mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Murphy v Overton Investments Pty Ltd [2004] HCA 3 , 216 CLR 388
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: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1981) 149 CLR 191
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: Pereira v Director of Public Prosecutions [1988] HCA 57 , 82 ALR 217
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: Priest v Last [1903] 2 KB 148
Outcome: considered
Even in the absence of the concession on behalf of the Respondents that a term was to be implied into the February 2003 agreement, and even in the absence of the acceptance by Mr Wieland that it was as " plain as a pikestaff " that such a term was necessary to give business efficacy to the agreement, it would have been found that such a term would also have been implied pursuant to one or other of the statutory provisions otherwise in issue. It would, for example, have been difficult for Wieland Equipment to have denied that the purpose for which the SLP 1100 was being purchased had not been made known. Not only had Mr Wieland been told of the very site to which the machine was being sent and the use to which it was to be put, it may otherwise have been safely assumed that a purchaser who purchases a rock crusher does so for the purpose of crushing rocks: cf Priest v Last [1903] 2 KB 148. There would have been no other purpose for which such a machine would be purchased. There may, however, have been some room for argument as to whether the SLP 1100 was suitable for its particular use at the Jeladri Quarry. See: Brown I, ' The Swing of the Pendulum from Caveat Venditor to Caveat Emptor ' (2000) 116 LQR 537. But all such subtleties as may have emerged became unnecessary to resolve given the course ultimately pursued by the Respondents during oral submissions. 144 It is regrettable, however, that the position as ultimately advanced by Counsel for the Respondents during the course of oral submissions was not communicated to either the Applicants or the Court at a far earlier point of time. The very purpose of requiring a written outline of submissions to be filed in advance of oral submissions is to provide notice to both the opposing party and the Court of the issues in need of resolution. Written submissions filed after the close of evidence can self-evidently take into account an assessment of the submissions which can properly be advanced upon the basis of the evidence then available. That assessment may well be different to the manner in which a case has been opened. The failure to make a decision as to the submissions to be in fact advanced, and to make a decision confining submissions to issues more limited than those foreshadowed in either an opening or in a pleading, necessarily exposes both an opposing party and the Court to the very real potential for costs and resources to be unnecessarily incurred and expended. 145 Such has been the experience in the present proceeding -- at least insofar as the Court is concerned. Needless to say, the expeditious resolution of any dispute involves an identification of the issues to be resolved at the earliest opportunity.
Case: Ricochet Pty Ltd v Equity Trustees Executors and Agency Co Ltd [1993] FCA 99 ; (1993) 41 FCR 229
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: RPS v The Queen [2000] HCA 3 , 199 CLR 620
Outcome: considered
The explanation provided by Mr Wieland as to why the inspections may well have occurred at an earlier point of time, namely that the dates appearing on the records are the dates upon which those " in the office " subsequently completed the records, is rejected. Such an explanation is inconsistent with that which the records expose -- the records requiring those conducting the inspections to certify that which they found and to state (for example) the " date of testing ". Mr Wieland ultimately accepted that the explanation he was advancing as a " possibility " was but " speculation ". In such circumstances, there is no reason not to find that the test records were carried out upon the dates set forth. The findings of fact that the machines were inspected on the dates appearing on the face of individual documents, it is considered, is supported by both the form of the documents themselves and the conclusion that Mr Wieland's evidence, especially in this respect, was considered to be unpersuasive. Moreover, those findings of fact are only further reinforced by the absence of any evidence being called from those persons employed in the Chinese factory to either support the " speculation " of Mr Wieland or to expressly state what the practice was in respect to the dating of inspection reports: cf Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J. Given the importance of the dates upon which inspections did in fact occur, being evidence centrally relevant to when the SLP 1100s were manufactured and were in fact in operation, it is considered that those persons who in fact completed the inspection reports (or at least perhaps one of them) could have shed light on the matter and would have been expected to have done so: cf RPS v The Queen [2000] HCA 3 at [25] , [2000] HCA 3 ; 199 CLR 620 at 632 per Gaudron ACJ, Gummow, Kirby and Hayne JJ.
Case: Sheen v Fields Pty Ltd (1984) 58 ALJR 93
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: Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331
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: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: applied
In order for the Applicants to recover damages under s 82 they must show that their loss or damage was occasioned " by " the contravening conduct. Sub-section (1) of s 82 of the 1974 Act thus provides as follows: Subject to subsection (1AAA), a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, IVA, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. With reference to the term " by ", Mason CJ, Dawson, Gaudron and McHugh JJ observed in Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 (at 525): By virtue of s 82(2) of the Act, the period of limitation begins to run at the time when the cause of action under s 82(1) accrues. As loss or damage is the gist of the statutory cause of action for which s 82(1) provides [Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (No 2) [1987] FCA 230 ; (1987) 16 FCR 410 at 418], the cause of action does not accrue until actual loss or damage is sustained. The statutory cause of action arises when the plaintiff suffers loss or damage "by" contravening conduct of another person. "By" is a curious word to use. One might have expected "by means of", "by reason of", "in consequence of" or "as a result of". But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s 82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v Stramare (E &amp; M H) Pty Ltd [1991] HCA 12 ; [(1991) 171 CLR 506] , except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. Had Parliament intended to say something else, it would have been natural and easy to have said so.
Case: Webster v Havyn Pty Ltd [2004] NSWSC 227
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: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: applied
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: Fleming's Nurseries Pty Ltd v Hannaford [2008] FCA 591
Outcome: referred to
was referred to a number of authorities, but I do not need to go through them in detail. The general principles are well known. They are summarised by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 ; [1999] FCA 718 at [6] - [9] . They were applied by Kenny J in Fleming's Nurseries Pty Ltd v Hannaford [2008] FCA 591. Orders separating liability from damages or an account of profits are often made in intellectual property cases. In Liberty Financial Pty Ltd v Scott [2003] FCA 226 at [40] , Weinberg J expressed the view that intellectual property cases, or at least intellectual property cases other than patent cases, should be treated no differently from other commercial cases. I do not need to enter that debate because this is not an intellectual property case. The claims made by the applicant include claims made under the Corporations Act and the TPA. In any event, there is no fixed and invariable rule that an order for the determination of separate questions will be made in intellectual property cases.
Case: Liberty Financial Pty Ltd v Scott [2003] FCA 226
Outcome: referred to
was referred to a number of authorities, but I do not need to go through them in detail. The general principles are well known. They are summarised by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 ; [1999] FCA 718 at [6] - [9] . They were applied by Kenny J in Fleming's Nurseries Pty Ltd v Hannaford [2008] FCA 591. Orders separating liability from damages or an account of profits are often made in intellectual property cases. In Liberty Financial Pty Ltd v Scott [2003] FCA 226 at [40] , Weinberg J expressed the view that intellectual property cases, or at least intellectual property cases other than patent cases, should be treated no differently from other commercial cases. I do not need to enter that debate because this is not an intellectual property case. The claims made by the applicant include claims made under the Corporations Act and the TPA. In any event, there is no fixed and invariable rule that an order for the determination of separate questions will be made in intellectual property cases.