mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Booth v Phillips [2004] 1 WLR 3292
Outcome: referred to
This approach may be recognised as wider than the operation of Art 5(3) of the Brussels Convention: see Marinari v Lloyds Bank Plc [1996] QB 217 and Mazur Media Ltd v Mazur Media GmbH [2004] 1 WLR 2966 at 2973-2974 [23]-[26]. Nevertheless, the English Civil Procedure Rule 6.20(8)(a) which provides for service out of the jurisdiction in respect of "a claim made in tort where (a) the damage was sustained within the jurisdiction" was construed by Nigel Teare QC, sitting (as his Lordship then was) as a deputy High Court judge, in Booth v Phillips [2004] 1 WLR 3292 at 3298-3300 [32]-[44] in a manner informed by, and consistently with, Flaherty v Girgis 4 NSWLR 248. There is a similar rule in the Singapore Civil Procedure Rules (Order 11 rule 1(f)(ii)). The rule appears to be interpreted in a way conformable with the Australian cases and Booth v Phillips [2004] 1 WLR 3292, see Selvam GP, Singapore Civil Procedure 2003 (Thomson) pp 98-99 at [11/1/29]. As to Hong Kong, see Hong Kong Civil Procedure Rules Order 11 rule 1(1)(f) and Chan P, Hong Kong Civil Procedure 2006 pp 113-114 at [11/1/28]. These cognate approaches do not govern the interpretation of Order 8 rule 2 of this Court's Rules. They do reveal, however, that the approach in Australia in the cases to which I have referred and which I have followed are not outside well-known parameters of the exercise of power to serve foreigners outside the jurisdiction.
Case: Brix-Neilsen v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173
Outcome: applied
It is clear from a number of cases in New South Wales decided in the 1980s on a cognate rule that damage in this rule does not mean the injury which completed the tort, but rather it means the disadvantage or detriment suffered by the plaintiff as a result of the tortious act or omission of the defendant. In this respect the word "damage" in this context has a wider meaning than injury: Brix-Neilsen v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173; Challenor v Douglas [1983] 2 NSWLR 405; Flaherty v Girgis (1985) 4 NSWLR 248 (the contrary proposition was not pressed in the High Court where the debate concerned constitutional questions: Flaherty v Girgis [1987] HCA 17 ; (1987) 162 CLR 574). These cases concerned personal injury where a degree of personal suffering or expenditure had been suffered or made in New South Wales, the tort having wholly occurred in another State. The same logic was applied to property cases in the cargo claim matter of Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The 'Katowice II) (1990) 25 NSWLR 568 and see also Colosseum Investment Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd [2005] NSWSC 803 at [40] - [50] .
Case: Challenor v Douglas [1983] 2 NSWLR 405
Outcome: applied
It is clear from a number of cases in New South Wales decided in the 1980s on a cognate rule that damage in this rule does not mean the injury which completed the tort, but rather it means the disadvantage or detriment suffered by the plaintiff as a result of the tortious act or omission of the defendant. In this respect the word "damage" in this context has a wider meaning than injury: Brix-Neilsen v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173; Challenor v Douglas [1983] 2 NSWLR 405; Flaherty v Girgis (1985) 4 NSWLR 248 (the contrary proposition was not pressed in the High Court where the debate concerned constitutional questions: Flaherty v Girgis [1987] HCA 17 ; (1987) 162 CLR 574). These cases concerned personal injury where a degree of personal suffering or expenditure had been suffered or made in New South Wales, the tort having wholly occurred in another State. The same logic was applied to property cases in the cargo claim matter of Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The 'Katowice II) (1990) 25 NSWLR 568 and see also Colosseum Investment Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd [2005] NSWSC 803 at [40] - [50] .
Case: Colosseum Investment Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd [2005] NSWSC 803
Outcome: applied
It is clear from a number of cases in New South Wales decided in the 1980s on a cognate rule that damage in this rule does not mean the injury which completed the tort, but rather it means the disadvantage or detriment suffered by the plaintiff as a result of the tortious act or omission of the defendant. In this respect the word "damage" in this context has a wider meaning than injury: Brix-Neilsen v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173; Challenor v Douglas [1983] 2 NSWLR 405; Flaherty v Girgis (1985) 4 NSWLR 248 (the contrary proposition was not pressed in the High Court where the debate concerned constitutional questions: Flaherty v Girgis [1987] HCA 17 ; (1987) 162 CLR 574). These cases concerned personal injury where a degree of personal suffering or expenditure had been suffered or made in New South Wales, the tort having wholly occurred in another State. The same logic was applied to property cases in the cargo claim matter of Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The 'Katowice II) (1990) 25 NSWLR 568 and see also Colosseum Investment Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd [2005] NSWSC 803 at [40] - [50] .
Case: Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The 'Katowice II) (1990) 25 NSWLR 568
Outcome: applied
It is clear from a number of cases in New South Wales decided in the 1980s on a cognate rule that damage in this rule does not mean the injury which completed the tort, but rather it means the disadvantage or detriment suffered by the plaintiff as a result of the tortious act or omission of the defendant. In this respect the word "damage" in this context has a wider meaning than injury: Brix-Neilsen v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173; Challenor v Douglas [1983] 2 NSWLR 405; Flaherty v Girgis (1985) 4 NSWLR 248 (the contrary proposition was not pressed in the High Court where the debate concerned constitutional questions: Flaherty v Girgis [1987] HCA 17 ; (1987) 162 CLR 574). These cases concerned personal injury where a degree of personal suffering or expenditure had been suffered or made in New South Wales, the tort having wholly occurred in another State. The same logic was applied to property cases in the cargo claim matter of Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The 'Katowice II) (1990) 25 NSWLR 568 and see also Colosseum Investment Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd [2005] NSWSC 803 at [40] - [50] .
Case: Flaherty v Girgis [1987] HCA 17 ; (1987) 162 CLR 574 
Outcome: referred to
It is clear from a number of cases in New South Wales decided in the 1980s on a cognate rule that damage in this rule does not mean the injury which completed the tort, but rather it means the disadvantage or detriment suffered by the plaintiff as a result of the tortious act or omission of the defendant. In this respect the word "damage" in this context has a wider meaning than injury: Brix-Neilsen v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173; Challenor v Douglas [1983] 2 NSWLR 405; Flaherty v Girgis (1985) 4 NSWLR 248 (the contrary proposition was not pressed in the High Court where the debate concerned constitutional questions: Flaherty v Girgis [1987] HCA 17 ; (1987) 162 CLR 574). These cases concerned personal injury where a degree of personal suffering or expenditure had been suffered or made in New South Wales, the tort having wholly occurred in another State. The same logic was applied to property cases in the cargo claim matter of Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The 'Katowice II) (1990) 25 NSWLR 568 and see also Colosseum Investment Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd [2005] NSWSC 803 at [40] - [50] .
Case: Flaherty v Girgis (1985) 4 NSWLR 248
Outcome: applied
It is clear from a number of cases in New South Wales decided in the 1980s on a cognate rule that damage in this rule does not mean the injury which completed the tort, but rather it means the disadvantage or detriment suffered by the plaintiff as a result of the tortious act or omission of the defendant. In this respect the word "damage" in this context has a wider meaning than injury: Brix-Neilsen v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173; Challenor v Douglas [1983] 2 NSWLR 405; Flaherty v Girgis (1985) 4 NSWLR 248 (the contrary proposition was not pressed in the High Court where the debate concerned constitutional questions: Flaherty v Girgis [1987] HCA 17 ; (1987) 162 CLR 574). These cases concerned personal injury where a degree of personal suffering or expenditure had been suffered or made in New South Wales, the tort having wholly occurred in another State. The same logic was applied to property cases in the cargo claim matter of Darrell Lea Chocolate Shops Pty Ltd v Spanish-Polish Shipping Co Inc (The 'Katowice II) (1990) 25 NSWLR 568 and see also Colosseum Investment Holdings Pty Ltd v Vanguard Logistic Services Pty Ltd [2005] NSWSC 803 at [40] - [50] .
Case: Marinari v Lloyds Bank Plc [1996] QB 217
Outcome: referred to
This approach may be recognised as wider than the operation of Art 5(3) of the Brussels Convention: see Marinari v Lloyds Bank Plc [1996] QB 217 and Mazur Media Ltd v Mazur Media GmbH [2004] 1 WLR 2966 at 2973-2974 [23]-[26]. Nevertheless, the English Civil Procedure Rule 6.20(8)(a) which provides for service out of the jurisdiction in respect of "a claim made in tort where (a) the damage was sustained within the jurisdiction" was construed by Nigel Teare QC, sitting (as his Lordship then was) as a deputy High Court judge, in Booth v Phillips [2004] 1 WLR 3292 at 3298-3300 [32]-[44] in a manner informed by, and consistently with, Flaherty v Girgis 4 NSWLR 248. There is a similar rule in the Singapore Civil Procedure Rules (Order 11 rule 1(f)(ii)). The rule appears to be interpreted in a way conformable with the Australian cases and Booth v Phillips [2004] 1 WLR 3292, see Selvam GP, Singapore Civil Procedure 2003 (Thomson) pp 98-99 at [11/1/29]. As to Hong Kong, see Hong Kong Civil Procedure Rules Order 11 rule 1(1)(f) and Chan P, Hong Kong Civil Procedure 2006 pp 113-114 at [11/1/28]. These cognate approaches do not govern the interpretation of Order 8 rule 2 of this Court's Rules. They do reveal, however, that the approach in Australia in the cases to which I have referred and which I have followed are not outside well-known parameters of the exercise of power to serve foreigners outside the jurisdiction.
Case: Mazur Media Ltd v Mazur Media GmbH [2004] 1 WLR 2966
Outcome: referred to
This approach may be recognised as wider than the operation of Art 5(3) of the Brussels Convention: see Marinari v Lloyds Bank Plc [1996] QB 217 and Mazur Media Ltd v Mazur Media GmbH [2004] 1 WLR 2966 at 2973-2974 [23]-[26]. Nevertheless, the English Civil Procedure Rule 6.20(8)(a) which provides for service out of the jurisdiction in respect of "a claim made in tort where (a) the damage was sustained within the jurisdiction" was construed by Nigel Teare QC, sitting (as his Lordship then was) as a deputy High Court judge, in Booth v Phillips [2004] 1 WLR 3292 at 3298-3300 [32]-[44] in a manner informed by, and consistently with, Flaherty v Girgis 4 NSWLR 248. There is a similar rule in the Singapore Civil Procedure Rules (Order 11 rule 1(f)(ii)). The rule appears to be interpreted in a way conformable with the Australian cases and Booth v Phillips [2004] 1 WLR 3292, see Selvam GP, Singapore Civil Procedure 2003 (Thomson) pp 98-99 at [11/1/29]. As to Hong Kong, see Hong Kong Civil Procedure Rules Order 11 rule 1(1)(f) and Chan P, Hong Kong Civil Procedure 2006 pp 113-114 at [11/1/28]. These cognate approaches do not govern the interpretation of Order 8 rule 2 of this Court's Rules. They do reveal, however, that the approach in Australia in the cases to which I have referred and which I have followed are not outside well-known parameters of the exercise of power to serve foreigners outside the jurisdiction.
Case: The 'Pioneer Container' [1994] 2 AC 324
Outcome: referred to
On the proper construction of Order 8 rule 2, damage was suffered in Australia within the meaning of the rule and the proceeding is one under which an order can be made under Order 8 rule 2 for service in the United Kingdom. The question arises then whether the power should be exercised. The relevant clause of the conditions of contract, if binding, may well be such as to raise a time bar. However, there is no material upon which it can be presently concluded that the relevant terms and conditions governed the relationship between either the defendant and Planetwide or the defendant and the plaintiff. In correspondence, the solicitors for the defendant have raised the issue of the applicability of The 'Pioneer Container' [1994] 2 AC 324. The question of the applicability of this case in circumstances where there is a quasi-bailment (that is when a company in the position of Planetwide does not obtain actual possession) may be debatable. I express no view on that. However, even if The 'Pioneer Container' [1994] 2 AC 324 is potentially applicable, its application would need to be grounded evidentially in the incorporation of the relevant terms as governing the relationship between Planetwide and the defendant in circumstances that would bind the plaintiff. 13 Looking at the statement of claim there appear to be more than ample grounds to come to the view that there was a bailment and some real question as to whether there was due care in the handling of the goods. The time bar may be made out as a matter of defence, but it is not self-evident that such a plea, if or when made, would succeed. 14 The claim is a small one. The plaintiff wishes to bring the matter before the Court. The defendant has not, in the opportunity that has been given to it, provided material which would make clear the basis upon which it contracted with Planetwide. Nor has it made clear the precise basis upon which the plaintiff will be bound by these terms and conditions, beyond an assertion of the applicability of The 'Pioneer Container' [1994] 2 AC 324. 15 Further, the governing law clause, which I have set out above, appears to be limited in its own terms to contracts. I am not clear as to whether the defendant will assert that there was a direct contract between the plaintiff and it or whether it will be said that on its proper construction the clause is wide enough to extend to non-contractual bailment counts supported by cases such as The 'Pioneer Container' [1994] 2 AC 324. On what is before the Court, the governing law clause is not a basis to conclude that leave should not be granted . 16 In all these circumstances, in my view, the plaintiff has made out a case sufficient to warrant service out of the jurisdiction based on Order 8 rule 2 and in particular item 5 of the table in that rule. 17 England is not a Convention country.
Case: MZYBB v Minister for Immigration &amp; Anor [2008] FMCA 1462
Outcome: affirmed
appeal is from a judgment of the Federal Magistrates Court of Australia given on 12 September 2008 and published as MZYBB v Minister for Immigration &amp; Anor [2008] FMCA 1462. The learned federal magistrate dismissed an application to reinstate a proceeding in the Federal Magistrates Court that had been dismissed previously on the basis of the appellant's failure to attend a directions hearing. The original proceeding in the Federal Magistrates Court was an application by the appellant, seeking judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship ("the Minister"), the first respondent to this appeal, refusing to grant to the appellant a protection visa. The appellant is a citizen of Pakistan. He arrived in Australia on 5 February 2007 in possession of a tourist visa, which was granted to him while he was in Brunei. On 16 March 2007, he applied for a protection visa. The decision of the Minister's delegate refusing to grant that visa was made on 28 June 2007. The Tribunal's decision affirming the decision not to grant a protection visa was signed on 1 May 2008 and handed down or sent on 22 May 2008. By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 . It is convenient to call these two instruments, taken together, the Convention. For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country
Case: Agro Holdings Ltd v Flexi-Coil (Australia) Pty Ltd [1999] FCA 1658
Outcome: cited
This case is pleaded against Global and In Touch. The ACCC alleges that upon an examination of each of the pleaded franchising agreements, the evidence of the systems and marketing plans adopted, the commercial symbols used and the payments made by the distributors, these agreements constitute franchising agreements within the plain meaning of cl 4 of the Franchising Code (the requirements of cl 4 are cumulative: Agro Holdings Ltd v Flexi-Coil (Australia) Pty Ltd [1999] FCA 1658 at [36] ). The exception was the agreement with Smith as the performance of the agreement was to take place in New Zealand and therefore does not fall within cl 4.
Case: APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44
Outcome: cited
However, there is a good deal of authority as to the meaning of trade or commerce in other constitutional contexts, particularly in relation to s 92 as it was previously construed (eg, W &amp; A McArthur Ltd v Queensland [1920] HCA 77 ; (1920) 28 CLR 530; Mikasa (NSW) Pty Ltd v Festival Industries Pty Ltd [1972] HCA 69 ; (1972) 127 CLR 617; Hospital Provident Fund Pty Ltd v Victoria [1953] HCA 8 ; (1953) 87 CLR 1; and APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44 per Gleeson CJ and Heydon J at [37] and Gummow J at [168] [170]), and as to the phrase 'in trade or commerce' in s 52 of the Act (eg Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330).
Case: Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491 
Outcome: cited
These obligations imposed by the Franchising Code are to be complied with prior to the making of the agreement. As stated by Selway J in Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 200 ALR 491 at [191], the provisions of the Franchising Code are to be read literally. 56 Each of the distributors in both the Swisscom aspect and Vending Machine aspect of these proceedings entered into a distributorship or purchasing agreement with either Global or In Touch.
Case: Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 
Outcome: cited
There is surprisingly little authority upon the provision in question. There is discussion of it in the judgment of the Full Industrial Court in Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194 at 204 206 and in that of Franki J in Swan v Downes (1978) 34 FLR 36 particularly at 40 46. (See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at [67] , [76] [79]; and Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 at [32] .) 51 The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].
Case: Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863
Outcome: cited
The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].
Case: Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472
Outcome: cited
There is surprisingly little authority upon the provision in question. There is discussion of it in the judgment of the Full Industrial Court in Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194 at 204 206 and in that of Franki J in Swan v Downes (1978) 34 FLR 36 particularly at 40 46. (See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at [67] , [76] [79]; and Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 at [32] .)
Case: Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365 ; (2000) 104 FCR 253 
Outcome: cited
The ACCC further alleges that the corporate respondents entirely failed to comply with Div 2.1 and Div 2.2 of the Franchising Code which set out the statutory obligations of a franchisor (relevantly the corporate respondents as alleged) prior to entering into a franchising agreement (see cl 6 to 11 of the Franchising Code ). The relevant parts of the legislation are discussed by Sundberg J in Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365 ; (2000) 104 FCR 253 at [4] [11]. The obligations, which the corporate respondents failed to satisfy, include maintaining a disclosure document in the form annexed to the Franchising Code and, prior to entering into franchising agreements with franchisees (relevantly the distributors involved in the proceedings): (a) providing such a disclosure document to the franchisees; (b) providing a copy of the Franchising Code to the franchisees; and (c) receiving certain signed statements from the franchisees.