mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
The Minister submits that failure to take account of particular evidence, as opposed to a distinct claim would, even if established, not amount to an error going to jurisdiction. See generally Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 at [46] ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [74] ; and Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [79] . Insofar as the ground seeks to agitate the same matters that were raised before Scarlett FM, the Minister submits that the RRT does not have a legally enforceable duty to make enquiries: see WAGJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 277 at [24] [25] citing Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 at [86] .
Case: Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196 ; (2001) 113 FCR 396
Outcome: cited
The Minister submits that failure to take account of particular evidence, as opposed to a distinct claim would, even if established, not amount to an error going to jurisdiction. See generally Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 at [46] ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [74] ; and Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [79] . Insofar as the ground seeks to agitate the same matters that were raised before Scarlett FM, the Minister submits that the RRT does not have a legally enforceable duty to make enquiries: see WAGJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 277 at [24] [25] citing Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 at [86] .
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: cited
The Minister submits that this issue was fully canvassed before the RRT. Indeed, the RRT heard from a witness called on behalf of the appellant to address this very question. Section 425 requires that an applicant be given an opportunity to give evidence and make arguments about "the issues arising in relation to the decision under review". See the discussion of s 425 in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at [33] [35] and [45] [49]. The section does not, however, require an opportunity to be given to respond to every item of particular evidence. That aspect of procedural fairness is, rather, dealt with by s 424A: see WAID v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 220 at [57] per French J.
Case: Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184
Outcome: cited
The Minister submits that failure to take account of particular evidence, as opposed to a distinct claim would, even if established, not amount to an error going to jurisdiction. See generally Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 at [46] ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [74] ; and Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [79] . Insofar as the ground seeks to agitate the same matters that were raised before Scarlett FM, the Minister submits that the RRT does not have a legally enforceable duty to make enquiries: see WAGJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 277 at [24] [25] citing Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 at [86] .
Case: WAGJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 277
Outcome: cited
The Minister submits that failure to take account of particular evidence, as opposed to a distinct claim would, even if established, not amount to an error going to jurisdiction. See generally Applicant WAEE v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 184 at [46] ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [74] ; and Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [79] . Insofar as the ground seeks to agitate the same matters that were raised before Scarlett FM, the Minister submits that the RRT does not have a legally enforceable duty to make enquiries: see WAGJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 277 at [24] [25] citing Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 at [86] .
Case: WAID v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 220
Outcome: cited
The Minister submits that this issue was fully canvassed before the RRT. Indeed, the RRT heard from a witness called on behalf of the appellant to address this very question. Section 425 requires that an applicant be given an opportunity to give evidence and make arguments about "the issues arising in relation to the decision under review". See the discussion of s 425 in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at [33] [35] and [45] [49]. The section does not, however, require an opportunity to be given to respond to every item of particular evidence. That aspect of procedural fairness is, rather, dealt with by s 424A: see WAID v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 220 at [57] per French J.
Case: Australian Securities &amp; Investments Commission v Emu Brewery Mezzanine Ltd [2004] WASC 241
Outcome: cited
the purposes of this proceeding, I will also assume that the investments in the Promissory Notes were subject to the requirements of managed investment schemes under the Corporations Law. There was considerable debate before me as to this question. In light of the view I have come to on other issues, it is unnecessary for me to come to a final view on this question. My own tentative view is that the correct contention is that the issue of the Promissory Notes did not form part of a managed investment scheme. The arguments not accepted by Simmonds J in Australian Securities &amp; Investments Commission v Emu Brewery Mezzanine Ltd [2004] WASC 241 seem to have considerable force. It seems to me that all that is involved here is the issue of promissory notes by a corporation with particular credit worthy characteristics and with a particular financing structure, which included the provision of certain securities for the lending of monies to investors. Each investor was offered and accepted a promissory note. All that was offered and acquired was the entitlement to payment of interest and repayment of capital in accordance with the promissory note, and no more or less. This is not the acquiring of rights to benefits produced by any 'scheme'. As I have said, I do not find it necessary to go further into this matter it would involve an analysis of the decision in Emu Brewery Mezzanine WASC 241, and possibly, the decisions of Finkelstein J in Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd [2006] FCA 1805 ; (2006) 157 FCR 229 and Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922 ; (2007) 162 FCR 358 , and the question of the extent to which I should follow those decisions even if I considered any of them to be error. Characterisation of Representations
Case: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: followed
is important to analyse the conduct and statements of PIR as a whole, taking into account disclaimers and other circumstances showing the true character of the conduct and statements themselves: see eg Campbell (2009) HCA 25 at [130] and Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592.
Case: Campbell v Backoffice Investments Pty Ltd (2009) HCA 25 ; 257 ALR 610
Outcome: followed
a disclaimer was included in the PIR reports. I accept that disclaimers may not be effective to absolve a maker of a statement from liability for misleading or deceptive conduct or liability under s 53 of the TPA: see eg Petera Pty Ltd v EAJ Pty Ltd [1985] FCA 277 ; (1985) 7 FCR 375. However, in this case there is not just the disclaimer. Contrary to the contention of Wealthcare, I do not regard the position as analogist to the attempted reliance upon the disclaimer in John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd 1993 ATPR 41-249. The context of all the statements in the PIR report referred to above indicated the limited basis of the information being put forward by PIR: see Campbell v Backoffice Investments Pty Ltd (2009) HCA 25 at [29] - [30] . It is important to analyse the conduct and statements of PIR as a whole, taking into account disclaimers and other circumstances showing the true character of the conduct and statements themselves: see eg Campbell (2009) HCA 25 at [130] and Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592. In coming to the view that Mr Roberts did not rely upon the alleged misrepresentations I am mindful of the comments made by the High Court in Campbell (2009) HCA 25 at [143] . The essential question is one of causation. It may be artificial to talk in terms of reliance in determining what would have occurred if the true position were known. Nevertheless causation and reliance are related concepts (see eg Heydon , Trade Practices Law (2008) vol 2 at [11.720]). In this proceeding, I have come to the conclusion that there was no causal connection between the alleged misrepresentations and the actions of Wealthcare, because there was no reliance in fact upon the alleged misrepresentations.
Case: Digi Tech (Aust) Ltd v Brand [2004] NSWCA 58
Outcome: cited
may be an issue as to the whether there is an inconsistency between the cases relied upon by Wealthcare and Digi Tech (Aust) Ltd v Brand [2004] NSWCA 58 at [147] - [160] , but this does not need further consideration. As Wealthcare did not rely on the alleged representations in the PIR report, no 'indirect causation' can arise. Put another way, it cannot be said that Wealthcare's reliance on the PIR reports was 'a cause' of Dartberg's investing because there was no reliance at all by Wealthcare to find any 'indirect causation'. For the above reasons, the Court will order: The cross-claim be dismissed. The parties confer as to the appropriate order to make as to costs, and if no agreement can be reached, file and serve within 14 days any submissions as to costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 9 October 2009 Counsel for the Cross-Claimants: Mr P Cawthorn SC with Mr M Osborne Solicitor for the Cross-Claimants: Moray &amp; Agnew Counsel for the First Cross-Respondent: Mr D Collins SC with Mr J Davis Solicitor for the First Cross-Respondent: HWL Ebsworth Date of Hearing: 18, 19, 20, 21 May, 1 June 2009 Date of Judgment: 9 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1153.html
Case: Gardam v George Wills &amp; Co Ltd (No 1) [1988] FCA 194 ; (1988) 82 ALR 415
Outcome: cited
does not matter whether the alleged misrepresentations were statements of fact, law or opinion whatever they were, it is my view that the alleged misrepresentations had the effect, or likely effect, on Wealthcare of statements taken from or based upon the Information Memoranda: see eg Heydon v NRMA Ltd [2000] NSWCA 374 ; (2000) 51 NSWLR 1 , 148; Gardam v George Wills &amp; Co Ltd (No 1) [1988] FCA 194 ; (1988) 82 ALR 415 , 427 (per French J) and Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 , 666.
Case: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459
Outcome: cited
accept the submission of Wealthcare, that it only has to be shown that PIR's conduct or the falsity of the alleged representations was a cause of its loss: see eg I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at [25] and [55] to [57]; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 , [13] and [14] per Gleeson CJ and King v Yurisich (2006) 234 ALR 425 at [90]. However, I have come to the view that the alleged misrepresentations had no impact whatsoever on Mr Roberts' approach to the investments, and he would have made the recommendation to Mr Pollard irrespective of whether the alleged misrepresentations were included in the PIR reports or not.
Case: Heydon v NRMA Ltd [2000] NSWCA 374 ; (2000) 51 NSWLR 1
Outcome: cited
does not matter whether the alleged misrepresentations were statements of fact, law or opinion whatever they were, it is my view that the alleged misrepresentations had the effect, or likely effect, on Wealthcare of statements taken from or based upon the Information Memoranda: see eg Heydon v NRMA Ltd [2000] NSWCA 374 ; (2000) 51 NSWLR 1 , 148; Gardam v George Wills &amp; Co Ltd (No 1) [1988] FCA 194 ; (1988) 82 ALR 415 , 427 (per French J) and Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 , 666. In coming to the view that Mr Roberts did not rely upon the alleged misrepresentations I am mindful of the comments made by the High Court in Campbell (2009) HCA 25 at [143] . The essential question is one of causation. It may be artificial to talk in terms of reliance in determining what would have occurred if the true position were known. Nevertheless causation and reliance are related concepts (see eg Heydon , Trade Practices Law (2008) vol 2 at [11.720]). In this proceeding, I have come to the conclusion that there was no causal connection between the alleged misrepresentations and the actions of Wealthcare, because there was no reliance in fact upon the alleged misrepresentations.
Case: I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: cited
accept the submission of Wealthcare, that it only has to be shown that PIR's conduct or the falsity of the alleged representations was a cause of its loss: see eg I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at [25] and [55] to [57]; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 , [13] and [14] per Gleeson CJ and King v Yurisich (2006) 234 ALR 425 at [90]. However, I have come to the view that the alleged misrepresentations had no impact whatsoever on Mr Roberts' approach to the investments, and he would have made the recommendation to Mr Pollard irrespective of whether the alleged misrepresentations were included in the PIR reports or not.
Case: Janssen-Cilag Pty Ltd v Pfizer Pty Ltd [1992] FCA 437 ; (1992) 37 FCR 526
Outcome: cited
contended this would not matter, because Dartberg still suffered loss due to PIR's conduct, relying on the 'indirect causation' line of cases: see eg Janssen-Cilag Pty Ltd v Pfizer Pty Ltd [1992] FCA 437 ; (1992) 37 FCR 526 and McCarthy v McIntyre [1999] FCA 784. It was contended that PIR's conduct was a cause of Dartberg's loss.
Case: John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd [1993] FCA 295 ; (1993) ATPR 41 249
Outcome: distinguished
a disclaimer was included in the PIR reports. I accept that disclaimers may not be effective to absolve a maker of a statement from liability for misleading or deceptive conduct or liability under s 53 of the TPA: see eg Petera Pty Ltd v EAJ Pty Ltd [1985] FCA 277 ; (1985) 7 FCR 375. However, in this case there is not just the disclaimer. Contrary to the contention of Wealthcare, I do not regard the position as analogist to the attempted reliance upon the disclaimer in John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd 1993 ATPR 41-249. The context of all the statements in the PIR report referred to above indicated the limited basis of the information being put forward by PIR: see Campbell v Backoffice Investments Pty Ltd (2009) HCA 25 at [29] - [30] .
Case: King v Yurisich (2006) 234 ALR 425
Outcome: cited
accept the submission of Wealthcare, that it only has to be shown that PIR's conduct or the falsity of the alleged representations was a cause of its loss: see eg I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at [25] and [55] to [57]; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 , [13] and [14] per Gleeson CJ and King v Yurisich (2006) 234 ALR 425 at [90]. However, I have come to the view that the alleged misrepresentations had no impact whatsoever on Mr Roberts' approach to the investments, and he would have made the recommendation to Mr Pollard irrespective of whether the alleged misrepresentations were included in the PIR reports or not.
Case: McCarthy v McIntyre [1999] FCA 784
Outcome: cited
contended this would not matter, because Dartberg still suffered loss due to PIR's conduct, relying on the 'indirect causation' line of cases: see eg Janssen-Cilag Pty Ltd v Pfizer Pty Ltd [1992] FCA 437 ; (1992) 37 FCR 526 and McCarthy v McIntyre [1999] FCA 784. It was contended that PIR's conduct was a cause of Dartberg's loss.
Case: Petera Pty Ltd v EAJ Pty Ltd [1985] FCA 277 ; (1985) 7 FCR 375
Outcome: cited
a disclaimer was included in the PIR reports. I accept that disclaimers may not be effective to absolve a maker of a statement from liability for misleading or deceptive conduct or liability under s 53 of the TPA: see eg Petera Pty Ltd v EAJ Pty Ltd [1985] FCA 277 ; (1985) 7 FCR 375. However, in this case there is not just the disclaimer. Contrary to the contention of Wealthcare, I do not regard the position as analogist to the attempted reliance upon the disclaimer in John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd 1993 ATPR 41-249. The context of all the statements in the PIR report referred to above indicated the limited basis of the information being put forward by PIR: see Campbell v Backoffice Investments Pty Ltd (2009) HCA 25 at [29] - [30] .
Case: Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922 ; (2007) 162 FCR 358
Outcome: cited
main claims made by the plaintiff Dartberg Pty Limited ('Dartberg') against Wealthcare related to investments made by Dartberg on the recommendation of Wealthcare in promissory notes issued by two companies Market Street Mezzanine Pty Ltd ('Market Street') and York Street Mezzanine Pty Ltd ('York Street'). Each of those companies was within the Westpoint Group of companies which collapsed. A convenient sketch of the background to the raising of monies by way of the promissory notes and the collapse of Westpoint is to be found in the judgment of Finkelstein J in Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922 ; (2007) 162 FCR 358. The primary claim between Dartberg and Wealthcare was settled by a settlement agreement dated 23 June 2008 which provided for payment by Wealthcare of the sum of $350,000 inclusive of interest and costs to Dartberg. Wealthcare now seek damages against PIR in the amount of $350,000 plus costs incurred in defending the claim brought against Wealthcare by Dartberg. As I have said, I do not find it necessary to go further into this matter it would involve an analysis of the decision in Emu Brewery Mezzanine WASC 241, and possibly, the decisions of Finkelstein J in Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd [2006] FCA 1805 ; (2006) 157 FCR 229 and Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922 ; (2007) 162 FCR 358 , and the question of the extent to which I should follow those decisions even if I considered any of them to be error. Characterisation of Representations
Case: Unity Insurance Pty Ltd v Rocco Perzzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603
Outcome: cited
do not need to consider the effect of the terms of settlement and the principles in Unity Insurance Pty Ltd v Rocco Perzzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603. This question would only arise if PIR were otherwise liable to Wealthcare, and the requirements of Wealthcare in establishing its loss or damage needed to be considered.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
does not matter whether the alleged misrepresentations were statements of fact, law or opinion whatever they were, it is my view that the alleged misrepresentations had the effect, or likely effect, on Wealthcare of statements taken from or based upon the Information Memoranda: see eg Heydon v NRMA Ltd [2000] NSWCA 374 ; (2000) 51 NSWLR 1 , 148; Gardam v George Wills &amp; Co Ltd (No 1) [1988] FCA 194 ; (1988) 82 ALR 415 , 427 (per French J) and Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 , 666.
Case: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Outcome: cited
It is well settled that the Court is vested with discretion to award security for costs, and that the power is wide, with the need to exercise the discretion judicially being the only relevant limitation ( Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 3). Although O 28 r 3 Federal Court Rules refers to matters the Court may take into account when considering an application for an order for security for costs under s 56 of the Federal Court Act, it is clear that the rule is not intended to be an exhaustive statement of the factors the Court may consider, nor does the rule limit the power of the Court under s 56 ( Bell 2 FCR at 2-3).
Case: CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270
Outcome: cited
Although the jurisdiction of the Court to order security for costs is enlivened in this case by what are reasons to believe that the applicant could not satisfy a costs order if it were unsuccessful, the decision to make the order is nonetheless at the discretion of the Court. The onus of persuading the court that an award of security for costs should be made lies on the party seeking the order: CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 at 284 285, Cherry v Read (unreported, Black CJ, Sackville and Finn JJ, 21 November 1996 at 8).
Case: Cherry v Read unreported, Black CJ, Sackville and Finn JJ, 21 November 1996
Outcome: cited
Although the jurisdiction of the Court to order security for costs is enlivened in this case by what are reasons to believe that the applicant could not satisfy a costs order if it were unsuccessful, the decision to make the order is nonetheless at the discretion of the Court. The onus of persuading the court that an award of security for costs should be made lies on the party seeking the order: CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 at 284 285, Cherry v Read (unreported, Black CJ, Sackville and Finn JJ, 21 November 1996 at 8).
Case: General Credits Ltd v Tawilla Pty Ltd (1984) 1 Qd R 388
Outcome: cited
If the respondents sought to enforce payment of security for costs against the applicant, the respondents would have a claim against the applicant, which presumably would then claim a right of indemnity out of the trust assets of the Success Development &amp; Property Group Unit Trust. This assumes, of course, that the applicant's liability was properly incurred in the affairs of the trust (cf comments of McPherson J in General Credits Ltd v Tawilla Pty Ltd (1984) 1 Qd R 388 at 390, followed by White J in Westpac Banking Corporation v Garrett [2004] SASC 265 at [27] ). As I have already discussed, it is uncertain in this case whether the liability of the applicant would be properly incurred on behalf of the Success Development &amp; Property Group Unit Trust, such as to entitle the applicant to a right of indemnity.