mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: RAIA Insurance Brokers Ltd v FAI General Insurance Ltd (1993) 41 FCR 164
Outcome: cited
Creative asserted that the ordinary reasonable person would read new condition 6 as simply meaning that it would be applied if the purchaser who sought to sell on eBay or otherwise was caught. It may be that, as a matter of practicality, that is how the condition operates. But the threat which new condition 6 conveys on an ordinary reasonable reading by a member of the public is that the person who sells a ticket having obtained it from Creative, whether by direct purchase or donation or otherwise, will be discovered: RAIA Insurance Brokers Ltd v FAI General Insurance Ltd (1993) 41 FCR 164 at 172-175 per Beaumont and Spender JJ. The implication conveyed by new condition 6 is quite clear. It is that Creative has the means of detecting a sale, will discover it, and will cancel the relevant ticket. Moreover, that is just what Ms McBeath and Mr Lees did with Ms Row's ticket, without the slightest enquiry as to whether she fell within what Creative's senior counsel later submitted was the proper construction of this condition. I am satisfied that the way in which Creative, through Ms McBeath and Mr Lees, interpreted new condition 6 is the natural and ordinary meaning of that condition which an ordinary reasonable member of the public would understand. Moreover, it was the construction on which Creative has acted. 73 Here, Creative has purported to use new condition 6 in a way it says ordinary reasonable members of the public would not understand it to operate. I reject Creative's argument. It is seeking to have its cake and eat it too. By its conduct in choosing the wording and distributing new condition 6 on the tickets for the Big Day Out 2007, Creative has conveyed, in substance, a representation that Creative is legally entitled to and will detect and cancel any ticket for any Big Day Out 2007 festival which is resold by anyone for profit. And the effect of that conduct is also to convey a representation that the holder of any ticket which is resold for profit will be refused entry to the Big Day Out 2007 festival for which it was issued. 74 Creative accepted, by its 'if we catch you' argument, that it could not detect all resales at a profit. Indeed, Ms McBeath's evidence was that Creative could not cancel tickets which had been sold on eBay unless it could identify the ticket number. She said that was '... because we can't trace every ticket'. It follows that Creative did not have reasonable grounds, to make the representation that every ticket resold for profit would be cancelled.
Case: Sydney Corporation v West [1965] HCA 68 ; (1965) 114 CLR 481
Outcome: followed
Where a ticket or other document is intended by the issuer to contain terms of the contract such as an exemption clause or a foreign jurisdiction clause or other special condition, the issuer cannot rely on those terms unless, at the time of contract, it did all that was reasonably necessary to bring the terms to the other party's attention: Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 228-229 per Brennan J; MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55 ; (1975) 133 CLR 125 at 137 per Stephen J, 143 per Jacobs J; Sydney Corporation v West [1965] HCA 68 ; (1965) 114 CLR 481 at 485 per Barwick CJ and Taylor J; see too at 503 per Windeyer J.
Case: Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163
Outcome: cited
In Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 at 170D, Lord Denning MR gave his well known example of the need for a prominent prompt such as a red hand pointing to an exemption clause, which would draw a purchaser's attention to it. If the Ticketmaster online contract was entered into in writing on the webpages, it is impossible to incorporate the terms on the ticket by reference because the purchasers are told that the ticket would be sent to them some time later. Thus, in the case of the many thousands of people who purchased tickets through Ticketmaster online on 13 October 2006 for the Sydney concert, the tickets would only be sent to them over six weeks later in circumstances where there was no suggestion on Ticketmaster's webpages that there would be any contractual restriction on the capacity of a purchaser to sell the ticket. 61 After 16 November 2006, following complaints brought by eBay in these proceedings, Creative sought to have all its selling agents at retail premises other than Ticketmaster, display a notice which, among other things, set out either on A4 or A3 pages the conditions of sale which were on the back of the ticket. There, new condition 6 was printed in red type, mindful of what Lord Denning MR had said in Thornton [1971] 2 QB at 170D. This device was effective for tickets purchased after 16 November 2006, as a matter of contractual analysis, to bring to a purchaser's attention the existence of the limitation in the condition of sale which was sought to be imposed as a contractual term. There is no evidence as to how many people since 16 November 2006 bought tickets over the counter at retailers in circumstances where the notice will have been effective to make the seven conditions of sale actual conditions of the contract of purchase of the ticket. 62 It is, however, still a feature of Creative's argument, that new condition 6 bound only the actual purchaser, not the person or persons who may have had tickets bought for them by that purchaser, unless the purchaser could be characterised as an agent of the others for the purchaser. 63 The four different principal methods of sale involved the creation of a number of different types of contract, with different incidents at different times. In the example just given of an over the counter sale by a retailer, a sale on 15 November may have brought about a different contract to one which was made on 16 November. Nonetheless, the ticket that is purchased in either transaction will look exactly the same to third parties into whose hands it may come.
Case: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: applied
eBay contends that a contract in writing was made on the terms displayed on the Online Fulfilment website. eBay argues the contract was, in effect, signed electronically by the purchaser through his or her clicking on the relevant buttons agreeing to the terms and conditions, making payment and receiving the webpage and email confirmations of the order. On this analysis the contract was signed and completed after the payment and nominated purchaser details were accepted. The terms of the signed contract were those set out in the webpages detailing the terms and conditions in accordance with Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165. 25 eBay argues that, objectively, a reasonable person in the position of the parties would have concluded that terms and conditions upon which the ticket was sold to the purchaser were those repeated five times throughout the process on the different webpages. These incorporated old condition 6. The ticket that was delivered in consequence of a transaction occurring online before 8 November 2006, however, contained new condition 6 which eBay says can have no contractual force or effect because it had been added without agreement after the contract was made. Thus, eBay says, in addition to the other inaccuracies it claims, the ticket in such cases is misleading because of its different terms and it conveys a false representation that new condition 6 is a part of the contract. 26 Creative contends that new condition 6 is merely a statement in different language to the same force and effect of old condition 6 and has no difference in substance. 49 The Ticketmaster online purchase was a contract in writing signed by the parties. By clicking on the relevant buttons and, by the computer bringing up all terms needed to purchase a ticket, on behalf of Ticketmaster as agent for Creative, the whole transaction was in writing, signed and agreed by the parties. A reasonable person in the position of the parties would have regarded the transaction completed on Ticketmasters' webpage as the contract: Toll (FCGT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165.
Case: Australian Competition and Consumer Commission v Rana [2008] FCA 374
Outcome: followed
maximum penalty of 12 months' imprisonment reflects Parliament's view that "the provision of false information in response to a s 155 notice is a serious offence"; see Australian Competition and Consumer Commission v GIA Pty Ltd [2002] FCA 1298 at [19] per Heerey J, see also Australian Competition and Consumer Commission v Rana [2008] FCA 374 at [50] per North J. Considerations relevant to penalty Having regard to the importance of general deterrence, as stressed by Lindgren J in Neville , and the ameliorating factors referred to at [22] above, I consider that a monetary penalty between mid-range and high range should be imposed. The charge is too serious to warrant the imposition of a conditional discharge under s 19B(1) of the Crimes Act in respect of Mr Clarke. To do so would be inconsistent with the approach adopted by this Court in Neville, GIA and Rana . The disqualification of Mr Clarke from managing another corporation under s 206B of the Corporations Act 2001 (Cth) is a matter which Mr Clarke should have had regard to before committing the offence.
Case: Australian Competition and Consumer Commission v Neville [2007] FCA 1583
Outcome: followed
factors referred to in the preceding paragraph weigh in favour of a reduction in penalty from the high range to a range in excess of a mid-range penalty but below that of a high range penalty. However, as Lindgren J said in Australian Competition and Consumer Commission v Neville [2007] FCA 1583 at [43] : an important purpose of the penalty to be imposed in the present case is that of general deterrence. It is most important that persons furnishing information or giving evidence in response to a notice issued by the ACCC under s 155 of the TP Act do so frankly and honestly. It serves the public interest that the ACCC be enabled to carry out its investigations efficiently and effectively. Section 155 of the TP Act is directed to that end. If a person who is required to give evidence under s 155(1)(c) of the TP Act gives false or misleading evidence, not only does this have the immediate effect of obstructing and delaying the particular investigation: it also has the potential to direct the ACCC away from other sources of information and to draw human and financial resources away from its other work. The general public should know that conduct of that kind will be treated seriously by the Court. Specific deterrence is not a central consideration as I am confident that Mr Clarke will not re-offend. Having regard to the importance of general deterrence, as stressed by Lindgren J in Neville , and the ameliorating factors referred to at [22] above, I consider that a monetary penalty between mid-range and high range should be imposed. The charge is too serious to warrant the imposition of a conditional discharge under s 19B(1) of the Crimes Act in respect of Mr Clarke. To do so would be inconsistent with the approach adopted by this Court in Neville, GIA and Rana . The disqualification of Mr Clarke from managing another corporation under s 206B of the Corporations Act 2001 (Cth) is a matter which Mr Clarke should have had regard to before committing the offence.
Case: Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349
Outcome: referred to
a fine of $5,600 will be imposed on Narnia and fine of $1,400 will be imposed on Mr Clarke. I would have ordinarily imposed a penalty of $7,000 on Narnia but have reduced that amount by $1,400 to reflect the penalty imposed on Mr Clarke. I have done so given that Narnia was, in practical terms, Mr Clarke's alter ego. One must be careful to avoid what is, in effect, double punishment of a sole director of a company; see Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) [2002] FCA 1349 at [27] [29] per Heerey J. The penalties are to be paid into the Consolidated Revenue Fund on or before 20 May 2009. It is agreed that the defendants should pay the prosecutor's costs of the proceeding. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 23 April 2009 Counsel for the Prosecutor: Mr I Faulkner SC with Mr I Arendt Solicitor for the Prosecutor: Commonwealth DPP Counsel for the Defendants: Mr D Barclay Solicitor for the Defendants: Page Seager Date of Hearing: 22 April 2009 Date of Judgment: 22 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/395.html
Case: Australian Competition and Consumer Commission v GIA Pty Ltd [2002] FCA 1298
Outcome: followed
maximum penalty of 12 months' imprisonment reflects Parliament's view that "the provision of false information in response to a s 155 notice is a serious offence"; see Australian Competition and Consumer Commission v GIA Pty Ltd [2002] FCA 1298 at [19] per Heerey J, see also Australian Competition and Consumer Commission v Rana [2008] FCA 374 at [50] per North J. Considerations relevant to penalty In GIA , Heerey J considered that a mid-range penalty was appropriate because the relevant conduct was "more a matter of minimisation and evasion than denial or the laying of a false trail"; at [19]. In the current case, the conduct was in the nature of denial and the laying of a false trail. The nature and circumstances of each offence make it a serious transgression for Narnia and Mr Clarke respectively; see s 16A(2)(a) of the Crimes Act which requires the Court to take into account the "nature and circumstances of the offence". On the face of the conduct, the offence by each defendant should attract a high range monetary penalty. I accept that it would not be appropriate in all the circumstances to imprison Mr Clarke, especially given that he has pleaded guilty and has no prior convictions. The applicable considerations in amelioration of penalty in the current circumstances include the following:
Case: Australian Securities and Investments Commission v Ludgates Corporate and Advisory Services Pty Ltd [2003] FCA 1368
Outcome: applied
Insofar as the application by the Receiver is made under s 424 of the Corporations Act , the relevant principles are not in dispute: see Re One.Tel Networks Holdings Pty Ltd (Hall as rec and mgr) [2001] NSWSC 1065 ; (2001) 40 ACSR 83 at 90. Moreover, in so far as the Receiver makes the application under O 26 r 7 of the Rules, the Court has power to approve the Receiver entering into the Deed: University of Western Australia v Gray (No 6) [2006] FCA 1825 at [66] ; Australian Securities and Investments Commission v Ludgates Corporate and Advisory Services Pty Ltd [2003] FCA 1368 at [23] .
Case: Bell Group Ltd (in liq), Re [2009] WASC 235
Outcome: cited
By reason of the issues raised in the underlying substantive proceedings, I accept the submission of the Receiver that it was appropriate for him to bring the matter before the Court: Re Bell Group Ltd (in liq) [2009] WASC 235. First, the Receiver trading the Business at the Premises itself is contentious. However, the approval does not determine the disputed issues in the underlying substantive proceedings, which primarily relate to the entitlement to the assets and undertaking of the Company: cf MTM Funds Management Ltd v Cavalane Holdings Pty Ltd [2000] NSWSC 922 ; (2000) 158 FLR 121 at [17] ; Re Bell Group Ltd (in liq) [2009] WASC 235 ; Re Mento Developments (Aust) Pty Ltd (ACN 005 862 457) (in liq) (2009) 73 ACSR 622 at [49]. As the Receiver submitted, if the Receiver is permitted to trade and does so successfully, the assets and undertaking of the Company will be protected or preserved and possibly enhanced: s 57 of the Federal Court of Australia Act 1976 (Cth) and Martyniuk v King [2000] VSC 319 at [15] .
Case: Empire (Aust) Nominees Pty Ltd v Vince (2000) 18 ACLC 738
Outcome: cited
Accordingly, if a liquidator, or in this case the Receiver, wishes to enter into a longer term agreement on behalf of a company, they must seek the Court's approval before entering into such an agreement: Empire (Aust) Nominees Pty Ltd v Vince (2000) 18 ACLC 738 at 741.
Case: Martyniuk v King [2000] VSC 319
Outcome: cited
By reason of the issues raised in the underlying substantive proceedings, I accept the submission of the Receiver that it was appropriate for him to bring the matter before the Court: Re Bell Group Ltd (in liq) [2009] WASC 235. First, the Receiver trading the Business at the Premises itself is contentious. However, the approval does not determine the disputed issues in the underlying substantive proceedings, which primarily relate to the entitlement to the assets and undertaking of the Company: cf MTM Funds Management Ltd v Cavalane Holdings Pty Ltd [2000] NSWSC 922 ; (2000) 158 FLR 121 at [17] ; Re Bell Group Ltd (in liq) [2009] WASC 235 ; Re Mento Developments (Aust) Pty Ltd (ACN 005 862 457) (in liq) (2009) 73 ACSR 622 at [49]. As the Receiver submitted, if the Receiver is permitted to trade and does so successfully, the assets and undertaking of the Company will be protected or preserved and possibly enhanced: s 57 of the Federal Court of Australia Act 1976 (Cth) and Martyniuk v King [2000] VSC 319 at [15] .
Case: Mento Developments (Aust) Pty Ltd (ACN 005 862 457) (in liq), Re (2009) 73 ACSR 622
Outcome: cited
By reason of the issues raised in the underlying substantive proceedings, I accept the submission of the Receiver that it was appropriate for him to bring the matter before the Court: Re Bell Group Ltd (in liq) [2009] WASC 235. First, the Receiver trading the Business at the Premises itself is contentious. However, the approval does not determine the disputed issues in the underlying substantive proceedings, which primarily relate to the entitlement to the assets and undertaking of the Company: cf MTM Funds Management Ltd v Cavalane Holdings Pty Ltd [2000] NSWSC 922 ; (2000) 158 FLR 121 at [17] ; Re Bell Group Ltd (in liq) [2009] WASC 235 ; Re Mento Developments (Aust) Pty Ltd (ACN 005 862 457) (in liq) (2009) 73 ACSR 622 at [49]. As the Receiver submitted, if the Receiver is permitted to trade and does so successfully, the assets and undertaking of the Company will be protected or preserved and possibly enhanced: s 57 of the Federal Court of Australia Act 1976 (Cth) and Martyniuk v King [2000] VSC 319 at [15] .
Case: Mineral Securities Australia Ltd (in liq), Re [1973] 2 NSWLR 207
Outcome: applied
The Receiver has exercised his own commercial judgment in deciding whether to enter into the Deed. The Receiver does not seek, and the Court will not provide, advice on the question of his own commercial judgment: Re Mineral Securities Australia Ltd (in liq) [1973] 2 NSWLR 207 at 231-2; Re One.Tel Networks Holdings Pty Ltd (Hall as rec and mgr) [2001] NSWSC 1065 ; (2001) 40 ACSR 83 at 91.
Case: MTM Funds Management Ltd v Cavalane Holdings Pty Ltd [2000] NSWSC 922 ; (2000) 158 FLR 121
Outcome: cited
By reason of the issues raised in the underlying substantive proceedings, I accept the submission of the Receiver that it was appropriate for him to bring the matter before the Court: Re Bell Group Ltd (in liq) [2009] WASC 235. First, the Receiver trading the Business at the Premises itself is contentious. However, the approval does not determine the disputed issues in the underlying substantive proceedings, which primarily relate to the entitlement to the assets and undertaking of the Company: cf MTM Funds Management Ltd v Cavalane Holdings Pty Ltd [2000] NSWSC 922 ; (2000) 158 FLR 121 at [17] ; Re Bell Group Ltd (in liq) [2009] WASC 235 ; Re Mento Developments (Aust) Pty Ltd (ACN 005 862 457) (in liq) (2009) 73 ACSR 622 at [49]. As the Receiver submitted, if the Receiver is permitted to trade and does so successfully, the assets and undertaking of the Company will be protected or preserved and possibly enhanced: s 57 of the Federal Court of Australia Act 1976 (Cth) and Martyniuk v King [2000] VSC 319 at [15] .
Case: One.Tel Networks Holdings Pty Ltd (Hall as rec and mgr), Re [2001] NSWSC 1065 ; (2001) 40 ACSR 83
Outcome: applied
Insofar as the application by the Receiver is made under s 424 of the Corporations Act , the relevant principles are not in dispute: see Re One.Tel Networks Holdings Pty Ltd (Hall as rec and mgr) [2001] NSWSC 1065 ; (2001) 40 ACSR 83 at 90. Moreover, in so far as the Receiver makes the application under O 26 r 7 of the Rules, the Court has power to approve the Receiver entering into the Deed: University of Western Australia v Gray (No 6) [2006] FCA 1825 at [66] ; Australian Securities and Investments Commission v Ludgates Corporate and Advisory Services Pty Ltd [2003] FCA 1368 at [23] . 13 The Receiver has exercised his own commercial judgment in deciding whether to enter into the Deed. The Receiver does not seek, and the Court will not provide, advice on the question of his own commercial judgment: Re Mineral Securities Australia Ltd (in liq) [1973] 2 NSWLR 207 at 231-2; Re One.Tel Networks Holdings Pty Ltd (Hall as rec and mgr) [2001] NSWSC 1065 ; (2001) 40 ACSR 83 at 91.
Case: University of Western Australia v Gray (No 6) [2006] FCA 1825
Outcome: cited
Insofar as the application by the Receiver is made under s 424 of the Corporations Act , the relevant principles are not in dispute: see Re One.Tel Networks Holdings Pty Ltd (Hall as rec and mgr) [2001] NSWSC 1065 ; (2001) 40 ACSR 83 at 90. Moreover, in so far as the Receiver makes the application under O 26 r 7 of the Rules, the Court has power to approve the Receiver entering into the Deed: University of Western Australia v Gray (No 6) [2006] FCA 1825 at [66] ; Australian Securities and Investments Commission v Ludgates Corporate and Advisory Services Pty Ltd [2003] FCA 1368 at [23] .