mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601
Outcome: considered
To like effect are the observations of Thomas J in the Supreme Court of Queensland in Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601, where his Honour said at 605-606: There is little doubt that Division 3 is intended to be a complete code which prescribes a formula that requires the Court to assess the position between the parties and preserve demands where it can be seen that there is no genuine dispute and no sufficient genuine offsetting claim. That is not to say that the Court will examine the merits or settle the dispute. The specified limits of the Court's examination are the ascertainment of whether there is a "genuine dispute" and whether there is a "genuine claim".
Case: Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1993) 12 ACSR 341
Outcome: considered
Lockhart J in Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 referred to the above observations of Hayne J and Thomas J, and also to the observations of Beazley J in Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1993) 12 ACSR 341 at 356-7.
Case: Stack v Brisbane City Council (1999) 47 IPR 525
Outcome: cited
Litigation involving those petty patents in the Federal Court [(1999) 47 IPR 525] resulted in the plaintiff losing on the issue of entitlement, Cooper J otherwise being satisfied that the invention was a manner of new manufacture and was also novel, inventive, and useful. 28 Mr Fox says: 5. GST [the plaintiff] is also the Patentee of three more recent patents ("the three new patents") which also derive from application No. 85236/91 as divisional either directly or indirectly, those patents being No. 780782 (32815/95), No. 781173 (46033/01), and No. 781174 (43779/01) and all three new patents relate to the same "invention" as the two petty patents previously mentioned. In fact, the claims of patent No: 781174 are identical to the claims of one of the petty patents, namely, No: 645740. The claims of patent No: 781173 are identical to the claims of the other petty patent, namely, No: 662284. 29 The tenor of his evidence is that those commercially sold water meter assemblies infringe the patents of the plaintiff.
Case: Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222
Outcome: cited
The power given to the Court under s 50 of the Federal Court of Australia Act to forbid or restrict the publication of evidence should only be exercised in exceptional circumstances. Section 50 makes it clear that the power should only be exercised in order to prevent "prejudice to the administration of justice or the security of the Commonwealth". In the present case ASIC's concerns relate to prejudice to the administration of justice. It is a fundamental principle of the administration of justice in Australia that the administration of justice be open justice. When considering whether to exercise the power given by s 50 a Court must bear in mind the need to do justice between all relevant parties, taking as its initial position the principle of open justice. The manner in which a Court should approach an application under s 50 of the Federal Court of Australia Act to restrict the publication of evidence was considered by a Full Court of the Federal Court in Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222. The Full Court said at pars [14] and [15]: "The public interest, that the Court should effectively endeavour to achieve in considering the exercise of power under s 50, is the object of doing justice between the parties. That is the function that the Court is appointed to discharge. Where refusal to make an order might well undermine or defeat the purpose of achieving justice between the parties, and disappoint the public interest in having the Court deal responsibly with the affairs of citizens, it may be appropriate to make an order pursuant to s 50 ... The Court must, however, take into account what s 50 does not explicitly state, but is the underlying assumption upon which it is based, namely, the principle of open justice. The importance of the principle of open justice is not in doubt. On the other hand, the possibility of prejudice to the administration of justice must be weighed against the public interest in maintaining open justice. Although the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle that must be placed on the scales. The derogation from the principle that might be involved in making an order under s 50 may be very great, or it might be very small. The degree of derogation from the principle involved in the proposed order is an important matter to be considered in balancing the principle against possible prejudice to the administration of justice ..." (citation omitted)
Case: Scott v Scott [1913] AC 417
Outcome: cited
The basis upon which the Court should approach an application under s 17(4) of the Federal Court of Australia Act is similar to the approach it should take in relation to an application under s 50. The power to order the exclusion of persons from a hearing should only be exercised in exceptional cases. It is clear from s 17(4) that that power should only be exercised in circumstances where not to exercise it would be "contrary to the interests of justice". The primary principle is that the principle of open justice is to be observed in that Court hearings should be open to the public and only closed where the interests of justice require that closure. As Earl Loreburn said in Scott v Scott [1913] AC 417 at 445: "The inveterate rule is that justice shall be administered in open Court." His Lordship accepted that it was appropriate in the interests of justice that the doors of the Court be closed when the subject-matter of the action would be destroyed by a hearing in open court.
Case: Raybos Australia Pty Ltd v Jones [1985] 2 NSWLR 47
Outcome: cited
In Raybos Australia Pty Ltd v Jones [1985] 2 NSWLR 47, Kirby P (as he then was) said at 55: "Many cases report the scrutiny by courts of statutory provisions designed to derogate from the open administration of justice. Running through these decisions is a common theme. It is that, by our tradition, the open administration of justice is the rule. Statutory derogation from openness is the exception. In the defence of the rule, such statutes will usually be strictly and narrowly construed. Unless the derogation is specifically provided for, courts are loathe to expand the field of secret justice ..." Samuels JA, in the course of analysing whether the publication of the names in suit would defeat the ends of justice, said at 61: "The inquiry must start with the proposition, central to our notions of forensic procedure, that the courts customarily conduct their business in public in order that the integrity, fairness and efficiency of the system, and its administrators, may be maintained by its exposure to public scrutiny." 22 The applicant submitted that ASIC should disclose in open hearing what was the reasoning process to support the protection of the information sought by ASIC without disclosing what that information was. It submitted that it should, to the extent possible, identify the reasons why the information was being withheld without disclosing the information. The difficulty with acceding to that submission is that exposing the reasoning process would inevitably disclose the information sought to be protected. There were also a number of matters in respect of the claim for public interest immunity privilege raised in the confidential material which I wanted to discuss with counsel for ASIC but it was not possible to do this in open session without exposing the information that ASIC sought to protect. 23 The difficulty with which I was faced in this application by ASIC was that in order to determine whether orders should be made under ss 17(4) and 50 of the Federal Court of Australia Act I must have regard to the confidential affidavits (not served on the parties) filed by ASIC and its confidential submissions (not served on the parties) in order to understand the basis for the application. I reached the conclusion that in order to preserve the subject-matter of ASIC's claim for public interest immunity privilege I was compelled to make orders under ss 17(4) and 50 of the Federal Court Act in order to avoid prejudice to the administration of justice. If I had not made such orders I would have destroyed the basis for ASIC's claim. The hearing of ASIC's claim in the presence of the parties to the proceeding would have disclosed the very subject-matter and issues which ASIC claimed were protected from disclosure by the public interest immunity privilege. I therefore heard ASIC's application in camera in the absence of the parties to the proceeding.
Case: Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117-11,118
Outcome: applied
The formulation of the content of that contract however requires some attention. People do not always conduct their business dealings in classic text book terms of offer and acceptance. In Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117-11,118 McHugh JA (Hope and Mahoney JJA concurring) said: "... in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed." His Honour also remarked (ibid): "...it is an error to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed ... Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words. The question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances, shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract." These statements were subsequently applied by the New South Wales Court of Appeal in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at [74] - [77] (Heydon JA, Mason P concurring) and the Full Court of the Federal Court in Damevski v Giudice [2003] FCAFC 252 ; (2003) 133 FCR 438 at [82] - [88] (Marshall J, Wilcox J concurring).
Case: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at [74] - [77]
Outcome: applied
The formulation of the content of that contract however requires some attention. People do not always conduct their business dealings in classic text book terms of offer and acceptance. In Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117-11,118 McHugh JA (Hope and Mahoney JJA concurring) said: "... in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed." His Honour also remarked (ibid): "...it is an error to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed ... Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words. The question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances, shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract." These statements were subsequently applied by the New South Wales Court of Appeal in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at [74] - [77] (Heydon JA, Mason P concurring) and the Full Court of the Federal Court in Damevski v Giudice [2003] FCAFC 252 ; (2003) 133 FCR 438 at [82] - [88] (Marshall J, Wilcox J concurring).
Case: Damevski v Giudice [2003] FCAFC 252 ; (2003) 133 FCR 438 at [82] - [88]
Outcome: applied
The formulation of the content of that contract however requires some attention. People do not always conduct their business dealings in classic text book terms of offer and acceptance. In Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117-11,118 McHugh JA (Hope and Mahoney JJA concurring) said: "... in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed." His Honour also remarked (ibid): "...it is an error to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed ... Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words. The question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances, shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract." These statements were subsequently applied by the New South Wales Court of Appeal in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at [74] - [77] (Heydon JA, Mason P concurring) and the Full Court of the Federal Court in Damevski v Giudice [2003] FCAFC 252 ; (2003) 133 FCR 438 at [82] - [88] (Marshall J, Wilcox J concurring).
Case: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337 at 347-352
Outcome: cited
Applying those principles, in my opinion the Work Trial Agreement in the form sent by Mr Mihelcic to Mr Sutczak on 30 December 1996, including cl 4 set out in [18] above, formed part of the contract which was in force at the time Mr Fowle suffered his injury. The Commonwealth and Comcare by their subsequent conduct, and in particular by meeting all Mr Fowle's wages notwithstanding that he was doing work for the Hydro, impliedly accepted the terms in the Work Trial Agreement. Pre-contractual conduct can cast light on the genesis of the contract and its objective aim: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337 at 347-352 , Brambles at [24]. Here the essence of the term appeared in the original Work Trial Agreement ([11] above), which had been prepared by the Commonwealth. Subsequently the Hydro, through Mr Sutczak, emphasised the importance of indemnity ([17] above). The potential for workplace injury, and liability there for, was an obvious matter of concern for a substantial industrial employer like the Hydro. 30 The "liability" in question, a potential liability which might arise at some time in the future, must be the liability of the host employer, the Hydro. "Liability" means any legal liability of the Hydro. Obviously "any injury" does not mean literally any injury suffered by Mr Fowle. An injury which he suffered at home and unconnected with his work would not involve any liability of the Hydro. 31 The expression "liability for any injury" cannot be limited, as the defendants argued, to exclude common law liability. The words are not qualified in any way. It would have been open to Comcare and/or APS, as the preparer of the document, to limit it to accord with their particular circumstances. It is not to the point that entitlement of a Commonwealth employee to sue the Commonwealth for damages at common law is limited in scope and amount by s 45 of the SRC Act. At all relevant times the potential liability of the Hydro included liability at common law for negligence. The Hydro enjoyed no statutory protection comparable to that in s 45 of the Commonwealth Act.
Case: Coghlan v S H Lock (Australia) Ltd (1987) 8 NSWLR 88 at 92
Outcome: cited
Counsel for the defendants submitted that the term in question, being an indemnity, should be construed strictly against the Hydro. However, this principle of construction is bound up with another rule, that documents should be construed contra proferentem (against the interest of the party which prepared or drafted the document): Coghlan v S H Lock (Australia) Ltd (1987) 8 NSWLR 88 at 92, Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 ; (2004) 217 CLR 424 at [19] , Halford v Price [1960] HCA 38 ; (1960) 105 CLR 23 at 30, 34, 40, 41. However, in the present case it is the Commonwealth which was the drafter or presenter of the document. One can infer that seeking to have a Commonwealth employee placed with an outside employer for the purposes of rehabilitation is a common occurrence. Since this is a benefit to Comcare and the Commonwealth (successful rehabilitation will lessen their financial burden), it is hardly surprising that the Commonwealth and/or Comcare would adopt a standard form of contract in which the outside employer is indemnified against the obvious possibility of liability for workplace injury. The present case is the reverse of the stereotypical situation where the party in the stronger bargaining position imposes a standard term on the weaker party: see Andar at [69] per Kirby J.
Case: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 ; (2004) 217 CLR 424 at [19]
Outcome: cited
Counsel for the defendants submitted that the term in question, being an indemnity, should be construed strictly against the Hydro. However, this principle of construction is bound up with another rule, that documents should be construed contra proferentem (against the interest of the party which prepared or drafted the document): Coghlan v S H Lock (Australia) Ltd (1987) 8 NSWLR 88 at 92, Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 ; (2004) 217 CLR 424 at [19] , Halford v Price [1960] HCA 38 ; (1960) 105 CLR 23 at 30, 34, 40, 41. However, in the present case it is the Commonwealth which was the drafter or presenter of the document. One can infer that seeking to have a Commonwealth employee placed with an outside employer for the purposes of rehabilitation is a common occurrence. Since this is a benefit to Comcare and the Commonwealth (successful rehabilitation will lessen their financial burden), it is hardly surprising that the Commonwealth and/or Comcare would adopt a standard form of contract in which the outside employer is indemnified against the obvious possibility of liability for workplace injury. The present case is the reverse of the stereotypical situation where the party in the stronger bargaining position imposes a standard term on the weaker party: see Andar at [69] per Kirby J.
Case: Halford v Price [1960] HCA 38 ; (1960) 105 CLR 23 at 30, 34, 40, 41
Outcome: cited
Counsel for the defendants submitted that the term in question, being an indemnity, should be construed strictly against the Hydro. However, this principle of construction is bound up with another rule, that documents should be construed contra proferentem (against the interest of the party which prepared or drafted the document): Coghlan v S H Lock (Australia) Ltd (1987) 8 NSWLR 88 at 92, Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 ; (2004) 217 CLR 424 at [19] , Halford v Price [1960] HCA 38 ; (1960) 105 CLR 23 at 30, 34, 40, 41. However, in the present case it is the Commonwealth which was the drafter or presenter of the document. One can infer that seeking to have a Commonwealth employee placed with an outside employer for the purposes of rehabilitation is a common occurrence. Since this is a benefit to Comcare and the Commonwealth (successful rehabilitation will lessen their financial burden), it is hardly surprising that the Commonwealth and/or Comcare would adopt a standard form of contract in which the outside employer is indemnified against the obvious possibility of liability for workplace injury. The present case is the reverse of the stereotypical situation where the party in the stronger bargaining position imposes a standard term on the weaker party: see Andar at [69] per Kirby J.
Case: Director-General of Social Services v Chaney (1980) 3 ALD 161
Outcome: cited
I do not think the orders made by the Tribunal which are under challenge constitute a decision under s 44(1) of the AAT Act. The substantive application before the Tribunal was an application for review of the delegate's decision under s 13 of the Act not to grant a certificate of Australian citizenship to the respondent. The right to bring the application for review is contained in s 52A of the Act. The orders of the Tribunal defer or adjourn consideration of the application for review. The orders do not amount to a final decision or determination. In accordance with well-established authority the orders therefore do not constitute a decision within s 44(1) of the AAT Act: Director-General of Social Services v Chaney (1980) 3 ALD 161 per Deane J, with whom Fisher J agreed, at 178, 180; Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (' Bond ') per Mason CJ at 335; Geographical Indications Committee v The Honourable Justice O'Connor (2000) 64 ALD 325 at 332-333. In my opinion, there is no right of appeal from the Tribunal's orders under s 44(1) of the AAT Act.
Case: Geographical Indications Committee v The Honourable Justice O'Connor (2000) 64 ALD 325
Outcome: cited
I do not think the orders made by the Tribunal which are under challenge constitute a decision under s 44(1) of the AAT Act. The substantive application before the Tribunal was an application for review of the delegate's decision under s 13 of the Act not to grant a certificate of Australian citizenship to the respondent. The right to bring the application for review is contained in s 52A of the Act. The orders of the Tribunal defer or adjourn consideration of the application for review. The orders do not amount to a final decision or determination. In accordance with well-established authority the orders therefore do not constitute a decision within s 44(1) of the AAT Act: Director-General of Social Services v Chaney (1980) 3 ALD 161 per Deane J, with whom Fisher J agreed, at 178, 180; Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (' Bond ') per Mason CJ at 335; Geographical Indications Committee v The Honourable Justice O'Connor (2000) 64 ALD 325 at 332-333. In my opinion, there is no right of appeal from the Tribunal's orders under s 44(1) of the AAT Act.