mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658
Outcome: cited
following statement by Murphy, Wilson, Brennan, Deane and Dawson JJ in Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 654 remains pertinent to the role of pleadings and particulars as provided for by O 11 and O 12 of the Federal Court Rules : Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ( Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [1916] HCA 81 ; (1916) 22 CLR 490 , at p 517 ; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial ( Miller v. Cameron [1936] HCA 13 ; (1936) 54 CLR 572 , at pp 576-577 ; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518 ; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) LR 25 Ind App 195 , at p 207 ). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed ( Mummery v. Irvings Pty. Ltd. [1956] HCA 45 ; (1956) 96 CLR 99 , at pp 111, 112, 127 ), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence ( Leotta v. Public Transport Commission (N.S.W.) (1976) 9 ALR 437 , at p 446; 50 ALJR 666 , at p 668 ).
Case: Australian Competition and Consumer Commission v Pauls Ltd [1999] FCA 1750
Outcome: considered
Australian Competition and Consumer Commission v Pauls Ltd [1999] FCA 1750 at [10] , with reference to sentiments to that effect then recently expressed by Wilcox J in Coshott v Kam Tou Mak [1998] FCA 147 , O'Loughlin J observed that there was a contemporary tendency against the taking of a pedantic approach to a pleading. A decade later that remains the case. Further, a pleading must be read as a whole. The countervailing consideration is whether, accepting it must be so read, the pleading fairly puts the other party on notice as to the case to be met. A pleading is but a means to the achievement of procedural fairness and of the efficient use of judicial resources and those of the parties by the identification of what is truly at issue.
Case: Coshott v Kam Tou Mak [1998] FCA 147
Outcome: considered
Australian Competition and Consumer Commission v Pauls Ltd [1999] FCA 1750 at [10] , with reference to sentiments to that effect then recently expressed by Wilcox J in Coshott v Kam Tou Mak [1998] FCA 147 , O'Loughlin J observed that there was a contemporary tendency against the taking of a pedantic approach to a pleading. A decade later that remains the case. Further, a pleading must be read as a whole. The countervailing consideration is whether, accepting it must be so read, the pleading fairly puts the other party on notice as to the case to be met. A pleading is but a means to the achievement of procedural fairness and of the efficient use of judicial resources and those of the parties by the identification of what is truly at issue.
Case: Warner v Sampson [1959] 1 QB 297
Outcome: cited
11 rule 13(2) expressly authorises a traverse by a "statement of specific non-admission". Paragraphs 6 and 7 of the amended defence each comply with that authorisation. In so doing on the basis of an alleged absence of knowledge on the part of Mr Day, they also each exemplify the observation made in Lindgren KE and Branson CM, Federal Civil Litigation Precedents (Butterworths, 1998 at [24,210]) that, "denial is usually employed where the alleged fact is in a party's knowledge and a non-admission where it is not". I respectfully agree with that observation. The practical effect of an express non-admission is the same as that of an express denial ( Warner v Sampson [1959] 1 QB 297 at 319 per Hodson LJ) in that the opposing party is thereby put to proof of the issue but the difference between the two lies in the occasion for their employment as a matter of pleading practice. Paragraph 8 of the amended defence responds to para 7 of the statement of claim. In the way in which it is cast, para 7 of the statement of claim also makes "rolled up" allegations in that it conjoins allegations in respect of the separate matters of the provision of a script and the giving of instructions for the use of that script. Mr Day admits that a script was available but otherwise expressly does not admit the allegations in para 7 of the statement of claim on the basis of absence of knowledge. This he is entitled to do. On behalf of the ACCC criticism is further made of the way in which Mr Day's amended defence responds to the allegations as to his knowledge of pleaded facts. Allegations as to his knowledge are to be found in para 10, 15, 24 and 34 of the statement of claim with the responses to these allegations being found in para 10, 13, 27 and 37 of the amended defence. The responses take the form of express non-admissions on the basis of absence of knowledge. A noteworthy feature of these paragraphs of the amended defence is their engagement with para 3.5 of that document. In para 3.5, in some detail, Mr Day makes positive allegations as to the management and control of Craftmatic and as to the nature and extent of his involvement in that management and control. It is submitted on behalf of the ACCC, with reference to the responsive paragraphs of the amended defence, as read with para 3.5, that, "These paragraphs are in substance and effect pleadings of circumstances by which it might be that [Mr Day] does not know particular things but are vague and evasive and do not address the pleaded issue of whether he knows those particular things (underlining in written submission)". Thus, it is submitted, para 3.5 does not amount to an allegation of material facts, contrary to O 11 r 2. A more detailed critique, which I have taken into account, of para 3.5 follows to the end of seeking to demonstrate that para 3.5 is evasive.
Case: Australian Competition and Consumer Commission v Chubb Security Australia Pty Ltd [2004] FCA 1750
Outcome: applied
the offences charged the most serious are those relating to the baby walkers. The two charges are linked. The prosecutor's investigation of the conduct of the defendant in marketing the baby walkers was commenced following a complaint from a member of the public who had purchased a walker from the defendant through the internet. The prosecutor then arranged for similar walkers to be purchased from the defendant and caused them to be subjected to analysis. As already noted, this analysis revealed that the walkers did not comply with standards prescribed pursuant to s 65C of the Act . Proceeding VID 385 of 2006 relates to the 'controlled' supply of the walkers to an officer employed by the prosecutor. Proceeding VID 388 of 2006 relates to the supply of the walker to the member of the public who complained to the prosecutor. Any supply of the walkers would constitute a breach of s 75AZS(1) of the Act . Forty seven such sales were admitted. Charges have only been laid in respect to the sales to the prosecutor and the complainant. Of the two sales the one to the complainant is the one in respect of which the defendant bears the greater degree of culpability. It was to be used by her daughter and would have been had the complainant not been alert to the deficiencies in the product and the absence of labelling. The walkers purchased by the investigator were not destined for use by any child. In considering the quantum of the penalties for these two offices (and, indeed, all the penalties to be imposed) I am required also to give effect to the totality principle in order to avoid a crushing aggregate penalty and to ensure, so far as is possible, that the aggregate penalty reflects the totality of the criminality involved: Australian Competition and Consumer Commission v Chubb Security Australia Pty Ltd [2004] FCA 1750 at [141] [143]. Having regard to all the circumstances I consider that the appropriate penalty in proceeding VID 388 should be $450,000 and in proceeding VID 385, $50,000. The offence relating to the statement that the cots complied with Australian standards when they did not is also serious. No fewer than 15 departures from the prescribed standard were identified. I consider that a penalty of $350,000 is warranted in proceeding VID 386. The final offence concerned the notice which advised customers that refunds were not available for products sold by defendant during a stock clearance. In my view an appropriate penalty in proceeding VID 387 is $10,000. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 18 October 2006 Counsel for the Prosecutor: Ms Michelle Hodgson Solicitor for the Prosecutor: Commonwealth Director of Public Prosecutions Counsel for the Defendant: No Appearance Date of Hearing: 3 October 2006 Date of Judgment: 18 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1343.html
Case: Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2004] FCA 376
Outcome: referred to
consideration, which is not specifically referred to in s 16A of the Crimes Act but which has assumed considerable importance in the case law which has developed in relation to Part V of the Act , has been general deterrence. The absence of specific reference to general deterrence has not been interpreted as meaning that it is not a relevant consideration. The contrary is true: R v Sinclair (1990) 51 A Crim R 418 at 430. In many cases decided under the Act , this Court has placed considerable emphasis on general deterrence as being an important factor to be brought to account where penalties or sentences are imposed for contraventions of Part V. This approach finds support in the expressed object of the Act 'to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection' (see s 2) and the significant monetary penalties, provided for in the Act , for contravention of consumer protection provisions such as those presently under consideration. It has become accepted that the imposition of substantial penalties for breaches of provisions which are designed to protect consumers, will serve to alert members of the business community to the provisions of the Act and the serious consequences which may flow from their contravention: see eg Pugh v Clark Rubber Limited (1993) ATPR 41-258 at 41, 473; Miller v Cunningham's Warehouse Sales Pty Ltd (1994) ATPR 41-321 at 42, 269; Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [24] . This principle has been applied even where defendant companies have gone into liquidation and there is no realistic prospect of a substantial monetary penalty ever being paid: see eg Australian Competition and Consumer Commission v Vales Wine Company Pty Ltd (1976) ATPR 41-528 at 42, 776; Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2004] FCA 376 at [23] - [25] .
Case: Australian Competition and Consumer Commission v Vales Wine Company Pty Ltd (1976) ATPR 41-528
Outcome: referred to
consideration, which is not specifically referred to in s 16A of the Crimes Act but which has assumed considerable importance in the case law which has developed in relation to Part V of the Act , has been general deterrence. The absence of specific reference to general deterrence has not been interpreted as meaning that it is not a relevant consideration. The contrary is true: R v Sinclair (1990) 51 A Crim R 418 at 430. In many cases decided under the Act , this Court has placed considerable emphasis on general deterrence as being an important factor to be brought to account where penalties or sentences are imposed for contraventions of Part V. This approach finds support in the expressed object of the Act 'to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection' (see s 2) and the significant monetary penalties, provided for in the Act , for contravention of consumer protection provisions such as those presently under consideration. It has become accepted that the imposition of substantial penalties for breaches of provisions which are designed to protect consumers, will serve to alert members of the business community to the provisions of the Act and the serious consequences which may flow from their contravention: see eg Pugh v Clark Rubber Limited (1993) ATPR 41-258 at 41, 473; Miller v Cunningham's Warehouse Sales Pty Ltd (1994) ATPR 41-321 at 42, 269; Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [24] . This principle has been applied even where defendant companies have gone into liquidation and there is no realistic prospect of a substantial monetary penalty ever being paid: see eg Australian Competition and Consumer Commission v Vales Wine Company Pty Ltd (1976) ATPR 41-528 at 42, 776; Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2004] FCA 376 at [23] - [25] .
Case: Gardam v Splendid Enterprises Pty Ltd (1987) ATPR 40-779
Outcome: considered
Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [10] - [12] Weinberg J noted certain observations of French J in Gardam v Splendid Enterprises Pty Ltd (1987) ATPR 40-779 at 48, 502 to 48, 503 which he found to be a helpful statement of the principles which governed the determination of penalties to be fixed for breaches of the consumer protection provisions of the Act . His Honour held that these principles remained relevant notwithstanding the introduction of s 16A of the Crimes Act . The relevant observations of French J in Gardam are: 'The appropriate level of penalty to be fixed will vary according to the circumstances of each case and the class of relevant considerations is not closed. Nevertheless it appears to be well established that the following matters are relevant to the punishment to be imposed. 1 The objectives of the Act . 2 The importance of any untrue statements made. 3 The degree of wilfulness or carelessness involved in making such a statement. 4 The extent to which the statements in question depart from the truth. 5 The degree of their dissemination. 6 The result in prejudice to consumers. 7 Whether any and if so what efforts have been made to correct the statements. 8 The need to impose deterrent penalties. The sections of the Act which provide for the declaration of consumer product safety standards and their enforcement are plainly of the highest importance. ... In the present case the offences were not committed wilfully or with any intention to deceive. Their commission was the product of carelessness and lacks management. As Smithers J said in Geoffrey John Eva v Mazda Motors (Sales) Pty Ltd .... "....contraventions due to carelessness are not permissible and must be punished. Of course such contraventions are not in the same order as culpability as those involving an intention to deceive."'
Case: Miller v Cunningham's Warehouse Sales Pty Ltd (1994) ATPR 41-321
Outcome: referred to
consideration, which is not specifically referred to in s 16A of the Crimes Act but which has assumed considerable importance in the case law which has developed in relation to Part V of the Act , has been general deterrence. The absence of specific reference to general deterrence has not been interpreted as meaning that it is not a relevant consideration. The contrary is true: R v Sinclair (1990) 51 A Crim R 418 at 430. In many cases decided under the Act , this Court has placed considerable emphasis on general deterrence as being an important factor to be brought to account where penalties or sentences are imposed for contraventions of Part V. This approach finds support in the expressed object of the Act 'to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection' (see s 2) and the significant monetary penalties, provided for in the Act , for contravention of consumer protection provisions such as those presently under consideration. It has become accepted that the imposition of substantial penalties for breaches of provisions which are designed to protect consumers, will serve to alert members of the business community to the provisions of the Act and the serious consequences which may flow from their contravention: see eg Pugh v Clark Rubber Limited (1993) ATPR 41-258 at 41, 473; Miller v Cunningham's Warehouse Sales Pty Ltd (1994) ATPR 41-321 at 42, 269; Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [24] . This principle has been applied even where defendant companies have gone into liquidation and there is no realistic prospect of a substantial monetary penalty ever being paid: see eg Australian Competition and Consumer Commission v Vales Wine Company Pty Ltd (1976) ATPR 41-528 at 42, 776; Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2004] FCA 376 at [23] - [25] .
Case: Pugh v Clark Rubber Limited (1993) ATPR 41-258
Outcome: referred to
consideration, which is not specifically referred to in s 16A of the Crimes Act but which has assumed considerable importance in the case law which has developed in relation to Part V of the Act , has been general deterrence. The absence of specific reference to general deterrence has not been interpreted as meaning that it is not a relevant consideration. The contrary is true: R v Sinclair (1990) 51 A Crim R 418 at 430. In many cases decided under the Act , this Court has placed considerable emphasis on general deterrence as being an important factor to be brought to account where penalties or sentences are imposed for contraventions of Part V. This approach finds support in the expressed object of the Act 'to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection' (see s 2) and the significant monetary penalties, provided for in the Act , for contravention of consumer protection provisions such as those presently under consideration. It has become accepted that the imposition of substantial penalties for breaches of provisions which are designed to protect consumers, will serve to alert members of the business community to the provisions of the Act and the serious consequences which may flow from their contravention: see eg Pugh v Clark Rubber Limited (1993) ATPR 41-258 at 41, 473; Miller v Cunningham's Warehouse Sales Pty Ltd (1994) ATPR 41-321 at 42, 269; Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [24] . This principle has been applied even where defendant companies have gone into liquidation and there is no realistic prospect of a substantial monetary penalty ever being paid: see eg Australian Competition and Consumer Commission v Vales Wine Company Pty Ltd (1976) ATPR 41-528 at 42, 776; Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2004] FCA 376 at [23] - [25] .
Case: R v Sinclair (1990) 51 A Crim R 418
Outcome: referred to
consideration, which is not specifically referred to in s 16A of the Crimes Act but which has assumed considerable importance in the case law which has developed in relation to Part V of the Act , has been general deterrence. The absence of specific reference to general deterrence has not been interpreted as meaning that it is not a relevant consideration. The contrary is true: R v Sinclair (1990) 51 A Crim R 418 at 430. In many cases decided under the Act , this Court has placed considerable emphasis on general deterrence as being an important factor to be brought to account where penalties or sentences are imposed for contraventions of Part V. This approach finds support in the expressed object of the Act 'to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection' (see s 2) and the significant monetary penalties, provided for in the Act , for contravention of consumer protection provisions such as those presently under consideration. It has become accepted that the imposition of substantial penalties for breaches of provisions which are designed to protect consumers, will serve to alert members of the business community to the provisions of the Act and the serious consequences which may flow from their contravention: see eg Pugh v Clark Rubber Limited (1993) ATPR 41-258 at 41, 473; Miller v Cunningham's Warehouse Sales Pty Ltd (1994) ATPR 41-321 at 42, 269; Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [24] . This principle has been applied even where defendant companies have gone into liquidation and there is no realistic prospect of a substantial monetary penalty ever being paid: see eg Australian Competition and Consumer Commission v Vales Wine Company Pty Ltd (1976) ATPR 41-528 at 42, 776; Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2004] FCA 376 at [23] - [25] .
Case: Australian Hydrocarbons NL v Green (1985) 10 ACLR 72
Outcome: referred to
Jordan v Avram (1997) 141 FLR 275; (1997) 25 ACSR 153 Gillard J accepted that the conditions are not cumulative, relying upon Australian Hydrocarbons NL v Green (1985) 10 ACLR 72 at 83, but without noticing Comcorp. I have difficulty in seeing how the decision of Hodgson J in Australian Hydrocarbons establishes the proposition in question. However, in Re Westpac Banking Corporation , Emmett J, having referred to Comcorp , said (at [27]): 'I consider that the syntax of s 1322(6)(a) is quite clear in contemplating that only one of the three paragraphs of s 1322(6)(a) needs to be satisfied in order to authorise the making of an order.'