mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Wardley Australia Limited v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: cited
present purposes, the crucial one of those five elements is the second, particularly the identification of the person by whom the claim for damages can be brought. That is a question on which there is remarkably little authority, except in the case of one application of the misleading and deceptive conduct provisions of the Trade Practices Act , found in s 52 and the following sections. In relation to the various provisions of Pt IV of the Trade Practices Act , which include s 45DB , I have been unable to find any case in which a person not directly affected by the proscribed conduct, but only affected by reason of conducting dealings with a person directly affected, has made a claim for damages, much less succeeded in one. Further, the principal authorities in which the High Court of Australia has pronounced upon the meaning and effect of s 82 of the Trade Practices Act have been concerned with questions of causation and the measure of damages, the fourth and fifth elements identified by Gummow J. That description applies to Marks itself, as well as to Wardley Australia Limited v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 , Henville v Walker [2001] HCA 52 (2001) 206 CLR 459 , I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 (2002) 210 CLR 109 and HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 (2004) 217 CLR 640. Care must be taken in applying statements made in the judgments in those cases, concerning the fourth or fifth elements identified by Gummow J, to a case concerning the second element, the identification of the person who is entitled to claim.
Case: Henville v Walker [2001] HCA 52 (2001) 206 CLR 459
Outcome: cited
present purposes, the crucial one of those five elements is the second, particularly the identification of the person by whom the claim for damages can be brought. That is a question on which there is remarkably little authority, except in the case of one application of the misleading and deceptive conduct provisions of the Trade Practices Act , found in s 52 and the following sections. In relation to the various provisions of Pt IV of the Trade Practices Act , which include s 45DB , I have been unable to find any case in which a person not directly affected by the proscribed conduct, but only affected by reason of conducting dealings with a person directly affected, has made a claim for damages, much less succeeded in one. Further, the principal authorities in which the High Court of Australia has pronounced upon the meaning and effect of s 82 of the Trade Practices Act have been concerned with questions of causation and the measure of damages, the fourth and fifth elements identified by Gummow J. That description applies to Marks itself, as well as to Wardley Australia Limited v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 , Henville v Walker [2001] HCA 52 (2001) 206 CLR 459 , I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 (2002) 210 CLR 109 and HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 (2004) 217 CLR 640. Care must be taken in applying statements made in the judgments in those cases, concerning the fourth or fifth elements identified by Gummow J, to a case concerning the second element, the identification of the person who is entitled to claim.
Case: I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 (2002) 210 CLR 109
Outcome: cited
present purposes, the crucial one of those five elements is the second, particularly the identification of the person by whom the claim for damages can be brought. That is a question on which there is remarkably little authority, except in the case of one application of the misleading and deceptive conduct provisions of the Trade Practices Act , found in s 52 and the following sections. In relation to the various provisions of Pt IV of the Trade Practices Act , which include s 45DB , I have been unable to find any case in which a person not directly affected by the proscribed conduct, but only affected by reason of conducting dealings with a person directly affected, has made a claim for damages, much less succeeded in one. Further, the principal authorities in which the High Court of Australia has pronounced upon the meaning and effect of s 82 of the Trade Practices Act have been concerned with questions of causation and the measure of damages, the fourth and fifth elements identified by Gummow J. That description applies to Marks itself, as well as to Wardley Australia Limited v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 , Henville v Walker [2001] HCA 52 (2001) 206 CLR 459 , I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 (2002) 210 CLR 109 and HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 (2004) 217 CLR 640. Care must be taken in applying statements made in the judgments in those cases, concerning the fourth or fifth elements identified by Gummow J, to a case concerning the second element, the identification of the person who is entitled to claim.
Case: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 (2004) 217 CLR 640
Outcome: cited
present purposes, the crucial one of those five elements is the second, particularly the identification of the person by whom the claim for damages can be brought. That is a question on which there is remarkably little authority, except in the case of one application of the misleading and deceptive conduct provisions of the Trade Practices Act , found in s 52 and the following sections. In relation to the various provisions of Pt IV of the Trade Practices Act , which include s 45DB , I have been unable to find any case in which a person not directly affected by the proscribed conduct, but only affected by reason of conducting dealings with a person directly affected, has made a claim for damages, much less succeeded in one. Further, the principal authorities in which the High Court of Australia has pronounced upon the meaning and effect of s 82 of the Trade Practices Act have been concerned with questions of causation and the measure of damages, the fourth and fifth elements identified by Gummow J. That description applies to Marks itself, as well as to Wardley Australia Limited v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 , Henville v Walker [2001] HCA 52 (2001) 206 CLR 459 , I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 (2002) 210 CLR 109 and HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 (2004) 217 CLR 640. Care must be taken in applying statements made in the judgments in those cases, concerning the fourth or fifth elements identified by Gummow J, to a case concerning the second element, the identification of the person who is entitled to claim.
Case: Janssen-Gilag Pty Limited v Pfizer Pty Limited [1992] FCA 437 ; (1992) 37 FCR 526
Outcome: considered
of the earliest cases in which a competitor of the person engaging in misleading and deceptive conduct was successful in claiming damages pursuant to s 82 of the Trade Practices Act is Janssen-Gilag Pty Limited v Pfizer Pty Limited [1992] FCA 437 ; (1992) 37 FCR 526. In dealing with s 82 , Lockhart J said at 529-530: Section 82 is the vehicle for the recovery of loss or damage for multifarious forms of contravention of the provisions of Pts IV and V of the Act. It is important that rules laid down by the courts to govern entitlement to damages under s 82 are not unduly rigid, since the ambit of activities that may cause contraventions of the diverse provisions of Pts IV and V is large and the circumstances in which damage therefrom may arise will vary considerably from case to case. What emerges from an analysis of the cases (and there are many of them) is that they do not impose some general requirement that damage can be recovered only where the applicant himself relies upon the conduct of the respondent constituting the contravention of the relevant provision. Also, a perusal of the provisions of Pts IV and V, the contravention of which gives rise to an entitlement to an applicant for compensation for loss or damage, points to the conclusion that applicants may claim compensation when the contravener's conduct caused other persons to act in a way that led to loss or damage to the applicant. Examples are s 46 which concerns the misuse of market power by corporations; s 47 relating to the practice of exclusive dealing; also s 48 which is concerned with resale price maintenance. As to s 47(1) and (6) relating to third line forcing see Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd [1986] HCA 72 ; (1986) 162 CLR 395 (High Court) and (1985) 7 FCR 509 (Full Federal Court). See Hubbards Pty Ltd v Simpson Ltd [1982] FCA 57 ; (1982) 60 FLR 430 and [1982] FCA 210 ; (1983) 69 FLR 392 (on appeal) with respect to s 48. See also Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1987) 18 IR 355 where contraventions of s 45 of the Act were involved and they concerned contracts, arrangements or understandings or restrictive dealings which adversely affected competition.
Case: Australian Wool Innovation Ltd v Newkirk (No. 2) [2005] FCA 1307
Outcome: cited
of the important factors must be the purpose of the legislation. In my reasons for judgment published on 4 October 2007, at [46]-[57], I discussed the question whether the trade and commerce of Rural Export was trade and commerce "involving the movement of goods between Australia and places outside Australia". I reached the conclusion that it was not. In doing so, I followed the views expressed by Hely J in Australian Wool Innovation Ltd v Newkirk (No. 2) [2005] FCA 1307 , and relied on the passages from the parliamentary debates, on which his Honour relied at [60]-[61]. It is unnecessary to set out again the passages from the parliamentary debates. They lead to the conclusion, which Hely J adopted and I followed, that s 45DB of the Trade Practices Act is directed very specifically at the protection of a narrow form of trade or commerce, namely that of which the movement of goods between Australia and places outside Australia is a part. On appeal in the present case, the Full Court did not say anything to suggest that this view is incorrect. If Rural Export, whose trade and commerce does not involve the movement of goods between Australia and places outside Australia, were entitled to recover damages, the result would be to expand dramatically the nature of the trade or commerce protected by s 45DB. This would be beyond the purpose of the legislation, as discerned by Hely J and by me, based on the relevant extrinsic materials. Such an extension would mean that trade or commerce not involving the relevant movement of goods would be protected, simply by reason of the existence of another party in respect of whom a contravention had occurred, and whose trade and commerce did involve the movement of goods between Australia and places outside Australia. Such an extension of protection is not warranted by the terms of s 82(1) of the Trade Practices Act , given the limited protection afforded by s 45DB. For these reasons, Rural Export is not entitled to recover damages in the present proceeding, because its trade or commerce is not itself protected by s 45DB of the Trade Practices Act . It is unnecessary to deal with the question whether the finding that Rural Export's trade or commerce was not hindered or prevented (a finding also not overturned by the Full Court) would also lead to the conclusion that Rural Export is not entitled to damages. Rural Export's claimed loss and damage In case I am wrong in the conclusion I have expressed in [15] above, I turn to the evidence in relation to loss and damage suffered by Rural Export.
Case: Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552
Outcome: followed
Because of the transitional provisions introducing s 31A into the Federal Court of Australia Act 1976 (Cth), the test in that section for summary dismissal of causes of action cannot be applied on the present application. For the purposes of determining fair arguability, rather, I must have regard to the line of authority exemplified in Sir Garfield Barwick CJ's judgment in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125, particularly at 129-130. Gaudron, McHugh, Gummow and Hayne JJ said in Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 at 576 [57] : 'The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were to be allowed to go to trial in the ordinary way.' 34 I am satisfied on the material before me that there is a high degree of certainty this amendment would not be able to succeed as pleaded and ought not to be allowed to go to trial. Other factors which have induced me to come to this conclusion are as follow. The discussions that Mr Sukkar said occurred with the bank officers did not take place in circumstances where it might be expected, ordinarily, that reasonable persons in the position of the parties or Mr Sukkar himself would regard the bank as giving him financial advice, as opposed to simply putting forward the bank's position, even if that position were being put perhaps forcefully or determinedly. 53 It is important to plead material facts in order to identify what is alleged will be the essential matters to be proved to establish a party's legal right to relief or resist the grant of relief to the opponent. Under the judicature system of pleading, such as is maintained in this Court, there is no necessity to assert or identify a legal category of action or suit which the facts asserted may illustrate, involve or demonstrate and on which the particular relief claimed is based or to which it is relevant: Agar v Hyde 201 CLR at 577-578 [64]. The essentiality of pleading the material facts, as opposed to even pleading a statute pursuant to which relief might be claimed, was emphasised recently in Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38 ; (2005) 223 CLR 251 at 264-265 [38] - [40] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ; and see also Air Link Pty Ltd v Paterson (2005) 223 CLR 283 at 298-299 [25]-[32].
Case: Brickfield Properties Ltd v Newton [1971] 1 WLR 862
Outcome: discussed
As ASS pointed out, there are departures in that rule from similar, but differently worded, rules in other courts. But it has relied on a construction of O 13 r 2(1) based on what Sachs LJ said in Brickfield Properties Ltd v Newton [1971] 1 WLR 862 esp at 874-875; [1971] 3 All ER 328 at 337-338. The approach which ASS urged in accordance with the approach of Sachs LJ in Brickfield [1971] 1 WLR 862; [1971] 3 All ER 328 is that r 2(1) creates a plenary power to amend. However, Edmund-Davies and Cross LJJ expressed considerable doubts about Sachs LJ's approach to the English rule, which was cast in somewhat similar terms to O 13 r 2(1). ASS said that the power ought not be read down by reference to the commencing words of the rule, 'Subject to the following provisions of this rule'.
Case: Commonwealth Bank of Australia v Smith (1991) 42 FCR 390
Outcome: followed
In Commonwealth Bank of Australia v Smith (1991) 42 FCR 390 at 391 Davies, Sheppard and Gummow JJ looked at a situation in which a bank was held to have entered into a fiduciary relationship with its customer. Their Honours noted that it was not a novel proposition, where a bank gave a customer advice upon financial affairs, that in addition to any contractual rights the customer may have, the relationship between the parties may be such as to found either a breach of a common law duty of care or a breach of a fiduciary duty. And they said that in many cases the bank as financier would have a manifest personal interest of its own in the matter. 25 They said that the question then became one of ascertaining whether, given the apparent commercial self-interest of the bank, it also could be taken to have assumed a fiduciary responsibility towards the customer in question, and emphasised that the context and factual settings were critical in that regard. Their Honours said that a bank could be expected to act in its own interests in ensuring the security of its position as a lender to its customer ( Smith 42 FCR at 391): '... but it may have created in the customer the expectation that nevertheless it will advise in the customer's interests as to the wisdom of a proposed investment. This may be the case where the customer may fairly take it that to a significant extent his interest is consistent with that of the bank in financing the customer for a prudent business venture. In such a way the bank may become fiduciary and occupy the position of what Brennan J has called "an investment adviser"; Daly v Sydney Stock Exchange Ltd [1986] HCA 25 ; (1986) 160 CLR 371 at 384-385.' 26 Their Honours went on to emphasise that the case before them was not one where one would properly describe the parties as acting in a commercial transaction at arm's length and each with the assistance of fully independent professional advice ( Smith 42 FCR at 392). 27 I am of opinion that the evidence before me on this application has every characteristic of a transaction of the latter description. This involved a business proposition that was being considered by ASS and its principals over a period. They had the assistance of fully independent professional advice from their solicitors, Bruce &amp; Stewart. In his affidavits, Mr Sukkar noted disclosures that the bank and also Akyman had made, to some degree, at the times when Bruce &amp; Stewart were advising first him and Mr Barrow and, later, ASS. There was also some further disclosure to ASS because its consent had to be given to the relationship agreement between the bank and Akyman.
Case: Golby v Commonwealth Bank of Australia (1996) 72 FCR 134
Outcome: cited
On a number of occasions the courts have considered claims in which bankers have been sought to be made into fiduciaries of their customers. Recently, in Commonwealth Bank of Australia v Finding [2001] 1 Qd R 168 the Court of Appeal of the Supreme Court of Queensland considered a case in which a bank was in the position of being a mortgagee exercising power of sale as well as being financier of the purchaser. The Court held that no fiduciary duty to the incoming purchaser arose in the bank on the facts in that case. In coming to that conclusion they referred to a number of authorities in this Court, the High Court and elsewhere. They pointed out that in other cases where a relationship of a fiduciary nature between banker and customer arose, the bank had assumed the role of financial adviser, or perhaps had brought parties together, and the customer had placed complete faith and confidence in the adviser, as one would expect in a fiduciary relationship. In a passage quoted with approval by the Court of Appeal in Finding [2001] 1 Qd R at 172, Hill J had said in Golby v Commonwealth Bank of Australia (1996) 72 FCR 134 at 136: 'It is not a critical feature of a banker/customer relationship that the banker undertakes or agrees to act for or on behalf of or in the interests of its customer in the exercise of some power or discretion affecting the interests of the customer in a legal or practical sense. Absent therefore some special feature, such as the giving of advice in Smith [42 FCR 390], there is no reason to erect a fiduciary relationship between bank and customer when that relationship is essentially one founded in contract.'
Case: Gray v New Augarita Porcupine Mines Ltd [1952] 3 DLR 1
Outcome: cited
The matters alleged to have been relevant for the bank to disclose, again, have features which suggest that much of this material could be taken to have been known to ASS or its principals during the course of the relationship. Of course, the mere fact that ASS had some knowledge is not an answer to a claim of breach of fiduciary duty. In order to discharge his or her duty the fiduciary must disclose fully and frankly the nature and extent of any conflict between his or her duty and or interest and the interest of the person to whom the fiduciary owes the duty. As Lord Radcliffe said in giving the advice of the Judicial Committee in Gray v New Augarita Porcupine Mines Ltd [1952] 3 DLR 1 at 14 of a director's duty to disclose to the company's board: 'The amount of detail required must depend in each case upon the nature of the contract or arrangement proposed and the context in which it arises. It can rarely be enough for a director to say "I must remind you that I am interested" and to leave it at that, unless there is some special provision in a company's articles that makes such a general warning sufficient. His declaration must make his colleagues "fully informed of the real state of things" (see Imperial Mercantile Credit Ass'n v Coleman (1873), LR 6 HL 189 at p 201, per Lord Chelmsford). If it is material to their judgment that they should know not merely that he has an interest, but what it is and how far it goes, then he must see to it that they are informed (see Lord Cairns in the same case at p 205).'
Case: Maguire v Makaronis [1997] HCA 23 ; (1997) 188 CLR 449
Outcome: cited
And, Brennan CJ, Gaudron, McHugh and Gummow JJ said in Maguire v Makaronis [1997] HCA 23 ; (1997) 188 CLR 449 at 466 (footnote omitted) (which was approved by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [107] ): 'What is required for a fully informed consent is a question of fact in all the circumstances of each case and there is no precise formula which will determine in all cases if fully informed consent has been given.' 40 The sufficiency of disclosure by a fiduciary can depend on the sophistication and intelligence of the person to whom it is made, so that it can truly be said that his or her consent is fully informed. That is a question of fact in all cases ( Farah Constructions [2007] HCA 22 at [107] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). Because I am of opinion that no fiduciary obligation arose, it is irrelevant for me to consider the question of sufficiency of disclosure in the context of whether the proposed amendment is fairly arguable (cf: Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31 ; (2001) 207 CLR 165 at 198-199 [77] - [79] per McHugh, Gummow, Hayne and Callinan JJ).