mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147
Outcome: applied
The relevant principles concerning pre-action discovery are concisely summarised by Hely J in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at 153. It is unnecessary to reproduce his Honour's summary, but I have applied those principles in my consideration of the challenge to the present Notice. 9 The Notice to Produce in this application has four parts. The documents sought in the first part (paragraphs [1]-[4]) relate to the determination of issues in the proceedings and conform to the requirements of O 15A r 6. The documents sought in the second and third part (paragraphs [5]-[17] and paragraphs [18]-[20] respectively) relate to matters arising out of Mr Shale's and Mr Keldoulis' affidavits respectively. The documents sought in the fourth part (paragraphs [21]-[24]) relate to other miscellaneous matters. 10 Paragraphs [1]-[4] are relevant and appropriate and need not be struck out. I consider that they are not expressed too broadly because the descriptions of the documents sought are narrowed in each case by the introductory words. In addition, they are related to facts which may be contested on the application. Cross-examination on a suitably controlled basis may be allowed in some circumstances, but this is subject to the discretion of the Court, and extensive cross-examination on pre-action discovery is to be discouraged. As a consequence, it may be appropriate to allow some investigation of the documentary basis for the contention that there have been reasonable inquiries as to the sufficiency of the records and evidence relating to whether Optiver has already made a decision whether to commence proceedings. The making of any decision to commence prior to the O 15A r 6 application is important because pre-action discovery is concerned to identify any material on the basis of which such a decision can be made. If a decision has already been made, the application is not necessary and pre-action discovery will not be granted. I allow paragraphs [1]-[4] of the Notice to Produce.
Case: FJ Bloemen Pty Ltd v Commissioner of Taxation [1981] HCA 27 ; (1981) 147 CLR 360
Outcome: cited
In another High Court decision, that of FJ Bloemen Pty Ltd v Commissioner of Taxation [1981] HCA 27 ; (1981) 147 CLR 360 at 371, Mason and Wilson JJ stated that s 175 cannot "create a valid assessment where no assessment has been made at all. The section requires an actual assessment as a condition of its operation". 16 Section 175 is often used in conjunction with s 177. Section 177(1) of the ITA Act provides: The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct. 33 It is beyond question that there is no valid notice of assessment until service of the notice has been effected: Bloemen [1981] HCA 27 ; 147 CLR 360. The requirement of service has implications in this case for the validity of the Garnishee Notices, because the effectiveness of the Garnishee Notices depends upon there being a debt due to the Commonwealth, which in turn depends upon service of the notice of assessment being effected prior to the service of the Garnishee Notices. If the notice of assessment was not effectively served on 25 August 2006, then the Garnishee Notices are invalid. 34 According to the evidence of Mr Zafiriou, whom I accept as being a truthful witness, on 25 August 2006, an officer of the respondent, Mr Fisher, placed the notice of assessment in post office box 311 at Dallas Post Office in Victoria, the post office box of the applicant. On the same day, Mr Zafiriou gave the Garnishee Notices to Mr Silvestri and Jason Real Estate Pty Ltd. The evidence is unsatisfactory as to the exact sequence of these events on the 25 August 2006, but because of the view I take, it is unnecessary to consider the evidence in this regard any further. 35 The starting point is s 174 of the ITA Act, which provides that as soon as conveniently may be after any assessment is made, the Commissioner must serve notice thereof in writing by post or otherwise upon the taxpayer: s 174(1). The respondent submitted that the service of the notice was effected on 25 August 2006, and relied upon two submissions.
Case: Briglia v Commissioner of Taxation [2000] ATC 4,247
Outcome: cited
It is also important to remember that the fact that an assessment may be incorrect or based upon insufficient facts does not demonstrate a lack of bona fides. In the decision of Briglia v Commissioner of Taxation [2000] ATC 4,247 the court held that two assessments which included the same amount in the assessable income of two different taxpayers for the same year were valid. At [9], Kenny J held that an incorrect assessment was not sufficient to evidence a lack of bona fides: Plainly enough, an incorrect assessment does not demonstrate an absence of bona fides on the Deputy Commissioner's part. The decision in Richard Walter also makes it clear that the existence of two assessments, which include the same amount in respect of the same year of income but issued to different taxpayers, does not demonstrate a want of bona fides on the Commissioner's part, providing that at the time the Commissioner made the assessments he was bona fide able to form the view that each assessment could be correct: see Richard Walter at 188, 200, 202 and Darrell Lea at 186. It follows from this that uncertainty on the Deputy Commissioner's part as to the facts relevant to the exercise of his power of assessment does not evidence any absence of bona fides in the Hickman sense. As Brennan J said in Richard Walter at 200-201: It must be remembered that the Commissioner's function is administrative, not judicial. The power to assess is, as s 167 shows, not limited to cases where the Commissioner has enough information on which to make a positive finding of fact. The Commissioner is not required to determine on the balance of probabilities that one person rather than another is the person subject to the tax liability in respect of the particular income. 22 The principles of law are well established and not in dispute as between the parties. Except in very limited circumstances, the taxpayer's rights to dispute liability to taxation are provided for by the objection, review and appeal procedures in Pt IVC of the TAA and are to be pursued by those procedures rather than by proceedings such as this one. However, if it appears, either on the face of a notice of assessment or from elsewhere, that the Commissioner has acted for an improper purpose, has not attempted in good faith to determine the taxable income or has not made an assessment definitive of the tax liability of the taxpayer, the assessment will not attract the protection of s 175. 23 The applicant relied upon a number of factors in support of her contentions, which can be summarised as follows: &#8226; The assessment was tentative or provisional; &#8226; The respondent did not make any real or genuine attempt to assess the applicant's taxable income, nor embarked upon any process of inquiry to determine the applicant's income; and &#8226; The assessment was issued solely for the purpose of issuing the Garnishee Notices.
Case: Emhill Pty Ltd v Bonsoc Pty Ltd [2005] VSCA 239 ; (2005) 12 VR 129
Outcome: considered
The respondent submitted that it had done more than what was required by the relevant legislation and accordingly service was good. In support of this proposition, the respondent relied upon the decision of the Victorian Court of Appeal in Emhill Pty Ltd v Bonsoc Pty Ltd [2005] VSCA 239 ; (2005) 12 VR 129 which concerned service of a statutory demand under s 109X of the Corporations Act 2001 (Cth). That context is important because service of a statutory demand is something that requires the same rigour as the service of a notice of assessment when one is not relying on actual service. 49 In that case, the legislation provided for service of a copy of the document in question and what was served was an original. The Court of Appeal held that strict compliance with statutory requirements for service did not prevent someone from doing more than what is required in the statute. At 133, Maxwell PA held: If it is right to regard service of the original as the highest and best form of service, and service of a copy as in that sense only second-best, then it cannot be supposed that a creditor who does more than the statute requires by serving an original rather than a mere photocopy fails to comply. On the contrary, in my view, where doing the lesser would suffice, doing the greater must also suffice. 50 However, whilst such principles are clearly relevant to the question of service of an assessment, there is a significant point of distinction between the circumstances before the Court of Appeal and the case before me. That case concerned actual service. One can easily accept that serving an original document on a person is better, or at least no worst, than serving a photocopy. For a person to attempt to avoid service on such a technicality clearly goes against the doctrine of strict compliance. However, here the assertion is that leaving a document at a place is better than posting the document to that place. That may be true. However, in the circumstances of these proceedings the best form of service is actual service and leaving the notice of assessment at the post office box of the applicant is clearly not a better form of service. Without the benefit of the regulations or there being deemed service upon the applicant, including a deeming as to the time of service, the respondent cannot show that the notice of assessment was actually served upon the applicant prior to the service of the Garnishee Notices. As a fact, I cannot assume that the applicant, even through an agent, became aware on 25 August 2006 that the notice of assessment was placed in her post office box. There was no positive evidence before me that the applicant in fact received notice of the assessment on 25 August 2006. Indeed, the uncontested evidence of the applicant was that as at 29 August 2006 she still had no notice of the assessment.
Case: Sarikaya v Victorian Workcover Authority [1997] FCA 1372 ; (1997) 80 FCR 262
Outcome: applied
The reference to a 'physical address' lends itself to the concept of an address at which articles may be physically left, as opposed to a place to which articles may be posted. The observations of Black CJ in Sarikaya v Victorian Workcover Authority [1997] FCA 1372 ; (1997) 80 FCR 262 at 263, albeit in a slightly different context, tends to support this view: In the present context, a post office box is not, in my view, the "address of a place" at which a document may be "left" for a person. The ordinary notion of a "post office box" is of a container at a post office into which mail that has been duly posted is placed by the postal authorities for retrieval by or on behalf of the holder of the box. Whether or not such a box is, in this context, the "address of a place", it is not the address of a place at which a document may be "left" by way of service. 43 Those observations were made by Black CJ in the context of O 7, r 6(1) of the Federal Court Rules (Cth) which requires a party to a proceeding to provide an address for service at which documents may "be left for the person". Looking at reg 36 on its own, the question is only whether the address is a physical address, as opposed to the other question of whether the address is one at which articles can actually be left. However, the similarity is more obvious when reg 36 is viewed in conjunction with reg 40(1), which provides that, where a physical address is given by a person, service can be effected by "leaving a copy of the document at that address". Therefore, the question really is whether the address is one at which articles are capable of being left. If one answers that question in the negative the address is not one at which a document is capable of being left it follows that the address cannot constitute a physical address for the purposes of the Regulations. 44 Ordinarily, a person cannot leave articles at a post office box, but rather must send the article by way of post, which the postal authority will then deliver to the box. There is no doubt that the physical post office box is a tangibly identifiable place, and in that sense, it is a physical place. However, it does not follow that it is a physical address for the purposes of reg 40(1). In my view a post office box address cannot constitute a physical address because it is, ordinarily, an address to which articles can only be posted. 45 The second issue is whether the applicant actually gave the respondent a preferred address for service. The evidence shows that the applicant gave the relevant post office box address in her income tax return for the year ended 30 June 2004. Some doubt was raised about this at the hearing, however I am content to proceed on the basis that the post office box address was the applicant's preferred address for service. It is therefore unnecessary to consider reg 38 which provides for substitution of a preferred address for service.
Case: Australian Woollen Mills Limited v F S Walton &amp; Co [1937] HCA 51 ; (1937) 58 CLR 641 at 657
Outcome: cited
Of particular importance in this case is the use by Darrell Lea of darker shades of purple in the packaging of its seasonal chocolate products at Christmas in the years 2000-2004. Darrell Lea used a purple and bronze copper theme in association with Darrell Lea signage and brand usage. The purple is like that used by Cadbury. It is distinct from the lighter shade boysenberry. This was the only evidence isolating a specific decision by Darrell Lea to use purple. If this decision were made with the intention of misleading consumers into thinking that Darrell Lea products were associated with Cadbury, that would be strong evidence that such misleading in fact occurred: Australian Woollen Mills Limited v F S Walton &amp; Co [1937] HCA 51 ; (1937) 58 CLR 641 at 657. 44 The primary evidence as to this matter was given by Ms Anne McGlinchey who is currently an independent marketing and retail consultant but worked for Darrell Lea and an associated company from 1989 to 2003. In particular from January 2000, after returning from maternity leave, she was Darrell Lea's Marketing Manager until she left the company in October 2003. 45 When Ms McGlinchey commenced her duties as Marketing Manager she reported to Mr Bruce Goldman the then General Manager of Retail and Marketing. At the time she believed that the Darrell Lea shops looked "tired and dowdy and needed to be freshened and updated". There were too many different colours used, products were too difficult to find and the store layout was not clear. Each store presented its own range of in-store gifts which differed not only from one store to another but also within stores. 51 While Ms McGlinchey did not have the power to make the ultimate decision on colour choice, she was a key figure in the process and on her unchallenged evidence the genesis of the idea for the Christmas 2000 colour scheme was hers. Darrell Lea also called Ms Hurst, who took over Ms McGlinchey's position, and Mr Michael Lea, one of the two directors of the company and who has had a lifetime's experience in its business. Mr Jason Lea, Mr Michael Lea's cousin, who was a director at the time of the 2000 Christmas planning, has recently died. If one accepts Ms McGlinchey, Ms Ettia and Ms Hurst, as I do, as truthful and reliable witnesses, it just seems inherently unlikely that Mr Goldman or Mr Tolmie would have harboured, unbeknowns to Ms McGlinchey, Ms Ettia and Ms Hurst, a secret purpose to misappropriate Cadbury's business by deliberately misleading consumers. As Walton makes clear, this would be the act of a dishonest trader. An allegation of such a kind falls to be assessed in the light of the rule in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: cited
Mr Goldman and the Managing Director at the time Mr Ian Tolmie were not called and are apparently available (in Sydney) but I do not think Cadbury gains any assistance from the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. In Heydon, Cross on Evidence , 7 th Australian ed, 2004 at 41 the learned author says: "...while the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into evidence." And as the learned author had earlier said (at 39) in formulating the basic rule, failure to call a witness " may , not must, in appropriate circumstances , lead to the inference that the uncalled evidence would not have assisted that party's case" (emphasis added).
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: cited
While Ms McGlinchey did not have the power to make the ultimate decision on colour choice, she was a key figure in the process and on her unchallenged evidence the genesis of the idea for the Christmas 2000 colour scheme was hers. Darrell Lea also called Ms Hurst, who took over Ms McGlinchey's position, and Mr Michael Lea, one of the two directors of the company and who has had a lifetime's experience in its business. Mr Jason Lea, Mr Michael Lea's cousin, who was a director at the time of the 2000 Christmas planning, has recently died. If one accepts Ms McGlinchey, Ms Ettia and Ms Hurst, as I do, as truthful and reliable witnesses, it just seems inherently unlikely that Mr Goldman or Mr Tolmie would have harboured, unbeknowns to Ms McGlinchey, Ms Ettia and Ms Hurst, a secret purpose to misappropriate Cadbury's business by deliberately misleading consumers. As Walton makes clear, this would be the act of a dishonest trader. An allegation of such a kind falls to be assessed in the light of the rule in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 364
Outcome: cited
Cadbury tendered (over the objection of Darrell Lea: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 364) a "Chocolate Sensory Study" consumer research report commissioned by it in August 2005 and conducted in October 2005 by Ms Caroline Shelton of National Field Services. The research methodology was provided by a firm called QBrand Consulting after consultation with Professor Roger Layton, Emeritus Professor of Marketing at the University of New South Wales. 70 Although by this time the trial date had already been fixed and the survey was obviously conducted for the purpose of the trial, Cadbury did not comply with Practice Note No 11, issued by the Chief Justice of the Federal Court in 1994, which provides: "11. Survey evidence There are many problems in obtaining acceptable survey evidence including the use of relevant and unambiguous questions and whether the actual conduct of the survey (including methodology) is satisfactory. The admissibility of surveys is always a matter for the trial Judge to determine but the risk of the survey being rejected or given little, if any, weight at the trial may be diminished if the following procedure when a party seeks to have a survey conducted. Subject to other directions of the Court in the particular case, the Court expects that this practice will usually be followed: 1. Notice should be given in writing by the party seeking to have the survey conducted to the other parties to the proceeding. 2. The notice should give an outline of a. the purpose of the proposed survey; b. the issue to which it is to be directed; c. the proposed form and methodology; d. the particular questions that will be asked; e. the introductory statements or instructions that will be given to the persons conducting the survey; f. other controls to be used in the interrogation process. 3. The parties should attempt to resolve any disagreement concerning the manner in which the survey is to be conducted and any of the matters mentioned in 2 above. 4. The matter of the survey should be raised with the Court at the directions hearing as soon as possible after the steps mentioned above have been taken." No explanation was proffered for this non-compliance, which was obviously a deliberate choice by Cadbury and its advisors. 71 Ms Shelton arranged for 102 participants to attend at her firm's premises. They were selected at random from the Melbourne Telephone Directory. Seventy-one per cent were female. They were screened to exclude, amongst other things, people who did not buy chocolate at all or who bought an excessive amount of chocolate. Participants were shown different forms of chocolate (blocks, Easter eggs etc) in batches with wrappings in different colours, one colour for each batch blue, gold, purple, red and green. In fact, all chocolate was from Cadbury, although there was nothing to indicate that to participants.
Case: Royal Warrant Holders' Association v Edward Deane &amp; Beal Ltd [1912] 1 Ch 10 at 14-15
Outcome: cited
Neither the Trade Practices Act provisions, nor the tort of passing off, require, as an essential element of proof, evidence of actual misleading of consumers. Nevertheless such evidence is admissible and in appropriate circumstances can be "very material" and of "some importance": Royal Warrant Holders' Association v Edward Deane &amp; Beal Ltd [1912] 1 Ch 10 at 14-15, cited with approval by Gummow J, with whom Black CJ and Lockhart J agreed, in Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 389. In the present case, it would be useful to have had evidence such as: "I usually buy Cadbury chocolate. I know their chocolate from the purple wrappings and advertising. I saw some purple wrapped chocolate but when I got to the checkout I saw it was Darrell Lea's. But I was in a hurry so I bought it anyway." or "I saw Darrell Lea using purple so I thought they must have been taken over by Cadbury."