mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Fadu Pty Ltd v ACN 008 112 196 Pty Ltd [2007] FCA 1965
Outcome: cited
When I published my reasons in Fadu Pty Ltd v ACN 008 112 196 Pty Ltd [2007] FCA 1965 , I directed that the parties file and serve draft minutes of order to give effect to my findings and reasons and to make submissions on costs. The differences between them that were evidenced in the hearing subsist still. 2 As to the orders to be made, I should indicate that I intend to dismiss the Amended Application (which sought relief in respect of restraints of trade at common law) for the reason that, by virtue of s 4M of the Trade Practices Act 1976 (Cth), the law relating to restraint of trade at common law was, in the circumstances, not capable of operating concurrently with s 87(3) of the TP Act, which was invoked by the first, fourth, seventh and eighth respondents ("the respondents") in their cross-claim of 2007. My so doing does not imply that the applicants did not enjoy any measure of success in the proceedings. On the contrary. But for the provisions of s 4M which in turn attracted the remedial provisions of s 87(3), the applicants would have been entitled to the relief they sought. It was only the respondents invocation of s 87(3) and the respondents in the circumstances had the incentive to do so that resulted in a lesser success for the applicants. 3 Accordingly, I will order that: (i) the application be dismissed; and (ii) on the cross-claim, the terms of clause 2 of the Deed Poll dated 30 September 2005 be varied so as to read as follows: "2. The Restraint Givers jointly and severally covenant that they will not (and that they will procure that their related entities do not): 2.1 Conduct, or be involved, directly or indirectly, in the conduct of, a laundry hire business; 2.2 ... in any part of the area within the boundary line marked out in Appendix 'B' in the reasons for judgment published in this proceedings on 11 December 2007 for a period of three years after the Completion Date (as that term is defined in the Heads of Agreement)."
Case: Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 115 FCR 229
Outcome: cited
It is well accepted that the general discretion conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs is absolute and unfettered but that it must be exercised judicially. It is equally well accepted that in the exercise of that discretion: (i) ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; (ii) where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed; and (iii) a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 115 FCR 229 at [11] approving Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660; ATPR 40-748 at 48,136. See generally Dal Pont, Laws of Costs , ch 8 (2003).
Case: Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660
Outcome: cited
It is well accepted that the general discretion conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) to award costs is absolute and unfettered but that it must be exercised judicially. It is equally well accepted that in the exercise of that discretion: (i) ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; (ii) where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed; and (iii) a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 115 FCR 229 at [11] approving Hughes v Western Australian Cricket Association (Inc) (1986) 69 ALR 660; ATPR 40-748 at 48,136. See generally Dal Pont, Laws of Costs , ch 8 (2003).
Case: SZGBI v Minister for Immigration and Citizenship [2008] FCA 599
Outcome: cited
is unnecessary for present purposes to resolve whether the written submission accurately expresses the basis upon which any discretion should be exercised or whether the more difficult task is the application of any discretion to the facts. Reservation is also presently expressed as to whether the present case is in any way analogous to the facts before the Full Court in SZKGF . There the question was whether an incorrect postcode upon correspondence, which was in any event received, constituted jurisdictional error. The delay of over seven years in SZIQB , and the other conduct of the claimant in that case, also seem far removed from the present case. Reference may also be made to the observations of Middleton J in SZGBI v Minister for Immigration and Citizenship [2008] FCA 599 at [53] to [54] where His Honour indicated that relief may have been refused for a breach of s 441A of the Migration Act 1958 (Cth).
Case: SZIQB v Minister for Immigration and Citizenship [2008] FCAFC 20
Outcome: cited
written submissions as filed on behalf of the Respondent Minister did not " urge upon the Court a duty to inquire into each case the extent to which any failure may have prejudiced an applicant ". What was urged upon the Court was the appropriateness " to withhold relief in circumstances where there is a clear absence of any practical injustice or even inconvenience to an applicant resulting from any error in question ". Reliance was placed upon SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 and SZIQB v Minister for Immigration and Citizenship [2008] FCAFC 20. It is unnecessary for present purposes to resolve whether the written submission accurately expresses the basis upon which any discretion should be exercised or whether the more difficult task is the application of any discretion to the facts. Reservation is also presently expressed as to whether the present case is in any way analogous to the facts before the Full Court in SZKGF . There the question was whether an incorrect postcode upon correspondence, which was in any event received, constituted jurisdictional error. The delay of over seven years in SZIQB , and the other conduct of the claimant in that case, also seem far removed from the present case. Reference may also be made to the observations of Middleton J in SZGBI v Minister for Immigration and Citizenship [2008] FCA 599 at [53] to [54] where His Honour indicated that relief may have been refused for a breach of s 441A of the Migration Act 1958 (Cth).
Case: SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84
Outcome: cited
written submissions as filed on behalf of the Respondent Minister did not " urge upon the Court a duty to inquire into each case the extent to which any failure may have prejudiced an applicant ". What was urged upon the Court was the appropriateness " to withhold relief in circumstances where there is a clear absence of any practical injustice or even inconvenience to an applicant resulting from any error in question ". Reliance was placed upon SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 and SZIQB v Minister for Immigration and Citizenship [2008] FCAFC 20. It is unnecessary for present purposes to resolve whether the written submission accurately expresses the basis upon which any discretion should be exercised or whether the more difficult task is the application of any discretion to the facts. Reservation is also presently expressed as to whether the present case is in any way analogous to the facts before the Full Court in SZKGF . There the question was whether an incorrect postcode upon correspondence, which was in any event received, constituted jurisdictional error. The delay of over seven years in SZIQB , and the other conduct of the claimant in that case, also seem far removed from the present case. Reference may also be made to the observations of Middleton J in SZGBI v Minister for Immigration and Citizenship [2008] FCA 599 at [53] to [54] where His Honour indicated that relief may have been refused for a breach of s 441A of the Migration Act 1958 (Cth).
Case: SZMTJ v Minister for Immigration and Citizenship [2009] FMCA 19
Outcome: cited
subsequent application was rejected by a delegate of the Minister on 21 May 2008 and the Refugee Review Tribunal affirmed that decision by a decision signed on 26 August 2008. An application for review was filed with the Federal Magistrates Court of Australia in September 2008. An amended application was filed on 14 November 2008 and identified two grounds, namely: (i) "The investigation conducted by the Second Respondent was affected by bias and preoccupied subjective reasoning "; and (ii) a breach of s 91R of the Migration Act 1958 (Cth). The amended application was dismissed: SZMTJ v Minister for Immigration and Citizenship [2009] FMCA 18. In dismissing the application, the Federal Magistrate relevantly concluded that: (a) the now Appellant failed to provide any evidence of any bias on the part of the Tribunal and the first ground set forth in the amended application was to be dismissed; and (b) a breach of s 91R(3) had in fact occurred; but that (c) relief should be refused in the exercise of the Court's discretion. The Notice of Appeal as filed in this Court on 12 February 2009 raises essentially the same grounds as were advanced before the Federal Magistrate. Although the Notice of Appeal does not expressly assert error on the part of the Federal Magistrate in the exercise of discretion, the written Outline of Submissions as filed by the Respondent Minister correctly addresses the question as to whether the discretionary withholding of relief has miscarried.
Case: Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319
Outcome: cited
expression, " the interests of justice ", as employed in Rule 4(1) is a " wide term ": Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319 at [10] per French J. As His Honour there made clear, the decision to issue a referral is no indication by the Court of the strengths or weaknesses of a particular case. In the present proceeding it is considered that it is in " the interests of the administration of justice " that a referral be made. A person seeking refugee status in Australia who has established a breach of an important provision of the Migration Act 1958 is not to be lightly denied relief. The significance to be attached to a breach of s 91R(3) and the importance of that provision to the decision-making process need to be addressed. The proper basis upon which any such discretion should be exercised, and whether it is appropriate when exercising that discretion for the Federal Magistrate to himself embark upon an assessment of the weight of the evidence before the Refugee Review Tribunal, are both matters in respect to which the Court would be greatly assisted by hearing from a legal practitioner on the Pro Bono Panel. Although it may well be that the ground of appeal alleging bias on the part of the Tribunal is not a ground that is ultimately relied upon, it is not considered appropriate at this stage to confine the assistance that may be provided pursuant to O 80 r 5. The legal practitioner to whom this matter is referred may abandon some grounds or seek to raise grounds not presently identified. Such matters will be matters for the professional judgment of the legal practitioner concerned.
Case: Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301
Outcome: cited
The concept of unconscionable conduct as used in s 51AA was discussed by the High Court in Australian Competition and Consumer Commissioner v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51. The case was argued on the basis that it involved, as does this case, an allegation of unconscionable conduct comprising the knowing exploitation by one party of the special disadvantage of another. The idea of special disadvantage was propounded in Berbatis Holdings [2003] HCA 18 ; 214 CLR 51 as "... a disabling circumstance seriously affecting the ability of the innocent party to make a judgment in [that party's] own best interests". Gleeson CJ accepted that formulation as "... consistent with what the Act calls the unwritten law concerning unconscionable conduct, bearing in mind that the Act also allows for the development of the law from time to time" (at [5]). The Chief Justice went on to say, referring to the judgment of the Full Court of the Federal Court in Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 ; (2002) 117 FCR 301 that (at [11]): A person is not in a position of relevant disadvantage, constitutional, situational, or otherwise, simply because of inequality of bargaining power. Many, perhaps even most, contracts are made between parties of unequal bargaining power, and good conscience does not require parties to contractual negotiations to forfeit their advantages, or neglect their own interests.
Case: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1995) 175 CLR 514
Outcome: cited
The loss or damage recoverable under s 82 is loss or damage suffered "by conduct of another person that was done in contravention ... of Part V". So where misleading or deceptive conduct is alleged it must be shown that the applicant suffered loss or damage as a result of that conduct. Mason CJ, Dawson, Gaudron and McHugh JJ in Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1995) 175 CLR 514 said (at 525): The statutory cause of action arises when the plaintiff suffers loss or damage "by" contravening conduct of another person. "By" is a curious word to use. One might have expected "by means of", "by reason of", "in consequence of" or "as a result of". But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s 82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v Stramare (E &amp; M H) Pty Ltd [1991] HCA 12 ; (1991) 171 CLR 506, except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. Had Parliament intended to say something else, it would have been natural and easy to have said so.
Case: Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526
Outcome: cited
The test of causation therefore is a practical or common sense one. It does not require that the contravening conduct be the only cause of the applicant's loss. Nor is it necessary, where the misleading or deceptive conduct involves a misrepresentation, that the applicant who suffered loss or damage relied upon that misrepresentation. It may be that misleading or deceptive conduct will set in train a chain of events where one person is led into error on the basis of that conduct and induces some other person to do something that causes them to suffer loss or damage. As Lockhart J said in Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 (at 529): What emerges from an analysis of the cases (and there are many of them) is that they do not impose some general requirement that damage can be recovered only where the applicant himself relies upon the conduct of the respondent constituting the contravention of the relevant provision. See also: Marks v GIO Australia Holdings [1998] HCA 69 ; (1998) 196 CLR 494 at 528 (Gummow J) where the above passage was quoted.
Case: Marks v GIO Australia Holdings [1998] HCA 69 ; (1998) 196 CLR 494
Outcome: cited
The test of causation therefore is a practical or common sense one. It does not require that the contravening conduct be the only cause of the applicant's loss. Nor is it necessary, where the misleading or deceptive conduct involves a misrepresentation, that the applicant who suffered loss or damage relied upon that misrepresentation. It may be that misleading or deceptive conduct will set in train a chain of events where one person is led into error on the basis of that conduct and induces some other person to do something that causes them to suffer loss or damage. As Lockhart J said in Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 (at 529): What emerges from an analysis of the cases (and there are many of them) is that they do not impose some general requirement that damage can be recovered only where the applicant himself relies upon the conduct of the respondent constituting the contravention of the relevant provision. See also: Marks v GIO Australia Holdings [1998] HCA 69 ; (1998) 196 CLR 494 at 528 (Gummow J) where the above passage was quoted.
Case: Ting v Blanche (1993) 118 ALR 543
Outcome: cited
The way in which the section was pleaded was close to unintelligible. Paragraph 68 seemed to suggest that it was invoked as an element of the prohibition imposed by s 52. But s 51A "... does not of itself create a cause of action, nor ... define a norm of conduct": Ting v Blanche (1993) 118 ALR 543 at 552 (Hill J). It does not create a cause of action independent of that created by s 52 when read with s 82. There are authorities which say that it casts a burden of proof on the respondent: see Ting 118 ALR 543; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 at 54,432 (Goldberg J). It certainly casts the "evidential burden" on the respondent in the sense of an obligation to adduce evidence on the issue of whether there were reasonable grounds for making the representation. It does not impose on the representor the legal or persuasive burden to prove that it had reasonable grounds for making the representations alleged. As Emmett J said of s 51A in Australian Competition and Consumer Commission v Universal Sports Challenge [2002] FCA 1276 , the section does not reverse the onus of proof when it applies. It merely requires the alleged representor to "adduce evidence to the contrary". There may be a question whether a representor can discharge the evidential burden by pointing to evidence which forms part of the applicant's case. In my opinion a respondent may rely upon evidence called by an applicant which answers the description "evidence to the contrary".
Case: Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179
Outcome: cited
The way in which the section was pleaded was close to unintelligible. Paragraph 68 seemed to suggest that it was invoked as an element of the prohibition imposed by s 52. But s 51A "... does not of itself create a cause of action, nor ... define a norm of conduct": Ting v Blanche (1993) 118 ALR 543 at 552 (Hill J). It does not create a cause of action independent of that created by s 52 when read with s 82. There are authorities which say that it casts a burden of proof on the respondent: see Ting 118 ALR 543; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 at 54,432 (Goldberg J). It certainly casts the "evidential burden" on the respondent in the sense of an obligation to adduce evidence on the issue of whether there were reasonable grounds for making the representation. It does not impose on the representor the legal or persuasive burden to prove that it had reasonable grounds for making the representations alleged. As Emmett J said of s 51A in Australian Competition and Consumer Commission v Universal Sports Challenge [2002] FCA 1276 , the section does not reverse the onus of proof when it applies. It merely requires the alleged representor to "adduce evidence to the contrary". There may be a question whether a representor can discharge the evidential burden by pointing to evidence which forms part of the applicant's case. In my opinion a respondent may rely upon evidence called by an applicant which answers the description "evidence to the contrary".
Case: Australian Competition and Consumer Commission v Universal Sports Challenge [2002] FCA 1276
Outcome: cited
The way in which the section was pleaded was close to unintelligible. Paragraph 68 seemed to suggest that it was invoked as an element of the prohibition imposed by s 52. But s 51A "... does not of itself create a cause of action, nor ... define a norm of conduct": Ting v Blanche (1993) 118 ALR 543 at 552 (Hill J). It does not create a cause of action independent of that created by s 52 when read with s 82. There are authorities which say that it casts a burden of proof on the respondent: see Ting 118 ALR 543; Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 at 54,432 (Goldberg J). It certainly casts the "evidential burden" on the respondent in the sense of an obligation to adduce evidence on the issue of whether there were reasonable grounds for making the representation. It does not impose on the representor the legal or persuasive burden to prove that it had reasonable grounds for making the representations alleged. As Emmett J said of s 51A in Australian Competition and Consumer Commission v Universal Sports Challenge [2002] FCA 1276 , the section does not reverse the onus of proof when it applies. It merely requires the alleged representor to "adduce evidence to the contrary". There may be a question whether a representor can discharge the evidential burden by pointing to evidence which forms part of the applicant's case. In my opinion a respondent may rely upon evidence called by an applicant which answers the description "evidence to the contrary".
Case: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Outcome: cited
To make a promise which is not performed or a prediction which is not fulfilled is not of itself misleading or deceptive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88; Bill Acceptance Corporation Ltd v GWA Limited (1983) 50 ALR 242. The making of a promise or prediction may contain implied representations of present fact such as the promisor's intention or capacity to perform the promise. Such representations if false may be misleading or deceptive within the meaning of s 52. A prediction which is apparently based on the expertise or experience of the representor may carry with it an implied representation as to the existence of that necessary expertise or experience and perhaps also an implied representation that relevant inquiries have been undertaken to support the opinion being offered.
Case: Bill Acceptance Corporation Ltd v GWA Limited (1983) 50 ALR 242
Outcome: cited
To make a promise which is not performed or a prediction which is not fulfilled is not of itself misleading or deceptive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88; Bill Acceptance Corporation Ltd v GWA Limited (1983) 50 ALR 242. The making of a promise or prediction may contain implied representations of present fact such as the promisor's intention or capacity to perform the promise. Such representations if false may be misleading or deceptive within the meaning of s 52. A prediction which is apparently based on the expertise or experience of the representor may carry with it an implied representation as to the existence of that necessary expertise or experience and perhaps also an implied representation that relevant inquiries have been undertaken to support the opinion being offered.