mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546
Outcome: applied
First, reasonably apprehended bias . The test of whether the Tribunal member was disqualified from hearing the appellant's application for review on this basis is not in issue between the parties. Both are content for present purposes to rely upon that of Deane J in Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 67-68. It is: "whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts 'might entertain a reasonable apprehension that [the Tribunal member] might not bring an impartial and unprejudiced mind to the resolution of the question' in issue." Though the subject of the reasonable apprehension need only be of a possibility of bias, that reasonable apprehension must be "firmly established": R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546, at 553. In a case such as the present involving the significance to be attributed in the circumstances to expressed views, it is insufficient to demonstrate merely "a sense of unease or a feeling that conventions of discretion and prudence have been breached": Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Epeabaka , at [90]. What needs to be established is a reasonable suspicion that an unprejudiced mind might not be brought to the determination of the appellant's case because of "preconceptions existing independently of the case": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 372 - because of prejudgment or predisposition: Ex parte Epeabaka , at [21]. I will for convenience refer to this as "issue bias".
Case: Re JRL; ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342
Outcome: applied
First, reasonably apprehended bias . The test of whether the Tribunal member was disqualified from hearing the appellant's application for review on this basis is not in issue between the parties. Both are content for present purposes to rely upon that of Deane J in Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 67-68. It is: "whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts 'might entertain a reasonable apprehension that [the Tribunal member] might not bring an impartial and unprejudiced mind to the resolution of the question' in issue." Though the subject of the reasonable apprehension need only be of a possibility of bias, that reasonable apprehension must be "firmly established": R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546, at 553. In a case such as the present involving the significance to be attributed in the circumstances to expressed views, it is insufficient to demonstrate merely "a sense of unease or a feeling that conventions of discretion and prudence have been breached": Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Epeabaka , at [90]. What needs to be established is a reasonable suspicion that an unprejudiced mind might not be brought to the determination of the appellant's case because of "preconceptions existing independently of the case": Re JRL; Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 372 - because of prejudgment or predisposition: Ex parte Epeabaka , at [21]. I will for convenience refer to this as "issue bias".
Case: Fairfax v Federal Commissioner of Taxation [1965] HCA 64 ; (1965) 114 CLR 1
Outcome: followed
The Commissioner relies on R v Barger [1908] HCA 43 ; (1908) 6 CLR 41 at 114, adopted in Fairfax v Federal Commissioner of Taxation [1965] HCA 64 ; (1965) 114 CLR 1 at 12-13, for the proposition that subject only to the limitations expressed in the Constitution , the Parliament's power to levy taxation: was plenary and absolute; unlimited as to amount, as to subjects, as to objects, as to conditions, as to machinery... with the result that: the Parliament has, prima facie, power to tax whom it chooses, power to exempt whom it chooses, [and] power to impose such conditions as to liability or as to exemption as it chooses. The Commissioner submits that on the assumption that there was a general principle contended for by Mr Fowler, it has been overtaken by the introduction of the Act, which evinces a clear intention to include in a person's assessable income, in the circumstances identified in the Act, amounts of income that the individual did not beneficially derive.
Case: R v Barger [1908] HCA 43 ; (1908) 6 CLR 41
Outcome: followed
The Commissioner relies on R v Barger [1908] HCA 43 ; (1908) 6 CLR 41 at 114, adopted in Fairfax v Federal Commissioner of Taxation [1965] HCA 64 ; (1965) 114 CLR 1 at 12-13, for the proposition that subject only to the limitations expressed in the Constitution , the Parliament's power to levy taxation: was plenary and absolute; unlimited as to amount, as to subjects, as to objects, as to conditions, as to machinery... with the result that: the Parliament has, prima facie, power to tax whom it chooses, power to exempt whom it chooses, [and] power to impose such conditions as to liability or as to exemption as it chooses. The Commissioner submits that on the assumption that there was a general principle contended for by Mr Fowler, it has been overtaken by the introduction of the Act, which evinces a clear intention to include in a person's assessable income, in the circumstances identified in the Act, amounts of income that the individual did not beneficially derive.
Case: Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 
Outcome: cited
The proposed appeal concerns a point of practice and procedure. There is an important distinction between the exercise of the discretion to grant leave to appeal in such a case and one which involves determining a substantive right: D&eacute;cor Corporation at 400. In so finding, the Court was reflecting the warning reaffirmed by the High Court in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177 that a tight rein should be kept on such appeals. That warning has been echoed many times by this Court.
Case: Custom Credit Holdings Ltd v Creighton Investments Pty Ltd (Unreported NSWSC, 7 March 1985, BC8500943) 
Outcome: cited
The applicants submit that the value of a benefit is not relevant when determining if conduct was ratified, and that what is important is the adoption or acceptance of the validity of an act done: Custom Credit Holdings Ltd v Creighton Investments Pty Ltd (Unreported NSWSC, 7 March 1985, BC8500943) at 25 per Clarke J. They also submit that a detriment that gives rise to an estoppel does not need to be valued: Hornsby Shire Council v Yifta Pty Ltd (Unreported, NSWSC, 17 March 1993, BC9301992) at 24 per Young J.
Case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 
Outcome: cited
It is trite that particulars constitute the details of a statement of a party's case sufficiently clear to allow the opponent a fair opportunity to meet it: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664. 10 Paragraph 18 of the statement of claim alleges that the consideration which Devere gave for the transfer of the Andonys' undivided one-third share of the Land was at most $45,000. Paragraph 5 of the defence denies this allegation but then pleads that the consideration comprised the benefits accruing to the Andonys under and pursuant to what are described as the First Agreement or alternatively the November 2000 Agreement. 11 The particulars of para 5 of the defence which were ordered are as follows: Particulars of all of the benefits alleged to have accrued to each of Mr Andony and Mrs Andony under and pursuant to (a) the First Agreement; (b) the November 2000 Agreement; by identifying in respect of each and every benefit: (c) the nature of the benefit; (d) the monetary value of the benefit; (e) when and how the benefit was accrued to each of Mr Andony and Mrs Andony; (f) by whom the benefit was provided.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: cited
The general approach to such an application is to consider whether the decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice would result if leave were not granted, supposing that the decision was wrong: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398-9. 7 The proposed appeal concerns a point of practice and procedure. There is an important distinction between the exercise of the discretion to grant leave to appeal in such a case and one which involves determining a substantive right: D&eacute;cor Corporation at 400. In so finding, the Court was reflecting the warning reaffirmed by the High Court in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177 that a tight rein should be kept on such appeals. That warning has been echoed many times by this Court.
Case: Hornsby Shire Council v Yifta Pty Ltd (Unreported, NSWSC, 17 March 1993, BC9301992)
Outcome: cited
The applicants submit that the value of a benefit is not relevant when determining if conduct was ratified, and that what is important is the adoption or acceptance of the validity of an act done: Custom Credit Holdings Ltd v Creighton Investments Pty Ltd (Unreported NSWSC, 7 March 1985, BC8500943) at 25 per Clarke J. They also submit that a detriment that gives rise to an estoppel does not need to be valued: Hornsby Shire Council v Yifta Pty Ltd (Unreported, NSWSC, 17 March 1993, BC9301992) at 24 per Young J.
Case: Verge v Devere Holdings Pty Ltd [2008] FMCA 591
Outcome: cited
The applicants submit that the error below was the finding that, in para 5 of their defence, they had put the "consideration" for the sale, the "benefits" comprising the consideration, and the "benefits accruing" under both the "First Agreement", alternatively the "November 2000 Agreement" in issue and, accordingly, must provide the detailed particulars demanded by the Trustees: Verge v Devere Holdings Pty Ltd [2008] FMCA 591 at [23] and [24]. 13 The applicant submits that it is the Trustees who bear the onus of proving each of the elements of s 120(1) of the Act which renders void, relevantly, a transfer of property where "the transferee gave consideration of less value than the market value of the property". In particular they submit that the Trustees must plead and prove: (a) the consideration that Devere gave to the Andonys; (b) the value of that consideration; and (c) the market value of the Andonys' undivided one third interest in the Land. 14 The applicants contend that whilst paragraph 5 denies the allegation that the consideration was $45,000 and pleads what the consideration actually was, it does not answer an allegation by the Trustees that the identified consideration pleaded in para 18 of the statement of claim had a particular value and then assert that it had a different value. It merely puts in issue, the applicants say, the threshold element to the Trustees' claim by asserting, in effect, that the transaction was wider than is alleged by the Trustees in para 18 of the statement of claim. In summary, the applicants' defence is that there was additional consideration, not that there was additional consideration of some particular value.
Case: Australian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Ltd [2005] FCA 1071
Outcome: cited
Her Honour concluded that the statement of claim failed to disclose any reasonable cause of action and rather than plead material facts, the pleading contained confusing and irrelevant material, adopted ambiguous terms and simply asserted conclusions and opinions. Moreover, her Honour concluded that the defective parts of the pleading are so inextricably intertwined with offending material, an oppressive burden is necessarily cast upon the respondents in identifying the causes of action to which they must respond. Because of these difficulties, her Honour took the view that the statement of claim ought to be struck out in its entirety and in so finding, her Honour relied upon Australian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Ltd [2005] FCA 1071 per Lander J and Trade Practices Commission v Australian Iron and Steel Pty Limited (1989) 22 FCR 305 per Lockhart J.
Case: Trade Practices Commission v Australian Iron and Steel Pty Limited (1989) 22 FCR 305
Outcome: cited
Her Honour concluded that the statement of claim failed to disclose any reasonable cause of action and rather than plead material facts, the pleading contained confusing and irrelevant material, adopted ambiguous terms and simply asserted conclusions and opinions. Moreover, her Honour concluded that the defective parts of the pleading are so inextricably intertwined with offending material, an oppressive burden is necessarily cast upon the respondents in identifying the causes of action to which they must respond. Because of these difficulties, her Honour took the view that the statement of claim ought to be struck out in its entirety and in so finding, her Honour relied upon Australian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Ltd [2005] FCA 1071 per Lander J and Trade Practices Commission v Australian Iron and Steel Pty Limited (1989) 22 FCR 305 per Lockhart J.
Case: Tampion v Anderson (1974) 3 ALR 414
Outcome: cited
The respondents contend that her Honour's judgment is an interlocutory judgment and although her Honour's order finally disposes of the particular proceedings, an order staying an action on the ground that it is frivolous, vexatious or an abuse of process or an order striking out an action on the ground that the proceeding does not disclose a cause of action, has always been treated as an interlocutory judgment. Such an order does not finally dispose of the rights of the parties ( Tampion v Anderson (1974) 3 ALR 414; Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423; Little v Victoria (1998) 4 VR 596; Wickstead v Browne (1992) 30 NSWLR 1; and Platypus Leasing Inc &amp; Ors v Commissioner of Taxation [2005] NSWCA 399 [24] [30]). The rationale for such an approach seems to be that no final disposition of rights occurs because there has been no adjudication of the controversy of fact nor a dispositive application of the law to the facts as found. A question might arise as to whether the order has 'the practical effect' of determining the claim of an applicant to a remedial order ( Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160). One difficulty, however, is the respondents also contend that should the applicant commence fresh proceedings (assuming, as appears to be the case, the limitation period has not expired), Mr Rogers would be met with a contention of res judicata . If that contention is good, it seems to me that the order must necessarily be a final order consistent with the observations of Gibbs, Mason &amp; Murphy JJ in Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41 ; (1980) 147 CLR 35 at 38.
Case: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: cited
The respondents contend that her Honour's judgment is an interlocutory judgment and although her Honour's order finally disposes of the particular proceedings, an order staying an action on the ground that it is frivolous, vexatious or an abuse of process or an order striking out an action on the ground that the proceeding does not disclose a cause of action, has always been treated as an interlocutory judgment. Such an order does not finally dispose of the rights of the parties ( Tampion v Anderson (1974) 3 ALR 414; Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423; Little v Victoria (1998) 4 VR 596; Wickstead v Browne (1992) 30 NSWLR 1; and Platypus Leasing Inc &amp; Ors v Commissioner of Taxation [2005] NSWCA 399 [24] [30]). The rationale for such an approach seems to be that no final disposition of rights occurs because there has been no adjudication of the controversy of fact nor a dispositive application of the law to the facts as found. A question might arise as to whether the order has 'the practical effect' of determining the claim of an applicant to a remedial order ( Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160). One difficulty, however, is the respondents also contend that should the applicant commence fresh proceedings (assuming, as appears to be the case, the limitation period has not expired), Mr Rogers would be met with a contention of res judicata . If that contention is good, it seems to me that the order must necessarily be a final order consistent with the observations of Gibbs, Mason &amp; Murphy JJ in Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41 ; (1980) 147 CLR 35 at 38. 48 As to the standing to maintain a claim arising out of conduct in contravention of s 60 of the TPA, it seems to me that a contravention of s 60 , properly pleaded, may give rise to rights, claims and entitlements vested in the trustee of Mr Rogers and also a claim in Mr Rogers where the damages are to be estimated by immediate reference to any pain felt by the bankrupt and without regard to his rights in property. The mere fact that a contravention of s 60 necessarily involves a transaction of supply or possible supply of services to a consumer does not have the effect of vesting all claims arising out of the contravention in the trustee. In that regard, I would, with respect, disagree with the conclusion reached by her Honour at [32] of her Honour's reasons for judgment.
Case: Little v Victoria (1998) 4 VR 596
Outcome: cited
The respondents contend that her Honour's judgment is an interlocutory judgment and although her Honour's order finally disposes of the particular proceedings, an order staying an action on the ground that it is frivolous, vexatious or an abuse of process or an order striking out an action on the ground that the proceeding does not disclose a cause of action, has always been treated as an interlocutory judgment. Such an order does not finally dispose of the rights of the parties ( Tampion v Anderson (1974) 3 ALR 414; Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423; Little v Victoria (1998) 4 VR 596; Wickstead v Browne (1992) 30 NSWLR 1; and Platypus Leasing Inc &amp; Ors v Commissioner of Taxation [2005] NSWCA 399 [24] [30]). The rationale for such an approach seems to be that no final disposition of rights occurs because there has been no adjudication of the controversy of fact nor a dispositive application of the law to the facts as found. A question might arise as to whether the order has 'the practical effect' of determining the claim of an applicant to a remedial order ( Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160). One difficulty, however, is the respondents also contend that should the applicant commence fresh proceedings (assuming, as appears to be the case, the limitation period has not expired), Mr Rogers would be met with a contention of res judicata . If that contention is good, it seems to me that the order must necessarily be a final order consistent with the observations of Gibbs, Mason &amp; Murphy JJ in Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41 ; (1980) 147 CLR 35 at 38.
Case: Wickstead v Browne (1992) 30 NSWLR 1
Outcome: cited
The respondents contend that her Honour's judgment is an interlocutory judgment and although her Honour's order finally disposes of the particular proceedings, an order staying an action on the ground that it is frivolous, vexatious or an abuse of process or an order striking out an action on the ground that the proceeding does not disclose a cause of action, has always been treated as an interlocutory judgment. Such an order does not finally dispose of the rights of the parties ( Tampion v Anderson (1974) 3 ALR 414; Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423; Little v Victoria (1998) 4 VR 596; Wickstead v Browne (1992) 30 NSWLR 1; and Platypus Leasing Inc &amp; Ors v Commissioner of Taxation [2005] NSWCA 399 [24] [30]). The rationale for such an approach seems to be that no final disposition of rights occurs because there has been no adjudication of the controversy of fact nor a dispositive application of the law to the facts as found. A question might arise as to whether the order has 'the practical effect' of determining the claim of an applicant to a remedial order ( Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160). One difficulty, however, is the respondents also contend that should the applicant commence fresh proceedings (assuming, as appears to be the case, the limitation period has not expired), Mr Rogers would be met with a contention of res judicata . If that contention is good, it seems to me that the order must necessarily be a final order consistent with the observations of Gibbs, Mason &amp; Murphy JJ in Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41 ; (1980) 147 CLR 35 at 38.
Case: Platypus Leasing Inc &amp; Ors v Commissioner of Taxation [2005] NSWCA 399
Outcome: cited
The respondents contend that her Honour's judgment is an interlocutory judgment and although her Honour's order finally disposes of the particular proceedings, an order staying an action on the ground that it is frivolous, vexatious or an abuse of process or an order striking out an action on the ground that the proceeding does not disclose a cause of action, has always been treated as an interlocutory judgment. Such an order does not finally dispose of the rights of the parties ( Tampion v Anderson (1974) 3 ALR 414; Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423; Little v Victoria (1998) 4 VR 596; Wickstead v Browne (1992) 30 NSWLR 1; and Platypus Leasing Inc &amp; Ors v Commissioner of Taxation [2005] NSWCA 399 [24] [30]). The rationale for such an approach seems to be that no final disposition of rights occurs because there has been no adjudication of the controversy of fact nor a dispositive application of the law to the facts as found. A question might arise as to whether the order has 'the practical effect' of determining the claim of an applicant to a remedial order ( Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160). One difficulty, however, is the respondents also contend that should the applicant commence fresh proceedings (assuming, as appears to be the case, the limitation period has not expired), Mr Rogers would be met with a contention of res judicata . If that contention is good, it seems to me that the order must necessarily be a final order consistent with the observations of Gibbs, Mason &amp; Murphy JJ in Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41 ; (1980) 147 CLR 35 at 38.