mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472
Outcome: applied
respondent referred me to five decisions in this Court which it contended supported the narrow interpretation of the expression in connection with which found favour with Dowsett J in Worchild [2005] FCA 1792. The five cases in question were: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at [63] and [66] (pp 486-487); Australian Competition and Consumer Commission v Davis [2003] FCA 1227 at [21] and [22]; Australian Competition and Consumer Commission v Esanda Finance Corporation Ltd [2003] FCA 1225 ; Australian Competition and Consumer Commission v Capalaba Pty Ltd [2004] ATPR 41-976; and Australian Competition and Consumer Commission v McCaskey [2000] FCA 1037 ; (2000) 104 FCR 8. Those five decisions tend to support the proposition that the connection between the conduct complained of and a supply or possible supply of goods or services to a consumer must be direct and obvious. However, the point was not specifically addressed in any of them and was not the subject of detailed consideration in any of them. Rather, the focus of the argument was on the concept of " undue harassment ". Harassment also involves conduct directed at the person harassed in an immediate and direct fashion. It usually involves repetition. The assessment of whether conduct is properly characterised as harassment involves an evaluative judgment (per French J in McCaskey [2000] FCA 1037 ; 104 FCR 8 at [48] (p 27)). The word " undue " adds an extra layer of evaluation (per French J in McCaskey [2000] FCA 1037 ; 104 FCR 8 at [48] (p 27)). To be " undue ", the harassment must be disproportionate and patently unreasonable. These views as to the meaning of the core expressions in s 60 of the Act were supported by Hill J in Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; 114 FCR 472 at [60] [62] (pp 485 486).
Case: Bourke v State Bank of New South Wales (1988) 22 FCR 378
Outcome: applied
this context, the expression " interests of justice " should be given a wide interpretation. The Court is entitled to consider, in addition to issues concerning jurisdiction, remedies and enforcement: ... adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. (per Wilcox J in Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394). The respondent made the following submissions in support of its application that the whole of the proceedings be transferred to the Supreme Court: (a) The proceeding is fundamentally a common law proceeding and, as such, is more appropriately dealt with in a State court. The dominant cause of action is the cause of action in defamation; (b) All aspects of the proceeding, including the parties, the conduct alleged and the damage suffered are connected with New South Wales. There are no issues of a national character, nor any issues which would require consideration of the law of a place other than New South Wales. There are no factors referable to convenience which would render a hearing in New South Wales inappropriate. After all, were the matter to remain in this Court, the hearing would take place in Sydney; and (c) In substance, the proceeding is a defamation proceeding and, as such, is more appropriately dealt with in a State court which has specialist expertise. In particular, there are important procedural advantages available should the matter be transferred to the Supreme Court, including a specialist list for defamation matters, specialist defamation case management rules and a prima facie entitlement to a trial by jury. Were the matter transferred to the Supreme Court, the respondent would have an opportunity to elect to have a trial by jury, subject always to the overall control by the Supreme Court of whether, in fact, in any particular case, some or all of the issues involved should be tried with a jury. However, there was a strong likelihood that, if the respondent wished to have a trial with a jury, the trial would be with a jury.
Case: Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548
Outcome: cited
Cook v Pasminco Ltd [2000] FCA 677 ; (2000) 99 FCR 548 at [15] [17] (pp 550 551), Lindgren J held that, because the federal claims pleaded in the case before him were hopeless and clearly untenable, those claims were not genuine and were colourable or fabricated in order to engage the jurisdiction of this Court and for no other purpose, there being no evidence to the contrary. The expressions used by his Honour in respect of the federal claims with which he was dealing were " obviously doomed to fail ", " clearly untenable " and " quite hopeless ". In using those expressions, his Honour was seeking to convey the notions that: In Cook v Pasminco Ltd [2000] FCA 677 ; 99 FCR 548 , his Honour held, amongst other things, that toxic emissions from plants were not " supplied " by the respondents. The claim was that those emissions had been supplied by the respondents with a defect, in breach of s 75AD and s 75AG of the Act. His Honour had no difficulty in concluding that the claims were colourable. He did so because they were very obviously untenable. Not every claim which is ultimately held to have failed or which is struck out as untenable would justify the conclusion that it was colourable.
Case: Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629 , (1987) ATPR 40-807
Outcome: applied
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 , a Full Court of this Court held that the Northern Territory and a statutory authority of the Territory were not bound by the Act. Nonetheless, the Court held that there was accrued jurisdiction in this Court in respect of the common law claims brought against them. The Court said (18 FCR at 219): It is true that in answering questions 1 and 2 in the negative, we have determined preliminary points of law in the claims under the Act brought against the second and third respondents; and that, in consequence, there will be no further trial of those issues. But it does not follow that the Court ever lacked jurisdiction to deal with such claims. Nor does it follow that the Court now loses its jurisdiction to deal with the attached common law claims: see Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32 ; (1980) 145 CLR 457 at 469, 472, 477; Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) ATPR 40-795 ; 75 ALR 271 , and Dorotea Pty Ltd v Vancleve Pty Ltd (1987) ATPR 40-807 ; 75 ALR 629. In principle, the position is no different than it would have been if the claims under the Act had proceeded to trial and had been dismissed on the merits. In that situation, it could not seriously be suggested that the dismissal of the claims under the Act had the effect of depriving the Court of jurisdiction to deal with any attached non-federal claim. The position may have been different if the claims under the Act had been "colourable" in the sense that they were made for the improper purpose of "fabricating" jurisdiction: see P H Lane, Lane's Commentary on the Australian Constitution (1986), pp 367-368 and the cases there cited. There is no room for such a suggestion here. The applicants' case that the second and third respondents were bound by the Act cannot be said to be unarguable; and we think it was pursued bona fide: cf R v Cook; Ex parte Twigg [1980] HCA 36 ; (1980) 147 CLR 15 per Gibbs J at 26. Those statements were entirely in line with observations to the same effect made in Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629 at 632 and in Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) [1987] FCA 230 ; (1987) 16 FCR 410 at 415 416 (per Gummow J).
Case: Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) [1987] FCA 230 ; (1987) 16 FCR 410
Outcome: applied
statements were entirely in line with observations to the same effect made in Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629 at 632 and in Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) [1987] FCA 230 ; (1987) 16 FCR 410 at 415 416 (per Gummow J).
Case: Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd [2002] FCA 278 ; [2002] ATPR 41-866
Outcome: cited
submissions are correct. The interests of justice will be best served by the applicant's common law claims being tried in the court where they are usually tried. This is particularly so when, as here, the dominant claim is her claim in defamation. The circumstances of this case may be contrasted with those considered by Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd [2002] FCA 278 ; [2002] ATPR 41-866. In that case, the federal claims were an important part of the case, remained on foot and, in part, involved parties not concerned with the alleged defamation. This is not to say that, were the proceedings retained in this Court, the trial would not be with a jury. The real point is that the Supreme Court is best equipped in terms of its procedures and expertise to hear and determine the present proceedings when sensible regard is had to the substance of the claims made in the proceedings. For these reasons, I propose to order that the whole of the proceedings be transferred to the Supreme Court of New South Wales. Other Matters
Case: Genovese v BGC Construction Pty Ltd [2007] FCA 923
Outcome: cited
Mr Kunc, who appears for the Department, then foreshadowed a notice of motion seeking summary judgment pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) ('the Act') and, in the alternative, an order that the Department be removed as a party to the proceedings pursuant to s 25(2B)(a) of the Act. A single judge of the Court has power under those sections to make the orders sought (s 25 ; Zegarac v Dellios [2007] FCA 566 at [12] ; Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 at [4] ; Genovese v BGC Construction Pty Ltd [2007] FCA 923). The notice of motion for summary judgment was filed on 24 May 2007 ('the motion').
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
In Zambini , Mansfield J considered an application for summary dismissal in respect of an appeal from a judge of the Court who had held that there was no error of law in a decision of the Tribunal. As his Honour observed at [5], an appeal should not be summarily dismissed if there are some identified or identifiable grounds capable of supporting an argument that the appeal might succeed. In this matter, as in Zambini , there is no ground of appeal which might be arguable. Mr Druett has been unable to articulate a ground of appeal with prospects of success and none is apparent. This is so whether one applies s 31A of the Act or the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. The appeal should be summarily dismissed.
Case: Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773
Outcome: cited
Mr Kunc, who appears for the Department, then foreshadowed a notice of motion seeking summary judgment pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) ('the Act') and, in the alternative, an order that the Department be removed as a party to the proceedings pursuant to s 25(2B)(a) of the Act. A single judge of the Court has power under those sections to make the orders sought (s 25 ; Zegarac v Dellios [2007] FCA 566 at [12] ; Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 at [4] ; Genovese v BGC Construction Pty Ltd [2007] FCA 923). The notice of motion for summary judgment was filed on 24 May 2007 ('the motion'). 23 In Zambini , Mansfield J considered an application for summary dismissal in respect of an appeal from a judge of the Court who had held that there was no error of law in a decision of the Tribunal. As his Honour observed at [5], an appeal should not be summarily dismissed if there are some identified or identifiable grounds capable of supporting an argument that the appeal might succeed. In this matter, as in Zambini , there is no ground of appeal which might be arguable. Mr Druett has been unable to articulate a ground of appeal with prospects of success and none is apparent. This is so whether one applies s 31A of the Act or the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. The appeal should be summarily dismissed.
Case: Zegarac v Dellios [2007] FCA 566
Outcome: cited
Mr Kunc, who appears for the Department, then foreshadowed a notice of motion seeking summary judgment pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) ('the Act') and, in the alternative, an order that the Department be removed as a party to the proceedings pursuant to s 25(2B)(a) of the Act. A single judge of the Court has power under those sections to make the orders sought (s 25 ; Zegarac v Dellios [2007] FCA 566 at [12] ; Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 at [4] ; Genovese v BGC Construction Pty Ltd [2007] FCA 923). The notice of motion for summary judgment was filed on 24 May 2007 ('the motion').
Case: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: cited
The respondent sought an order for indemnity costs. The circumstances in which the Court has exercised its discretion to order indemnity costs were considered by Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234. His Honour there observed that the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis. 11 The present application was made and brought on for hearing in haste and, as it seems, without consideration, or adequate consideration, being given to s 32AA of the Federal Court Act . I am not persuaded that urgency inimicable to proper consideration of the provisions of the Federal Court Act has been demonstrated. No critical step is apparently imminent in the Federal Magistrates Court. I conclude that this is a case for indemnity costs. 12 The orders of the Court will be: 1. The application be dismissed. 2. The applicant pay all costs incurred by the respondent except insofar as they are of an unreasonable amount or were unreasonably incurred. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 31 July 2008 Counsel for the Applicant: Mr B Skinner and Mr V Baird Solicitor for the Applicant: Munro Lawyers Counsel for the Respondent: Mr S Golledge Solicitor for the Respondent: Rockliffs Solicitors and IP Lawyers Date of Hearing: 21 July 2008 Date of Judgment: 31 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1107.html
Case: Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11 ; (2000) 200 CLR 591
Outcome: cited
The jurisdiction vested in the Federal Court by the Parliament is necessarily a jurisdiction with respect to "matters" (see s 77(i) of the Constitution ). In the constitutional sense a "matter" includes a controversy as to some immediate right, duty or liability to be established by the determination of the Court ( Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11 ; (2000) 200 CLR 591 per Gaudron J at [43]). 5 The justiciable controversy between the parties to which Mr Carantinos's application to this Court relates concerns the respondent's entitlement to obtain a sequestration order in respect of Mr Carantinos's estate. In particular, Mr Carantinos contends, and the respondent disputes, that by reason of the conduct of the respondent, certain dealings between the parties and unfinished litigation in the Court of Appeal of New South Wales, the respondent should be restrained from seeking a sequestration order against Mr Carantinos's estate. This is made plain by the fact that Mr Carantinos's claim for relief in this Court is advanced, as his written submissions reveal, on the following bases: (i) The applicant sought an undertaking that the respondent would not enforce a judgment entered in the Supreme Court of New South Wales by enforcement proceedings including bankruptcy proceedings. The respondent agreed to provide an undertaking on condition that the applicant verified accounts of dealings between the parties. The applicant did so without complaint by the respondent. Notwithstanding the agreement, the respondent purported to serve a bankruptcy notice and present a creditor's petition. (ii) The judgment debt forms part of the dealings between the parties, which is the subject of the taking of accounts, and an appeal to the Court of Appeal. The decision of the Court of Appeal is presently reserved. (iii) The respondent chose to serve a bankruptcy notice at an address known to be a business address of the applicant without recourse to his home address or the address of his then and present legal advisors. 6 It is not in dispute that the Federal Magistrates Court has jurisdiction in respect of the justiciable controversy between the parties concerning the respondent's entitlement to obtain a sequestration order in respect of Mr Carantinos's estate. Indeed, the Federal Court and the Federal Magistrates Court have concurrent jurisdiction in bankruptcy (s 27 of the Bankruptcy Act ).
Case: Master Abrasives Corporation v Williams (1984) 469 NE 2d 1196
Outcome: cited
The phrase a "system or marketing plan" is not defined in the Code. In seeking to give meaning to this concept Australian courts have had resort to American case law which deals with equivalent but not identical legislation. In the course of a review of American texts and decisions which she undertook in Capital Networks at [103] to [110] Bennett J identified the following factors as being "helpful indicators" of the presence of such a plan: &#8226; the provision by the franchisor of a detailed compensation and bonus structure for distributors selling its products; &#8226; a centralised bookkeeping and record keeping computer operation provided by the franchisor for distributors; &#8226; a scheme prescribed by the franchisor under which a person could become a distributor, direct distributor, district director, regional director, or zone director; &#8226; the reservation by the alleged franchisor of the right to screen and approve all promotional materials used by distributors; &#8226; a prohibition on re-packaging of products by distributors; &#8226; the provision of assistance by the alleged franchisor to its distributors in conducting "opportunity meetings"; &#8226; suggestion by the franchisor of the retail prices to be charged for products; and &#8226; a comprehensive advertising and promotional program by the alleged franchisor. Her Honour also had regard to some further indicators which were treated as relevant by the Court of Appeals of Indiana in Master Abrasives Corporation v Williams (1984) 469 NE 2d 1196: &#8226; the division of a state into marketing areas; &#8226; the establishment of sales quotas; &#8226; the franchisor having approval rights of any sales personnel whom the franchisee might seek to employ; &#8226; a mandatory sales training regime; &#8226; the provision of quotation sheets to the franchisee's employees; &#8226; provision by the franchisor of prescribed invoices and other sales forms; &#8226; a requirement that franchisees elicit certain information from their customers and provide that information to the franchisor; and &#8226; a restriction on the franchisee selling any of the franchisor's products without first consulting the franchisor. This is not intended to be an exhaustive list of relevant considerations but it does serve to focus attention on the type of matters which will inform a judgment on whether the necessary "system or marketing plan" exists in a particular case.
Case: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Outcome: cited
number of principles have emerged from decisions of the Federal Court where this issue has been considered. Those principles include the following: 1. It simply begs the question of law to commence an appeal point with words such as 'whether the Tribunal erred in law'. If the question properly analysed is not a question of law, no amount of the formulary like 'erred in law' or 'was open as a matter of law' can make it into a question of law (Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524). 2. Appeals to this Court under s 44 AAT Act are only on questions of law. Accordingly the relevant question of law is the subject matter of the appeal itself. The whole of the decision of the Tribunal is not open to review except to the extent that it relevant to the questions of law raised (Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Saxby Bridge at [46]). 3. Order 53 r 3(2) discloses an intention that a question of law raised on an appeal from the Tribunal should be stated with precision as a pure question of law (Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] ). 4. A question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear, having regard for example to relevant legislation, relevant authorities, the language of the Tribunal's reasons and the grounds stated in the notice of appeal ( Ergon at [51]). In my view that cannot be the case. Such a 'question': &#8226; is insufficiently particular as it does not allow the Court to answer the question on the facts of the case &#8226; in that respect, 'begs the question' as expressed by Ryan J in Lambroglou &#8226; is a finding that the Court may or may not reach, depending on the nature of the particular question which is put in the notice of appeal. Similarly in the case before me, the 'question' in par 2(g), namely whether the exercise by the Tribunal of its discretion miscarried in that the Tribunal acted upon a wrong principle or did not take into account one or more relevant considerations or took into account one or more irrelevant considerations, in my view: &#8226; is insufficiently particular &#8226; 'begs the question' as expressed by Ryan J in Lambroglou &#8226; refers to a finding that the Court may or may not reach, which needs to be based on a particular question of law the applicant must include in its notice of appeal. Further, it is not, in my view, a question of law to include a 'catch all' submission referable to questions of law in pars 2(a), (b), (c), (d), (e), (f), as a question of law which is the subject of the appeal. While the issues included in par 2(g) are clearly relevant, the paragraph is, as was submitted by Mr Coulsen for the respondent, a submission, a principle, rather than a question of law.