mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Campbell v Metway Leasing Ltd (1998) ATPR 41-630
Outcome: cited
In relation to the applicant's allegation that the respondents intentionally caused the applicant to become a bankrupt (par 456), it is clear from the statement of claim that the applicant bitterly resents conduct in which he alleges the respondents engaged which he believes caused his bankruptcy, and indeed bitterly resents the fact of his bankruptcy. However the applicant has become a bankrupt through lawful process in the Federal Court and has throughout that process had opportunities to challenge the circumstances leading to his bankruptcy. I respectfully adopt comments of McInerney J in Campbell v Metway Leasing Ltd (1998) ATPR 41-630. In that case the appellants pleaded undue harassment or coercion by the respondents in relation to, inter alia , issuing two bankruptcy notices where there were allegedly no debts due. His Honour said at 40,916-7: 'In my opinion, however, the institution of legal proceedings which are not themselves vexatious, frivolous or an abuse of process, and therefore liable to be summarily dismissed under Part 13 rule 5 of the Supreme Court Rules 1970 (NSW), cannot constitute "undue" harassment or coercion for the purposes of section 55 (Fair Trading Act 1987 (NSW), being the NSW equivalent of section 60 Trade Practices Act ) as a plaintiff, within these bounds, has a legitimate right of recourse to the Courts for the determination of their claim or grievance.' 85 To the extent that the third respondent allegedly threatened the applicant with 'a life long vendetta' (par 461), and in relation to the applicant's allegations concerning the alleged theft of files by the third and fourth respondents (par 470), the applicant has not pleaded: a. how the third and fourth respondents, who are individuals, are liable under s 60 Trade Practices Act (assuming that it this section the applicant is relying on in relation to this allegation). b. whether the applicant claims that the corporate respondents are liable in relation to this claim. c. if s 60 is relied on, how the conduct in question is relevant to the provision of goods and services or payment for goods and services as required by the legislation. 86 Further, in relation to the alleged theft of the applicant's files claimed in par 470, I repeat my comments earlier in relation to Count 6 concerning: a. whether this conduct constitutes undue harassment in breach of s 60 and b. the fact that unlawful access of the respondents to the applicant's home and his possessions potentially gives rise to cause of action in the State courts in tort.
Case: Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 ; (1983) 151 CLR 447
Outcome: cited
Plainly, both s 51AA and 52 Trade Practices Act apply to conduct of a corporation in trade or commerce . The enactment of s 51AA introduced into the legislation statutory notions of unconscionable conduct founded in courts of equity (see for example Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362, Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 ; (1983) 151 CLR 447). As Kirby J said in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 197 ALR 153 at 173 in relation to s 51AA: 'Such equitable categories developed in order to protect the integrity of the contracting process where a party is induced to act or enter a transaction due to weakness or illegitimate pressure, and does so without full information or appreciation of the extent or nature of the transaction or the way it affects that party's interests and choices.'
Case: Commonwealth Bank of Australia v Spira [2002] NSWSC 905
Outcome: cited
Further, although the applicant complains of being 'starved' of working capital he needed for personal use, business use and expansion (par 450): (a) In the absence of contractual obligations of the respondents to provide the applicant with funds (as discussed earlier in relation to Count 10), they are not obliged to do so. The applicant has not, for example, pleaded that the only source of funding for his activities was the respondents and that accordingly the situation was such that their refusal to advance funds was unconscionable (cf Franklins Selfserve Pty Ltd v Austotel Pty Ltd , unreported, New South Wales Supreme Court, Needham J, 10 November 1988) or that the respondents had promised to advance the funding and then had not (cf Lorimer v State Bank of NSW , unreported, New South Wales Court of Appeal, Priestley, Handley JJA and Kirby P, 5 July 1991, and Commonwealth Bank of Australia v Spira [2002] NSWSC 905). (b) Irrespective of any contractual obligation, any right of action in relation to the provision of working capital to the bankrupt is now a matter for the applicant's trustee in bankruptcy.
Case: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: cited
Further, although clearly s 52 Trade Practices Act is of broad application it is not open-ended. As pointed out by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594: '...the section is not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.' (Mason CJ, Deane, Dawson &amp; Gaudron JJ at 604) 31 Sections 51AA and 52 Trade Practices Act apply to interactions between corporations and other parties in the commercial context, involving commercial transactions. To the extent that these legislative provisions are relevant in this context (and there are possible issues with respect to their relevance in respect of conduct in relation to financial services, which I need not discuss for the purposes of this judgment), it is difficult to comprehend a case where these sections would be relevant and where, in the event of the bankruptcy of a person complaining about breach of either section, the trustee in bankruptcy of the complainant would not be the appropriate party to institute litigation.
Case: Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713
Outcome: cited
As Greenwood J noted in his judgment ([2006] FCA 434 at [4]) with respect to the claims of the applicant against the respondents, the most immediate difficulty confronting the applicant is the question of whether he has standing in connection with this litigation, on the basis that a sequestration order in respect of the applicant's estate was made on 23 February 2005. His Honour explained: &#8226; the effect of s 58 Bankruptcy Act , which vests the property of the bankrupt in the registered trustee (at [36]) &#8226; the meaning of 'property of the bankrupt' for the purposes of s 58 , which is defined as 'the property divisible among the bankrupt's creditors; and any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt' (at [36]) &#8226; the fact that property divisible amongst the creditors for the purposes in s 116 includes 'the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his discharge' (at [37]) &#8226; that only the trustee in bankruptcy is entitled to seek remedial orders in respect of property, contractual rights, security interests, and related entitlements (at [43]) &#8226; that the exemption in s 116(2)(g) with respect to wrongs done to the bankrupt is limited to those cases where the essential cause of action is the personal injury done to the person or feelings of the bankrupt, as distinct from where the damages or part of them are to be estimated by reference to the bankrupt's rights of property (at [45]-[47]; cf Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591 at 601, Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, Faulkner v Bluett (1981) 52 FLR 115 at 119) &#8226; that a claim with respect to a wrong done to the applicant characterised by reference to the anxiety, stress and pain felt by the bankrupt in respect of a recognised cause of action remains with the applicant under s 116(2)(g) Bankruptcy Act (at [46]) and &#8226; that in the case before his Honour the claims were not claims for damages founded upon immediate reference to the distress and anxiety caused to the bankrupt without reference to his rights of property (at [49]); further the applicant's claim for final relief was a consequential claim necessarily connected with the applicant's interests in property (at [50]).
Case: Daemar v Industrial Commission of New South Wales (1988) 79 ALR
Outcome: cited
As Greenwood J noted in his judgment ([2006] FCA 434 at [4]) with respect to the claims of the applicant against the respondents, the most immediate difficulty confronting the applicant is the question of whether he has standing in connection with this litigation, on the basis that a sequestration order in respect of the applicant's estate was made on 23 February 2005. His Honour explained: &#8226; the effect of s 58 Bankruptcy Act , which vests the property of the bankrupt in the registered trustee (at [36]) &#8226; the meaning of 'property of the bankrupt' for the purposes of s 58 , which is defined as 'the property divisible among the bankrupt's creditors; and any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt' (at [36]) &#8226; the fact that property divisible amongst the creditors for the purposes in s 116 includes 'the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his discharge' (at [37]) &#8226; that only the trustee in bankruptcy is entitled to seek remedial orders in respect of property, contractual rights, security interests, and related entitlements (at [43]) &#8226; that the exemption in s 116(2)(g) with respect to wrongs done to the bankrupt is limited to those cases where the essential cause of action is the personal injury done to the person or feelings of the bankrupt, as distinct from where the damages or part of them are to be estimated by reference to the bankrupt's rights of property (at [45]-[47]; cf Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591 at 601, Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, Faulkner v Bluett (1981) 52 FLR 115 at 119) &#8226; that a claim with respect to a wrong done to the applicant characterised by reference to the anxiety, stress and pain felt by the bankrupt in respect of a recognised cause of action remains with the applicant under s 116(2)(g) Bankruptcy Act (at [46]) and &#8226; that in the case before his Honour the claims were not claims for damages founded upon immediate reference to the distress and anxiety caused to the bankrupt without reference to his rights of property (at [49]); further the applicant's claim for final relief was a consequential claim necessarily connected with the applicant's interests in property (at [50]).
Case: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458
Outcome: cited
A view has been expressed that the purpose of s 31A is to introduce a lower standard for summary dismissal and strikeouts under O 20 r 2 and O 11 r 6: cf Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 at [5-8] ; Wearne v Southern Cross University [2006] FCA 1033 at [13] and Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441 at [23] . It is unnecessary for me to decide this issue in the context of this matter. In my view the application of the applicant filed 7 April 2006 can be dismissed in accordance with either s 31A Federal Court Act or O 20 r 2 Federal Court Rules , and I should so order. ORDER 1. The proceedings in QUD130/2006 commenced by application filed 7 April 2006 by the applicant be dismissed. 2. The applicant pay the costs of and incidental to the proceedings to be taxed if not agreed. I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 7 December 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: CD Coulsen Solicitor for the Respondent: Whittle Lawyers Date of Hearing: 4 August 2006 Date of Judgment: 7 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1708.html
Case: Ex parte Vine in re Wilson (1878) 8 Ch D 364
Outcome: cited
A claim in respect of defamation of the injured party so far as it concerns his credit, character and reputation remains with the injured party as it relates to a personal injury: ex parte Vine in re Wilson (1878) 8 Ch D 364, Wilson v United Counties Bank Ltd [1920] AC 102 at 111 and 128, Holmes v Goodyear Tyre &amp; Rubber Co (Aust) Ltd (1984) 55 ALR 594. If this did give rise to a cause of action (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be in the State courts.
Case: Franklins Selfserve Pty Ltd v Austotel Pty Ltd , unreported, New South Wales Supreme Court, Needham J, 10 November 1988
Outcome: cited
Further, although the applicant complains of being 'starved' of working capital he needed for personal use, business use and expansion (par 450): (a) In the absence of contractual obligations of the respondents to provide the applicant with funds (as discussed earlier in relation to Count 10), they are not obliged to do so. The applicant has not, for example, pleaded that the only source of funding for his activities was the respondents and that accordingly the situation was such that their refusal to advance funds was unconscionable (cf Franklins Selfserve Pty Ltd v Austotel Pty Ltd , unreported, New South Wales Supreme Court, Needham J, 10 November 1988) or that the respondents had promised to advance the funding and then had not (cf Lorimer v State Bank of NSW , unreported, New South Wales Court of Appeal, Priestley, Handley JJA and Kirby P, 5 July 1991, and Commonwealth Bank of Australia v Spira [2002] NSWSC 905). (b) Irrespective of any contractual obligation, any right of action in relation to the provision of working capital to the bankrupt is now a matter for the applicant's trustee in bankruptcy.
Case: Hodges v Webb [1920] 2 Ch 70
Outcome: cited
Section 60 Trade Practices Act specifically applies to conduct in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer, and therefore is founded in an existing (or possible) contractual relationship between the corporation and the consumer. In the event that the consumer becomes bankrupt, it follows that any legal action arising from the contractual relationship between the consumer and the corporation vests in the trustee in bankruptcy. Although there is little case law interpreting this section: &#8226; The word 'undue', which qualifies 'harassment', suggests that what is done must, having regard to the circumstances, extend beyond that which is acceptable or reasonable ( ACCC v Maritime Union of Australia [2001] FCA 1549 ; [2001] 114 FCR 472 per Hill J at 486). &#8226; 'Harassment' in this context means persistent disturbance or torment ( ACCC v Maritime Union of Australia at 485). 'Undue harassment' therefore means that conduct which amounts to harassment will only amount to a contravention of the section where what is done goes beyond the normal limits which, in the circumstances, society would regard as acceptable or reasonable and not excessive or disproportionate ( ACCC v Maritime Union of Australia at 485). Accordingly, it follows that the section contemplates that some harassment of a consumer by a corporation in connection with the supply or possible supply of goods or services or in respect of payment for goods or services by a consumer can be tolerated and is not unlawful. &#8226; 'Coercion' carries with it the connotation of force or compulsion or threats of force or compulsion negating choice or freedom to act ( Hodges v Webb [1920] 2 Ch 70 at 85-87 per Peterson J, ACCC v Maritime Union of Australia at 485-486).
Case: Holmes v Goodyear Tyre &amp; Rubber Co (Aust) Ltd (1984) 55 ALR 594
Outcome: cited
A claim in respect of defamation of the injured party so far as it concerns his credit, character and reputation remains with the injured party as it relates to a personal injury: ex parte Vine in re Wilson (1878) 8 Ch D 364, Wilson v United Counties Bank Ltd [1920] AC 102 at 111 and 128, Holmes v Goodyear Tyre &amp; Rubber Co (Aust) Ltd (1984) 55 ALR 594. If this did give rise to a cause of action (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be in the State courts. 107 At best, the only cause of action I can identify from this Count is a possible defamation action by the applicant against the respondents (pars 619-622). As I explained earlier in this judgment in relation to Count 8, a claim in respect of defamation remains with the injured party as it relates to a personal injury: ex parte Vine in re Wilson; Wilson v United Counties Bank Ltd ; Holmes v Goodyear Tyre &amp; Rubber Co (Aust) Ltd . If this did give rise to a cause of action (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be in the State courts. 112 As I explained earlier in this judgment in relation to Count 8, a claim in respect of defamation remains with the injured party as it relates to a personal injury: ex parte Vine in re Wilson; Wilson v United Counties Bank Ltd ; Holmes v Goodyear Tyre &amp; Rubber Co (Aust) Ltd . If this did give rise to a cause of action (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be in the State courts.
Case: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116
Outcome: applied
Recently the Full Court in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 observed that the Court will assume jurisdiction and adjudicate a dispute where: the jurisdiction of the Federal Court is engaged by an action in respect of subject-matter with which the Court can deal, and the action is instituted by an applicant who has standing, and the action is not oppressive, vexatious or otherwise an abuse of process... (per Black CJ and Finkelstein JJ at [10]) 134 In my view, the case before me exhibits none of these attributes. To the extent that the statement of claim pleads causes of action at all: &#8226; the applicant lacks standing in almost all Counts on account of his bankruptcy &#8226; even if the applicant did have standing under s 116(2)(g) Bankruptcy Act because he had rights to recover damages or compensation in respect of personal injuries or wrongs, throughout the statement of claim he has consistently failed to particularise the personal injury or wrong done to him and failed to draw a nexus between the conduct of the respondents and any personal injury or wrong done to him &#8226; such causes of action as the applicant retains personally including potentially damages for defamation and trespass are, in my view, pursuable only in the State Courts, not the Federal Court. 135 As I noted earlier in this judgment, the function of pleadings is to state with sufficient clarity the case that must be met.
Case: Lorimer v State Bank of NSW , Court of Appeal, unreported, New South Wales Court of Appeal, Priestley, Handley JJA and Kirby P, 5 July 1991
Outcome: cited
Further, although the applicant complains of being 'starved' of working capital he needed for personal use, business use and expansion (par 450): (a) In the absence of contractual obligations of the respondents to provide the applicant with funds (as discussed earlier in relation to Count 10), they are not obliged to do so. The applicant has not, for example, pleaded that the only source of funding for his activities was the respondents and that accordingly the situation was such that their refusal to advance funds was unconscionable (cf Franklins Selfserve Pty Ltd v Austotel Pty Ltd , unreported, New South Wales Supreme Court, Needham J, 10 November 1988) or that the respondents had promised to advance the funding and then had not (cf Lorimer v State Bank of NSW , unreported, New South Wales Court of Appeal, Priestley, Handley JJA and Kirby P, 5 July 1991, and Commonwealth Bank of Australia v Spira [2002] NSWSC 905). (b) Irrespective of any contractual obligation, any right of action in relation to the provision of working capital to the bankrupt is now a matter for the applicant's trustee in bankruptcy.
Case: Munnings v Australian Government Solicitor [1994] HCA 12 ; (1994) 120 ALR 586
Outcome: applied
As Mason CJ and Brennan and Toohey JJ observed in Munnings v Australian Government Solicitor [1994] HCA 12 ; (1994) 120 ALR 586 at 589: '... Although a plaintiff is often granted leave to replead if a statement of claim is struck out, there are some cases where the plaintiff so misconceives the cause of action that the action ought to be brought to an end.' (cf Fox Symes at [109]).
Case: Rivkin &amp; Co Ltd v Young (1996) 22 ACSR 589
Outcome: cited
The applicant also complains about the failure of the respondents to make payments to him pursuant to a Deed (pars 407-412). Refusal to advance funds in circumstances where a party is obliged to do so clearly falls into the realms of breach of contract: Rivkin &amp; Co Ltd v Young (1996) 22 ACSR 589; Vision Telecommunications Pty Ltd &amp; Ors v Australia and New Zealand Banking Group Ltd [2001] WASC 139 at [73] . There is no evidence before this Court supporting an allegation of breach of contract by the respondents. To the extent that there was such evidence, the claim would vest in the applicant's trustee in bankruptcy.
Case: Trade Practices Commission v Australian Iron and Steel Pty Limited (1989) 22 FCR 305
Outcome: cited
The case before me is indeed a case where the observations of Lockhart J in Trade Practices Commission v Australian Iron and Steel Pty Limited (1989) 22 FCR 305 resonate: '[The Statement of Claim] fails to plead material facts, it contains confusing and irrelevant material, it uses ambiguous terms, pleads particulars rather than material facts and asserts conclusions or opinions.' (at 323) 138 To the extent that there is anything in the applicant's statement of claim which pleads a valid cause of action, in respect of which he has standing, then as Lockhart J also observed in Australian Iron and Steel : '...the defective parts are so inextricably intertwined with offending material that an oppressive burden is cast upon the respondents to spell out the alleged cause or causes of action. The whole pleading must be struck out.'