mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822
Outcome: cited
However, where a demonstrated failure to plead material facts gives rise to no real confusion or gives rise to no issue of substantive principle, the Court will be restrained in the exercise of the strike-out power. Not all conclusionary pleadings will be struck out. Whether a pleading ought to be struck out will depend upon whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 ; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 828-9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 ; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421; adopted by Tracey J in Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; and as Tracey J notes, applied in Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42, 669-42, 670. It is not necessary to restate comprehensively the content of those well understood principles.
Case: State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691
Outcome: cited
However, where a demonstrated failure to plead material facts gives rise to no real confusion or gives rise to no issue of substantive principle, the Court will be restrained in the exercise of the strike-out power. Not all conclusionary pleadings will be struck out. Whether a pleading ought to be struck out will depend upon whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 ; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 828-9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 ; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421; adopted by Tracey J in Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; and as Tracey J notes, applied in Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42, 669-42, 670. It is not necessary to restate comprehensively the content of those well understood principles.
Case: Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413
Outcome: cited
However, where a demonstrated failure to plead material facts gives rise to no real confusion or gives rise to no issue of substantive principle, the Court will be restrained in the exercise of the strike-out power. Not all conclusionary pleadings will be struck out. Whether a pleading ought to be struck out will depend upon whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 ; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 828-9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 ; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421; adopted by Tracey J in Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; and as Tracey J notes, applied in Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42, 669-42, 670. It is not necessary to restate comprehensively the content of those well understood principles.
Case: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409
Outcome: cited
However, where a demonstrated failure to plead material facts gives rise to no real confusion or gives rise to no issue of substantive principle, the Court will be restrained in the exercise of the strike-out power. Not all conclusionary pleadings will be struck out. Whether a pleading ought to be struck out will depend upon whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 ; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 828-9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 ; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421; adopted by Tracey J in Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; and as Tracey J notes, applied in Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42, 669-42, 670. It is not necessary to restate comprehensively the content of those well understood principles.
Case: Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458
Outcome: cited
However, where a demonstrated failure to plead material facts gives rise to no real confusion or gives rise to no issue of substantive principle, the Court will be restrained in the exercise of the strike-out power. Not all conclusionary pleadings will be struck out. Whether a pleading ought to be struck out will depend upon whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 ; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 828-9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 ; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421; adopted by Tracey J in Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; and as Tracey J notes, applied in Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42, 669-42, 670. It is not necessary to restate comprehensively the content of those well understood principles.
Case: Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568
Outcome: cited
However, where a demonstrated failure to plead material facts gives rise to no real confusion or gives rise to no issue of substantive principle, the Court will be restrained in the exercise of the strike-out power. Not all conclusionary pleadings will be struck out. Whether a pleading ought to be struck out will depend upon whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 ; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 828-9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 ; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421; adopted by Tracey J in Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; and as Tracey J notes, applied in Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42, 669-42, 670. It is not necessary to restate comprehensively the content of those well understood principles.
Case: Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053
Outcome: cited
However, where a demonstrated failure to plead material facts gives rise to no real confusion or gives rise to no issue of substantive principle, the Court will be restrained in the exercise of the strike-out power. Not all conclusionary pleadings will be struck out. Whether a pleading ought to be struck out will depend upon whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 ; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42, 828-9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 ; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421; adopted by Tracey J in Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; and as Tracey J notes, applied in Australian Automotive Repairers' Association (Political Action Committee) Inc. v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42, 669-42, 670. It is not necessary to restate comprehensively the content of those well understood principles.
Case: Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd (1989) 167 CLR 177
Outcome: cited
Thus, it is necessary to plead material facts which establish that the participants to the contract, arrangement or understanding embodying the s 45A provision are engaged in the supply or acquisition of the identified services in any market in Australia and secondly, that the participants are engaged in rivalry with each other in that market in those services. Rivalry however takes place within a field of transactions between buyers and sellers and the boundaries of the field of rivalry are to be determined by not only the services supplied or acquired by a participant to the contract, arrangement or understanding but also having regard to services that are substitutable for or otherwise competitive with those services (s 4E of the Act ). Section 4E of the Act simply recognises the economic orthodoxy of close competition determined by strong substitution (over the long run two years not simply transient demand or supply responses, given a sufficient price incentive) within a field of actual and potential transactions between buyers and sellers, as the determinant of the boundaries of a market. It is not necessary to repeat the well understood passage from Re Queensland Co-operative Milling Association Ltd (supra) at p 190 adopted with approval by many authorities including Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177 and Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374.
Case: Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374
Outcome: cited
Thus, it is necessary to plead material facts which establish that the participants to the contract, arrangement or understanding embodying the s 45A provision are engaged in the supply or acquisition of the identified services in any market in Australia and secondly, that the participants are engaged in rivalry with each other in that market in those services. Rivalry however takes place within a field of transactions between buyers and sellers and the boundaries of the field of rivalry are to be determined by not only the services supplied or acquired by a participant to the contract, arrangement or understanding but also having regard to services that are substitutable for or otherwise competitive with those services (s 4E of the Act ). Section 4E of the Act simply recognises the economic orthodoxy of close competition determined by strong substitution (over the long run two years not simply transient demand or supply responses, given a sufficient price incentive) within a field of actual and potential transactions between buyers and sellers, as the determinant of the boundaries of a market. It is not necessary to repeat the well understood passage from Re Queensland Co-operative Milling Association Ltd (supra) at p 190 adopted with approval by many authorities including Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177 and Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374.
Case: Trade Practices Commission v Nicholas Enterprises Pty Ltd &amp; Ors (No. 2) [1979] 40 FLR 83; (1979) 26 ALR 609
Outcome: cited
Once the question of whether a separate market subsists and whether MRPL and ANZ are in competition in one or more separate markets arises, material facts which demonstrate those matters must be pleaded and ultimately established ( Trade Practices Commission v Nicholas Enterprises Pty Ltd &amp; Ors (No. 2) [1979] 40 FLR 83 pp 110-115; (1979) 26 ALR 609 at 645-651) notwithstanding that reliance is placed upon s 45A of the Act .
Case: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Outcome: followed
The second ground asserts bias. This is a serious allegation. It is without foundation. The appellant also asserts that the Tribunal did not refer to proper independent information for the consideration of the decision. There are a number of Full Court authorities confirming that the Tribunal's task is to consider whether it is satisfied that the requirements for the grant of a visa have been complied with. It will be difficult to achieve the requisite degree of satisfaction if the appellant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected (see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 , NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). A circumstance leading to the decision to which the Refugee Review Tribunal arrived was that the appellant did not appear at the scheduled hearing. In my decisions in SZGST v Minister for Immigration and Citizenship [2007] FCA 326 and SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 I have discussed the difficulties that confront an appellant in those circumstances.
Case: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Outcome: followed
The second ground asserts bias. This is a serious allegation. It is without foundation. The appellant also asserts that the Tribunal did not refer to proper independent information for the consideration of the decision. There are a number of Full Court authorities confirming that the Tribunal's task is to consider whether it is satisfied that the requirements for the grant of a visa have been complied with. It will be difficult to achieve the requisite degree of satisfaction if the appellant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected (see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 , NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). A circumstance leading to the decision to which the Refugee Review Tribunal arrived was that the appellant did not appear at the scheduled hearing. In my decisions in SZGST v Minister for Immigration and Citizenship [2007] FCA 326 and SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 I have discussed the difficulties that confront an appellant in those circumstances.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Outcome: followed
The second ground asserts bias. This is a serious allegation. It is without foundation. The appellant also asserts that the Tribunal did not refer to proper independent information for the consideration of the decision. There are a number of Full Court authorities confirming that the Tribunal's task is to consider whether it is satisfied that the requirements for the grant of a visa have been complied with. It will be difficult to achieve the requisite degree of satisfaction if the appellant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected (see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 , NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). A circumstance leading to the decision to which the Refugee Review Tribunal arrived was that the appellant did not appear at the scheduled hearing. In my decisions in SZGST v Minister for Immigration and Citizenship [2007] FCA 326 and SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 I have discussed the difficulties that confront an appellant in those circumstances.
Case: SZGST v Minister for Immigration and Citizenship [2007] FCA 326
Outcome: cited
The second ground asserts bias. This is a serious allegation. It is without foundation. The appellant also asserts that the Tribunal did not refer to proper independent information for the consideration of the decision. There are a number of Full Court authorities confirming that the Tribunal's task is to consider whether it is satisfied that the requirements for the grant of a visa have been complied with. It will be difficult to achieve the requisite degree of satisfaction if the appellant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected (see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 , NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). A circumstance leading to the decision to which the Refugee Review Tribunal arrived was that the appellant did not appear at the scheduled hearing. In my decisions in SZGST v Minister for Immigration and Citizenship [2007] FCA 326 and SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 I have discussed the difficulties that confront an appellant in those circumstances.
Case: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328
Outcome: cited
The second ground asserts bias. This is a serious allegation. It is without foundation. The appellant also asserts that the Tribunal did not refer to proper independent information for the consideration of the decision. There are a number of Full Court authorities confirming that the Tribunal's task is to consider whether it is satisfied that the requirements for the grant of a visa have been complied with. It will be difficult to achieve the requisite degree of satisfaction if the appellant does not provide sufficient information, such as by not attending a hearing. In the absence of a positive finding of satisfaction, a visa application must be rejected (see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 , NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). A circumstance leading to the decision to which the Refugee Review Tribunal arrived was that the appellant did not appear at the scheduled hearing. In my decisions in SZGST v Minister for Immigration and Citizenship [2007] FCA 326 and SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 I have discussed the difficulties that confront an appellant in those circumstances.
Case: Comcare v Commonwealth of Australia (2007) 162 IR 407, [2007] FCA 662
Outcome: cited
In support of the appropriateness of that figure, I am invited to approach what is put forward along the lines discussed by the Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993, [2004] FCAFC 72. That, of course, was a case under a different Act from that which is involved here, and an Act with different objectives. However, insofar as it dealt with the manner in which the Court should approach a statutory penalty where there is an agreement between the parties as to the appropriate penalty, that decision does provide appropriate guidance. I have also been referred to other authorities dealing more closely with questions of occupational health and safety including the recent case of Comcare v Commonwealth of Australia (2007) 162 IR 407, [2007] FCA 662 , where Madgwick J looked at a number of the factors which have been regarded as relevant by courts dealing with similar legislation in other jurisdictions.
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993, [2004] FCAFC 72
Outcome: followed
In support of the appropriateness of that figure, I am invited to approach what is put forward along the lines discussed by the Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993, [2004] FCAFC 72. That, of course, was a case under a different Act from that which is involved here, and an Act with different objectives. However, insofar as it dealt with the manner in which the Court should approach a statutory penalty where there is an agreement between the parties as to the appropriate penalty, that decision does provide appropriate guidance. I have also been referred to other authorities dealing more closely with questions of occupational health and safety including the recent case of Comcare v Commonwealth of Australia (2007) 162 IR 407, [2007] FCA 662 , where Madgwick J looked at a number of the factors which have been regarded as relevant by courts dealing with similar legislation in other jurisdictions.