mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: United Dominions Corporation Limited v Brian Pty Limited [1985] HCA 49 ; (1985) 157 CLR 1
Outcome: referred to
The first assumption is that QR would grant a lease or access "for so long as NRC carried on the business of interstate rail freight operations in Queensland" on a commercial basis, or for at least 30 years. The extent of any such business and the degree of repetition or continuity of the requisite activity are not spelled out: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 8 and United Dominions Corporation Limited v Brian Pty Limited [1985] HCA 49 ; (1985) 157 CLR 1 at 15. Although the period of the lease or access was said to be for 30 years, the terms were to be on a commercial basis. That expression cannot have the requisite degree of certainty absent the agreement of the parties as to the content of the terms.
Case: Winter Garden Theatre (London) Limited v Millennium Productions Limited [1948] AC 173
Outcome: referred to
The fundamental right given by a lease is a right of exclusive possession: Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR 209 at 222. The nature of access contemplated by cl 5(6)(a), in order to distinguish it from a lease, must be a right of non-exclusive possession. But what is plain from the clause is that the grant of access is to be on commercial terms and conditions agreed between the parties. The extent of the rights of access would be a matter of construction of those terms, as agreed: Winter Garden Theatre (London) Limited v Millennium Productions Limited [1948] AC 173.
Case: Wood v City of Melbourne (1979) 26 ALR 430
Outcome: cited
That is not to say that the state of mind to be attributed to a corporation must always be the state of mind of one particular officer: Brambles at 275 per Bray CJ; see also Wood v City of Melbourne (1979) 26 ALR 430 at 447.
Case: Creevy &amp; Anor v Deputy Commissioner of Taxation (1996) 19 ACSR 456
Outcome: cited
In this particular case, there is no persuasive conduct on the part of the officers of the company which would suggest that there has been insolvent trading although, of course, there simply is no evidence of any of these conduct questions because the voluntary administrators have not had sufficient time to examine the various matters. Although the observations in the authorities to which I have been referred, including Creevy &amp; Anor v Deputy Commissioner of Taxation (1996) 19 ACSR 456 ; First Netcom Pty Ltd v Deputy Commissioner of Taxation (2000) 35 ACSR 615 ; and Lemery Holdings Pty Ltd v Reliance Financial Services BC200804142 , emphasise the importance of probative and persuasive evidence that the interests of creditors will be served by enabling the company to continue in voluntary administration, it seems to me that the circumstance that the voluntary administrators have been in office for merely a day (notwithstanding inferences which might arise from the appointment of administrators the day before the return date for the hearing) emphasises that the question to be addressed is whether, in the limited time available to the voluntary administrators to forensically examine the affairs of the company, the interests of the company's creditors are better served by enabling the company to continue in voluntary administration during the period of the adjournment, so that all relevant matters identified by the administrators might be examined. It seems to me that it is in the interests of creditors to enable some forensic assessment to be made by professional voluntary administrators, of facts and circumstances which might demonstrate that the entity can continue to trade as a going concern and is capable of being sold.
Case: First Netcom Pty Ltd v Deputy Commissioner of Taxation (2000) 35 ACSR 615
Outcome: cited
In this particular case, there is no persuasive conduct on the part of the officers of the company which would suggest that there has been insolvent trading although, of course, there simply is no evidence of any of these conduct questions because the voluntary administrators have not had sufficient time to examine the various matters. Although the observations in the authorities to which I have been referred, including Creevy &amp; Anor v Deputy Commissioner of Taxation (1996) 19 ACSR 456 ; First Netcom Pty Ltd v Deputy Commissioner of Taxation (2000) 35 ACSR 615 ; and Lemery Holdings Pty Ltd v Reliance Financial Services BC200804142 , emphasise the importance of probative and persuasive evidence that the interests of creditors will be served by enabling the company to continue in voluntary administration, it seems to me that the circumstance that the voluntary administrators have been in office for merely a day (notwithstanding inferences which might arise from the appointment of administrators the day before the return date for the hearing) emphasises that the question to be addressed is whether, in the limited time available to the voluntary administrators to forensically examine the affairs of the company, the interests of the company's creditors are better served by enabling the company to continue in voluntary administration during the period of the adjournment, so that all relevant matters identified by the administrators might be examined. It seems to me that it is in the interests of creditors to enable some forensic assessment to be made by professional voluntary administrators, of facts and circumstances which might demonstrate that the entity can continue to trade as a going concern and is capable of being sold.
Case: Lemery Holdings Pty Ltd v Reliance Financial Services BC200804142 
Outcome: cited
In this particular case, there is no persuasive conduct on the part of the officers of the company which would suggest that there has been insolvent trading although, of course, there simply is no evidence of any of these conduct questions because the voluntary administrators have not had sufficient time to examine the various matters. Although the observations in the authorities to which I have been referred, including Creevy &amp; Anor v Deputy Commissioner of Taxation (1996) 19 ACSR 456 ; First Netcom Pty Ltd v Deputy Commissioner of Taxation (2000) 35 ACSR 615 ; and Lemery Holdings Pty Ltd v Reliance Financial Services BC200804142 , emphasise the importance of probative and persuasive evidence that the interests of creditors will be served by enabling the company to continue in voluntary administration, it seems to me that the circumstance that the voluntary administrators have been in office for merely a day (notwithstanding inferences which might arise from the appointment of administrators the day before the return date for the hearing) emphasises that the question to be addressed is whether, in the limited time available to the voluntary administrators to forensically examine the affairs of the company, the interests of the company's creditors are better served by enabling the company to continue in voluntary administration during the period of the adjournment, so that all relevant matters identified by the administrators might be examined. It seems to me that it is in the interests of creditors to enable some forensic assessment to be made by professional voluntary administrators, of facts and circumstances which might demonstrate that the entity can continue to trade as a going concern and is capable of being sold.
Case: Military Rehabilitation &amp; Compensation Commission v Perry [2007] FCA 1586
Outcome: considered
The reasons for judgment addressed both issues ( Military Rehabilitation &amp; Compensation Commission v Perry [2007] FCA 1586). The applicant ('the Commission') was successful on the retrospectivity issue but unsuccessful on the construction issue (at [59]-[60]). It was therefore unsuccessful in its challenge to the decision under review in the Tribunal. Accordingly, the application was dismissed (at [61]). 5 The parties were given the opportunity to provide submissions on costs. The Commission submits that there should be no order as to the costs of the application or, alternatively, that the Commission pay no more than half of what would otherwise have been Mr Perry's party-party costs. It also submits that the Tribunal's decision, in so far as it relates to costs, should be set aside. The Commission submits that the argument put at the hearing on behalf of Mr Perry was misconceived and that the Tribunal would not have exercised its discretion to award him costs. 6 Mr Perry submits that the Commission should pay all of his costs of the proceedings. Mr Perry recognises that the Court has a wide discretion to award costs but submits that there are no special circumstances to preclude costs following the event. In particular, Mr Perry says that there should be no apportionment by reference to the issues in the proceedings. In any event, he submits, the construction of s 8(9B) of the SRC Act was not separate and distinct from the issue on which he succeeded. Mr Perry says that the consideration by the Court of the retrospectivity issue, the issue before the Tribunal, was not necessary to the decision concerning his entitlements, determined by s 8(6) and its relationship to s 8(9B) of the SRC Act. Mr Perry also submits that his approach before the Tribunal was not unreasonable, given the history of the matter and the basis of the decisions taken by the delegates of the Commission.
Case: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150
Outcome: cited
The Australian Competition and Consumer Commission brought these proceedings for injunctive orders under s 80 and other relief under s 86C of the Act against Terania and ARE for contraventions by each of them of s 52 of the Act, and for costs. The Court may make such orders only if the alleged contraventions are made out: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150. 3 The parties are agreed upon the orders which are sought, and upon the facts upon which those orders are sought. They have presented a statement of agreed facts, and proposed orders. The statement of agreed facts includes reference to allegations in the application which are admitted, and to specified paragraphs of the amended statement of claim which are also admitted. Indeed, Terania and ARE by the proposed agreed orders seek to withdraw their defence. 4 I am prepared to make findings on the foundation of that material. The following represents my findings of fact. 18 Clearly, by the admission of facts contained in the agreed statement of facts (including by reference to allegations in the statement of claim which are admitted), it is within power for the Court to make the orders which are sought: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 164. In my view, having regard to the nature and the present status of Terania and ARE, and the fact that the parties have agreed upon the nature of the conduct engaged in, and its contravention of the Act, it is also appropriate for the Court in the public interest and to encourage agreed resolution of enforcement proceedings to make the orders which are sought: see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79.
Case: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79
Outcome: cited
Clearly, by the admission of facts contained in the agreed statement of facts (including by reference to allegations in the statement of claim which are admitted), it is within power for the Court to make the orders which are sought: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 164. In my view, having regard to the nature and the present status of Terania and ARE, and the fact that the parties have agreed upon the nature of the conduct engaged in, and its contravention of the Act, it is also appropriate for the Court in the public interest and to encourage agreed resolution of enforcement proceedings to make the orders which are sought: see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79.
Case: Trade Practices Commission v Cue Design Pty Ltd (1996) ATPR 41-475
Outcome: applied
I have had regard to the types of conduct which have been admitted and to the findings which I have made as to its character. It is appropriate in a matter such as this to have regard to all the conduct which has been alleged and acknowledged. Clearly, misleading representations as to price are highly likely to mislead consumers and constitute a significant contravention of s 52 of the Act. It is acknowledged that the was price was simply created by the respondents and had no proper foundation. Consumers were likely to have been mislead into believing that the goods in question had previously been offered for sale at the was price, so that the sale price represented a significant reduction from the normal retail price. That may induce consumers to buy those products when they would not otherwise do so. As O'Loughlin J said in Trade Practices Commission v Cue Design Pty Ltd (1996) ATPR 41-475 , where a clothing retailer was using dual-priced tags: [T]he natural and probable consequence of a dual-priced swing tag is that members of the buying public would assume that the garment had previously been offered for sale at the higher of the two prices and was now available at the lower price. ... It was conduct that preyed on the gullibility of the public. Indeed, such conduct may do more than prey on the gullibility of the public. Members of the public do not routinely know the normal retail price of particular goods. And retail price may depend on the quality of the particular goods. The quality of particular goods may also not be readily apparent to some members of the public. It is not merely the gullible who may regard a was price as a real indication of the normal retail price of particular products, at least as offered by and sold by that retailer. 21 I am a little more troubled about the duration representations. However, in my view, their combination with the pricing tags was likely to mislead the public. It was likely to mislead the public, or at least some members of the public, into the belief that sale prices at which they may be able to procure the particular goods will end at a specific time and so induce purchasing at or by that specific time rather than making a purchasing decision after reflection. It may induce purchases within or by the specified time because the "sale" also misleadingly presented particular goods as being available at a price significantly reduced from that at which they were normally on offer so that they would not be on offer at that "sale" price after the imminent end of the sale. 22 The clearance representations do not present so obvious a contravention of s 52 of the Act, even when taken together with the duration representations and the was price/sale price representations.
Case: Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987 ; (2004) 208 ALR 459
Outcome: discussed
In Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987 ; (2004) 208 ALR 459 , Gyles J said at 467: Reading the numerous cases in this field makes it perfectly apparent that individual judges vary considerably in their assessments of the effect of advertising. Some take a robust view and credit consumers with a fair amount of cynicism about advertisements and a fair amount of ability to make their own judgments. Others are convinced of the power of advertisements and are protective of the consumer. Neither side is right or wrong it is a matter of opinion. Those comments recognise that what is called "puffery" or exaggeration in advertising is not unexpected. There have been cases where advertising overstatement has not involved a contravention of s 52: see e.g. Petty v Penfold Wines Pty Ltd [1994] FCA 1095 ; (1994) 49 FCR 282. In that case, the decision turned upon the applicant failing to prove he had in fact relied on the representation. But each case must be decided on its own facts and in the context of the words used: Telstra Corporation Ltd v Optus Communications Pty Ltd (1997) ATPR 41-541.
Case: Petty v Penfold Wines Pty Ltd [1994] FCA 1095 ; (1994) 49 FCR 282
Outcome: cited
In Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987 ; (2004) 208 ALR 459 , Gyles J said at 467: Reading the numerous cases in this field makes it perfectly apparent that individual judges vary considerably in their assessments of the effect of advertising. Some take a robust view and credit consumers with a fair amount of cynicism about advertisements and a fair amount of ability to make their own judgments. Others are convinced of the power of advertisements and are protective of the consumer. Neither side is right or wrong it is a matter of opinion. Those comments recognise that what is called "puffery" or exaggeration in advertising is not unexpected. There have been cases where advertising overstatement has not involved a contravention of s 52: see e.g. Petty v Penfold Wines Pty Ltd [1994] FCA 1095 ; (1994) 49 FCR 282. In that case, the decision turned upon the applicant failing to prove he had in fact relied on the representation. But each case must be decided on its own facts and in the context of the words used: Telstra Corporation Ltd v Optus Communications Pty Ltd (1997) ATPR 41-541.
Case: Telstra Corporation Ltd v Optus Communications Pty Ltd (1997) ATPR 41-541
Outcome: cited
In Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987 ; (2004) 208 ALR 459 , Gyles J said at 467: Reading the numerous cases in this field makes it perfectly apparent that individual judges vary considerably in their assessments of the effect of advertising. Some take a robust view and credit consumers with a fair amount of cynicism about advertisements and a fair amount of ability to make their own judgments. Others are convinced of the power of advertisements and are protective of the consumer. Neither side is right or wrong it is a matter of opinion. Those comments recognise that what is called "puffery" or exaggeration in advertising is not unexpected. There have been cases where advertising overstatement has not involved a contravention of s 52: see e.g. Petty v Penfold Wines Pty Ltd [1994] FCA 1095 ; (1994) 49 FCR 282. In that case, the decision turned upon the applicant failing to prove he had in fact relied on the representation. But each case must be decided on its own facts and in the context of the words used: Telstra Corporation Ltd v Optus Communications Pty Ltd (1997) ATPR 41-541.
Case: Australian Consumer and Competition Commission v 4WD Systems Pty Ltd [2003] FCA 850 ; (2003) 200 ALR 491
Outcome: cited
It is clear that I have power to make the injunctive orders sought if I consider it in the public interest to do so: Australian Consumer and Competition Commission v 4WD Systems Pty Ltd [2003] FCA 850 ; (2003) 200 ALR 491 at [212] and [216]. I have considered the proposed injunctions. They are clear, they relate to the conduct which I have found to have been engaged in in contravention of s 52 of the Act; and there is no feature of them which, in my view, makes it inappropriate to make those orders. 27 Similarly, I have considered the proposed compliance program. I had previously raised some issues about its terms, but they have been addressed. 28 I am therefore prepared to make the proposed consent orders. The proposed orders are in the nature of injunctive relief, restraining the respondents from engaging in conduct of the nature which they have admitted they have engaged in in the past and which has contravened s 52 of the Act, and for costs. I have been informed by the parties that since the hearing of submissions, both Terania and ARE have ceased trading and the assets of Terania have been sold, including the sale of the business name "Gouger Rugs" and "Barry Solomon's Gouger Rugs", its stock and various fittings and fixtures. Bookings of venues for scheduled sale events to be conducted by Terania and ARE have been cancelled. Consequently, although it is not now appropriate for Terania and ARE to undertake a trade practices compliance program, the proposed orders contemplate that in the event that they resume similar trading activities in the future, they should undertake a trade practices compliance program. I think that is appropriate. It is also intended that Mr Solomon will give an undertaking that he will in any event undertake a Trade Practices Compliance Program seminar relating to the provisions of Pt 5 of the Act. He is prepared to do so and the ACCC is prepared to accept that undertaking. I will note his undertaking.
Case: Ambard v Attorney General for Trinidad and Tobago [1936] AC 322
Outcome: discussed
justice is administered in public, judges and their decisions are open to public scrutiny. Over 70 years ago Lord Atkin said that committal for contempt of court by scandalising the Court had become obsolete: Ambard v Attorney General for Trinidad and Tobago [1936] AC 322 at 335. But this should not obscure the distinction between baseless attacks on judges or courts that undermine public confidence and the administration of justice and the right of the public to criticise the administration of justice and those who are involved in that endeavour. The right to criticise is wide. Critics can make outspoken comments about the exercise of judicial power provided that they do so in good faith: Ambard [1936] AC at 335. A fair-minded and informed lay observer will be robust about criticism of judges, courts and their decisions because he or she will know the latitude afforded to commentators in our free society. And, he or she would know that if a public complaint had been made that, say, a judge was corrupt, it would almost certainly be investigated by the relevant authorities and be the subject of vigorous examination in the media. A fair minded observer would also be aware that disgruntled litigants, cranks and others may make unsubstantiated or false allegations against judges or courts which are either investigated and found to be baseless or so obviously baseless that they ought not be taken seriously.