mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449
Outcome: followed
As the Tribunal noted, a classifier of goods for the purpose of a customs tariff must look objectively at the goods in their condition as imported in order to identify objectively their classification for duty: Chinese Food and Wine Supplies v Collector of Customs (Vic) (1987) 72 ALR 591 at 599 per Lockhart J with whom Woodward and Ryan JJ agreed. The subjective intention of the manufacturer, exporter or importer is not relevant to this task. In Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449 at 463, Morling and Wilcox JJ said that the classification of goods for tariff purposes was a practical, 'wharf-side' task. Morling and Wilcox JJ also said that the classifier had to consider the characteristics of the goods themselves as they would present to an informed observer. The heart of the exercise is to determine the essential character of the goods by reference to their state or condition at the time of importation ( Times Consultants 16 FCR at 462). Barton J said in Chandler &amp; Co v Collector of Customs [1907] HCA 81 ; (1907) 4 CLR 1719 at 1729: '... the dutiable classification of an imported article must be ascertained by an examination of the article itself, in the condition in which it is imported.' 38 As noted above, there were many references in the evidence about particular views of what an orthosis could be called. The Tribunal did not need to go through each of these explaining its conclusions about them. Its task, as the classifier, was to examine the goods in the condition in which they were imported and form its assessment of their essential character as an informed observer: Chandler 4 CLR at 1729 per Barton J; Times Consultants 16 FCR at 462 per Morling and Wilcox JJ.
Case: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: applied
CJ, Hayne and Heydon JJ returned to the question in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 ( Butcher ) at [36]-[37]: The relevant class addressed. Questions of allegedly misleading conduct, including questions as to what the conduct was, can be analysed from two points of view. One is employed in relation to "members of a class to which the conduct in question [is] directed in a general sense". The other, urged by the purchasers here, is employed where the objects of the conduct are "identified individuals to whom a particular misrepresentation has been made ..."; they are considered quite apart from any class into which they fall. Adoption of the former point of view requires isolation by some criterion or criteria of a representative member of the class ... The former approach is common when remedies other than those conferred by s 82 (or s 87) of the Act are under consideration. But the former approach is inappropriate, and the latter is inevitable, in cases like the present, where monetary relief is sought by a plaintiff who alleges that a particular representation was made to identifiable persons, of whom the plaintiff was one. The present case requires what in Butcher their Honours called the former approach looking at the impugned conduct through the eyes of members of the class to which it was directed in a general sense. Polaris is not complaining that it was misled by the representations in the comparison report. It is worried that whoever might have received the report could be misled. Thus it is necessary to identify the class of persons who, having received the report, are likely to be influenced by it. The market for noise suppression devices of the kind referred to in the report consists of businesses which conduct call centres in Australia. Telstra is one such business. Mr Gherbaz, Plantronics' managing director, said the M15D was being developed for both the forthcoming Telstra RFT and for the general market. The comparison report was intended to be used and was used for the general market as well as to assist Plantronics in relation to the tender. He said the potential readers of the report would be Occupational Health and Safety (OH&amp;S) managers in organisations and call centre managers. They were the officers with whom Plantronics would deal in connection with enquiries about its devices and sales of them. Thus it was the OH&amp;S manager of Westpac who enquired of Mr Gherbaz about its products and what path to go down. He sent her a copy of the report. The report was not made available to the general public.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 159 FCR 397
Outcome: applied
relied on a passage in Mr McNeill's second affidavit in which he said that from his role in leading the design team for the M15D, he was aware that "the limiting regime provided for by limiting mode 3 causes the 125ms RMS speech average for the M15D to be limited to 95dB SPL at the drum reference point". Mr McNeill provided no reasoning or explanation to support this bald assertion. He was not in this affidavit relying on his February 2008 test, which had since his earlier affidavit been subjected to criticism by Mr Fisher. In Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 159 FCR 397 at [108] the Full Court said: unless a witness states in his or her evidence in chief the grounds and reasoning that have led to the opinion, the opinion is valueless. Before the Court can assess the value of an opinion, it must know the facts on which it is based. If the opinion is based on irrelevant facts or facts that are clearly not going to be proved, the opinion is likely to be valueless. It should not be for a cross-examiner to endeavour to elicit the facts or assumptions upon which an opinion is expressed, and it would be unfair to leave such matters to the cross-examiner. Except in a straightforward, uncomplicated case, where the facts are admitted or otherwise readily identified, opinion evidence would normally be rejected under s 135 if the facts or assumptions upon which the opinion is based are not expressly stated. It is for the Court to judge the reliability of, and the weight to be given to, particular evidence. Opinion evidence, like any other evidence, must be comprehensible and reach conclusions that are rationally based. The process of inference or reasoning that leads to conclusions ought to be stated or revealed in a way that enables the conclusions to be tested and a judgment to be made about their reliability and the weight that should be given to them. Polaris urged me to attach no weight to Mr McNeill's statement of his "awareness". This is far from being a "straightforward, uncomplicated case", and the evidence in issue is of central importance to the lowest limiting setting issue. Mr McNeill's assertion amounts to no more than that he knows something because of his expertise. I attach no weight to the assertion. Loudness and intelligibility The difference between the two limiting settings was relied on by Polaris to show that louder sound was being heard on the M15D, which would have enhanced intelligibility compared with the sound heard at a lower level on SoundShield.
Case: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: applied
conduct is misleading or deceptive or likely to mislead or deceive is a question of fact to be determined having regard to the entire context of the conduct including the background of all surrounding circumstances. One of those circumstances, in a case such as the present, is the class of persons to whom the conduct was directed. In Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [103] the whole Court said: Where [the class of consumers] are not identified individuals to whom a particular misrepresentation has been made ... but are members of a class to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion a representative member of that class. The inquiry thus is to be made with respect to this hypothetical individual why the misconception complained of has arisen or is likely to arise if no injunctive relief be granted.
Case: Gardam v George Wills &amp; Co Ltd [1988] FCA 194 ; (1998) 82 ALR 415
Outcome: followed
am satisfied that the report was prepared by Dynamic in consultation with Plantronics. Mr Gherbaz suggested amendments and modifications to the document initially proposed by Dynamic. Plantronics was not a mere conduit for the carriage of information to those who received the report. The recipients would regard Plantronics as having adopted its contents, and thus as having made the representations contained in it. See Gardam v George Wills &amp; Co Ltd [1988] FCA 194 ; (1998) 82 ALR 415 at 427. I did not understand this matter to have been in dispute. I will not at this stage make final orders. I will stand the matter over in order that the parties have an opportunity to consider the orders that should be made to give effect to these reasons, and to deal with the question of costs. If by 25 August 2009 the parties are unable to agree on the orders that should be made, Polaris should within seven days of that date file and serve a notice of the orders it proposes should be made together with an outline of submissions in support thereof, not to exceed five pages in length. Dynamic and Plantronics should each, within seven days of receipt of Polaris' notice and outline, file and serve a notice of the orders it proposes should be made together with an outline of submissions in support thereof, not to exceed five pages in length. I certify that the preceding two hundred and forty-two (242) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 18 August 2009 Counsel for the Applicant: C Golvan SC and S Gatford Solicitor for the Applicant: GSM Lawyers Counsel for the First Respondent: R Kendall QC and M Lapirow Solicitor for the First Respondent: Ebsworth &amp; Ebsworth Counsel for the Second Respondent: P Crennan Solicitor for the Second Respondent: Allens Arthur Robinson Date of Hearing: 14-17, 20-23 April, 25-27 May, 4-5 June 2009 Date of Judgment: 18 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/890.html
Case: CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172
Outcome: cited
It does not appear that either party drew her Honour's attention to the judgment of the High Court in CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172. In that case McHugh, Gummow and Callinan JJ at [102] indicated that the circumstances in which the discretionary power of the Family Court, and by inference the analogous power of the Federal Court, to receive further evidence on appeal should be exercised are to be determined as a matter of statutory construction and ' [t] hat matter should not be approached as if the common law procedures which gave rise to the principles laid down in such authorities as Wollongong Corporation conclusively indicate the proper construction of the statutory provision.' 19 The only reason for referring here to Mr Murdaca's desire to adduce further evidence on his appeal is that the affidavit which he sought to have received in evidence makes reference to his obtaining a stay of execution of the judgment debt and includes as an annexure a copy of the stay order obtained by him. Although the fact and date of the stay order had been established before the Federal Magistrates Court, the content of the affidavit which Mr Murdaca sought to have received in evidence on his appeal could have been seen as throwing light on at least one of the bases on which he sought to have the judgment of the Federal Magistrates Court set aside.
Case: De Robillard v Carver [2007] FCAFC 73
Outcome: cited
Stone J had earlier made an order that the sequestration order against Mr Murdaca's estate be stayed pending the outcome of the appeal to this Court, or further order of the Court, on certain conditions. Those conditions were designed to ensure that the value of Mr Murdaca's interest in a property, which I understand to be his home, was maintained and that he delivered up vacant possession of that property to his trustee in bankruptcy should his appeal be dismissed. I note, incidentally, that her Honour ought not to have been invited to stay the sequestration order (s 37(2) of the Bankruptcy Act 1966 (Cth)). The appropriate order was a stay of proceedings under the sequestration order ( De Robillard v Carver [2007] FCAFC 73 at [125] ). 3 Mr Murdaca has not given vacant possession of the property to his trustee in bankruptcy and has been served with a writ of possession. He now seeks orders allowing him to remain in possession of the property pending the determination of an application made by him to the High Court for special leave to appeal from the judgment of this Court. Presumably, if he obtains special leave to appeal, he will make a further application for an order to maintain the status quo. 4 The appeal to this Court from the judgment of the Federal Magistrates Court was heard by a single judge pursuant to a direction made by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth). The Chief Justice has now directed that the appellate jurisdiction of the Court in relation to the appeal be exercised by a single judge. It seems to me that the order now sought by Mr Murdaca invokes the appellate jurisdiction of the Court in relation to his appeal and thus that I may determine the present application and need not refer it to a Full Court.
Case: Lindholt v Merritt Madden Printing Pty Ltd [2002] FCA 260
Outcome: distinguished
The judgments of the Full Court of the Federal Court in Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572 and of Weinberg J in Lindholt v Merritt Madden Printing Pty Ltd [2002] FCA 260 similarly were not concerned with a situation in which a judgment was stayed between the date of service of a bankruptcy notice and the expiry of the time provided for compliance with the notice.
Case: Makhoul v Barnes (1995) 60 FCR 572
Outcome: cited
In any event, the issue identified above is a question of law capable of being addressed on the evidence that was adduced before the Federal Magistrate. It does not appear that it was argued before his Honour that the dismissal by a Registrar of Mr Murdaca's application to have the bankruptcy notice set aside placed any impediment in the way of his challenging the alleged act of bankruptcy on which the creditor's petition was founded ( Makhoul v Barnes (1995) 60 FCR 572).
Case: Re Dennis; Ex Parte Dennis (1888) 60 LT 348
Outcome: referred to
The authority that should have been drawn to the attention of the Federal Magistrate is Schekeloff; Ex Parte Schekeloff v The Hopkins Group Pty Limited (1989) 22 FCR 407. In that case Burchett J gave consideration to a factual situation relevantly indistinguishable from the present. His Honour concluded that, for the purposes of s 40(1)(g) of the Bankruptcy Act , the time for consideration whether a judgment on which a bankruptcy notice is founded has not been stayed is the time of issue, or at the latest, service of the notice. In reaching this conclusion Burchett J placed considerable weight on Re Dennis; Ex Parte Dennis (1888) 60 LT 348, a decision of the Court of Appeal concerning the service of a garnishee order nisi on the judgment debtor after the service of a bankruptcy notice on him.
Case: Re Frasersmith; Ex Parte J Blackwood &amp; Son Limited (1992) 36 FCR 144
Outcome: referred to
Schekeloff has been referred to in a number of Federal Court judgments with apparent approval, but in none that I have been able to identify has a comparable factual situation been under consideration (see, for example, Re Frasersmith; Ex Parte J Blackwood &amp; Son Limited (1992) 36 FCR 144 (Beaumont J); Re Roberts; Ex Parte Bower (1994) 48 FCR 350 (Einfeld J); Re Johnson; Ex Parte Johnson v Tonkin (1994) 53 FCR 70 (Spender J); Re Sgambellone; Ex Parte Jacques (1994) 53 FCR 275 (Drummond J)).
Case: Re Johnson; Ex Parte Johnson v Tonkin (1994) 53 FCR 70
Outcome: referred to
Schekeloff has been referred to in a number of Federal Court judgments with apparent approval, but in none that I have been able to identify has a comparable factual situation been under consideration (see, for example, Re Frasersmith; Ex Parte J Blackwood &amp; Son Limited (1992) 36 FCR 144 (Beaumont J); Re Roberts; Ex Parte Bower (1994) 48 FCR 350 (Einfeld J); Re Johnson; Ex Parte Johnson v Tonkin (1994) 53 FCR 70 (Spender J); Re Sgambellone; Ex Parte Jacques (1994) 53 FCR 275 (Drummond J)).
Case: Re Moss; Ex parte Tour Finance Ltd [1969] ALR 285
Outcome: distinguished
I turn first to the authorities to which the Federal Magistrate relevantly referred. Re Moss; Ex parte Tour Finance Ltd [1969] ALR 285 is a decision of Gibbs J sitting as the Federal Court of Bankruptcy. The case concerned whether a stay that had been lifted before the issue of a bankruptcy notice nonetheless prevented the judgment from being described in the bankruptcy notice as a judgment 'the execution of which had not been stayed' . His Honour concluded that it did not. It was in that context that Gibbs J described the time of the issue or the service of the notice as the critical time for the purpose of s 41(3)(b) of the Bankruptcy Act .
Case: Re Roberts; Ex Parte Bower (1994) 48 FCR 350
Outcome: referred to
Schekeloff has been referred to in a number of Federal Court judgments with apparent approval, but in none that I have been able to identify has a comparable factual situation been under consideration (see, for example, Re Frasersmith; Ex Parte J Blackwood &amp; Son Limited (1992) 36 FCR 144 (Beaumont J); Re Roberts; Ex Parte Bower (1994) 48 FCR 350 (Einfeld J); Re Johnson; Ex Parte Johnson v Tonkin (1994) 53 FCR 70 (Spender J); Re Sgambellone; Ex Parte Jacques (1994) 53 FCR 275 (Drummond J)).
Case: Re Sgambellone; Ex Parte Jacques (1994) 53 FCR 275
Outcome: referred to
Schekeloff has been referred to in a number of Federal Court judgments with apparent approval, but in none that I have been able to identify has a comparable factual situation been under consideration (see, for example, Re Frasersmith; Ex Parte J Blackwood &amp; Son Limited (1992) 36 FCR 144 (Beaumont J); Re Roberts; Ex Parte Bower (1994) 48 FCR 350 (Einfeld J); Re Johnson; Ex Parte Johnson v Tonkin (1994) 53 FCR 70 (Spender J); Re Sgambellone; Ex Parte Jacques (1994) 53 FCR 275 (Drummond J)).
Case: Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572
Outcome: distinguished
The judgments of the Full Court of the Federal Court in Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572 and of Weinberg J in Lindholt v Merritt Madden Printing Pty Ltd [2002] FCA 260 similarly were not concerned with a situation in which a judgment was stayed between the date of service of a bankruptcy notice and the expiry of the time provided for compliance with the notice.
Case: House v R [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
In relation to Ms George's submissions concerning her lack of preparedness for trial commencing 8 December 2008, I understand that the relevant issues before his Honour were as to, inter alia , further discovery and further issues to be raised by Ms George. Ms George has raised before me other matters including as to calling witnesses and adducing additional evidence. However in relation to the decision of his Honour I am unable to identify error in his Honour's approach to the applicant's conduct of her case. Notwithstanding that the applicant claimed that she would not be able to afford to refile the material filed in the Supreme Court of Queensland in the Federal Magistrates Court, I note that his Honour ordered in para 5 of his orders of 18 November 2008 that any documents filed in the Supreme Court proceedings be taken as filed in this proceeding. Whether or not to grant an adjournment of a hearing for lack of readiness of either party is a matter of discretion for the judge, and I am unable to find that his Honour's erred as explained in House v R [1936] HCA 40 ; (1936) 55 CLR 499 in light of his Honour's findings including: &#8226; the fact that the substantive proceedings raised substantially the same issues that had been the subject of pleadings and other interlocutory steps in the Supreme Court proceedings (at [20]); &#8226; the fact that the applicant's cause of action notionally arose at the time of her bankruptcy (at [20]); &#8226; the fact that the applicant had time to prepare her case (at [21]); &#8226; the fact that evidence in the Supreme Court proceedings could be used in the substantive proceedings (at [21]); &#8226; the fact that the rights of the parties had been in contest for some time and the costs to creditors were escalating (at [26]); &#8226; the fact that the bankruptcy of the applicant had almost reached its third anniversary (at [27]).
Case: Ma v Minister for Immigration and Citizenship [2007] FCAFC 69
Outcome: cited
In the reasons that I gave on 9 May 2007, I indicated that I did not consider that there was any error in the reasons of the Federal Magistrates Court. However, because I had not had the advantage of detailed submissions on the question, I adjourned the application for three weeks, in order to give the applicant the opportunity of obtaining legal advice, filing a further draft notice of appeal and making written submission. Since the earlier hearing, my attention has been drawn to a decision of the Full Court given on 11 May 2007 concerning the operation of the relevant regulations: Ma v Minister for Immigration and Citizenship [2007] FCAFC 69. The reasons of the Court in that proceeding tend to support views that have been expressed by judges of the Federal Magistrates Court concerning the operation of Amendment No 8. 4 As I indicated on 9 May, it is perhaps bad luck for the present applicant that his visa was cancelled only shortly before the Regulations were amended. Under the regime that exists, following the amendment, the decision-maker would have a discretion to take into account the circumstances of the applicant that led to his failing to satisfy Condition 8202. However, the language of the transitional provisions is unequivocal. As at the date of the Tribunal's decision, the visa in question had been cancelled. It follows, therefore, that the decision of the Federal Magistrates Court in this proceeding was correct. There is no arguable case that could have been advanced in an amended notice of appeal. There would be no utility in extending the time for filing a notice of appeal. In the circumstances the application must be dismissed with costs. 5 The solicitor for the Minister has asked that I fix the amount of the costs in the sum of $2,400. That is somewhat higher than would normally be expected in relation to an application for an extension of time. The Minister's solicitor assures me that the actual costs exceed that sum. The sum is justified by the nature of the claims made by the applicant in his application for extension of time. That is to say, he asserted that there was a denial of procedural fairness on the part of the Tribunal. That required the Minister to make inquiries and to file evidence, including evidence consisting of the transcript of the proceeding before the Federal Magistrates Court.