mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mitchell v Bailey (No 2) [2008] FCA 692 , 169 FCR 529
Outcome: cited
352(1) defines an " illegal practice " as meaning " a contravention of this Act or the regulations ". Given this definition, the continued use of the term " illegal practice " (it has been correctly observed) is " unfortunate " as " [i]t is apt to suggest conduct which involves moral turpitude and conduct which is criminal in nature ": Mitchell v Bailey (No 2) [2008] FCA 692 at [9] , [2008] FCA 692 ; 169 FCR 529 at 534 per Tracey J. The substance of the Petitioner's concerns seems to be, at least in part, that there has been a contravention of s 328A of the 1918 Act. So much seems to follow from his reference in his petition to the " link to the webpages of three of the candidates, one of which ... carried no political authorisation statement ... ". Section 328A provides as follows: Publication of electoral advertisements on the Internet (1) A person commits an offence if: (a) either: (i) the person publishes an electoral advertisement on the Internet; or (ii) the person causes, permits or authorises an electoral advertisement to be published on the Internet; and (b) the electoral advertisement is intended to affect voting in an election; and (c) the electoral advertisement is paid for by the person or another person; and (d) the name and address of the person who authorised the advertisement do not appear at the end of the advertisement. Penalty: 10 penalty units. (2) Subsection (1) does not apply if the matter published on the Internet forms part of a general commentary on a website. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ). (3) Section 15.2 of the Criminal Code (extended geographical jurisdiction &#8212; category B) applies to an offence against subsection (1). (4) In this section: " address " of a person means an address, including a full street address and suburb or locality, that is located in Australia at which the person can usually be contacted during the day. It does not include a post office box. Though he does not identify the provision directly, the Petitioner's concern seems be that there has been a contravention of s 328A and that such a contravention constitutes an " illegal practice " as defined by s 352(1). If established, s 360(3) confers the power to declare the election void.
Case: Muldowney v Australian Electoral Commission [1993] HCA 32 ; (1993) 178 CLR 34
Outcome: cited
3 stands in a different position. The order as sought is an order " that the election be declared null and void ", namely the election to which the petition relates &#8212; the by-election held in Lyne on 6 September 2008. It was not disputed that the Petitioner was enrolled and entitled to vote in that by-election. Although reference was made by the Petitioner in submissions to an election in another electorate, the Mayo electorate, no question arises as to declaring void the result in any election other than that of Lyne. It was not disputed that the Petitioner was entitled to claim the relief he sought in order (3): Muldowney v Australian Electoral Commission [1993] HCA 32 ; (1993) 178 CLR 34 ; Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37 ; (1993) 115 ALR 641 ; Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 Abbotto v Australian Electoral Commission (1997) 44 ALD 481. See also: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [8] to [9] per Kiefel J.
Case: Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37 ; (1993) 115 ALR 641
Outcome: cited
3 stands in a different position. The order as sought is an order " that the election be declared null and void ", namely the election to which the petition relates &#8212; the by-election held in Lyne on 6 September 2008. It was not disputed that the Petitioner was enrolled and entitled to vote in that by-election. Although reference was made by the Petitioner in submissions to an election in another electorate, the Mayo electorate, no question arises as to declaring void the result in any election other than that of Lyne. It was not disputed that the Petitioner was entitled to claim the relief he sought in order (3): Muldowney v Australian Electoral Commission [1993] HCA 32 ; (1993) 178 CLR 34 ; Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37 ; (1993) 115 ALR 641 ; Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 Abbotto v Australian Electoral Commission (1997) 44 ALD 481. See also: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [8] to [9] per Kiefel J.
Case: Smith v Australian Electoral Commission [2009] FCAFC 43
Outcome: cited
360 sets forth the powers of the Court as follows: Powers of Court (1) The Court of Disputed Returns shall sit as an open Court and its powers shall include the following: (i) To adjourn; (ii) To compel the attendance of witnesses and the production of documents; (iii) To grant to any party to a petition leave to inspect in the presence of a prescribed officer the rolls and other documents (except ballot-papers) used at or in connexion with any election and to take, in the presence of the prescribed officer, extracts from those rolls and documents; (iv) To examine witnesses on oath; (v) To declare that any person who was returned as elected was not duly elected; (vi) To declare any candidate duly elected who was not returned as elected; (vii) To declare any election absolutely void; (viii) To dismiss or uphold the petition in whole or in part; (ix) To award costs; (x) To punish any contempt of its authority by fine or imprisonment. (2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient. (3) Without limiting the powers conferred by this section, it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connexion with the election. (4) The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so. Section 362 is directed to findings that may be made as to " bribery " or " undue influence " and " any illegal practice ". Those terms are defined by s 352(1). Section 368 provides that all decisions of the Court are to be " final and conclusive and without appeal " and are " not to be questioned in any way ". This section does not infringe s 73 of the Constitution : Sue v Hill [1999] HCA 30 , 199 CLR 462 ; Smith v Australian Electoral Commission [2009] FCAFC 43.
Case: Sue v Hill [1999] HCA 30 , 199 CLR 462
Outcome: cited
360 sets forth the powers of the Court as follows: Powers of Court (1) The Court of Disputed Returns shall sit as an open Court and its powers shall include the following: (i) To adjourn; (ii) To compel the attendance of witnesses and the production of documents; (iii) To grant to any party to a petition leave to inspect in the presence of a prescribed officer the rolls and other documents (except ballot-papers) used at or in connexion with any election and to take, in the presence of the prescribed officer, extracts from those rolls and documents; (iv) To examine witnesses on oath; (v) To declare that any person who was returned as elected was not duly elected; (vi) To declare any candidate duly elected who was not returned as elected; (vii) To declare any election absolutely void; (viii) To dismiss or uphold the petition in whole or in part; (ix) To award costs; (x) To punish any contempt of its authority by fine or imprisonment. (2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient. (3) Without limiting the powers conferred by this section, it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connexion with the election. (4) The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so. Section 362 is directed to findings that may be made as to " bribery " or " undue influence " and " any illegal practice ". Those terms are defined by s 352(1). Section 368 provides that all decisions of the Court are to be " final and conclusive and without appeal " and are " not to be questioned in any way ". This section does not infringe s 73 of the Constitution : Sue v Hill [1999] HCA 30 , 199 CLR 462 ; Smith v Australian Electoral Commission [2009] FCAFC 43. And, even if the requirement imposed by s 355(a) was to be met, s 362 " provides exhaustively as to the general grounds on which an election may be invalidated or declared void ": Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627 at 631 per Gaudron J. Toohey J has observed that Her Honour's reasons for reaching this conclusion were " persuasive " but found it unnecessary to express a concluded view: Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409. See also: Sue v Hill [1999] HCA 30 at [209] to [210] [1999] HCA 30 ; , 199 CLR 462 at 540 to 541 per McHugh J. More recently, however, it has been observed that a submission proceeding " from the premise that s 362(3) is an exhaustive statement of the circumstances in which the court may declare an election void ... may very well be stated too broadly ": McClure v Australian Electoral Commission [1999] HCA 31 at [25] , [1999] HCA 31 ; 163 ALR 734 at 740 per Hayne J.
Case: Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223
Outcome: applied
" very minimum assertion necessary to constitute a fact which will 'invalidate [an] election or return' for the purposes of s 355(a) of the Act is one raising a matter or matters by which 'the election was likely to be affected' ": Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 at 225 per Gaudron J. See also: Smith v Australian Electoral Commission [2008] FCA 953 at [9] and [14], 104 ALD 395 at 397 and 398. For the purposes of s 362(3) and the phrase " likely to be affected ", in Kelly v Campbell [2002] FCA 1125 , Madgwick J observed: [20] ... It seems to me that the facts set out in the petition must be such, if true, as would indicate that there is a real chance that the result of the election would have been different if the allegedly illegal practice had not occurred. It is in that sense that I think the word "likely" should be understood. The present petition has not provided that " very minimum assertion " in respect to any fact or facts that may be discerned. Expressed more generally as a duty of impartiality or a duty to treat candidates fairly, rather than as an " illegal practice ", the requirement imposed by s 355(a) nevertheless remains &#8212; and has not here been satisfied. The statement that the Corporation " breached its impartiality " is considered to be more a conclusion than a fact. Even if it were characterised as a fact, there is no further particularisation or specification of those other facts necessary to establish a " breach ". The same conclusions may also be reached in respect to the statements that " [t]he ABC was responsible for an inequitable candidate profile " and " gave inequitable broadcast time to each candidate ". These statements are but " bare assertions " that are incapable of satisfying s 355(a). In Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 , Gaudron J, when addressing a petition which made allegations of undue influence, concluded at 227: None of the particulars given with respect to the allegation of undue influence reveals anything which is capable of being viewed as a contravention of s 327 of the Act or of s 28 of the Crimes Act . There is, thus, nothing more than a bare assertion of undue influence. It is well established that a bare assertion of that kind does not satisfy s 355(a) which requires that the petition "set out ... facts" relied on to justify the relief sought. So far as the petition consists of a bare assertion of undue influence, it must be dismissed for non-compliance with s 355(a). See also: Whitby v Garlett [2000] FCA 245 at [28] , [2000] FCA 245 ; 98 FCR 585 at 594 to 595 per French J (as His Honour then was). The mere fact that one candidate's profile may be lengthier than another's does not of itself establish any " inequitable " treatment.
Case: Whitby v Garlett [2000] FCA 245 , 98 FCR 585
Outcome: cited
more generally as a duty of impartiality or a duty to treat candidates fairly, rather than as an " illegal practice ", the requirement imposed by s 355(a) nevertheless remains &#8212; and has not here been satisfied. The statement that the Corporation " breached its impartiality " is considered to be more a conclusion than a fact. Even if it were characterised as a fact, there is no further particularisation or specification of those other facts necessary to establish a " breach ". The same conclusions may also be reached in respect to the statements that " [t]he ABC was responsible for an inequitable candidate profile " and " gave inequitable broadcast time to each candidate ". These statements are but " bare assertions " that are incapable of satisfying s 355(a). In Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 , Gaudron J, when addressing a petition which made allegations of undue influence, concluded at 227: None of the particulars given with respect to the allegation of undue influence reveals anything which is capable of being viewed as a contravention of s 327 of the Act or of s 28 of the Crimes Act . There is, thus, nothing more than a bare assertion of undue influence. It is well established that a bare assertion of that kind does not satisfy s 355(a) which requires that the petition "set out ... facts" relied on to justify the relief sought. So far as the petition consists of a bare assertion of undue influence, it must be dismissed for non-compliance with s 355(a). See also: Whitby v Garlett [2000] FCA 245 at [28] , [2000] FCA 245 ; 98 FCR 585 at 594 to 595 per French J (as His Honour then was). The mere fact that one candidate's profile may be lengthier than another's does not of itself establish any " inequitable " treatment.
Case: ACCC v Maritime Union of Australia [2001] FCA 1549 ; [2001] 114 FCR 472
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: Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441
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: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 197 ALR 153
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: A ustralian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Ltd [2005] FCA 1071
Outcome: applied
This is not a case where parts of the pleadings could simply be struck out and the action remain on foot. As Lander J observed in A ustralian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Ltd [2005] FCA 1071: 'If a Statement of Claim is shown to disclose no reasonable cause of action, then it will be appropriate, rather than to strike out individual paragraphs of the Statement of Claim, to strike out the whole of the Statement of Claim.' (at [107]) 139 Although ordinarily a party should be given an opportunity to replead in accordance with the rules ( Turner v The Bulletin Newspaper Co Pty Ltd [1974] HCA 25 ; (1974) 131 CLR 69 per Barwick CJ (Mason J agreeing) at 81; cf Fox Symes at [95]) in my view it would be unjust to the respondents to allow the applicant yet another opportunity to re-plead. In particular I note: &#8226; Greenwood J had earlier dismissed an application by the applicant for interlocutory relief in this matter on the basis that, inter alia , the applicant lacked standing to bring the application, but noted that it was possible that the applicant could formulate a statement of claim involving rights which had not vested in the trustee in bankruptcy ( Rogers v Asset Loan Co Pty Ltd &amp; Ors [2006] FCA 434 at [48] ) &#8226; on 15 June 2006 the applicant filed a Statement of Claim &#8226; on 19 June 2006 the applicant filed an Amended Statement of Claim, although this amended statement of claim was not provided to the respondents until 29 June 2006 when the parties appeared in Court &#8226; when this matter came before me for the notice of motion to be heard on 29 June 2006, it became apparent that the applicant would in fact need to file a further amended statement of claim. I ordered that the applicant be given 21 days in which to file a further amended statement of claim &#8226; the applicant did so in compliance with this order, but then also filed a second further amended statement of claim 10 days later. 140 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: Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362
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.'