mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1
Outcome: cited
Although references occur in the Authorities to the 'inherent jurisdiction' of the Court ( McDermott v Richmond Sales (in liq) [2006] FCA 248 , per Kenny J; Plantagenet Wines v Lyon Nathan Wine Group Australia Ltd [2006] FCA 247 , per Sciopis J) the term is an inaccurate description of the 'incidental and necessary power' exercised by a statutory court ( DJL v Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 241[25], per Gleeson CJ, Gaudron J, McHugh, Gummow and Hayne JJ) as the term 'inherent jurisdiction' is a reference to a jurisdiction subsisting 'without the aid of any authorising provisions' ( R v Forbes ; ex parte Bevan per Menzies J, at p 7). The distinction between a jurisdiction or power derived by implication from statutory provisions and a jurisdiction drawn from the 'well of undefined powers available to the common law courts at Westminster'( Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 at 16) is 'fundamental' ( DJL v Central Authority [26]).
Case: Bailey v Marinoff [1971] HCA 49 ; (1971) 125 CLR 529
Outcome: cited
There is no provision of the Act or rules made under the Act which expressly confer a power in the Court to set aside an order of the Court in the exercise of its appellate jurisdiction once entered. Order 35, r 7(2) is consistent with no empowering provision of the Act conferring an express power to set aside and re-open a perfected order of the Full Court of this Court. Once perfected, the order is beyond recall ( Bailey v Marinoff [1971] HCA 49 ; (1971) 125 CLR 529 at 530).
Case: Pantzer v Wenkart BC [2007] 01482, (unreported), 13 March 2007
Outcome: cited
See also Pantzer v Wenkart BC [2007] 01482 per Black CJ, Ryan and Moore JJ and particularly Black CJ at [4] [7].
Case: Autodesk Inc. and Another v Dyason and Others [No. 2] [1993] HCA 6 ; (1993) 176 CLR 300
Outcome: cited
Accordingly, there is no power in the Federal Court to re-open orders of the Court in the exercise of its appellate jurisdiction once perfected by entry. Since there is no power , no question of exceptional circumstances or extraordinary circumstances or any other circumstance irrespective of the language of emphasis that might be adopted, arises. In this case, none are demonstrated in any event ( Autodesk Inc. and Another v Dyason and Others [No. 2] [1993] HCA 6 ; (1993) 176 CLR 300 at 303 per Mason CJ 'What must emerge, in order to enliven the exercise of the jurisdiction [by the High Court in respect of an earlier decision of that Court], is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the parties seeking the re-hearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases'; '... it is a jurisdiction to be exercised cautiously, bearing in mind the public interest in the finality of litigation', per Dawson J at p 317). 42 Accordingly, the source of the power to achieve the objective of the attainment of justice between parties to a particular controversy, in a meritorious case, is through the exercise by the High Court of the appellate power conferred upon that Court exercised with the special leave of that Court. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 2 October 2007 Solicitor for the appellant in the proceeding: Self represented Counsel for the Respondents in the proceeding: Mr Martin Hanson Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 27 September 2007 Date of Judgment: 2 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1526.html
Case: Australian Competition and Consumer Commission v Chubb Security Australia Proprietary Limited [2004] FCA 1750
Outcome: considered
I note that in Australian Competition and Consumer Commission v Chubb Security Australia Proprietary Limited [2004] FCA 1750 , 30 December 2004, under the heading "Parity", Bennett J, with respect, helpfully, surveyed a number of authorities which dealt with the question of penalty in the context of that case. There was some submission made to me that a like exercise might be undertaken in this case by reference to the circumstances of and the sentences imposed in Australian Competition and Consumer Commission v Skippy Australia Proprietary Limited [2006] FCA 1343 , and Australian Competition and Consumer Commission v Allans Music Group Proprietary Limited [2002] FCA 1552.
Case: Australian Competition and Consumer Commission v Allans Music Group Proprietary Limited [2002] FCA 1552
Outcome: considered
I note that in Australian Competition and Consumer Commission v Chubb Security Australia Proprietary Limited [2004] FCA 1750 , 30 December 2004, under the heading "Parity", Bennett J, with respect, helpfully, surveyed a number of authorities which dealt with the question of penalty in the context of that case. There was some submission made to me that a like exercise might be undertaken in this case by reference to the circumstances of and the sentences imposed in Australian Competition and Consumer Commission v Skippy Australia Proprietary Limited [2006] FCA 1343 , and Australian Competition and Consumer Commission v Allans Music Group Proprietary Limited [2002] FCA 1552. 30 It seems to me, though, that the circumstances of this case have a uniqueness which limits the utility of that exercise. I have noted, however, and see force in the submission made on behalf of the Corporate Defendant, that so far as the Allans Music case is concerned, this ought not be approached on the basis that one is sentencing a defendant who has demonstrated market power. Equally, I see force in the submission that there was an additional aggravating quality in the Skippy case, lent by the threat posed to the safety of children by the nature of the conduct in respect of the product in question.
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 (2006) 236 ALR 720
Outcome: cited
It is well established that a cause of action for the recovery of damages under either ss 82 or 87 of the Trade Practices Act is not one capable of assignment. The relevant authorities were summarised by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [50]-[52]. They are Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467, Allstate Life Insurance Co v Australia &amp; New Zealand Banking Group Ltd [1994] FCA 814 at [18] , Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218 and Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 at [204] - [207] .
Case: Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105
Outcome: cited
It is well established that a cause of action for the recovery of damages under either ss 82 or 87 of the Trade Practices Act is not one capable of assignment. The relevant authorities were summarised by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [50]-[52]. They are Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467, Allstate Life Insurance Co v Australia &amp; New Zealand Banking Group Ltd [1994] FCA 814 at [18] , Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218 and Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 at [204] - [207] .
Case: Allstate Life Insurance Co v Australia &amp; New Zealand Banking Group Ltd [1994] FCA 814
Outcome: cited
It is well established that a cause of action for the recovery of damages under either ss 82 or 87 of the Trade Practices Act is not one capable of assignment. The relevant authorities were summarised by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [50]-[52]. They are Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467, Allstate Life Insurance Co v Australia &amp; New Zealand Banking Group Ltd [1994] FCA 814 at [18] , Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218 and Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 at [204] - [207] .
Case: Pritchard v Racecage Pty Ltd (1997) 72 FCR 203
Outcome: cited
It is well established that a cause of action for the recovery of damages under either ss 82 or 87 of the Trade Practices Act is not one capable of assignment. The relevant authorities were summarised by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [50]-[52]. They are Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467, Allstate Life Insurance Co v Australia &amp; New Zealand Banking Group Ltd [1994] FCA 814 at [18] , Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218 and Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 at [204] - [207] .
Case: Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62
Outcome: cited
It is well established that a cause of action for the recovery of damages under either ss 82 or 87 of the Trade Practices Act is not one capable of assignment. The relevant authorities were summarised by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [50]-[52]. They are Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467, Allstate Life Insurance Co v Australia &amp; New Zealand Banking Group Ltd [1994] FCA 814 at [18] , Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218 and Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 at [204] - [207] .
Case: Poulton v The Commonwealth [1952] HCA 70 ; (1952) 89 CLR 540
Outcome: followed
The principles governing the assignability of causes of action in tort and equity are discussed in Meagher, Gummow and Lehane Equity Doctrines and Remedies , 4 th ed, Butterworths, 2002 pp 278-283. Of fundamental importance is the principle that, as a right to sue for damages for tort is merely a bare right of action, and not itself property, a purported assignment of a cause of action for damages for tort is not legally effective: Poulton v The Commonwealth [1952] HCA 70 ; (1952) 89 CLR 540 per Williams, Webb and Kitto JJ at 602. Their Honours' observations in Poulton were dicta, and arguably not in conformity with later observations of the House of Lords in Trendtex . In the latter case, some of their Lordships observed (also dicta) that although it remained a fundamental principle of English law that a bare right to litigate is not capable of assignment, an exception exists in the case of an assignee with a genuine commercial interest in taking and enforcing the assignment for his own benefit. That principle was subsequently applied by the House of Lords, in relation to an assignment of a cause of action for damages in tort, in Giles v Thompson [1994] 1 AC 142. 116 In Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 1041 ; (2004) 220 ALR 267, McDougall J identified a number of first instance judgments, some applying and some declining to apply the Trendtex principle in Australia. In the result, although minded to favour the adoption of the Trendtex principle with respect to the assignability of causes of action in contract, his Honour acknowledged the continuing force and application of the observations in Poulton in relation to the assignability of causes of action in tort. 119 It is apparent, therefore, that the statement of principle by Williams, Webb and Kitto JJ in Poulton retains its authority. As commented by Meagher et al, op cit at p 281, in respect of those first instance decisions that purport to favour adoption of the principles stated in Trendte x in preference to that in Poulton : The difficulty is that the proposition urged is inconsistent with Poulton v Commonwealth ... and it is not easy for courts below the High Court legitimately to depart from the considered dicta of three High Court Justices.
Case: Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 1041 ; (2004) 220 ALR 267
Outcome: applied
In Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 1041 ; (2004) 220 ALR 267, McDougall J identified a number of first instance judgments, some applying and some declining to apply the Trendtex principle in Australia. In the result, although minded to favour the adoption of the Trendtex principle with respect to the assignability of causes of action in contract, his Honour acknowledged the continuing force and application of the observations in Poulton in relation to the assignability of causes of action in tort. 117 Subsequent to Rickard Constructions , passing reference was made to the issue by Finkelstein J in TS &amp; B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No. 3) (2007) 158 FCR 444 at [78]-[81]. Once again, the brief discussion was dicta and, unsurprisingly, was inconclusive on the subject. His Honour observed that, in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58, the High Court may have recently approved Trendtex . But that observation is of doubtful application to circumstances such as those of the present case. In Fostif , the High Court was not concerned with the validity of a purported assignment of a cause of action but rather whether an action should be stayed as an abuse of process because of the existence of a litigation funding arrangement between the plaintiffs and a firm of consultants. The appeal to the High Court was allowed on a quite separate basis, and the question of the validity of the assignment of a cause of action was nowhere considered.
Case: TS &amp; B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No. 3) (2007) 158 FCR 444
Outcome: considered
Subsequent to Rickard Constructions , passing reference was made to the issue by Finkelstein J in TS &amp; B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No. 3) (2007) 158 FCR 444 at [78]-[81]. Once again, the brief discussion was dicta and, unsurprisingly, was inconclusive on the subject. His Honour observed that, in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58, the High Court may have recently approved Trendtex . But that observation is of doubtful application to circumstances such as those of the present case. In Fostif , the High Court was not concerned with the validity of a purported assignment of a cause of action but rather whether an action should be stayed as an abuse of process because of the existence of a litigation funding arrangement between the plaintiffs and a firm of consultants. The appeal to the High Court was allowed on a quite separate basis, and the question of the validity of the assignment of a cause of action was nowhere considered.
Case: Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58 
Outcome: referred to
Subsequent to Rickard Constructions , passing reference was made to the issue by Finkelstein J in TS &amp; B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No. 3) (2007) 158 FCR 444 at [78]-[81]. Once again, the brief discussion was dicta and, unsurprisingly, was inconclusive on the subject. His Honour observed that, in Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 ALR 58, the High Court may have recently approved Trendtex . But that observation is of doubtful application to circumstances such as those of the present case. In Fostif , the High Court was not concerned with the validity of a purported assignment of a cause of action but rather whether an action should be stayed as an abuse of process because of the existence of a litigation funding arrangement between the plaintiffs and a firm of consultants. The appeal to the High Court was allowed on a quite separate basis, and the question of the validity of the assignment of a cause of action was nowhere considered. 118 The most recent discussion on the subject is that of the Full Court of the Federal Court in Deloitte Touche Tohmatsu v J P Morgan Portfolio Services Ltd (2007) 158 FCR 417. In that case the issue, like that in Fostif , was whether a litigation funding agreement constituted an abuse of process. Tamberlin and Jacobson JJ (Rares J dissenting) held that it was not, concluding that the funder (Westpac Banking Corporation) did have a genuine commercial interest in the enforcement of the claim, citing both Fostif and Trendtex in support. Importantly, the majority at [72] expressly noted that the agreement in question was "not an assignment of the cause of action", as did Rares J at [134], who noted further that it was common ground between the parties that the causes of action in question "were not capable of assignment to Westpac".
Case: Deloitte Touche Tohmatsu v J P Morgan Portfolio Services Ltd (2007) 158 FCR 417 
Outcome: referred to
The most recent discussion on the subject is that of the Full Court of the Federal Court in Deloitte Touche Tohmatsu v J P Morgan Portfolio Services Ltd (2007) 158 FCR 417. In that case the issue, like that in Fostif , was whether a litigation funding agreement constituted an abuse of process. Tamberlin and Jacobson JJ (Rares J dissenting) held that it was not, concluding that the funder (Westpac Banking Corporation) did have a genuine commercial interest in the enforcement of the claim, citing both Fostif and Trendtex in support. Importantly, the majority at [72] expressly noted that the agreement in question was "not an assignment of the cause of action", as did Rares J at [134], who noted further that it was common ground between the parties that the causes of action in question "were not capable of assignment to Westpac".
Case: Monk v Australia and New Zealand Banking Group Ltd (1994) 34 NSWLR 148
Outcome: considered
Further, even if Trendtex was accepted as good law in Australia in relation to the assignment of tortious and equitable claims, Crocodile had no genuine commercial interest in taking the assignment. It is clear from the cases that a mere personal interest in profiting is not enough. Cohen J in Monk v Australia and New Zealand Banking Group Ltd (1994) 34 NSWLR 148 at 153 said: In my opinion [the interest claimed by the plaintiff] is not a genuine commercial interest in the way that the phrase has been used in the judgments. Examples may be given from the facts in the various cases concerned. For instance it was held that there was such an interest where the assignee was already a substantial creditor of the assignor with a right to enforce the debt (Trendtex, Re Timothy's) or where the assignee was the sole shareholder who was a guarantor of the overdraft of the assignor (Re Daley) or where the assignee was a debenture holder with an interest in protecting the value of its security (First City Corporation).
Case: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited (1995) 132 ALR 514
Outcome: cited
To similar effect, in National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited (1995) 132 ALR 514 at 540 Lindgren J said that the interest must exist independently of the assignment: ... the genuine commercial interest referred to in Trendtex is not a nebulous notion of the general commercial advantage of the assignee but something more specific and limited. In particular, it does not embrace an interest arising from an arrangement voluntarily entered into by the assignee of which the impugned assignment is an essential part, like the arrangement in the present case. Rather, the expression refers to a commercial interest which exists already or by reason of other matters, and which receives ancillary support from the assignment. 123 For the reasons discussed above, there was no loan between Crocodile and Arkaroola and the charge over Arkaroola's assets granted in favour of Crocodile was not created until 20 February 2003, well after the first assignment was supposedly entered into in. Crocodile, therefore, had no genuine commercial interest prior to the Deed of Assignment. 124 In the result, the first assignment, even if genuine, was not legally effective to assign the relevant causes of action from Arkaroola to Crocodile. It follows that the second assignment from Crocodile to Mr Salinger is of no effect.
Case: Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1
Outcome: cited
The order for identity discovery is sought to identify that company. Syngenta resists the order sought. It refers to cases which hold that a material factor in deciding whether to make an order are the prospects of the applicant succeeding in the action against the person whose identity is sought to be discovered: see eg, Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1. It then points out that not only is Monsanto unable to identify a prospective defendant, it is also presently unable to articulate a cause of action against that unknown defendant. Accordingly, so the argument goes, Monsanto is simply not entitled to an order. 9 I accept as correct that in most cases an applicant for identity discovery must show some prospects of success in its proposed action. A defendant's privacy should not be invaded unless there is good cause. But there is no absolute rule that an applicant must show some prospects of success as a condition to obtaining an order. In the first place, r 3 does not contain any such requirement. Second, there may well be cases where the imposition of such a condition would lead to injustice. This case is a good example of one where it would be unjust to refuse an order because the applicant is unable to show prospects of success. The reasons are so obvious they need no further elaboration. 10 The criterion that I would apply is whether Monsanto has shown that it has a claim that is worth investigating. It may be true that two levels of investigation are required -- one to identify the prospective defendant and another to assess the merits of the claim against that prospective defendant. But this should be no bar to an order under r 3. 11 There is no need to spend much time considering whether Monsanto has a claim worth investigating. I think it clear that it has such a claim. First, there is a reasonable basis for believing that Monsanto's patent may have been infringed. Second, it seems clear enough that some company in the Syngenta group is involved. In any event, the order will not cause much inconvenience.
Case: Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company (1993) 46 FCR 428
Outcome: cited
In the result, there will be an order for identity discovery and the application for information discovery will be stood over. It is appropriate there be a Sabre order as well: see Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company (1993) 46 FCR 428. Monsanto should bring in short minutes of order for me to consider. If there is a dispute about the breadth of what they will seek (as I suspect there might be) I will relist the matter. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 17 March 2006 Counsel for the Applicant: D Shavin QC H M J Rofe Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: T J Walker Solicitor for the Respondent: Freehills Date of Hearing: 3 March 2006 Date of Judgment: 17 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/228.html