mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sutton v AJ Thompson Pty Ltd (1987) 73 ALR 233
Outcome: cited
Gould v Vaggelas (1984) 157 CLR 215 at 236 Wilson J identified four principles which are frequently used as a practical guide to assess the issue of whether a person has been induced to contract based on a misrepresentation (cf: Ricochet Pty Ltd v Equity Trustees Executors and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229 at 234 per Lockhart, Gummow and French JJ; Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd [1992] FCA 550 ; (1992) 38 FCR 471 at 482-483 per Beaumont, Foster and Hill JJ; Sutton v AJ Thompson Pty Ltd (1987) 73 ALR 233 at 240 per Forster, Woodward and Wilcox JJ), namely: "1. Notwithstanding that a representation is both false and fraudulent, if the representee does not rely upon it he has no case. If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation. The inference may be rebutted, for example, by showing that the representee, before he entered into the contract, either was possessed of actual knowledge of the true facts and knew them to be true or alternatively made it plain that whether he knew the true facts or not he did not rely on the representation. The representation need not be the sole inducement. It is sufficient so long as it plays some part even if only a minor part in contributing to the formation of the contract."
Case: Sykes v Reserve Bank of Australia (1998) 88 FCR 511
Outcome: followed
82(1) of the Act permits recovery by an applicant for loss or damage notwithstanding his, her or its failure to mitigate or contributory negligence unless the applicant's own carelessness or disregard of his, her or its interests is the cause of some or all of the loss or damage: Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274 at 286G-287C per Fisher, Gummow and Lee JJ applying what French J had said in Pavich v Boira Nominees Pty Ltd [1988] ANZ Conv R 556 at p 23; see too Sykes v Reserve Bank of Australia (1998) 88 FCR 511 at 517B-E per Heerey J, Sundberg J agreeing at 521F. The misrepresentations were a link in the causal chain between Mr Owers' entry into the transaction and his loss: cf: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 469 [14] per Gleeson CJ. At best, from Austcorp's perspective, there may have been two concurrent causes of the imprudent decisions of Mr Owers and Ms Tan-Bounkeua to buy their apartments and lease them to Mustara. Austcorp's conduct was one of the causes, the other being those applicants' failure to receive legal advice exposing to them the effect of cl 20.9. 3.1 THE APPLICANTS 3.1.1 BRIAN OWERS Austcorp argued that none of representations (a)-(e) and (h) were with respect to future matters. In Sykes 88 FCR at 514D-515A Heerey J and at 519F-520D Sundberg J (see too per Emmett J at 535B) approved what Hill J had said in Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543 at 552-553. Hill J, as an example, suggested that a representation as to future rental will be with respect to a future matter although it may at the same time be a representation as to the maker's state of mind. The context and circumstances in which a representation is conveyed will affect its characterisation for the purposes of s 51A: Sykes 88 FCR at 521E per Sundberg J, 535B-E per Emmett J.
Case: Toll (FGCT) Pty Ltd v Alphapharm [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: applied
serious act of an investor signing and exchanging such a document knowing that it related to an interest in property, in general, will operate to bind the purchaser to the terms of the contract: Toll (FGCT) Pty Ltd v Alphapharm [2004] HCA 52 ; (2004) 219 CLR 165 at 182 [47] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. The act of signature ordinarily conveys a representation that the person signing either has read and approved the contents of the document or is willing to take the chance of being bound by the contents whatever they may be: Toll 219 CLR at 180-181 [45]. Where the person who signs a contract to purchase an interest in property has a solicitor acting for him or her on the transaction, this representation will ordinarily be enhanced by the addition of the fact that the solicitor will have considered and advised his or her client on the legal effect of the document. Of course, where fraud or misrepresentation has operated to affect the contracting party's decision to sign, the Court may find that he or she will not be bound by the contract or the effect of the signature: Toll 219 CLR at 181 [46]. One reason for this is that the effect of the misapprehension induced, or caused, by the fraud or misrepresentation may have caused the innocent party either not to advert to a subject matter in the contract, at all, or to understand it in a sense different to that induced by the misapprehension. In other words, the effect of the misapprehension may affect the context in which the contract or document is understood by the person who signs it. Just as the construction of a contract is affected by the objective matrix of facts known to both parties, so too, a misapprehension induced or caused by fraud or misrepresentation will affect the quality of the assent ordinarily evinced by a signature.
Case: Travel Compensation Fund v Tambree [2005] HCA 69 ; (2006) 224 CLR 627
Outcome: cited
a person claims to recover loss or damage under s 82(1) of the Act, the question of causation is whether he, she or it has suffered that loss or damage "... by conduct of another person that was done in contravention of ..." here, relevantly, s 52. In Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525 Mason CJ, Dawson, Gaudron and McHugh JJ said that the word "by" as used in s 82(1) clearly expressed the notion of causation without defining or elucidating it. They held that, in general, this required using the common law practical, or common-sense, concept of causation unless the provisions of the Act operated to modify or supplement that concept. They said that where the claim under s 82(1) was to recover for loss or damage by misleading conduct consisting of misrepresentations done in contravention of s 52(1) , as at common law, "... acts done by the representee in reliance on the misrepresentation constitute a sufficient connexion to satisfy the concept of causation": see too Travel Compensation Fund v Tambree [2005] HCA 69 ; (2005) 224 CLR 627 at 639 [30] per Gleeson CJ, 642-643 [44]-[49] per Gummow and Hayne JJ, 645-647 [53]-[60] per Kirby J, 653-654 [78]-[81] per Callinan J.
Case: Trig v Blanche [1993] FCA 524 ; (1993) 118 ALR 543
Outcome: cited
argued that none of representations (a)-(e) and (h) were with respect to future matters. In Sykes 88 FCR at 514D-515A Heerey J and at 519F-520D Sundberg J (see too per Emmett J at 535B) approved what Hill J had said in Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543 at 552-553. Hill J, as an example, suggested that a representation as to future rental will be with respect to a future matter although it may at the same time be a representation as to the maker's state of mind. The context and circumstances in which a representation is conveyed will affect its characterisation for the purposes of s 51A: Sykes 88 FCR at 521E per Sundberg J, 535B-E per Emmett J.
Case: Walplan Pty Ltd v Wallace [1985] FCA 479 ; (1985) 8 FCR 27
Outcome: cited
extensively reviewing the authorities in NMFM Property Pty Ltd v Citibank Ltd [2000] FCA 1558 ; (2000) 107 FCR 270 at 550 [1244] Lindgren J concluded that an act is done "on behalf of" a corporation for the purpose of s 84(2) if either the actor engaged in the conduct intending to do so as representative of or for the corporation, or the actor did so in the course of the corporation's business, affairs or activities. He also concluded that it is not necessary to show that the actor engaged in the conduct for the benefit of the corporation: see too Walplan Pty Ltd v Wallace [1985] FCA 479 ; (1985) 8 FCR 27 at 37-38 per Lockhart J, (Sweeney and Neaves JJ agreeing); Downey [2005] QCA 199 at [56] - [60] per Keane JA.
Case: Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd [2005] WASCA 174 ; (2005) 224 ALR 134
Outcome: followed
reject this argument. First, Austcorp was not a party to the contract or disclosure statement even if it were the puppet master behind them. Secondly, a corporation cannot engage in a contravention of s 52 of the Act and then seek to excuse itself from liability to relief being granted against it under Part VI on the basis that it, or another person, has sought to negate the effect of the contravention by provisions like cl 39 or the disclosure statement without, at least, making full, intelligible, and frank disclosure of the true position so as to negate its earlier contravention. Thirdly, in honest trade and commerce contractual exclusions like cl 39 and documents like the disclosure statement may have some effect. The courts have recognised that they may be given effect, depending on all the circumstances, as evidentiary of the complaining party's state of mind having been disabused of any relevant misleading or deceptive conduct: cf: Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd [2005] WASCA 174 ; (2005) 224 ALR 134 at 147-148 [59] - [60] per Steytler P, 164 [133] per McLure JA and 164-165 [135]-[141] per Pullin JA.
Case: Webb v Bloch (1928) 41 CLR 331
Outcome: followed
Chappell wrote much of the wording of the brochure. He wrote letters to the investors saying that Austcorp was the developer. While he may not have done this with any intention to mislead people, he did it to publicise the fact that Austcorp was the active parent company responsible for the Austcorp group's overall development activities throughout Australia, including that of the resort. Austcorp was prepared to allow a loose and ambiguous representation, connecting Austcorp with the development, to be made in the brochure. In my opinion, this is a case where it is clear that any Austcorp company which in fact had an association with the development could be taken to have published the brochure: Webb v Bloch (1928) 41 CLR 331 at 363-366 per Issacs J; see also Abigail v Lapin [1934] UKPCHCA 1 ; (1934) 51 CLR 58 at 70-71 per Lord Wright.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: applied
it appears on the objective material here, that Austcorp was not involved in its dealings with third parties as a mere agent or conduit for a separate and disclosed, or undisclosed, principal. Its chosen method of doing business is likely to have made Austcorp a principal in many transactions it effected for the purposes of the project because it does not appear to have disclosed any intention to contract as an agent. When Mr Chappell or Mr Hung made decisions, wearing their Austcorp hats, their position was distinguishable from that of acting as an agent for an Austcorp subsidiary. In Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666 Mason ACJ, Wilson, Deane and Dawson JJ said: "... even though a corporation acts honestly and reasonably, it may nonetheless engage in conduct that is misleading or deceptive or is likely to mislead or deceive: .... That does not, however, mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaging in misleading or deceptive conduct if the information turns out to be false. If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive." (references omitted)
Case: Bank of Valletta PLC v National Crime Authority (1999) 164 ALR 45
Outcome: discussed
The authorities on the scope of "reasonable excuse" as a ground of exculpation from the operation of a statutory prescription were comprehensively analysed and explained by Hely J in Bank of Valletta PLC v National Crime Authority (1999) 164 ALR 45 at [36] ff. 79 Justice Hely's explanation of the authorities indicates that the proper construction of "reasonable excuse" in s 219 is consistent with the view taken by Mr Magarey, as set out at [61]. That is to say, the person seeking to rely upon it must establish some particular prejudice which is sufficient to displace the assumption of compliance with the summons. 80 In Valletta , Hely J referred to authorities of the High Court, the New South Wales Court of Appeal and the Privy Council. Three propositions may be gleaned from his Honour's analysis of those authorities. 81 First, the question of what constitutes "reasonable excuse" is to be determined from the terms and structure of the particular statute and the circumstances of each particular case: Valletta at [39], [47]. 82 Second, reasonable excuse is not confined to physical or practical difficulties in complying with the statutory prescription. It includes any excuse which would be accepted by a reasonable person as sufficient to justify non-compliance, but it is necessary to bear in mind the importance of the particular statutory prescription to the overall statutory regime: Valletta at [42]. 83 Third, the question of what constitutes reasonable excuse involves an objective determination in all the circumstances. These include the adverse consequences to an individual of being compelled to answer and the adverse consequences to an inquiry if the questions are not answered: Valletta at [44], [47]. 84 Applying these principles, it is quite plain that reliance on legal advice as a ground of reasonable excuse would be inconsistent with the statutory scheme contained in particular in s 1292 of the Corporations Act and ss 68 , 217 and 219 of the ASIC Act . 85 The primary function of the Board is to hear disciplinary proceedings brought by ASIC in respect of auditors and liquidators. Privilege against self-incrimination and privilege against exposure to a penalty do not constitute reasonable excuse for failing to answer. It seems to me that the Board's statutory functions would be rendered otiose if reliance on legal advice were to constitute reasonable excuse.
Case: Ostrowski v Palmer [2004] HCA 30 ; (2004) 218 CLR 493
Outcome: followed
In my view, support for this proposition is to be found in the remarks of the High Court in Ostrowski v Palmer [2004] HCA 30 ; (2004) 218 CLR 493 at [2] per Gleeson CJ and Kirby J; at [53] [54] per McHugh J; and at [85] per Callinan and Heydon JJ. 87 The point was put in strong terms by Callinan and Heydon JJ at [85] as follows: A mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or their own often self-serving understanding of the law as an excuse for breaking it... 88 It is true that in Ostrowski their Honours were concerned with s 24 of the Criminal Code (WA) which applied to mistakes about the factual ingredients of an offence, not mistakes about the existence of the law creating the offence, or to the question of reasonable excuse. However, the approach stated by their Honours is applicable by analogy in the present context.
Case: Re Modern Woodcraft Pty Limited (In Liquidation) (1997) 75 FCR 245
Outcome: distinguished
In Re Modern Woodcraft Pty Limited (In Liquidation) (1997) 75 FCR 245 at 253-254, Lindgren J appears to have considered that reliance on legal advice was reasonable excuse for failure to file affidavits within the time limited for the purpose of s 597A(3) of the Corporations Law . Nevertheless, for the reasons stated by his Honour at 254, that decision is confined to its own facts. 90 The Court's jurisdiction is enlivened under s 219(7) of the ASIC Act . That sub-section falls to be considered in its own terms, in its full statutory context. 91 Section 219(7) is in the nature of a contempt proceeding. It provides that if the Court is satisfied that the person to whom a certificate has been given has "without reasonable excuse" failed to comply with a requirement stated in the certificate, the Court may punish the person "in the same manner as if he or she had been guilty of contempt."
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: referred to
In Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534, 545, the High Court said that proceedings for contempt must be seen as criminal in nature. It follows that charges must be proved to the criminal standard. It does not follow that every provision of the Criminal Code is imported into the proceeding. 93 The note under s 219(2A) of the ASIC Act refers to s 13.3 of the Criminal Code in an aid to the construction of s 219(7) and part of the statutory context: Pearce, D C &amp; Geddes, R S, Statutory Interpretation in Australia (6 th ed, LexisNexis Butterworths, 2006) at [4.49]. But it does not follow from this that the provisions of Ch 2 of the Criminal Code dealing with the General Principles of Criminal Responsibility are applicable. 94 As the learned authors of Federal Criminal Law (LexisNexis Butterworths, 1994) observe at [5A-015] observe: The essence of Ch 2 of the Criminal Code is to do away with the concepts of actus reus and mens rea and to replace them with a mechanism requiring all federal offences to be divided up...into so-called "physical" and "fault" elements.
Case: Attorney-General v Punch Ltd [2002] UKHL 50 ; (2003) 1 All ER 289
Outcome: referred to
Attorney-General v Punch Ltd [2002] UKHL 50 ; (2003) 1 All ER 289 , Lord Nicholls said at [35]: An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The Court must ensure that the language of its order makes it plain what is permitted and what is prohibited. This is a well-established, soundly based principle. The person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute. It was argued that the September 2002 orders were imprecise and vague in that in paragraph 3 of the orders reference was made to "substantially similar content to the document 'About the Adelaide Institute'". It was contended that the form of order required the respondent to make a subjective assessment of what might be substantially similar content to that which was contained in the document "About the Adelaide Institute". It was contended that in those circumstances the order was so vague that it should not be the subject matter of contempt proceedings.
Case: Attorney-General v Times Newspapers [1974] AC 273
Outcome: cited
Attorney-General v Times Newspapers [1974] AC 273 at 309, Lord Diplock said: Contempt of court is punishable because it undermines the confidence not only of the parties to the particular litigation but also of the public as potential suitors, in the due administration of justice by the established courts of law.
Case: Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483
Outcome: applied
The King v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3 ; (1951) 82 CLR 208 at 243 Latham CJ said, "Wilful disobedience to an order of the Court is contempt of a criminal nature." In Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 489, Barwick CJ said: A contempt in procedure by disobedience of an order of the Court or by breach of an undertaking given to it may be accompanied by such contumacy or defiance on the part of the party against whom the contempt proceedings are brought as evidences a criminal as well as a civil contempt.
Case: Bakerland Pty Ltd v Coleridge [2002] NSWCA 30
Outcome: cited
135 of the Evidence Act applies to both criminal and civil trials. It permits the Court to refuse to admit evidence if the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the party against whom the evidence is sought to be tendered. It seems to me the unguarded admissions made by a party which are sought to be used for the purpose of proving the party to be in contempt of Court and therefore liable to be imprisoned could be unfairly prejudicial to that party. They might, if admitted, mean that that party is put at a forensic disadvantage by having to give evidence to explain the admissions where otherwise that party would choose not to give evidence. The Courts have said the inability to cross-examine on material sought to be adduced in a civil trial may attract the discretion in s 135: Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [55] ; Longhurst v Hunt [2004] NSWCA 91 at [46] - [49] .
Case: Biba Ltd v Stratford Investments Ltd [1973] Ch 281
Outcome: cited
course, the November 2007 undertaking is in a different class. The respondent gave the undertaking himself. He has always been aware of that undertaking and its effect. So much is clear from his attempting to resile from the undertaking. An undertaking given to the Court is punishable in the same way as if it were an order of the Court. It is a contempt to breach an undertaking the same as it is to disobey an order of the Court: Biba Ltd v Stratford Investments Ltd [1973] Ch 281 ; Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384 ; (1986) 19 FCR 110. A breach of an undertaking will involve the same consequences for the party in breach as disobedience of an order of the Court: Milburn v Newton Colliery (1908) 52 S.J. 317. Where the undertaking is given to the Court by the person who is to be bound by the undertaking, the undertaking does not need to be served upon that person before contempt proceedings for a breach of that undertaking are commenced. Order 37 rule 3 only applies to orders, not undertakings: Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384 ; 19 FCR 110. Separate charges for breaches of the September 2002 orders and the November 2007 undertaking
Case: Evans v New South Wales [2008] FCAFC 130 ; (2008) 168 FCR 576
Outcome: distinguished
was put by way of an alternative argument that the September 2002 orders ought to be construed as not intending to deny Dr Toben his right of free speech which was said to be given him by s 18D of the Racial Discrimination Act . Mr Perkins relied upon Evans v New South Wales [2008] FCAFC 130 ; (2008) 168 FCR 576. In that case, the Full Court of this Court held regulations made under the World Youth Day Regulation 2008 (NSW) which were in turn made under the World Youth Day Act 2006 (NSW) are invalid in that they impermissibly infringe freedom of speech. I do not think that directly impacts upon the proposition which was put by the respondent. I think the proposition that must be accepted is that the September 2002 orders were made for the purpose of preventing the respondent from engaging in conduct that is rendered unlawful by the Racial Discrimination Act . They ought to be construed in accordance with the provisions of that Act in the sense that Branson J would not have intended to make orders preventing the respondent from doing something which was otherwise lawful. The September 2002 orders ought to be understood as only preventing the respondent from doing something which is unlawful. The purpose of the orders was to require him to desist from further publications in contravention of the Racial Discrimination Act and requiring him to remove publications which had already been held to contravene the Racial Discrimination Act .