mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: TNT Management Pty Limited v Brooks (1979) 23 ALR 345
Outcome: referred to
short, the Court is, on the evidence, unable to find that ' there is information available to the employee which has the capacity to distract him or her on voting on the agreement and from considering its actual effect ' (see Karellas No 2 at [54]) without knowing whether the employees knew of the content of the Award. More than mere conjecture is required to establish the facts relied upon in order that the Court might grant relief: see TNT Management Pty Limited v Brooks (1979) 23 ALR 345 per Gibbs CJ at 350; West v Government Insurance Office of NSW at 66. Mr Green's affidavit merely makes reference to the Award without any indication of his knowledge of its contents. This vital aspect is left entirely to speculation. For the above reasons, the claim that the information provided by Luxottica to its employees was misleading thereby failing to provide them a ' reasonable opportunity to decide ' fails. Dilution of votes As a second basis for the claim that the employees were not afforded a ' reasonable opportunity ' it is submitted that the voting power of those at the laboratory would be overwhelmed by the votes of other employees engaged in other activities of Luxottica, namely the distribution warehouse and the retail outlets. That is, their vote would be diluted in consequence of the votes of the other employees.
Case: West v Government Insurance Office of New South Wales [1981] HCA 38 ; (1981) 148 CLR 62
Outcome: referred to
contrary to this finding, the statements were misleading the Court would be required to consider the ' likely effect ' of such misleading statement. The onus of proof in establishing the employees would have been ' distracted ' by such statements or that the ' likely effect ' would have been that employees were misled must be established to the reasonable satisfaction of the Court: see Dixon CJ in Jones v Dunkel and Another [1959] HCA 8 ; (1959) 101 CLR 298 at 304-305, adopted by Stephen, Mason, Aickin and Wilson JJ in West v Government Insurance Office of New South Wales [1981] HCA 38 ; (1981) 148 CLR 62 at 66.
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1
Outcome: cited
In the Court below the appellant advanced five grounds. Ground 1 contended that the Tribunal committed a jurisdictional error in so far as it made findings that were not open on the evidence before it. The appellant submitted that an applicant could not be expected to bring relevant evidence to prove his or her claim when leaving his or her country of origin. The appellant claimed that the Tribunal relied on country information provided by the country from which the appellant had escaped. The Federal Magistrate dismissed this ground. In doing so, the Federal Magistrate began by correctly observing that there exists no onus on the appellant to bring 'evidence in support of the circumstances for his departure from India': Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v QAAH of 2004 [2006] HCA 53 ; (2006) 231 CLR 1 at [40] . The Federal Magistrate held that this was not the substance of the Tribunal's findings when the Tribunal said: The applicant has provided no additional evidence to support his claims at the hearing and in his protection visa application. He has no documentary evidence of his claimed membership of CPI(ML). He has no documentary evidence of his father's approach to the police following the applicant's claimed kidnapping by CPI(M) members. His account at the hearing of his claimed kidnapping was vague both as to its nature and timing. Based on the evidence, the Tribunal is not satisfied that the kidnapping took place as claimed. 7 Whilst there is no onus on the appellant to produce evidence to the Tribunal, the Federal Magistrate correctly observed that 'it is for the applicant to advance evidence or argument that he wishes to be taken into consideration in support of his claim.' The Tribunal's findings were open to it. No jurisdictional error can be established on this issue. 8 Ground 2 contended that the Tribunal erred in law by failing to ask a question that it was required to ask. That was whether the Indian authorities provided a standard of protection that was comparable with international standards. The Federal Magistrate correctly dismissed this ground. The learned Federal Magistrate noted that the real issue was whether the Tribunal addressed the test with respect to the issue of State protection. After citing the relevant passage from the Tribunal's reasons that included advice from the Department of Foreign Affairs and Trade ("DFAT") to the effect that State protection in India is generally provided to persons who feel persecuted due to political reasons, the Tribunal gave him an opportunity to respond to the DFAT advice. The appellant chose not to do so. The Tribunal found that Indian authorities provided adequate and effective State protection, and it was open to it to reach that conclusion. No jurisdictional error exists with respect to this issue.
Case: VFAB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102
Outcome: cited
In respect of the issue of any possible stress or intimidation faced by the appellant, the Federal Magistrate said at [22], '[t]he need to ensure that a person affected by the decision of the Tribunal is accorded procedural fairness will often require that they be plainly confronted with the matters which bear adversely on their credit or which brings their account into question: VFAB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2003) 131 FCR 102 ; [2003] FCA 872. ' The Federal Magistrate correctly dismissed this ground. 11 Ground 4 essentially claimed that the Tribunal did not address the issue of the appellant being kidnapped by his political opponents. The Federal Magistrate cited the segment of the Tribunal's decision dealing with this issue, and correctly dismissed this ground.
Case: Minister for Immigration &amp; Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
Ground 5 stated that the Tribunal, in making its determination, failed to record its decision in accordance with s 430 of the Migration Act 1958 (Cth). The ground contended that the Tribunal failed to record certain findings. The Federal Magistrate cited Minister for Immigration &amp; Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 which considers s 430. Yusuf holds that all that s 430 obliges the Tribunal to do is 'set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.' The learned Federal Magistrate correctly noted at [29] that 'there is no basis to suggest that the Tribunal has not complied with this section of the Act. Contrary to the particulars given to this ground, the Tribunal did not find that the applicant had been persecuted and this was not for a Convention reason. Rather the Tribunal did not accept that the applicant had ever experienced persecution, and found that given the availability of state protection his claimed fears of future harm was not well founded.' Thus, no jurisdictional error can be established in respect of this ground. 13 In his written submissions, the appellant has raised new arguments which were not considered below and which were not specified in his notice of appeal. 14 The appellant claimed that the Tribunal failed to consider whether a liberal Muslim, as such, was at risk of harm from radical Hindus. The appellant did not raise this matter in the Court below. He would not ordinarily be permitted to raise it on appeal as the appeal is from the reasons for judgment of the Federal Magistrate. The Federal Magistrate cannot be considered to have erred in failing to deal with a submission which was not advanced. I refuse leave for the submission to be advanced on appeal as it would be futile to do so. At the hearing before the Tribunal the appellant disavowed any claim to being a refugee based on his religion. He relied entirely on his and his father's political opinion.
Case: British Thomson-Houston Co Limited v British Insulated and Helsby Cables Limited [1924] 2 Ch 160
Outcome: referred to
Allphones also argued that what Mr Lloyd had said in his affidavit could not be read against it. In British Thomson-Houston Co Limited v British Insulated and Helsby Cables Limited [1924] 2 Ch 160 at 164-165 (see also at 170-171 per Atkin LJ) Pollock MR said that affidavits or documents which a party knowingly used as true in a judicial proceeding for the purpose of proving a particular fact are capable of being evidence against that party in subsequent proceedings to prove the same fact. He said that the principle applied in cases where the party adducing the document, whether an affidavit or deposition, knew of its contents beforehand and elected to put it forward in support of the party's case. He referred to what Crompton J had said in Richards v Morgan (1863) 4 B &amp; S 641 at 659, namely: 'It must always be remembered that it is not the obtaining the affidavit or deposition but the making use of it as true with knowledge of the contents, which is the ground on which such evidence is supposed to be receivable.' Cockburn CJ in the same case said (4 B &amp; S at 661): 'It cannot be doubted that a man's assertions are admissions, whether made in the course of a judicial proceeding or otherwise, and, in the former case, whether he was himself a party to such proceeding or not. It may be given in evidence against him in any suit or action in which the fact so asserted or admitted becomes material to the issue to be determined. And in principle, there can be no difference whether the assertion or admission be made by the party himself who is sought to be affected by it, or by someone employed, directed or invited by him to make the particular statement on his behalf. In like manner, a man who brings forward another for the purposes of asserting or proving some fact on his behalf, whether in a court of justice or elsewhere, must be taken himself to assert the fact that he thus seeks to establish.'
Case: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited [2003] HCA 49 ; (2003) 216 CLR 161
Outcome: referred to
I am of opinion that the definition of 'proceeding' in the Federal Court of Australia Act does not affect the construction of 'proceeding' as that term is used in the Evidence Act . I am fortified in this view by the recognition that the Evidence Act itself is procedural in substance. It regulates how evidence is to be received and what is admissible. It does not itself create rights or liabilities. That is why the Act is careful to distinguish between various proceedings and to provide rules for the adducing of evidence in them. In Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited [2003] HCA 49 ; (2003) 216 CLR 161 at 200 [122] and 205 [133] Hayne J (with whom Gleeson CJ and McHugh J agreed) said that the rules governing the admissibility of evidence fall under the expression 'practice and procedure'. Gummow J, with whom Kirby J agreed on this point, said that more substantive rights were involved: Labrador 216 CLR at 173 [33]. Kirby J referred to the assignment of the burden and identification of a standard of proof as being matters which can be of critical importance to the conduct of a trial. They could thereby partake of certain features of practice and procedure, but he also recognised that each was arguably something more than that because each affected, in a way, the very character of the trial. In that case the provisions of the Excise Act 1901 dealt with how matters might be proved: Labrador 216 CLR at 185 [76]. 32 Essentially, whether or not a previous representation amounts to an admission is a question of the law of evidence. That question has the character of a matter of practice or procedure. The Evidence Act regulates the way in which a proceeding is conducted. Of course, the Act applies a particular standard of proof depending on whether the proceedings are civil or criminal and in that way the application of the Act may affect substantive rights. But the substantive operation of the Act applies the practice and procedure apposite to regulate the adducing of evidence on each occasion on which it is tendered. The Act does not create any proceeding in a court. Rather, it provides a procedure to apply to or in an existing cause of action or matter for adducing evidence. 33 Proof of what occurred before Tamberlin J is capable of establishing a fact that occurred on an occasion outside this trial. The interlocutory proceeding was not this trial of the issues between the parties. For these reasons, I am of opinion that what occurred before Tamberlin J did not occur in the course of giving evidence in the proceeding in which it is now sought to tender Mr Lloyd's affidavit. It follows that Mr Lloyd's affidavit is capable of being a previous representation and thus capable of falling within the meaning of 'admission' as a matter of law.
Case: Doe d. Wetherell v Bird (1835) 7 C &amp; P 6
Outcome: applied
It has long been the law that in civil cases a solicitor has implied authority to make admissions receivable by the Court against his or her client during the actual progress of litigation, either for the purposes of dispensing with proof at trial or in certain other respects. Thus formal admissions made by attorneys of both sides at a first trial could be relied on at the second trial after the first verdict had been set aside. Lord Denman CJ said that there was no doubt that the admissions were receivable at the second trial, albeit that they had been made before, and for the purposes of, the first trial: see Doe d. Wetherell v Bird (1835) 7 C &amp; P 6 at 7. And in Langley v Earl of Oxford (1836) 5 LJ Exch 166 at 167, Lord Abinger CB held that an admission to be used at the trial of a cause, whenever it should take place, was admissible. It did not matter that the admission had been made before the first trial. Once made, it could be used at the second trial: see also Phipson, The Law of Evidence (8 th edition, 1942) at p 234.
Case: Dovuro Pty Limited v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317
Outcome: cited
Earlier their Honours had discussed the principles from which these statements were derived. The Court later applied them in Smith v Joyce [1954] HCA 15 ; (1954) 89 CLR 529 at 535-536. There Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ said that it was a question of law whether a statement made by a party to an action is capable of constituting an admission on any relevant issue and that this, in general, must be determined by an examination of the words used: Smith 89 CLR at 535; see too Dovuro Pty Limited v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317 at 340-341 [68] - [71] per Gummow J.
Case: In the matter of Simionato Holdings Pty Limited; Commissioner of Taxation of the Commonwealth of Australia v Simionato Holdings Pty Limited [1997] FCA 125
Outcome: cited
Mansfield J briefly touched on the authority of counsel in separate proceedings to make admissions which affected that counsel's client in In the matter of Simionato Holdings Pty Limited; Commissioner of Taxation of the Commonwealth of Australia v Simionato Holdings Pty Limited [1997] FCA 125. He referred to what Franki J had earlier said in Trade Practices Commission v TNT Management Pty Limited (1984) 56 ALR 647 at 663, namely: 'In general, the passages sought to be tendered as admissions are statements made by counsel appearing in interlocutory matters and intended to be acted upon by the judge. I can see no reason why they should not be regarded as prima facie evidence against the client on whose behalf counsel was addressing the court.' Here, of course, Mr Lloyd's statements were not statements made by counsel addressing a court. Rather, they were statements put forward by him, on behalf of his client, in an affidavit tendered as evidence of the facts.
Case: Langley v Earl of Oxford (1836) 5 LJ Exch 166
Outcome: applied
It has long been the law that in civil cases a solicitor has implied authority to make admissions receivable by the Court against his or her client during the actual progress of litigation, either for the purposes of dispensing with proof at trial or in certain other respects. Thus formal admissions made by attorneys of both sides at a first trial could be relied on at the second trial after the first verdict had been set aside. Lord Denman CJ said that there was no doubt that the admissions were receivable at the second trial, albeit that they had been made before, and for the purposes of, the first trial: see Doe d. Wetherell v Bird (1835) 7 C &amp; P 6 at 7. And in Langley v Earl of Oxford (1836) 5 LJ Exch 166 at 167, Lord Abinger CB held that an admission to be used at the trial of a cause, whenever it should take place, was admissible. It did not matter that the admission had been made before the first trial. Once made, it could be used at the second trial: see also Phipson, The Law of Evidence (8 th edition, 1942) at p 234.
Case: Lloyd v David Syme &amp; Co Ltd [1986] AC 350 ; (1985) 3 NSWLR 728
Outcome: cited
Here, of course, Allphones, being a corporation, can only act by others. It can have no opinions because it has no mind, but it can have attributed to it a state of mind or knowledge based on what those whom it authorises to act on its behalf say or do: Lloyd v David Syme &amp; Co Ltd [1986] AC 350 at 366; (1985) 3 NSWLR 728 at 736 per Lord Keith of Kinkel. For these reasons, I am of opinion that Mr Lloyd was a person whose evidence can be treated as being an admission by Allphones. 37 Next, Allphones argued that the quality of Mr Lloyd's evidence was such that it could not be treated as being an admission of anything. It pointed to the fact that Mr Lloyd did not state his source of knowledge or belief in the affidavit. This is a complaint which does not go to the capacity of the statements to be used as evidence. It merely may go to their weight, albeit that Mr Lloyd's evidence was put forward by Allphones to prove some of the very facts it now says should not be accepted from the same information. The question is whether the representations in pars 7 and 8 are capable of showing that before giving its notice of intention to terminate, Allphones had knowledge of the failure of Hoy Mobile to account for receipts from sales of the unlocked phones. As Allphones pointed out the introductory phrase in par 7 'in or around May 2006' is somewhat vague. It also argued that pars 7 and 8 of the affidavit are vague in relation to the extent of Allphones' knowledge and the circumstances in which it was obtained.
Case: Lustre Hosiery Limited v York [1935] HCA 71 ; (1935) 54 CLR 134
Outcome: referred to
I am of opinion that these criticisms do not prevent their reception into evidence of the representations as admissions. In Lustre Hosiery Limited v York [1935] HCA 71 ; (1935) 54 CLR 134 at 143 to 144 Rich, Dixon, Evatt and McTiernan JJ said: 'This course of authority seems consistent with the view that words or conduct amount to an admission receivable in evidence against the party if they disclose an intention to affirm or acknowledge the existence of a fact whatever be the party's source of information or belief. In determining whether he intends to affirm or acknowledge the state of facts the party's knowledge or source of information may be immaterial or if he states that another person has told him of it and it appears that he has additional sources of information to the like effect it may be right to understand him as implying a belief in what he repeats or again a person who fails to contradict a statement concerning matters within his own knowledge may be understood as acquiescing in the statement if the circumstances are such as to make it unlikely that he'd allow an erroneous statement to pass unchallenged But although the meaning of his words or conduct may depend upon the state of his knowledge once that meaning appears and an intention is disclosed to assert or acknowledge the state of facts its admissibility in evidence as an admission is independent of the party's actual knowledge of the true facts. When admitted in evidence however its probative force must be determined by reference to the circumstances in which it's made and may depend all together upon the party's source of knowledge. If it appears that he had no knowledge or that although he had some means of knowledge he had formed no certain or considered belief and indicated nothing amounting to a personal judgment or conclusion of his own the probative force of the admission may be so small that a jury ought not be allowed to act upon it alone or in preference to opposing evidence.'
Case: Prangley v Evans (1896) 17 LR (NSW) (L) 416
Outcome: applied
In Prangley v Evans (1896) 17 NSWLR 416 at 418, Owen J (with whom Simpson J, citing the above passage from Cockburn CJ in Richards 4 B &amp; S at 661, and Cohen J agreed at 419-420) said: 'A client who uses an affidavit of a solicitor for a particular purpose must be taken to admit statements in the affidavit which are pertinent to the purpose for which the affidavit is prepared. But if there are statements in it that are irrelevant to the purpose for which it is prepared, the client is not bound by those statements.'
Case: Richards v Morgan (1863) 4 B &amp; S 641
Outcome: applied
Allphones also argued that what Mr Lloyd had said in his affidavit could not be read against it. In British Thomson-Houston Co Limited v British Insulated and Helsby Cables Limited [1924] 2 Ch 160 at 164-165 (see also at 170-171 per Atkin LJ) Pollock MR said that affidavits or documents which a party knowingly used as true in a judicial proceeding for the purpose of proving a particular fact are capable of being evidence against that party in subsequent proceedings to prove the same fact. He said that the principle applied in cases where the party adducing the document, whether an affidavit or deposition, knew of its contents beforehand and elected to put it forward in support of the party's case. He referred to what Crompton J had said in Richards v Morgan (1863) 4 B &amp; S 641 at 659, namely: 'It must always be remembered that it is not the obtaining the affidavit or deposition but the making use of it as true with knowledge of the contents, which is the ground on which such evidence is supposed to be receivable.' Cockburn CJ in the same case said (4 B &amp; S at 661): 'It cannot be doubted that a man's assertions are admissions, whether made in the course of a judicial proceeding or otherwise, and, in the former case, whether he was himself a party to such proceeding or not. It may be given in evidence against him in any suit or action in which the fact so asserted or admitted becomes material to the issue to be determined. And in principle, there can be no difference whether the assertion or admission be made by the party himself who is sought to be affected by it, or by someone employed, directed or invited by him to make the particular statement on his behalf. In like manner, a man who brings forward another for the purposes of asserting or proving some fact on his behalf, whether in a court of justice or elsewhere, must be taken himself to assert the fact that he thus seeks to establish.' 35 In Prangley v Evans (1896) 17 NSWLR 416 at 418, Owen J (with whom Simpson J, citing the above passage from Cockburn CJ in Richards 4 B &amp; S at 661, and Cohen J agreed at 419-420) said: 'A client who uses an affidavit of a solicitor for a particular purpose must be taken to admit statements in the affidavit which are pertinent to the purpose for which the affidavit is prepared. But if there are statements in it that are irrelevant to the purpose for which it is prepared, the client is not bound by those statements.'