mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Turner v The Bulletin Newspaper Co Pty Ltd [1974] HCA 25 ; (1974) 131 CLR 69
Outcome: cited
Although ordinarily a party should be given an opportunity to replead in accordance with the rules ( Turner v The Bulletin Newspaper Co Pty Ltd [1974] HCA 25 ; (1974) 131 CLR 69 per Barwick CJ (Mason J agreeing) at 81; cf Fox Symes at [95]) in my view it would be unjust to the respondents to allow the applicant yet another opportunity to re-plead. In particular I note: &#8226; Greenwood J had earlier dismissed an application by the applicant for interlocutory relief in this matter on the basis that, inter alia , the applicant lacked standing to bring the application, but noted that it was possible that the applicant could formulate a statement of claim involving rights which had not vested in the trustee in bankruptcy ( Rogers v Asset Loan Co Pty Ltd &amp; Ors [2006] FCA 434 at [48] ) &#8226; on 15 June 2006 the applicant filed a Statement of Claim &#8226; on 19 June 2006 the applicant filed an Amended Statement of Claim, although this amended statement of claim was not provided to the respondents until 29 June 2006 when the parties appeared in Court &#8226; when this matter came before me for the notice of motion to be heard on 29 June 2006, it became apparent that the applicant would in fact need to file a further amended statement of claim. I ordered that the applicant be given 21 days in which to file a further amended statement of claim &#8226; the applicant did so in compliance with this order, but then also filed a second further amended statement of claim 10 days later.
Case: Vision Telecommunications Pty Ltd &amp; Ors v Australia and New Zealand Banking Group Ltd [2001] WASC 139
Outcome: cited
The applicant also complains about the failure of the respondents to make payments to him pursuant to a Deed (pars 407-412). Refusal to advance funds in circumstances where a party is obliged to do so clearly falls into the realms of breach of contract: Rivkin &amp; Co Ltd v Young (1996) 22 ACSR 589; Vision Telecommunications Pty Ltd &amp; Ors v Australia and New Zealand Banking Group Ltd [2001] WASC 139 at [73] . There is no evidence before this Court supporting an allegation of breach of contract by the respondents. To the extent that there was such evidence, the claim would vest in the applicant's trustee in bankruptcy.
Case: Von Risefer v Permanent Trustee Company Pty Ltd [2001] FCA 1052
Outcome: cited
In my view no cause of action is disclosed by this Count. Nothing in the pleadings particularises any complaint with respect to the respondents or any of them refusing to lift the caveat as complained in par 683. If there was an issue with respect to the caveat and the respondents acting unlawfully, the New South Wales State Courts would have been the appropriate venue to raise it (cf comments of Dowsett J in Von Risefer v Permanent Trustee Company Pty Ltd [2001] FCA 1052 at [9] ). 124 Further, the applicant does not in his pleadings demonstrate the unequal bargaining positions which make s 51AA relevant. Section 52 appears irrelevant in this context. To the extent that the pleadings raise issues of coercion under s 60 , in my view the cause of action has vested in the trustee in bankruptcy as the facts as pleaded clearly relate to property of the bankrupt. 125 Personal injury is not particularised, and I refer again to my comments concerning Count 1.
Case: Wearne v Southern Cross University [2006] FCA 1033
Outcome: cited
A view has been expressed that the purpose of s 31A is to introduce a lower standard for summary dismissal and strikeouts under O 20 r 2 and O 11 r 6: cf Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 at [5-8] ; Wearne v Southern Cross University [2006] FCA 1033 at [13] and Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441 at [23] . It is unnecessary for me to decide this issue in the context of this matter. In my view the application of the applicant filed 7 April 2006 can be dismissed in accordance with either s 31A Federal Court Act or O 20 r 2 Federal Court Rules , and I should so order. ORDER 1. The proceedings in QUD130/2006 commenced by application filed 7 April 2006 by the applicant be dismissed. 2. The applicant pay the costs of and incidental to the proceedings to be taxed if not agreed. I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 7 December 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: CD Coulsen Solicitor for the Respondent: Whittle Lawyers Date of Hearing: 4 August 2006 Date of Judgment: 7 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1708.html
Case: Wilson v United Counties Bank Ltd [1920] AC 102
Outcome: cited
A claim in respect of defamation of the injured party so far as it concerns his credit, character and reputation remains with the injured party as it relates to a personal injury: ex parte Vine in re Wilson (1878) 8 Ch D 364, Wilson v United Counties Bank Ltd [1920] AC 102 at 111 and 128, Holmes v Goodyear Tyre &amp; Rubber Co (Aust) Ltd (1984) 55 ALR 594. If this did give rise to a cause of action (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be in the State courts. 107 At best, the only cause of action I can identify from this Count is a possible defamation action by the applicant against the respondents (pars 619-622). As I explained earlier in this judgment in relation to Count 8, a claim in respect of defamation remains with the injured party as it relates to a personal injury: ex parte Vine in re Wilson; Wilson v United Counties Bank Ltd ; Holmes v Goodyear Tyre &amp; Rubber Co (Aust) Ltd . If this did give rise to a cause of action (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be in the State courts. 112 As I explained earlier in this judgment in relation to Count 8, a claim in respect of defamation remains with the injured party as it relates to a personal injury: ex parte Vine in re Wilson; Wilson v United Counties Bank Ltd ; Holmes v Goodyear Tyre &amp; Rubber Co (Aust) Ltd . If this did give rise to a cause of action (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be in the State courts.
Case: Sampi v State of Western Australia [2005] FCA 777
Outcome: cited
On 10 June 2005 I published reasons for judgment finding that native title can be recognised over the traditional lands of the Bardi and Jawi People on the Dampier Peninsular and in the inter-tidal zone and adjacent reefs Sampi v State of Western Australia [2005] FCA 777. On 4 November 2005 I published a draft determination to give effect to those reasons and to deal with some other issues outstanding from the primary judgment Sampi v State of Western Australia (No 2) [2005] FCA 1567.
Case: Sampi v State of Western Australia (No 2) [2005] FCA 1567
Outcome: cited
On 10 June 2005 I published reasons for judgment finding that native title can be recognised over the traditional lands of the Bardi and Jawi People on the Dampier Peninsular and in the inter-tidal zone and adjacent reefs Sampi v State of Western Australia [2005] FCA 777. On 4 November 2005 I published a draft determination to give effect to those reasons and to deal with some other issues outstanding from the primary judgment Sampi v State of Western Australia (No 2) [2005] FCA 1567.
Case: Sampi v State of Western Australia (No 3) [2006] FCA 1716
Outcome: cited
On 30 November 2005 I made a native title determination over the land and waters in which I had found native title to exist. The orders then made expressly excluded, by agreement, certain small freehold areas in respect of which there were ongoing questions not raised at the trial of the action. Those questions were whether they were properly covered by the application and, if so, whether any extinguishment of native title on them could be disregarded because of the operation of s 47A of the Native Title Act 1993 (Cth) (the Act) Sampi v State of Western Australia (No 3) [2005] FCA 1716. 3 On 14 December 2005 programming orders were made for the filing of affidavits and written submissions in relation to the existence of native title on the adjourned areas. The adjourned hearing proceeded on 22 May 2006. For reasons I now publish, I am satisfied that the adjourned areas were not included in the native title application the subject of these proceedings. They can therefore not be included in the native title determination. This does not prevent a separate application for a native title determination being brought in respect of the adjourned areas. Having regard to the evidence taken and facts found in the primary proceedings it would seem that the only issue on a new application is likely to be the application of ss 47A and 47B of the Act to those areas. 4 The orders made on 30 November 2005 included the following as Order A: 'The proceeding stands adjourned by Order of the Court made 25 November 2005 in relation to the following areas which are not included in the Determination Area: (a) those portions of Dampier Location 25 as were comprised in Certificate of Title Volume 1670 Folio 883 when the native title determination application the subject of proceeding WAD 49 of 1998 was made, including Dampier Locations 371, 372, 373, 374, 404 and 405; and (b) the areas comprised in Certificates of Title Volume 1744 Folio 116 (Portion of Dampier Location 19), Volume 1744 Folio 117 (Portion of Dampier Location 69) and Volume 1744 Folio 118 (Dampier Location 21), generally shown on the Maps in Schedule 8.' I attach copies of enlargements of the two adjourned areas within the determination area.
Case: Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344
Outcome: cited
The doctrine of restitution lies in the principle that a party should be restored to the position it was in prior to the payment of money leading to the unjust enrichment of another party. Unjust enrichment may arise in a variety of ways (see: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583; Daly v The Sydney Stock Exchange Limited [1986] HCA 25 ; (1986) 160 CLR 371 at 378-379; National Commercial Banking Corporation of Australia Limited v Batty [1986] HCA 21 ; (1986) 160 CLR 251 at 268; Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344 at 359; Pavey &amp; Matthews Proprietary Limited v Paul [1987] HCA 5 ; (1987) 162 CLR 221 at 227) including total failure of consideration (see: Rowland v Divall [1923] 2 KB 500), or as a result of unconscionable conduct (see: Roxborough and Others v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516 per Gummow J at [70]- [71]).
Case: Brown and Another v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348
Outcome: cited
Division 1 of Part V of the Act provides a general prohibition against misleading and deceptive conduct of corporations in trade and commerce. A breach of this section can result in an order of damages under s 82 of the Act. The characteristics of statements which constitute representations in breach of s 52 of the Act have been considered in numerous decisions, see: Equity Access Pty Ltd v Westpac Banking Corporation and Another (1990) ATPR 40-994 at 50,950; (1989) 16 IPR 431; Brown and Another v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348; Henjo Investments Pty Limited and Others v Collins Marrickville Pty Limited (No 1) (1988) 39 FCR 546; Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 198; Rhone- Poulenc Agrochimie SA and Another v UIM Chemical Services Pty Ltd and Another (1986) 12 FCR 477; Hornsby Building Information Centre Proprietary Limited and Another v Sydney Building Information Centre Limited [1978] HCA 11 ; (1978) 140 CLR 216. To constitute such breach, a statement must be made by a corporation in the course of trade or commerce. The concept of 'in trade or commerce' has been considered by the majority of the High Court in Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 604. Further the intent of the representor is irrelevant (see Hornsby Building Information Centre 140 CLR 228).
Case: Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: cited
Division 1 of Part V of the Act provides a general prohibition against misleading and deceptive conduct of corporations in trade and commerce. A breach of this section can result in an order of damages under s 82 of the Act. The characteristics of statements which constitute representations in breach of s 52 of the Act have been considered in numerous decisions, see: Equity Access Pty Ltd v Westpac Banking Corporation and Another (1990) ATPR 40-994 at 50,950; (1989) 16 IPR 431; Brown and Another v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348; Henjo Investments Pty Limited and Others v Collins Marrickville Pty Limited (No 1) (1988) 39 FCR 546; Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 198; Rhone- Poulenc Agrochimie SA and Another v UIM Chemical Services Pty Ltd and Another (1986) 12 FCR 477; Hornsby Building Information Centre Proprietary Limited and Another v Sydney Building Information Centre Limited [1978] HCA 11 ; (1978) 140 CLR 216. To constitute such breach, a statement must be made by a corporation in the course of trade or commerce. The concept of 'in trade or commerce' has been considered by the majority of the High Court in Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 604. Further the intent of the representor is irrelevant (see Hornsby Building Information Centre 140 CLR 228).
Case: Daly v The Sydney Stock Exchange Limited [1986] HCA 25 ; (1986) 160 CLR 371
Outcome: cited
The doctrine of restitution lies in the principle that a party should be restored to the position it was in prior to the payment of money leading to the unjust enrichment of another party. Unjust enrichment may arise in a variety of ways (see: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583; Daly v The Sydney Stock Exchange Limited [1986] HCA 25 ; (1986) 160 CLR 371 at 378-379; National Commercial Banking Corporation of Australia Limited v Batty [1986] HCA 21 ; (1986) 160 CLR 251 at 268; Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344 at 359; Pavey &amp; Matthews Proprietary Limited v Paul [1987] HCA 5 ; (1987) 162 CLR 221 at 227) including total failure of consideration (see: Rowland v Divall [1923] 2 KB 500), or as a result of unconscionable conduct (see: Roxborough and Others v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516 per Gummow J at [70]- [71]).
Case: Equity Access Pty Ltd v Westpac Banking Corporation and Another (1990) ATPR 40-994 at 50,950; (1989) 16 IPR 431
Outcome: cited
Division 1 of Part V of the Act provides a general prohibition against misleading and deceptive conduct of corporations in trade and commerce. A breach of this section can result in an order of damages under s 82 of the Act. The characteristics of statements which constitute representations in breach of s 52 of the Act have been considered in numerous decisions, see: Equity Access Pty Ltd v Westpac Banking Corporation and Another (1990) ATPR 40-994 at 50,950; (1989) 16 IPR 431; Brown and Another v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348; Henjo Investments Pty Limited and Others v Collins Marrickville Pty Limited (No 1) (1988) 39 FCR 546; Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 198; Rhone- Poulenc Agrochimie SA and Another v UIM Chemical Services Pty Ltd and Another (1986) 12 FCR 477; Hornsby Building Information Centre Proprietary Limited and Another v Sydney Building Information Centre Limited [1978] HCA 11 ; (1978) 140 CLR 216. To constitute such breach, a statement must be made by a corporation in the course of trade or commerce. The concept of 'in trade or commerce' has been considered by the majority of the High Court in Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 604. Further the intent of the representor is irrelevant (see Hornsby Building Information Centre 140 CLR 228).
Case: Findlay &amp; Co Stockbrokers (Underwriters) Pty Limited v Carminco Gold &amp; Resources Limited [2007] FCA 499
Outcome: cited
Initially the respondents defended Findlay Underwriters' claims and a cross-claim was filed by each of them. However, no evidence was filed in support of the cross-claim. On 2 April 2007 Mr Salfinger made an unsuccessful application to adjourn the proceedings on the ground of his illness. The relevant orders relating to the preparation of the matter for hearing and of the Court's decision concerning the application for adjournment are contained in an interlocutory judgment of the Court delivered on 17 April 2007: see Findlay &amp; Co Stockbrokers (Underwriters) Pty Limited v Carminco Gold &amp; Resources Limited [2007] FCA 499. 4 After such judgment was delivered, counsel representing the respondents sought and was granted leave to withdraw. Accordingly the proceedings have been heard undefended. 5 Mr Ivor Findlay is Managing Director of Findlay &amp; Co Stockbrokers Pty Limited ('Findlay Stockbrokers') and Director of Findlay &amp; Co Stockbrokers (Underwriters) Pty Limited ('Findlay Underwriters'). Findlay Stockbrokers conducts a stockbroking business, acting as agent for high net-worth individuals for the buying and selling of shares. Findlay Underwriters conducts a corporate advisory and underwriting business which includes advisory work in respect of capital raising and corporate dealings in matters such as Initial Public Offerings ('IPO'), placement of shares, underwriting, sub-underwriting and other preparatory work necessary for the flotation of a new company.
Case: Henjo Investments Pty Limited and Others v Collins Marrickville Pty Limited (No 1) (1988) 39 FCR 546
Outcome: cited
Division 1 of Part V of the Act provides a general prohibition against misleading and deceptive conduct of corporations in trade and commerce. A breach of this section can result in an order of damages under s 82 of the Act. The characteristics of statements which constitute representations in breach of s 52 of the Act have been considered in numerous decisions, see: Equity Access Pty Ltd v Westpac Banking Corporation and Another (1990) ATPR 40-994 at 50,950; (1989) 16 IPR 431; Brown and Another v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348; Henjo Investments Pty Limited and Others v Collins Marrickville Pty Limited (No 1) (1988) 39 FCR 546; Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 198; Rhone- Poulenc Agrochimie SA and Another v UIM Chemical Services Pty Ltd and Another (1986) 12 FCR 477; Hornsby Building Information Centre Proprietary Limited and Another v Sydney Building Information Centre Limited [1978] HCA 11 ; (1978) 140 CLR 216. To constitute such breach, a statement must be made by a corporation in the course of trade or commerce. The concept of 'in trade or commerce' has been considered by the majority of the High Court in Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 604. Further the intent of the representor is irrelevant (see Hornsby Building Information Centre 140 CLR 228).
Case: Hornsby Building Information Centre Proprietary Limited and Another v Sydney Building Information Centre Limited [1978] HCA 11 ; (1978) 140 CLR 216
Outcome: cited
Division 1 of Part V of the Act provides a general prohibition against misleading and deceptive conduct of corporations in trade and commerce. A breach of this section can result in an order of damages under s 82 of the Act. The characteristics of statements which constitute representations in breach of s 52 of the Act have been considered in numerous decisions, see: Equity Access Pty Ltd v Westpac Banking Corporation and Another (1990) ATPR 40-994 at 50,950; (1989) 16 IPR 431; Brown and Another v Jam Factory Pty Ltd (1981) 53 FLR 340 at 348; Henjo Investments Pty Limited and Others v Collins Marrickville Pty Limited (No 1) (1988) 39 FCR 546; Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 198; Rhone- Poulenc Agrochimie SA and Another v UIM Chemical Services Pty Ltd and Another (1986) 12 FCR 477; Hornsby Building Information Centre Proprietary Limited and Another v Sydney Building Information Centre Limited [1978] HCA 11 ; (1978) 140 CLR 216. To constitute such breach, a statement must be made by a corporation in the course of trade or commerce. The concept of 'in trade or commerce' has been considered by the majority of the High Court in Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 604. Further the intent of the representor is irrelevant (see Hornsby Building Information Centre 140 CLR 228).
Case: I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: cited
It is sufficient for the offending conduct to have been a cause of an applicant's loss or damage and there is no requirement that such conduct was the only cause of an applicant's loss or damage (see: I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109 at 119). 47 Findlay Underwriters relies upon three representations made by the respondents in support of their claim that Carminco and TPM breached the provisions of s 52 of the Act. Additionally Findlay Underwriters relies upon a breach of s 75B of the Act in respect of the conduct of Mr Salfinger. The Court will make its findings in respect of each of the representations relied upon hereunder. 48 Mr Salfinger made oral statements to Mr Findlay and to Mr Vajda concerning the ownership by Trans Pacific Mining Ltd (Carminco) of an option to purchase Summit Lake Mine. The first representation was made orally in a conversation between Mr Salfinger and Mr Vajda wherein Mr Salfinger said words to the effect 'Trans Pacific also has an option to purchase Summit Lake Mine'. Such representation was repeated in meetings with Mr Vajda and Mr Findlay in November 2003. At the latter meeting documents were produced, issued by Trans Pacific Mining Ltd which refer, inter alia, to the Summit Lake Mine in Canada. The following statement appears in relation to such site: 'TPM has negotiated an option to acquire a 100% interest in the mine for C$550,000.'
Case: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583
Outcome: cited
The doctrine of restitution lies in the principle that a party should be restored to the position it was in prior to the payment of money leading to the unjust enrichment of another party. Unjust enrichment may arise in a variety of ways (see: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583; Daly v The Sydney Stock Exchange Limited [1986] HCA 25 ; (1986) 160 CLR 371 at 378-379; National Commercial Banking Corporation of Australia Limited v Batty [1986] HCA 21 ; (1986) 160 CLR 251 at 268; Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344 at 359; Pavey &amp; Matthews Proprietary Limited v Paul [1987] HCA 5 ; (1987) 162 CLR 221 at 227) including total failure of consideration (see: Rowland v Divall [1923] 2 KB 500), or as a result of unconscionable conduct (see: Roxborough and Others v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516 per Gummow J at [70]- [71]).