [2004] HCA 3 ; 216 CLR 388 at 407 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
Case: Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 , 135 FCR 1
Outcome: cited
There has been some debate as to whether " knowledge of the essential elements of the contravention " requires knowledge that the conduct is misleading or deceptive: see Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 at [80] [88], 135 FCR 1 at 29 31 per Stone J; Cairnsmore Holdings Pty Ltd v Bearsden Holdings Pty Ltd [2007] FCA 1822 at [133] per Jacobson J.