mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) 14 IPR 293
Outcome: referred to
The University refers to authorities that support the proposition that there must be a basis in fact for comparative advertising and to publish comparative claims to ensure that the comparison is accurate: see Stuart v Alexander (1981) 37 ALR 161 at 163 per Lockhart J; Makita (Aust) Pty Ltd v Black &amp; Decker (A'asia) Pty Ltd (1998) 18 IPR 270 at 280; Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) 14 IPR 293 at 299 per Burchett J. In Colgate Palmolive Pty Ltd v Rexona Pty Ltd (1981) 37 ALR 91, the Court held that it is misleading conduct to make comparative efficiency claims that imply they were made on a scientific basis when, in fact, there is no proper scientific basis for making those claims. That case related to a claim in respect of an ingredient in a toothpaste. A comparison may be misleading by omission of a material fact that would be necessary to render the comparison fair and it can be misleading for a corporation not to put forward sufficient information to dispel the possibility that a recipient may be misled. In some circumstances, it may be misleading to make a statement implying that there is an adequate foundation in scientific knowledge to justify it when, taken in context, the scientific statement does not provide a proper foundation, for example, see Sterling Winthrop Pty Ltd v Boots Co (Australia) Pty ltd (1995) 32 IPR 361 at 365 and the cases cited therein.
Case: Colgate Palmolive Pty Ltd v Rexona Pty Ltd (1981) 37 ALR 91
Outcome: followed
The University refers to authorities that support the proposition that there must be a basis in fact for comparative advertising and to publish comparative claims to ensure that the comparison is accurate: see Stuart v Alexander (1981) 37 ALR 161 at 163 per Lockhart J; Makita (Aust) Pty Ltd v Black &amp; Decker (A'asia) Pty Ltd (1998) 18 IPR 270 at 280; Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) 14 IPR 293 at 299 per Burchett J. In Colgate Palmolive Pty Ltd v Rexona Pty Ltd (1981) 37 ALR 91, the Court held that it is misleading conduct to make comparative efficiency claims that imply they were made on a scientific basis when, in fact, there is no proper scientific basis for making those claims. That case related to a claim in respect of an ingredient in a toothpaste. A comparison may be misleading by omission of a material fact that would be necessary to render the comparison fair and it can be misleading for a corporation not to put forward sufficient information to dispel the possibility that a recipient may be misled. In some circumstances, it may be misleading to make a statement implying that there is an adequate foundation in scientific knowledge to justify it when, taken in context, the scientific statement does not provide a proper foundation, for example, see Sterling Winthrop Pty Ltd v Boots Co (Australia) Pty ltd (1995) 32 IPR 361 at 365 and the cases cited therein.
Case: Sterling Winthrop Pty Ltd v Boots Co (Australia) Pty ltd (1995) 32 IPR 361
Outcome: followed
The University refers to authorities that support the proposition that there must be a basis in fact for comparative advertising and to publish comparative claims to ensure that the comparison is accurate: see Stuart v Alexander (1981) 37 ALR 161 at 163 per Lockhart J; Makita (Aust) Pty Ltd v Black &amp; Decker (A'asia) Pty Ltd (1998) 18 IPR 270 at 280; Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) 14 IPR 293 at 299 per Burchett J. In Colgate Palmolive Pty Ltd v Rexona Pty Ltd (1981) 37 ALR 91, the Court held that it is misleading conduct to make comparative efficiency claims that imply they were made on a scientific basis when, in fact, there is no proper scientific basis for making those claims. That case related to a claim in respect of an ingredient in a toothpaste. A comparison may be misleading by omission of a material fact that would be necessary to render the comparison fair and it can be misleading for a corporation not to put forward sufficient information to dispel the possibility that a recipient may be misled. In some circumstances, it may be misleading to make a statement implying that there is an adequate foundation in scientific knowledge to justify it when, taken in context, the scientific statement does not provide a proper foundation, for example, see Sterling Winthrop Pty Ltd v Boots Co (Australia) Pty ltd (1995) 32 IPR 361 at 365 and the cases cited therein.
Case: Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232
Outcome: referred to
It may follow that there is little practical difference between asking whether Ms Coe's employment caused her disorder or whether it was a contributing factor. As Mason CJ said in March v Stramare at 514, it is for the plaintiff to establish that his or her injuries are caused or materially contributed to by the defendant's conduct: see also Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232 at [27] per McHugh J.
Case: Dennis Wilcox Pty Limited v Commissioner of Taxation (1983) 19 ATR 1122
Outcome: referred to
Mr Vincent argued that the Tribunal failed to consider a submission, worthy of consideration, that Ms Coe's employment was a contributing factor to her disorder: Dennis Wilcox Pty Limited v Commissioner of Taxation (1983) 19 ATR 1122 at 1130. In my opinion, this ground of review falls under the same head as failure to address a claim. Accordingly, I must dismiss it.
Case: Dodds v Comcare Australia (1993) 31 ALD 690
Outcome: applied
The observations of Burchett J in Dodds v Comcare Australia (1993) 31 ALD 690 at 691 are apt. His Honour described a concession made by a medical expert. He went on to say that it did not destroy the doctor's opinion on the balance of probabilities that there was no continuing disability. He said: "The tribunal was entitled to accept and act upon [the doctor's] opinion, and not his doubt."
Case: Dornan v Riordan (1990) 24 FCR 564
Outcome: applied
It is well established that this provision is not breached by a failure to deal with every argument that has been raised or with every possibility. It is enough that the findings and reasons deal with the substantial issues upon which the decision turned and that they do so in a way which clearly exposes the reasoning process: Dornan v Riordan (1990) 24 FCR 564 at 567-568; Hawkins v Comcare [2001] FCA 726 ; (2001) 115 FCR 127 at [60] .
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: distinguished
Accordingly, I reject the submission that the Tribunal failed to ask itself the correct question, and that it failed to consider Ms Coe's claim: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at [24] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2005) 219 ALR 27 at [55] ff.
Case: Favelle Mort Limited v Murray [1976] HCA 13 ; (1975-76) 133 CLR 580
Outcome: cited
It has been held that the requirement that a person's employment be "a contributing factor" to an injury is not as stringent as a requirement that it be "the real, the effective or the proximate cause of the injury": see Favelle Mort Limited v Murray [1976] HCA 13 ; (1975-76) 133 CLR 580 at 598.
Case: Hawkins v Comcare [2001] FCA 726 ; (2001) 115 FCR 127
Outcome: applied
It is well established that this provision is not breached by a failure to deal with every argument that has been raised or with every possibility. It is enough that the findings and reasons deal with the substantial issues upon which the decision turned and that they do so in a way which clearly exposes the reasoning process: Dornan v Riordan (1990) 24 FCR 564 at 567-568; Hawkins v Comcare [2001] FCA 726 ; (2001) 115 FCR 127 at [60] .
Case: March v E &amp; M H Stramare Pty Limited [1991] HCA 12 ; (1991) 171 CLR 506
Outcome: discussed
That case was decided before the High Court rejected the "but for" test as the sole or determinative test of causation and adopted the approach that in civil cases causation is to be determined by applying a common sense test: March v E &amp; M H Stramare Pty Limited [1991] HCA 12 ; (1991) 171 CLR 506. 53 It may follow that there is little practical difference between asking whether Ms Coe's employment caused her disorder or whether it was a contributing factor. As Mason CJ said in March v Stramare at 514, it is for the plaintiff to establish that his or her injuries are caused or materially contributed to by the defendant's conduct: see also Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232 at [27] per McHugh J.
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: cited
Departure from the language of the statute under consideration carried with it the risk of falling into error: see eg Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 572.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: applied
Moreover, the High Court has observed that s 430(1)(c) of the Migration Act 1958 (Cth), which is in similar terms to s 43(2B) of the AAT Act , requires the Tribunal to set out the findings of fact it did make, not those it did not make. The section merely obliges the Tribunal to set out its findings on those questions of fact which it considered to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [68] . 46 It is true that the Tribunal identified the appropriate diagnosis of Ms Coe's psychiatric condition as a subsidiary issue in the proceeding. It is also true that the Tribunal failed to express in its own words any finding as to the diagnosis. But it is implicit in what it said about Dr Skinner's evidence that it did make a finding. It recorded Dr Skinner's diagnosis of anxiety disorder with agoraphobia and said it preferred that evidence to the evidence of Dr Dinnen and Dr Synnott. 47 In my opinion, the Tribunal's reasons were in accordance with its statutory obligations under s 43(2B). This is because the issue before it was whether Ms Coe's psychiatric condition was "relevantly caused" by the explosion. Plainly, the Tribunal made and set out its findings on the questions of fact it considered to be material to its decision on that issue. It found that causation was not established and its reason for the finding was that it preferred Dr Skinner's evidence to that of Dr Dinnen, particularly her analysis of Ms Coe's medical history and her consideration of the fact that more contemporaneous psychiatric reports disclosed no symptoms of any psychiatric disorder.
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2005) 219 ALR 27
Outcome: referred to
Accordingly, I reject the submission that the Tribunal failed to ask itself the correct question, and that it failed to consider Ms Coe's claim: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at [24] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2005) 219 ALR 27 at [55] ff.
Case: Wade v Comcare [2002] FCA 305
Outcome: referred to
See also the observations of Spender J in Wade v Comcare [2002] FCA 305 at [24] . 63 The effect of what the Tribunal said at [48] was that it accepted Dr Synnott's evidence insofar as it supported the view that Ms Coe's disorder was not related to the injury suffered in the explosion. In that way, it considered the question of whether the explosion was a contributing factor. It did not accept that hypothesis.
Case: APN News &amp; Media Limited [2007] FCA 770
Outcome: followed
There was some discussion of the provision of the implementation agreement under which HPAL has agreed to pay a "break fee" not exceeding $3 million if the scheme does not proceed. The break fee is less than one per cent calculated on the transaction value. This topic was addressed by Lindgren J in APN News &amp; Media Limited [2007] FCA 770 , in particular at [43], [46]-[49] and [55]. Although there is no affidavit evidence along the lines of that referred to by Lindgren J at [55], I would infer that there had been arm's length negotiations between the parties because each of the parties is independently represented by experienced firms of solicitors. 7 It is true, as Mr Oakes points out, that there may be some cases in which the requirements referred to by Lindgren J at [55] would need to be dealt with; for example where the acquirer had a substantial shareholding in the target company. That is not the case here and that issue does not need to be further considered by me today. 8 I am satisfied that the orders proposed to be made today are in accordance with the existing and usual practice and I propose to make orders in terms of the short minutes of order which have been handed up to me this morning. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 11 October 2007 Counsel for the Plaintiff: Mr M Oakes SC Solicitor for the Plaintiff: Minter Ellison Date of Hearing: 5 September 2007 Date of Judgment: 5 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1570.html
Case: Investa Properties Limited [2007] FCA 1104
Outcome: referred to
Mr Oakes pointed out that there are no novel jurisdictional or procedural issues that fall within the disclosure principle described by Barrett J in Re Permanent Trustee Co Ltd (2002) 43 ASCR 601 at [7]. Nevertheless, Mr Oakes drew my attention to a number of aspects of the scheme. I am satisfied that the structure of the scheme which was explained fully to me this morning addresses the "performance risk" raised in authorities of the court. See, eg. Investa Properties Limited [2007] FCA 1104 at [18] - [19] . Reference is there made to a number of earlier decisions on this question. I am also satisfied that the issue referred to in [27] of Investa , namely, the "vesting free of encumbrances" term is sufficiently addressed.
Case: Peplin Limited [2007] FCA 1387
Outcome: referred to
In accordance with the practice referred to by Gyles J in Peplin Limited [2007] FCA 1387 at [2] , I will not reproduce the submissions but I will mark them as MFI 1 and direct that they remain with the papers so that they may be available for inspection by any interested party. 3 Mr Oakes has taken me through the scheme booklet and the evidence in some detail this morning. I am satisfied from what he told me from the bar table and from what appears in the written submissions that all the relevant statutory conditions for convening the meeting have been satisfied. Briefly, the scheme is proposed between HPAL, which is a company providing outsourced business services, inbound and outbound communication management, results processing and information management services, and its shareholders. 4 HPAL is listed on the Australian Securities Exchange ('ASX'). The proposal is that HPAL shareholders will transfer their shares to Salmat Document Management Solutions Pty Limited (the Salmat bidder) which is a subsidiary of Salmat Limited (Salmat). That company is a leading "one-to-one communications business" which is also listed on the ASX. The consideration provided in the scheme is for a cash consideration or for an exchange of shares in Salmat. The ratio of the Salmat shares which would be provided as the consideration is between 0.5040 and 0.5784 Salmat shares. This is subject to a scale-back and a formula as set out in the scheme documentation.
Case: Re Permanent Trustee Co Ltd (2002) 43 ASCR 601
Outcome: referred to
Mr Oakes pointed out that there are no novel jurisdictional or procedural issues that fall within the disclosure principle described by Barrett J in Re Permanent Trustee Co Ltd (2002) 43 ASCR 601 at [7]. Nevertheless, Mr Oakes drew my attention to a number of aspects of the scheme. I am satisfied that the structure of the scheme which was explained fully to me this morning addresses the "performance risk" raised in authorities of the court. See, eg. Investa Properties Limited [2007] FCA 1104 at [18] - [19] . Reference is there made to a number of earlier decisions on this question. I am also satisfied that the issue referred to in [27] of Investa , namely, the "vesting free of encumbrances" term is sufficiently addressed.
Case: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601
Outcome: related
this case I am in the rather extraordinary position of hearing in August 2006 a judicial review application in relation to a decision of the Refugee Review Tribunal (the Tribunal) made on 31 May 1999 concerning an application for a protection visa made on 13 August 1997. The explanation lies in the fact that the prosecutor was permitted to join a class action in the High Court of Australia in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. On 25 November 2002, the High Court granted leave to a group of persons including the prosecutor to file an application seeking an order nisi. The draft order nisi, which was attached to the affidavit of a solicitor who acted for the applicant at that time, was directed to both the Minister and the Tribunal. However, the ground isolated in the draft order nisi attacked the decision of the Tribunal to affirm the refusal of the delegate of the Minister to grant the applicant a protection visa. The draft order nisi alleged that the decision was invalid as the Tribunal failed to afford the applicant/prosecutor natural justice because the applicant/prosecutor had not been given an opportunity (or at least an adequate opportunity) to prepare and present favourable material at hearing or an adequate opportunity to respond to unfavourable material. This matter, along with many others, was remitted to this Court by the High Court in 2003. In December 2004, the applicant provided submissions to this Court which included five so called grounds in support of an argument as to why an order nisi should be issued. The first ground was that the Refugee Review Tribunal erred in law in failing to weigh the credibility of the applicant's evidence correctly according to law. It is apparent from the oral submissions of the applicant today that that is the burden of his complaint. He has referred to various pieces of evidence which he says were before the Tribunal but which was not properly weighed or considered by it. That ground is doomed to failure. It has not been demonstrated that the Tribunal failed to have regard to any claim of a significant nature by the applicant. The assessment of the credibility of the applicant and the evidence presented by him was a matter for the Tribunal. No arguable error of law has been raised in relation to that matter. The second, third and fourth grounds refer to sections of the Act which came into force after the Tribunal's decision, albeit, in the case of s 424A, the day after. Such complaints as are made about notification of the handing down of the decision would not lead to its setting aside, even if correct.
Case: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 
Outcome: cited
no stage, either whilst he was represented or later, has the applicant been able to point to any material in the very detailed reasoning of the Tribunal that is based upon something of which he was not aware. It is submitted by counsel for the Minister that the Tribunal has in its reasons indicated in various places that adverse material was put to the applicant, and that is correct. I cannot, of course, conclude that every piece of adverse material was put to the applicant but it is clear that a great deal of it was and no particulars have been given of anything which was not. It is very likely, it seems to me, that in any event the substance and thrust of the adverse material was put to him (see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 , particularly at [25]). The gravamen of the claim on behalf of the applicant, who is from Pakistan, was based upon his membership of the party known as the Pakistan People's Party (PPP). This party was one of the principal political parties of that country at the relevant time and the gist of the country information, (which it appears from the reasons of the Tribunal was put to the applicant,) was to the effect that PPP members would not, generally speaking, be persecuted for taking , an active interest in politics.
Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: referred to
is also submitted on behalf of the Minister that the Tribunal found, as one separate limb of its reasoning, that the applicant could relocate to another part of Pakistan, such as Karachi, where his father resided and he claimed to have resided without incident. Based upon the principles in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, the Tribunal determined it would not be unreasonable to expect the applicant to relocate to an area of Pakistan other than his local district or the Punjab if he retained a subjective fear of harm in that place. There seems to me to be substance in the argument that that finding was based upon material which had been identified as having been put to the applicant. In my opinion, there is not even an arguable case made by the applicant for prerogative relief of the kind sought and there will be no order nisi or relief granted. I would only add that, as I said in opening, it is extraordinary that a matter such as this should be dealt with after such a long delay. It is quite unsatisfactory. It is not part of my function to go into the reasons for that delay, manifold as they are, but they plainly involve delay on the part of a number of public authorities, perhaps including the Court. I am not sure what scope there is for some reconsideration at ministerial level of the position of persons such as this who have been part of the Australian community for something like nine years. It is not something I can make any order about. I refuse to grant an order nisi. The application is dismissed. The applicant is to pay the respondents' costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 1 September 2006 The Applicant appeared in person Counsel for the Second Respondent: Ms S McNaughton Solicitor for the First, Second and Third Respondents: Australian Government Solicitor Date of Hearing: 29 August 2006 Date of Judgment: 29 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1202.html
Case: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38 ; (2005) 223 CLR 251
Outcome: cited
However, the Wrongs Act cannot apply of its own force to proceedings in this Court exercising federal jurisdiction: John Robertson &amp; Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65; Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at [35] ; Solomons v District Court (NSW) [2002] HCA 47 ; (2002) 211 CLR 119 at [21] ; British American Tobacco Australia Ltd v Western Australia [2003] HCA 47 ; (2003) 217 CLR 30 at [3] and [44] to [45]; Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38 ; (2005) 223 CLR 251 at [58] .