mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539
Outcome: cited
The requirement to show a 'prima facie case for the relief sought' was expounded in Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. The Court quoted with approval a passage from the judgment of Heerey J in Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 at 390 where his Honour said: '... the requirement of O 8, r 2(2)(c) has to be met at the outset of the proceedingS. It does not suggest the kind of scrutiny that would occur in a submission of no case to answer following the closure of an applicant's case at trial... It may be therefore that a court at this stage might draw inferences more readily in favour of an applicant, bearing in mind, among other things, that the applicant will not have had the advantage of discovery, subpoena and other procedural aids to the making out of a prima facie case at trial.' As I observed in Western Australia v Vetter Trittler Pty Ltd (In liq) (1991) 30 FCR 102 at 110: 'A prima facie case is made out if, on the material before the Court, inferences are open which it translated into findings of fact, would support the relief claimed.' The requirement for a prima facie case is satisfied by demonstration of a prime facie case 'for the relief sought by the party on the proceeding'. Where the relief sought is based upon more than one cause of action, it is sufficient that there is a prima facie case demonstrated for at least one of the causes of action relied upon. In my opinion it is sufficient to say for the moment that a prima facie case within the meaning of O 8 r 2(2)(c) is raised in respect of the cause of action in breach of contract. It is questionable whether there is a prima facie case shown for misleading or deceptive conduct without more than the alleged breach of the promises embodied in the agreements. There is a disquieting confusion about the documentation comprising the written part of the so called Distribution and Confidentiality Agreement made in 1998. Having regard, however, to my conclusions that the proceeding is not one to which O 8 r 1 applies, these are matters which may be able to be addressed by Traxon prior to a renewal of its motion.
Case: Merpro Montass Ltd v Conoco Specialty Products In (1991) 28 FCR 387
Outcome: cited
The requirement to show a 'prima facie case for the relief sought' was expounded in Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. The Court quoted with approval a passage from the judgment of Heerey J in Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 at 390 where his Honour said: '... the requirement of O 8, r 2(2)(c) has to be met at the outset of the proceedingS. It does not suggest the kind of scrutiny that would occur in a submission of no case to answer following the closure of an applicant's case at trial... It may be therefore that a court at this stage might draw inferences more readily in favour of an applicant, bearing in mind, among other things, that the applicant will not have had the advantage of discovery, subpoena and other procedural aids to the making out of a prima facie case at trial.' As I observed in Western Australia v Vetter Trittler Pty Ltd (In liq) (1991) 30 FCR 102 at 110: 'A prima facie case is made out if, on the material before the Court, inferences are open which it translated into findings of fact, would support the relief claimed.' The requirement for a prima facie case is satisfied by demonstration of a prime facie case 'for the relief sought by the party on the proceeding'. Where the relief sought is based upon more than one cause of action, it is sufficient that there is a prima facie case demonstrated for at least one of the causes of action relied upon. In my opinion it is sufficient to say for the moment that a prima facie case within the meaning of O 8 r 2(2)(c) is raised in respect of the cause of action in breach of contract. It is questionable whether there is a prima facie case shown for misleading or deceptive conduct without more than the alleged breach of the promises embodied in the agreements. There is a disquieting confusion about the documentation comprising the written part of the so called Distribution and Confidentiality Agreement made in 1998. Having regard, however, to my conclusions that the proceeding is not one to which O 8 r 1 applies, these are matters which may be able to be addressed by Traxon prior to a renewal of its motion.
Case: Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102
Outcome: cited
The requirement to show a 'prima facie case for the relief sought' was expounded in Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. The Court quoted with approval a passage from the judgment of Heerey J in Merpro Montassa Ltd v Conoco Specialty Products Inc (1991) 28 FCR 387 at 390 where his Honour said: '... the requirement of O 8, r 2(2)(c) has to be met at the outset of the proceedingS. It does not suggest the kind of scrutiny that would occur in a submission of no case to answer following the closure of an applicant's case at trial... It may be therefore that a court at this stage might draw inferences more readily in favour of an applicant, bearing in mind, among other things, that the applicant will not have had the advantage of discovery, subpoena and other procedural aids to the making out of a prima facie case at trial.' As I observed in Western Australia v Vetter Trittler Pty Ltd (In liq) (1991) 30 FCR 102 at 110: 'A prima facie case is made out if, on the material before the Court, inferences are open which it translated into findings of fact, would support the relief claimed.' The requirement for a prima facie case is satisfied by demonstration of a prime facie case 'for the relief sought by the party on the proceeding'. Where the relief sought is based upon more than one cause of action, it is sufficient that there is a prima facie case demonstrated for at least one of the causes of action relied upon. In my opinion it is sufficient to say for the moment that a prima facie case within the meaning of O 8 r 2(2)(c) is raised in respect of the cause of action in breach of contract. It is questionable whether there is a prima facie case shown for misleading or deceptive conduct without more than the alleged breach of the promises embodied in the agreements. There is a disquieting confusion about the documentation comprising the written part of the so called Distribution and Confidentiality Agreement made in 1998. Having regard, however, to my conclusions that the proceeding is not one to which O 8 r 1 applies, these are matters which may be able to be addressed by Traxon prior to a renewal of its motion.
Case: Aboriginal Legal Rights Movement Inc v South Australia and Another (No1) (1995) 64 SASR 551
Outcome: referred to
Three important considerations arise from the above. Firstly, the burden of proof lies upon Ms Obieta to establish discrimination, harassment or victimisation whether it arises pursuant to the RDA or the SDA. Secondly, with respect to claims of unlawful discrimination, harassment or victimisation under the RDA, it is essential that the discrimination, harassment or victimisation be proved, on the balance of probabilities, on the ground of Ms Obieta's race (see Victoria v Macedonian Teachers' Association of Victoria Inc and Another [1999] FCA 1287 ; (1999) 91 FCR 47). Similarly, with regard to a claim for sexual discrimination, harassment or victimisation under the SDA, discrimination, harassment or victimisation based upon Ms Obieta's sex must be established on the balance of probabilities: see Aboriginal Legal Rights Movement Inc v South Australia and Another (No1) (1995) 64 SASR 551 at 553.
Case: Baird and Others v Queensland (No 1) (2005) 224 ALR 541
Outcome: referred to
The requirement to identify that the particular 'distinction', 'exclusion', 'restriction' or 'preference' was ' based on' Ms Obieta's race has been the subject of judicial determination in Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8. At [33] the Court considered that the words 'based on' required a test of 'sufficient connection' with race rather than a 'causal nexus'. Weinberg J distinguished the expression 'based on' from other constructions used elsewhere in Federal anti-discrimination legislation (such as 'by reason of' or 'on the ground of'). The words 'based on' encompass a broader meaning of 'by reference to' and are not limited to 'by reason of' (at [30]). What is required is a close relationship, between the designated characteristic and the impugned conduct, which is not necessarily causal (at [33]): see also Baird and Others v Queensland (No 1) (2005) 224 ALR 541 and Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341 for an analysis of the meaning of 'based on'.
Case: Bropho v Human Rights and Equal Opportunity Commission and Another [2004] FCAFC 16 ; (2004) 135 FCR 105
Outcome: cited
In Bropho v Human Rights and Equal Opportunity Commission and Another [2004] FCAFC 16 ; (2004) 135 FCR 105, French J observed at, [69] that the words ' offend, insult, humiliate or intimidate ' are to be considered according to ' their ordinary meaning, in their context, acknowledging their somewhat elastic content and having regard to the objectives of the legislation...' . These objectives, it was noted, are to be gleaned not only from the words of the legislation but also from extraneous material such as, inter alia, the Second Reading Speech of the Racial Hatred Bill 1994 (Cth) ('Second Reading Speech'). The Second Reading Speech provides that the Act was intended to ' close a gap in the legal protection available to the victims of extreme racist behaviour ': see Bropho 135 FCR at [70]. In Creek v Cairns Post Pty Ltd [2001] FCA 1007 ; (2001) 112 FCR 352 at 356-357 Kiefel J said that the conduct which is encompassed by s 18C of the RDA is that which has, ' profound and serious effects not to be likened to mere slights '. 223 Section 18C of the RDA requires the satisfaction of an objective test of the likelihood that the act complained of will have the prohibited effect: see Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15] . The objective nature of the test was also considered in Bropho 135 FCR where French J at [66] citing the Second Reading Speech said: 'Community standards of behaviour rather than the subjective views of the complainant are taken into account' (Australia, House of Representatives Debates (1994), p334). 225 The question of causation that arises in the application of s 18C(1)(a) has been considered in numerous cases. In Purvis v New South Wales (Department of Education and Training) and Another [2003] HCA 62 ; (2003) 202 ALR 133 at 138 the High Court explained per Gleeson CJ, at 171-2 per McHugh and Kirby JJ, at 187 per Gummow, Hayne and Heydon JJ, that the accepted test for causation in the context of anti-discrimination legislation focuses on the 'genuine basis' or 'the true basis' or 'real reason' for the act of the alleged discriminator. The question of causation was also considered in Bropho 135 FCR at [71] wherein French J referred to the description by Kiefel J in Creek v Cairns Post 112 FCR at [28] of the key causation issue as 'whether anything suggests race as a factor' in the act in question. Kiefel J at [23] adopted the approach to the construction of statutory provisions similar to s 9 of the RDA taken by McHugh J in Waters 173 CLR at 401.
Case: Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341
Outcome: cited
The requirement to identify that the particular 'distinction', 'exclusion', 'restriction' or 'preference' was ' based on' Ms Obieta's race has been the subject of judicial determination in Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8. At [33] the Court considered that the words 'based on' required a test of 'sufficient connection' with race rather than a 'causal nexus'. Weinberg J distinguished the expression 'based on' from other constructions used elsewhere in Federal anti-discrimination legislation (such as 'by reason of' or 'on the ground of'). The words 'based on' encompass a broader meaning of 'by reference to' and are not limited to 'by reason of' (at [30]). What is required is a close relationship, between the designated characteristic and the impugned conduct, which is not necessarily causal (at [33]): see also Baird and Others v Queensland (No 1) (2005) 224 ALR 541 and Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341 for an analysis of the meaning of 'based on'. 213 Under s 9 it is also necessary to establish the relevant human right which has been impaired because of race. The expression 'human right' for the purpose of the RDA incorporates the rights set out in the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) scheduled to the RDA. The preamble to the RDA recites the entry into force of the CERD and the desirability of parliament making provision for giving effect to the CERD. Von Doussa J in Commonwealth v McEvoy and Another 94 FCR noted at [31] that: 'It is apparent that in adopting the phrase "race, colour, descent or national or ethnic origin" in s 9...Parliament has transported into the domestic law of Australia, through the RDA, text from Article 1.1 of the International Convention on the Elimination of All Forms of Racial Discrimination'
Case: Cooke v Plauen Holdings [2001] FMCA 91
Outcome: referred to
Section 28A(2) defines 'conduct of a sexual nature' as including 'making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing' . Where it is alleged that conduct is unlawful under the SDA, the context of the conduct must be considered. In Cooke v Plauen Holdings [2001] FMCA 91 , Driver FM observed that whether an act or statement can constitute sexual harassment will depend upon the nature or the quality of the act or statement. 239 For Ms Obieta to establish her claims under section 28F of the SDA she is required to establish that the relevant staff member (s 28F(1)) or adult student (s 28F(2)) of TAFE sexually harassed her. That is, pursuant to s 28A of the SDA, Ms Obieta would have to establish that the relevant respondent made an unwelcome sexual advance, or an unwelcome request for sexual favours (s 28A(1)(a)) or engaged in other unwelcome conduct of a sexual nature (s 28A(1)(b)) in circumstances in which a reasonable person having regard to all the circumstances, would have anticipated that Ms Obieta would be offended, humiliated or intimidated.
Case: Cooper v Human Rights and Equal Opportunity Commission and Another [1999] FCA 180 ; (1999) 93 FCR 481
Outcome: referred to
Under s 105 of the SDA a person who causes, instructs, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of the SDA, be taken also to have done the act. The meaning of the word 'permit' was discussed in Cooper v Human Rights and Equal Opportunity Commission and Another [1999] FCA 180 ; (1999) 93 FCR 481 at 494-495, [41] - [45] . Moore J in Elliott v Nanda and Another [2001] FCA 418 ; (2001) 111 FCR 240 at 293, [163] explained the operation of s 105 as pertaining to the situation where a person who is in a position to prevent allegedly unlawful conduct fails to do so. His Honour said: 'Section 105 provides a means of bringing about lawful conduct by rendering liable a person who could prevent unlawful conduct from occurring or continuing or who assists, directly or indirectly, in its performance. A person can prevent unlawful conduct by not creating a situation where it will or may take place or altering a situation so it will not continue.'
Case: Creek v Cairns Post Pty Ltd [2001] FCA 1007 ; (2001) 112 FCR 352
Outcome: cited
In Bropho v Human Rights and Equal Opportunity Commission and Another [2004] FCAFC 16 ; (2004) 135 FCR 105, French J observed at, [69] that the words ' offend, insult, humiliate or intimidate ' are to be considered according to ' their ordinary meaning, in their context, acknowledging their somewhat elastic content and having regard to the objectives of the legislation...' . These objectives, it was noted, are to be gleaned not only from the words of the legislation but also from extraneous material such as, inter alia, the Second Reading Speech of the Racial Hatred Bill 1994 (Cth) ('Second Reading Speech'). The Second Reading Speech provides that the Act was intended to ' close a gap in the legal protection available to the victims of extreme racist behaviour ': see Bropho 135 FCR at [70]. In Creek v Cairns Post Pty Ltd [2001] FCA 1007 ; (2001) 112 FCR 352 at 356-357 Kiefel J said that the conduct which is encompassed by s 18C of the RDA is that which has, ' profound and serious effects not to be likened to mere slights '. 225 The question of causation that arises in the application of s 18C(1)(a) has been considered in numerous cases. In Purvis v New South Wales (Department of Education and Training) and Another [2003] HCA 62 ; (2003) 202 ALR 133 at 138 the High Court explained per Gleeson CJ, at 171-2 per McHugh and Kirby JJ, at 187 per Gummow, Hayne and Heydon JJ, that the accepted test for causation in the context of anti-discrimination legislation focuses on the 'genuine basis' or 'the true basis' or 'real reason' for the act of the alleged discriminator. The question of causation was also considered in Bropho 135 FCR at [71] wherein French J referred to the description by Kiefel J in Creek v Cairns Post 112 FCR at [28] of the key causation issue as 'whether anything suggests race as a factor' in the act in question. Kiefel J at [23] adopted the approach to the construction of statutory provisions similar to s 9 of the RDA taken by McHugh J in Waters 173 CLR at 401.
Case: Damiano and Another v Wilkinson and Another [2004] FMCA 891
Outcome: cited
In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 , a case which considered, inter alia, the meaning of 'detriment' in comparable state legislation, the Administrative Decisions Tribunal ('ADT') found that the word 'detriment' should be given its common meaning of 'loss, damage or injury' (at [40]). It was also said in that case that '[t]he detriment suffered... must be real and not trivial' and 'whether something constitutes a detriment must be determined objectively and not subjectively' (at [41]). In Damiano and Another v Wilkinson and Another [2004] FMCA 891 at [23] Baumann FM considered the meaning of detriment gleaned from three authorities as follows: '... [T]he definition of detriment [is] placing a complainant "under a disadvantage of a matter of substance" (Bogie v University of Western Sydney (1990) EOC 92-313 ) or "suffers a material difference in treatment" (Bailey v Australian National University (1995) EOC 92- 744 ) which is "real and not trivial" (Sivanathan [sic] v Commissioner of Police (NSW) (2001) NSWADT 44 ) ' 240 Pursuant to s 94(1) of the SDA it is an offence for a person to commit an act of victimisation against another person. Pursuant to s 94(2) Ms Obieta is required to establish that the relevant respondent subjected, or threatened to subject her to any detriment on the grounds that Ms Obieta had or was believed to have made or proposed to make a complaint under the SDA or under the HREOC Act (s 94(2)(a)); or that Ms Obieta had brought or proposed to bring proceedings under the SDA or the HREOC Act against any person (s 94(2)(b)); or that Ms Obieta had furnished or produced or proposed to furnish or produce any information or documents to anybody exercising functions under the SDA or the HREOC Act (s 94(2)(c)); or that Ms Obieta had attended or proposed to attend a conference held under the SDA or the HREOC Act (s 94(2)(d)); or that Ms Obieta appeared or proposed to appear as a witness in proceedings under the SDA or the HREOC Act (s 94(2)(e)); or that Ms Obeita has reasonably asserted or proposed to assert any rights under the SDA or the HREOC Act (s 94(2)(f)); or that Ms Obieta had made an allegation that a person had done an act that is unlawful under Part II of the SDA (s 94(2)(g)). In Damiano [2004] FMCA 891 Baumann FM at [22] said, referring to Bailey v ANU (1995) EOC 92-744, that for victimisation to be established under comparable legislation one of the grounds under a section comparable to s 94(2) of the SDA must be a 'substantial and operative' factor for the alleged action.
Case: Elliott v Nanda and Another [2001] FCA 418 ; (2001) 111 FCR 240
Outcome: cited
Under s 105 of the SDA a person who causes, instructs, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of the SDA, be taken also to have done the act. The meaning of the word 'permit' was discussed in Cooper v Human Rights and Equal Opportunity Commission and Another [1999] FCA 180 ; (1999) 93 FCR 481 at 494-495, [41] - [45] . Moore J in Elliott v Nanda and Another [2001] FCA 418 ; (2001) 111 FCR 240 at 293, [163] explained the operation of s 105 as pertaining to the situation where a person who is in a position to prevent allegedly unlawful conduct fails to do so. His Honour said: 'Section 105 provides a means of bringing about lawful conduct by rendering liable a person who could prevent unlawful conduct from occurring or continuing or who assists, directly or indirectly, in its performance. A person can prevent unlawful conduct by not creating a situation where it will or may take place or altering a situation so it will not continue.'
Case: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70
Outcome: referred to
In addition it was noted in Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70 that for the purposes of s 9 of the RDA 'human rights' may include those included in other international instruments to which Australia is a party. One such other instrument is the International Covenant on Civil and Political Rights (ICCPR) (as provided in Schedule 2 to the HREOC Act) which is relied upon by Ms Obieta.
Case: Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615
Outcome: referred to
Section 18C of the RDA requires the satisfaction of an objective test of the likelihood that the act complained of will have the prohibited effect: see Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15] . The objective nature of the test was also considered in Bropho 135 FCR where French J at [66] citing the Second Reading Speech said: 'Community standards of behaviour rather than the subjective views of the complainant are taken into account' (Australia, House of Representatives Debates (1994), p334).
Case: In Marriage of Lindsey (1995) 128 FLR 46
Outcome: referred to
Despite the fact that one of the options of the Court in s 27(2) of the RDA is the imposition of a penal sentence, it has been held that the civil standard should nevertheless apply where the substance of the proceedings are civil (see In Marriage of Lindsey (1995) 128 FLR 46). The majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others [1992] HCA 66 ; (1992) 110 ALR 449 has emphasised the fact that the ordinary standard of proof in civil litigation is proof on the balance of probabilities even when the matter to be proved involves criminal conduct or fraud (see Rejfek and Another v McElroy and Another [1965] HCA 46 ; (1965) 112 CLR 517 at 519-21). It was also held in that case that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.
Case: Kelly-Country v Beers and Another [2004] FMCA 336 ; (2004) 207 ALR 421
Outcome: referred to
A similar observation of the requirement of objectivity was made by Brown FM in Kelly-Country v Beers and Another [2004] FMCA 336 ; (2004) 207 ALR 421 at [84] .