mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Telstra Corp Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398
Outcome: cited
Paragraphs 1 and 2 of the notice of motion can be dealt with together. A notice to produce may be set aside on the ground of lack of apparent relevance. The test of apparent relevance is whether the documents are reasonably likely to add, in the end, in some way or another, to the relevant evidence. Relevance in an evidentiary/admissibility sense is not the test. See Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 101-103; Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6] ; Telstra Corp Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398 at [44] - [48] .
Case: Re Kingsheath Club of the Clubs Ltd (in liquidation) [2003] FCA 1034
Outcome: cited
The Registrar's order for production of the funding agreement permitted the applicant to redact the document to remove the amounts set out in par 2.1 thereof, that is the sections dealing with the amount of funding available. The only unfairness suggested by the applicant was if there were an order that the document be provided without that redaction. See generally Re Kingsheath Club of the Clubs Ltd (in liquidation) [2003] FCA 1034 at [33] - [34] and Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455 at [69] - [73] .
Case: Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455
Outcome: cited
The Registrar's order for production of the funding agreement permitted the applicant to redact the document to remove the amounts set out in par 2.1 thereof, that is the sections dealing with the amount of funding available. The only unfairness suggested by the applicant was if there were an order that the document be provided without that redaction. See generally Re Kingsheath Club of the Clubs Ltd (in liquidation) [2003] FCA 1034 at [33] - [34] and Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455 at [69] - [73] .
Case: Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169
Outcome: referred to
Minister does not dispute the proposition of law asserted in the applicant's affidavit (see Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169 at [16] and Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229). However, the Minister disputes the factual assertion that the Tribunal failed to describe the applicant's visa correctly.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229
Outcome: referred to
Minister does not dispute the proposition of law asserted in the applicant's affidavit (see Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169 at [16] and Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229). However, the Minister disputes the factual assertion that the Tribunal failed to describe the applicant's visa correctly.
Case: Re Racal Communications Ltd ([1981] AC 374 
Outcome: cited
In Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 their Honours Brennan, Deane, Toohey, Gaudron and McHugh JJ said this: 'At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise in accordance with the law. That point was made by Lord Diplock in Re Racal Communications Ltd ([1981] AC 374 at 383): "Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision making power is conferred on a tribunal or authority that is not a court of law, the Parliament did not intend to do so." The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative incompetence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it'. [emphasis added]
Case: Minister for Aboriginal Affairs &amp; Another v Peko-Wallsend Limited &amp; Others [1986] HCA 40 ; [1986] 162 CLR 24
Outcome: cited
In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351 [82] , McHugh, Gummow and Hayne JJ had regard to the observations of their Honours Brennan, Deane, Toohey, Gaudron and McHugh JJ (noted at [34] of these reasons) in Craig and further explained the notion of 'jurisdictional error' in these terms: 'It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. "Jurisdictional error" can [thus] be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as to the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law . Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.' [emphasis added] See also the discussion of supervisory review of administrative decisions and the statutory analogue contained in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) at pp 39-43 per Mason J, Minister for Aboriginal Affairs &amp; Another v Peko-Wallsend Limited &amp; Others [1986] HCA 40 ; [1986] 162 CLR 24.
Case: Re Refugee Review Tribunal &amp; Another; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
In Yusuf , their Honours formulated at [82] (in the quote identified at [40] of these Reasons) an understanding of what is meant by 'jurisdictional error', under the general law. In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 100 (38) Gaudron and Gummow JJ noted that Gaudron J had left open in Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 553 [112] the question of whether procedural fairness is to be seen as a common law duty or an implication from the relevant statute. Their Honours concluded in Ex parte Aala that having regard to Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 at 652, per Deane J, Annette's v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 604 605 per Brennan J, and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650 [126] per Gummow J, that the exercise of a discretionary power statutorily conferred is constrained by an obligation to exercise the power reasonably (which includes an obligation to provide procedural fairness) as a function of the proper construction of the legislation itself. 43 Once it is established that the Tribunal has asked itself the wrong question by, for example, asking whether it can be satisfied that the Appellant faces a real chance of persecution should he return to the Peoples Republic of China, or, has identified the wrong issue, or taken into account, in one part of its deliberations, a notion that the Appellant is an Indonesian rather than a Pakistani national, the Tribunal is seen to have failed to provide the Appellant with procedural fairness and thus jurisdictional error arises ( Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 109 [59] per Gaudron and Gummow JJ). The repository of the power is constrained by an obligation to act reasonably by providing procedural fairness. A decision made in light of a failure to act reasonably is not a decision made under the Act for the purposes of s 474. 44 The obligation to undertake an un-distracted, focussed and deliberative assessment of only those facts and circumstances referrable to the case of the Appellant is an essential element of the discharge of the review function.
Case: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
In Yusuf , their Honours formulated at [82] (in the quote identified at [40] of these Reasons) an understanding of what is meant by 'jurisdictional error', under the general law. In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 100 (38) Gaudron and Gummow JJ noted that Gaudron J had left open in Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 553 [112] the question of whether procedural fairness is to be seen as a common law duty or an implication from the relevant statute. Their Honours concluded in Ex parte Aala that having regard to Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 at 652, per Deane J, Annette's v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 604 605 per Brennan J, and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650 [126] per Gummow J, that the exercise of a discretionary power statutorily conferred is constrained by an obligation to exercise the power reasonably (which includes an obligation to provide procedural fairness) as a function of the proper construction of the legislation itself.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
In Yusuf , their Honours formulated at [82] (in the quote identified at [40] of these Reasons) an understanding of what is meant by 'jurisdictional error', under the general law. In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 100 (38) Gaudron and Gummow JJ noted that Gaudron J had left open in Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 553 [112] the question of whether procedural fairness is to be seen as a common law duty or an implication from the relevant statute. Their Honours concluded in Ex parte Aala that having regard to Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 at 652, per Deane J, Annette's v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 604 605 per Brennan J, and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650 [126] per Gummow J, that the exercise of a discretionary power statutorily conferred is constrained by an obligation to exercise the power reasonably (which includes an obligation to provide procedural fairness) as a function of the proper construction of the legislation itself.
Case: Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648
Outcome: cited
In Yusuf , their Honours formulated at [82] (in the quote identified at [40] of these Reasons) an understanding of what is meant by 'jurisdictional error', under the general law. In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 100 (38) Gaudron and Gummow JJ noted that Gaudron J had left open in Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 553 [112] the question of whether procedural fairness is to be seen as a common law duty or an implication from the relevant statute. Their Honours concluded in Ex parte Aala that having regard to Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 at 652, per Deane J, Annette's v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 604 605 per Brennan J, and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650 [126] per Gummow J, that the exercise of a discretionary power statutorily conferred is constrained by an obligation to exercise the power reasonably (which includes an obligation to provide procedural fairness) as a function of the proper construction of the legislation itself.
Case: Annette's v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: cited
In Yusuf , their Honours formulated at [82] (in the quote identified at [40] of these Reasons) an understanding of what is meant by 'jurisdictional error', under the general law. In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 100 (38) Gaudron and Gummow JJ noted that Gaudron J had left open in Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 553 [112] the question of whether procedural fairness is to be seen as a common law duty or an implication from the relevant statute. Their Honours concluded in Ex parte Aala that having regard to Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 at 652, per Deane J, Annette's v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 604 605 per Brennan J, and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650 [126] per Gummow J, that the exercise of a discretionary power statutorily conferred is constrained by an obligation to exercise the power reasonably (which includes an obligation to provide procedural fairness) as a function of the proper construction of the legislation itself.
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
In Yusuf , their Honours formulated at [82] (in the quote identified at [40] of these Reasons) an understanding of what is meant by 'jurisdictional error', under the general law. In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at 100 (38) Gaudron and Gummow JJ noted that Gaudron J had left open in Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 553 [112] the question of whether procedural fairness is to be seen as a common law duty or an implication from the relevant statute. Their Honours concluded in Ex parte Aala that having regard to Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 615 per Brennan J, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22 ; (1990) 169 CLR 648 at 652, per Deane J, Annette's v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 604 605 per Brennan J, and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650 [126] per Gummow J, that the exercise of a discretionary power statutorily conferred is constrained by an obligation to exercise the power reasonably (which includes an obligation to provide procedural fairness) as a function of the proper construction of the legislation itself.
Case: Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: cited
With one possible exception, there is no dispute as to the making of the statements alleged. What is in contest is whether they would convey the representations alleged and, if so, whether those representations are untrue so as to mislead a hypothetical ordinary and reasonable member of the class of potential purchasers: Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [102] - [103] . Such a person in the present case would be a potential purchaser of men's suits from a retail store in or near the Melbourne CBD. Since a purchase price of $400 to $900 is a significant amount, and is for an item which would normally be expected to last for a number of years, and which will affect the image the wearer presents to the world, the hypothetical ordinary and reasonable purchaser (perhaps assisted by the hypothetical ordinary and reasonable spouse) is to be regarded as taking a fair amount of care in arriving at a purchase decision. This case is not concerned with impulse buying of items for a few dollars.
Case: Fraser v NRMA Holdings Limited (1995) 55 FCR 452
Outcome: cited
This case is to be distinguished from the kind of case where something represented as "free" is in fact only obtainable if the purchaser provides some benefit to the representor. An example is Fraser v NRMA Holdings Limited (1995) 55 FCR 452. In that case proponents of the demutualisation of NRMA represented that policyholders would receive "free" shares, whereas the acquisition of those shares would involve the relinquishment of significant rights. The Full Court, 55 FCR at 483, recognised that in some contexts the word "free" may be understood as meaning "without additional or marginal outlay over what is obviously being paid", [but] this is not invariably so. 19 In the present case there is no extra charge or loss or obligation to be borne by the purchaser. If the purchaser pays $799 or $899 for a suit he will in fact get another suit without charge. The evidence does not suggest otherwise. 20 The representation does not convey anything as to whether the suits "warrant" a retail price of $799 or $899 or that such prices "bear out the true retail value". Offering goods for sale at a given price, without more, usually does not imply any statement as to "true" value. The seller is merely saying "If you pay me $X, I will sell you this article". The position is no different when the seller is offering to sell two articles for a given price.
Case: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459
Outcome: cited
For the purposes of s 82 of the Trade Practices Act , Peter Jackson has to show that it has "suffer(ed) loss or damage by the conduct of" MSWD in respect of the Limited Time representation, that being the only representation which has been established as misleading or deceptive or being likely to mislead or deceive. It is sufficient that this conduct was a cause of the loss or damage; it does not have to be the sole, or even the dominant cause: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 ; I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109. The proportionate liability provisions of Pt VIA of the Act, and in particular s 87CD , have no application because MSWD was not a "concurrent wrongdoer" within the meaning of s 87CB(3) ; no third party is suggested to have contributed to any relevant loss or damage suffered by Peter Jackson.
Case: I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: cited
For the purposes of s 82 of the Trade Practices Act , Peter Jackson has to show that it has "suffer(ed) loss or damage by the conduct of" MSWD in respect of the Limited Time representation, that being the only representation which has been established as misleading or deceptive or being likely to mislead or deceive. It is sufficient that this conduct was a cause of the loss or damage; it does not have to be the sole, or even the dominant cause: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 ; I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109. The proportionate liability provisions of Pt VIA of the Act, and in particular s 87CD , have no application because MSWD was not a "concurrent wrongdoer" within the meaning of s 87CB(3) ; no third party is suggested to have contributed to any relevant loss or damage suffered by Peter Jackson.
Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: cited
The evidence of the sales dockets corroborates the evidence of Mr Mortellaro and Mr Salerno. They do not support the allegation that the sale of single suits is something which never, or almost never, happens. Mr Goldblatt for Peter Jackson complained that the dockets only covered limited periods. However, if there was any concern as to the adequacy of discovery by MSWD, remedies were available. I cannot see any rational reason for concluding, or suspecting, that the periods covered by exhibits DJM-1 and DJM-2 were selected so as to give a misleading impression as to the ordinary course of business. No Jones v Dunkel (1959) 101 CLR 298 inference should be drawn. Like most business systems dependent on human implementation, the gold and black sticker system may not always have been adhered to strictly, but that is not to say that the system did not exist. 41 The Second Suit Free representation did not convey the meaning alleged in the FASC that the suits had a particular "real" worth, and so was not misleading in this way. In the form as put during trial and referred to in [21] above, the representation was true and was not misleading since a not insignificant number of suits were in fact offered for sale and sold at the full price. 42 The statements would not convey to a hypothetical ordinary and reasonable purchaser that all suits sold at Walter Withers stores are made from European fabrics. The ordinary message conveyed by retailer's advertisements of articles with desirable attributes is that such articles can be purchased from the advertiser, not that all products sold have these attributes.
Case: Trade Practices Commission v Cue Design Pty Ltd (1996) ATPR 41-475
Outcome: distinguished
So far I have considered Peter Jackson's case as pleaded in the FASC. During the course of the hearing, however, there was a significant shift. It was said that MSWD at its Walter Withers stores never, or almost never, sells suits for the full marked price of $799 or $899. The case was said to be analogous to cases such as Trade Practices Commission v Cue Design Pty Ltd (1996) ATPR 41-475 where tags on garments had a higher price struck out so as to lead purchasers to believe that the garment had previously been offered for sale at the higher price. So, it is said, the alleged misleading and deceptive conduct here is to present an inflated "normal" price to induce the buyer to believe he is getting a second suit "free" if he pays such a price. This version of Peter Jackson's case alleges misrepresentation as to price, not value. 22 However, the evidence establishes that MSWD does, at its Walter Withers stores, sell single suits for $799 or $899. 23 There was evidence from the third respondent Mr Daniel Mortellaro, a director of MSWD, corroborated by the second respondent Mr Angelo Salerno, the second respondent and also a director, which was to the following effect. In 2004 MSWD adopted a system, which was used at Walter Withers stores, including the Collins Street store from the time it opened in July 2005. Every suit when first delivered to the store has its label tagged with a gold sticker. Every gold sticker label suit sells for the full price, either $799 or $899. Every 10 to 12 weeks all of the stock in Walter Withers stores is assessed by Mr Mortellaro or Mr Salerno. Depending on suit volumes, sales and other considerations, gold sticker label suits might be reclassified as black label, in which case the labels are tagged with a black sticker. Some suits of a particular colour, for example "birds eye grey", never become black sticker label suits. The second suit free offer only applies to black sticker label suits.