mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Caple v All Fasteners (WA) (A Firm) [2005] FCA 1558
Outcome: considered
It is not enough for an applicant to merely establish that a corporation has contravened s 52 of the Trade Practices Act and thereby claim that any director of that corporation is liable under s 10 of the Fair Trading Act . There must be a contravention by the director himself or herself. That was made clear by Nicholson J in Caple v All Fasteners (WA) (A Firm) [2005] FCA 1558. In that case, it was alleged that a corporation had contravened s 52 of the Trade Practices Act . It was pleaded that the appellant, who was a director of the corporation but who had not been party to any of the representations which had been made, was accessorily liable under s 75B of the Trade Practices Act and, in the alternative, primary liable under s 10 of the Fair Trading Act . The Federal Magistrate found the appellant was accessorily liable under s 75B of the Trade Practices Act , even though the representations were not made by the appellant. He did not find her liable under s 10 of the Fair Trading Act . On appeal, the respondent filed a notice of contention contending that 'in addition, or in the alternative, to the grounds for liability of the appellant contained in the reasons of his Honour, the appellant is liable to the respondent in relation to her breach (sic) of s 10 of the Fair Trading Act 1985 (WA) as pleaded in the respondent's re-amended statement of claim': at [77]. The respondent relied on this Court's decision in Arktos Pty Ltd v Idyllic Nominees Pty Ltd to support the submission. 298 Nicholson J said at [87]-[89]: 'In Arktos a Mr Price made misleading pre-contractual representations on behalf of a company of which he was a director. It was held that such representations were made both on behalf of the company and in his individual capacity, thereby grounding his direct liability pursuant to s 10 of the Fair Trading Act 1985 (WA) (sic). However, here the appellant, although a director of the company, did not make any representation nor was it pleaded or put to her that she had done so. Further, it was not pleaded or put to her that she had given any authority for any representation to be made on her behalf beyond negotiation of the lease of the premises. Nor was it pleaded or put to her that any agent who acted on her behalf exceeded the agent's actual ostensible authority in circumstances such as to bind her or render her personally liable. I agree with the appellant's submissions. The notice of contention cannot be upheld.'
Case: Astvilla Pty Ltd v Director of Consumer Affairs Victoria [2006] VSC 289
Outcome: cited
There are other decisions of the same effect at first instance; Astvilla Pty Ltd v Director of Consumer Affairs Victoria [2006] VSC 289 ; Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525, particularly at 541; Cleary v Australian Cooperative Foods Ltd (No 2 &amp; 3) (1999) 32 ACSR 701.
Case: Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525
Outcome: cited
The Court observed that the appellants had not only sued the company but also the third respondent and that circumstance indicated that the appellants sought relief against the third respondent. The Court said at [13]: 'The authorities show that a director of a corporation who acts on its behalf in the course of trade or commerce also acts himself or herself in trade or commerce and, if the corporation is liable under a State Fair Trading Act for their conduct, they also attract primary liability under the same statute: Cleary v Australian Co-operative Foods Ltd (1999) 32 ACSR 701 at [54]-[57]; Lauriana Pty Ltd v Corfield Food Warehouse Pty Ltd, unreported, Supreme Court of Western Australia, Wallwork J, 28 April 1995 at 6 and 22; Citibank Ltd v Liu [2003] NSWSC 569 at [53] and the cases there discussed, and Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525 at 541. That is supported in particular by the provision in s 84(2) of the TPA and s 82(2) of the FTA that conduct engaged in on behalf of a body corporate by a director within the scope of actual or apparent authority is deemed 'also' to have been engaged in by the body corporate. It is not correct, as the case for the third respondent asserted, that the principle recognized in these authorities is applicable only when there is a finding of 'separate conduct' by the director; that is, conduct other than in the capacity of director or agent. It is accepted in J D Heydon, Trade Practices Law, Law Book Company, Sydney, 1989 at 18.350 that corporate officers acting in the course of their employment, or in the scope of their authority as agents causing the corporation to be liable under s 84(2) also have personal liability. It is added there that in normal circumstances such officers will be knowingly concerned in the conduct: s 75B(c).' 299 There are other decisions of the same effect at first instance; Astvilla Pty Ltd v Director of Consumer Affairs Victoria [2006] VSC 289 ; Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525, particularly at 541; Cleary v Australian Cooperative Foods Ltd (No 2 &amp; 3) (1999) 32 ACSR 701.
Case: Cleary v Australian Cooperative Foods Ltd (No 2 &amp; 3) (1999) 32 ACSR 701
Outcome: cited
The Court observed that the appellants had not only sued the company but also the third respondent and that circumstance indicated that the appellants sought relief against the third respondent. The Court said at [13]: 'The authorities show that a director of a corporation who acts on its behalf in the course of trade or commerce also acts himself or herself in trade or commerce and, if the corporation is liable under a State Fair Trading Act for their conduct, they also attract primary liability under the same statute: Cleary v Australian Co-operative Foods Ltd (1999) 32 ACSR 701 at [54]-[57]; Lauriana Pty Ltd v Corfield Food Warehouse Pty Ltd, unreported, Supreme Court of Western Australia, Wallwork J, 28 April 1995 at 6 and 22; Citibank Ltd v Liu [2003] NSWSC 569 at [53] and the cases there discussed, and Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525 at 541. That is supported in particular by the provision in s 84(2) of the TPA and s 82(2) of the FTA that conduct engaged in on behalf of a body corporate by a director within the scope of actual or apparent authority is deemed 'also' to have been engaged in by the body corporate. It is not correct, as the case for the third respondent asserted, that the principle recognized in these authorities is applicable only when there is a finding of 'separate conduct' by the director; that is, conduct other than in the capacity of director or agent. It is accepted in J D Heydon, Trade Practices Law, Law Book Company, Sydney, 1989 at 18.350 that corporate officers acting in the course of their employment, or in the scope of their authority as agents causing the corporation to be liable under s 84(2) also have personal liability. It is added there that in normal circumstances such officers will be knowingly concerned in the conduct: s 75B(c).' 299 There are other decisions of the same effect at first instance; Astvilla Pty Ltd v Director of Consumer Affairs Victoria [2006] VSC 289 ; Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525, particularly at 541; Cleary v Australian Cooperative Foods Ltd (No 2 &amp; 3) (1999) 32 ACSR 701.
Case: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546
Outcome: cited
In Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546, Lockhart J said at 558-559: 'These decisions support the view that recovery under s 52 is founded by the applicant's actual reliance upon the misleading or deceptive conduct of the respondent although that conduct was not the only factor in the applicant's decision to enter a particular agreement, and although the applicant did not seek to verify the representations or did so inadequately and so failed to discover their falsity. The circumstances of this case do not support the conclusion that Collins Marrickville did not in fact rely upon the misleading conduct of Mr Saade and Henjo. Their conduct not only played some part in contributing to the purchase of the business but was in fact, the major inducement. It matters not that the solicitor's failure to carry out his client's instructions prevented what may or indeed would, more likely than not, have been a different result. The fact is that reliance was placed by the purchaser upon what it assumed to be the true position as a result of the conduct of the vendor and the absence of knowledge of the true facts.' 312 The applicants relied upon the pleaded representations, which I have found to be made out, up to 28 February 2000 and indeed beyond. The respondents' conduct was the inducement for the applicants entering into the agreement to purchase on 29 December 1999 and settling on that agreement on 28 February 2000. It is not the point that Mr Moore did not ascertain the representations were false. His failure to recognise the falsity of the representations was the fault of the respondents who continued to publish the false representations in the Moore 1997, 1998 and 1999 profit and loss statements.
Case: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459
Outcome: cited
In my opinion, the applicants were not careless about the way in which they entered into the transaction. Indeed, the evidence is all to the contrary. They employed an accountant and a solicitor to advise. That was appropriate. Even if there was some want of care on their part, which I reject, that would not mean they could not recover. In Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 (' Henville v Walker '), Gleeson CJ said at 468: 'It will commonly be the case that a person who is induced by a misleading or deceptive representation to undertake a course of action will have acted carelessly, or will have been otherwise at fault in responding to the inducement. The purpose of the legislation is not restricted to the protection of the careful or the astute. Negligence on the part of the victim of a contravention is not a bar to an action under s 82 unless the conduct of the victim is such as to destroy the causal connection between contravention and loss or damage.' 314 I have already found that the applicants were not poor managers of the business. They worked hard in the business and, as a result, significantly increased the turnover. They were not able to generate significant profits in the business because the business was not capable of making a profit of the kind represented in the brochure or anything near that. There were no external factors which adversely affected the profitability of the business. 315 I have already dealt with the last matter raised by the first, second and third respondents in their defence relating to accessorial liability. 319 The Court has the task of selecting 'a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case': Henville v Walker per Gleeson CJ at [18]. 320 In this case, the representations induced the first applicant to enter into the agreement to purchase the business from the first respondent; to borrow $400,000 upon which it agreed to pay interest; to enter into the lease of the premises for the purpose of carrying on the business; and to incur the transactional costs associated with the purchase, borrowing and leasing. 321 The second applicant was induced by the representations to cause the first applicant to purchase the business and enter into the lease of the premises. That, however, did not cause the second applicant any separate loss or damage. He, however, in reliance upon the representations, gave up his time to work in the business acquired by the first applicant for the purpose of generating the profits it was represented the first applicant could make. 322 The third applicant, in reliance upon the same representations, gave up her paid employment as a teacher to work full time in the first applicant's business. 323 The first applicant claimed the transactional costs to which I have referred in [128]. I find that those were costs associated with the transaction and were losses incurred by the first applicant by reason of the contravention.
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55
Outcome: cited
Usually the Court adopts the rate of interest applied by the Supreme Court in the State or Territory in which this Court is sitting: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55 at 58. I am not aware of that rate and have not been addressed on that issue. I will need to hear the parties. However, the calculation of interest would proceed: ($308,000 x X% x 6.5) + (184 x X% x 3.25) (Where 6.5 years represents the period over which interest will run for transactional and purchase costs and 3.25 years represents the period over which interest will run on the damages awarded for interest paid and X % represents the rate of interest applied in the Supreme Court of Western Australia.) 411 If the second and third applicants are granted leave to amend their statement of claim, damages would have accrued over the same period as the interest component over the first applicant's damages. They would be entitled to interest for half the period. In that case, the respective calculations would be: ($31,518 x X% x 3.25) and ($94,554 x X% x 3.25) 412 The first applicant seeks an order rescinding the lease of the premises. In his closing address, Mr Mendelow repeated the first applicant's call for rescission.
Case: Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Outcome: cited
The lease was entered into before settlement on 28 February 2000. However, it was clearly entered into in contemplation of the purchase of the business. But for the representation contained in the brochure, the first applicant would not have entered into the lease. Rescission is available under s 87 to prevent or reduce loss or damage: Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31. It is necessary to make such an order to prevent ongoing damage to the first applicant. 414 However, it is necessary to hear the parties as to the precise order to be made because any order as to rescission will mean that the business can no longer be carried on on the premises. 415 The second and third applicants may seek leave to amend. If they do they should provide the first, second and third respondents and the Court with a formal minute of the proposed amendment. The applicants should be heard on the rate of interest that ought to be applied for the purpose of a calculation of interest under s 51A of the Federal Court of Australia Act . They should supply a calculation of the amount of interest applicable to the separate awards of damages.
Case: Sampi on behalf of the Bardi and Jawi People v Western Australia [2005] FCA 777
Outcome: cited
Subject to the possible exception referred to above, I am satisfied that, generally, the evidence supports the inference contended for by the Yawuru claimants of exclusive possession and occupation of the Yawuru claim area (excluding the intertidal zone) where there has been no extinguishment. However, for the reasons given by French J in Sampi on behalf of the Bardi and Jawi People v Western Australia [2005] FCA 777 at [1072] , the right should be limited to exclusive possession and occupation and should not extend to the broader concepts of 'use and enjoyment'. I also agree with his Honour that the right claimed to 'speak for' the land and to make decisions about its use and enjoyment by others is also subsumed in the global right of exclusive possession and occupation.
Case: G.A. Cramp &amp; Sons Limited v Frank Smythson Limited [1944] A.C. 329
Outcome: cited
Ultimately, the question to be determined on the issue of originality is one of fact and degree in every case ( G.A. Cramp &amp; Sons Limited v Frank Smythson Limited [1944] A.C. 329 at 335) as to whether the author of each work has deployed a sufficient level of skill, work, labour, care, concentration, analysis or effort so as to bring into existence a work in which copyright subsists ( Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at 476477; Sands &amp; McDougall Pty Ltd v Robinson [1917] HCA 14 ; (1917) 23 CLR 49; University of London Press v University Tutorial Press [1916] 2 Ch 610; Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1990) 1 Qd.R 231; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 per Heerey, Sundberg and Finkelstein JJ), whether or not the plans or drawings comprising the artistic works exhibit 'artistic quality' ( Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 24 IPR 461; S W Hart &amp; Co. Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466). Originality in this sense means the work of an author not copied from another work ( Walter v Lane [1900] AC 539). When the plans in suit have a genetic footprint in earlier drawings to which the author has had regard, the degree of work, labour, skill, effort and judgment deployed in bringing the plans in suit into existence, must exhibit, as the expression of that effort, visually identifiable changes that make it plain that the drawing is a new artistic work and not simply a copy of the earlier drawings ( Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577).
Case: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465
Outcome: cited
Ultimately, the question to be determined on the issue of originality is one of fact and degree in every case ( G.A. Cramp &amp; Sons Limited v Frank Smythson Limited [1944] A.C. 329 at 335) as to whether the author of each work has deployed a sufficient level of skill, work, labour, care, concentration, analysis or effort so as to bring into existence a work in which copyright subsists ( Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at 476477; Sands &amp; McDougall Pty Ltd v Robinson [1917] HCA 14 ; (1917) 23 CLR 49; University of London Press v University Tutorial Press [1916] 2 Ch 610; Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1990) 1 Qd.R 231; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 per Heerey, Sundberg and Finkelstein JJ), whether or not the plans or drawings comprising the artistic works exhibit 'artistic quality' ( Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 24 IPR 461; S W Hart &amp; Co. Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466). Originality in this sense means the work of an author not copied from another work ( Walter v Lane [1900] AC 539). When the plans in suit have a genetic footprint in earlier drawings to which the author has had regard, the degree of work, labour, skill, effort and judgment deployed in bringing the plans in suit into existence, must exhibit, as the expression of that effort, visually identifiable changes that make it plain that the drawing is a new artistic work and not simply a copy of the earlier drawings ( Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577). 182 Although I have found that the respondent made conscious use of the applicant's new 4 in 1 bucket and has consciously copied components of the bucket, the court must be satisfied that the respondent reproduced each of the applicant's drawings or a substantial part of them. The test of reproduction is whether there is a sufficient degree of objective similarity between the applicant's drawings and the respondent's drawings ( Francis Day &amp; Hunter Ltd v Bron [1963] Ch. 587 at p 614 per Wilmer LJ; S W Hart &amp; Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 at 472 per Gibbs CJ; CIPEC v First Melbourne Securities Pty Ltd [1999] FCA 660 ; (1999) 44 IPR 512 [52] per Merkel J). The question of what amounts to substantial reproduction in any case is not capable of precise definition and is a matter of fact and degree ( Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at p 473 per Lord Evershed). The question of reproduction is a separate question from causal use and causal copying although the two overlap ( Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 per Heerey, Sundberg and Finkelstein JJ [27]).
Case: Sands &amp; McDougall Pty Ltd v Robinson [1917] HCA 14 ; (1917) 23 CLR 49
Outcome: cited
Ultimately, the question to be determined on the issue of originality is one of fact and degree in every case ( G.A. Cramp &amp; Sons Limited v Frank Smythson Limited [1944] A.C. 329 at 335) as to whether the author of each work has deployed a sufficient level of skill, work, labour, care, concentration, analysis or effort so as to bring into existence a work in which copyright subsists ( Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at 476477; Sands &amp; McDougall Pty Ltd v Robinson [1917] HCA 14 ; (1917) 23 CLR 49; University of London Press v University Tutorial Press [1916] 2 Ch 610; Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1990) 1 Qd.R 231; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 per Heerey, Sundberg and Finkelstein JJ), whether or not the plans or drawings comprising the artistic works exhibit 'artistic quality' ( Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 24 IPR 461; S W Hart &amp; Co. Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466). Originality in this sense means the work of an author not copied from another work ( Walter v Lane [1900] AC 539). When the plans in suit have a genetic footprint in earlier drawings to which the author has had regard, the degree of work, labour, skill, effort and judgment deployed in bringing the plans in suit into existence, must exhibit, as the expression of that effort, visually identifiable changes that make it plain that the drawing is a new artistic work and not simply a copy of the earlier drawings ( Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577).
Case: University of London Press v University Tutorial Press [1916] 2 Ch 610
Outcome: cited
Ultimately, the question to be determined on the issue of originality is one of fact and degree in every case ( G.A. Cramp &amp; Sons Limited v Frank Smythson Limited [1944] A.C. 329 at 335) as to whether the author of each work has deployed a sufficient level of skill, work, labour, care, concentration, analysis or effort so as to bring into existence a work in which copyright subsists ( Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 at 476477; Sands &amp; McDougall Pty Ltd v Robinson [1917] HCA 14 ; (1917) 23 CLR 49; University of London Press v University Tutorial Press [1916] 2 Ch 610; Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1990) 1 Qd.R 231; Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd [1999] FCA 1371 per Heerey, Sundberg and Finkelstein JJ), whether or not the plans or drawings comprising the artistic works exhibit 'artistic quality' ( Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 24 IPR 461; S W Hart &amp; Co. Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466). Originality in this sense means the work of an author not copied from another work ( Walter v Lane [1900] AC 539). When the plans in suit have a genetic footprint in earlier drawings to which the author has had regard, the degree of work, labour, skill, effort and judgment deployed in bringing the plans in suit into existence, must exhibit, as the expression of that effort, visually identifiable changes that make it plain that the drawing is a new artistic work and not simply a copy of the earlier drawings ( Interlego AG v Croner Trading Pty Ltd (1992) 111 ALR 577).