mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sent v John Fairfax Publication Pty Ltd [2002] VSC 429
Outcome: cited
In any event, the alleged confidential information is not described, and therefore this Court cannot determine whether there could be any risk or danger that it may be used to the detriment of the applicant in this proceeding. The authorities are clear that the confidential information must be identified to such an extent that the claim of confidentiality can be assessed by the Court: see Spincode Pty Ltd v Look Software Pty Ltd &amp; Ors [2001] VSCA 248 ; (2001) 4 VR 501 at [22] ; Carindale Country Club Estate Pty Ltd v Astill &amp; Ors (1993) 42 FCR 307 at 314; Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 at [65] to [68].
Case: Spincode Pty Ltd v Look Software Pty Ltd &amp; Ors [2001] VSCA 248 ; (2001) 4 VR 501
Outcome: cited
In any event, the alleged confidential information is not described, and therefore this Court cannot determine whether there could be any risk or danger that it may be used to the detriment of the applicant in this proceeding. The authorities are clear that the confidential information must be identified to such an extent that the claim of confidentiality can be assessed by the Court: see Spincode Pty Ltd v Look Software Pty Ltd &amp; Ors [2001] VSCA 248 ; (2001) 4 VR 501 at [22] ; Carindale Country Club Estate Pty Ltd v Astill &amp; Ors (1993) 42 FCR 307 at 314; Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 at [65] to [68].
Case: Theo Holdings Pty Ltd v Hockey [2000] FCA 665 ; (2000) 99 FCR 232
Outcome: cited
The statutory phrase that must be construed and applied in this case plays a crucial role in various parts of the TPA and, in all likelihood, the legislature intended that it should carry a consistent meaning wherever it is used in the TPA: see Theo Holdings Pty Ltd v Hockey [2000] FCA 665 ; (2000) 99 FCR 232 at 241 [21] . 74 The policy and purposes underpinning the TPA were examined by Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503-504: 'As is the case with Pt IV of the [TPA], the evident purpose and policy underlying Pt V , which includes s 52 , recommends a broad construction of its constituent provisions, the legislation being of a remedial character so that it should be construed so as to give the fullest relief which the fair meaning of its language will allow: see the discussion of the authorities by Mason CJ in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44. The precise boundaries of the territory within which s 52 operates remain undetermined: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 601.' In Webb Distributors (Aust) Pty Ltd v Victoria [1993] HCA 61 ; (1993) 179 CLR 15 at 41, McHugh J said: 'The Trade Practices Act is a fundamental piece of remedial and protectionist legislation. Such legislation should be construed broadly so as "to give the fullest relief which the fair meaning of its language will allow".' Mason CJ expressed similar views concerning the provisions of Part IV of the TPA in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44.
Case: Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
In Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28 ; (1998) 194 CLR 355 at 381 [69] - [70] , McHugh, Gummow, Kirby and Hayne JJ said: 'The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos , Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.'
Case: Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470
Outcome: cited
The policy and purposes underpinning the TPA were examined by Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503-504: 'As is the case with Pt IV of the [TPA], the evident purpose and policy underlying Pt V , which includes s 52 , recommends a broad construction of its constituent provisions, the legislation being of a remedial character so that it should be construed so as to give the fullest relief which the fair meaning of its language will allow: see the discussion of the authorities by Mason CJ in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44. The precise boundaries of the territory within which s 52 operates remain undetermined: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 601.' In Webb Distributors (Aust) Pty Ltd v Victoria [1993] HCA 61 ; (1993) 179 CLR 15 at 41, McHugh J said: 'The Trade Practices Act is a fundamental piece of remedial and protectionist legislation. Such legislation should be construed broadly so as "to give the fullest relief which the fair meaning of its language will allow".' Mason CJ expressed similar views concerning the provisions of Part IV of the TPA in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44.
Case: Webb Distributors (Aust) Pty Ltd v Victoria [1993] HCA 61 ; (1993) 179 CLR 15
Outcome: cited
The policy and purposes underpinning the TPA were examined by Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503-504: 'As is the case with Pt IV of the [TPA], the evident purpose and policy underlying Pt V , which includes s 52 , recommends a broad construction of its constituent provisions, the legislation being of a remedial character so that it should be construed so as to give the fullest relief which the fair meaning of its language will allow: see the discussion of the authorities by Mason CJ in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44. The precise boundaries of the territory within which s 52 operates remain undetermined: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 601.' In Webb Distributors (Aust) Pty Ltd v Victoria [1993] HCA 61 ; (1993) 179 CLR 15 at 41, McHugh J said: 'The Trade Practices Act is a fundamental piece of remedial and protectionist legislation. Such legislation should be construed broadly so as "to give the fullest relief which the fair meaning of its language will allow".' Mason CJ expressed similar views concerning the provisions of Part IV of the TPA in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44.
Case: Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32
Outcome: cited
The policy and purposes underpinning the TPA were examined by Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503-504: 'As is the case with Pt IV of the [TPA], the evident purpose and policy underlying Pt V , which includes s 52 , recommends a broad construction of its constituent provisions, the legislation being of a remedial character so that it should be construed so as to give the fullest relief which the fair meaning of its language will allow: see the discussion of the authorities by Mason CJ in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44. The precise boundaries of the territory within which s 52 operates remain undetermined: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 601.' In Webb Distributors (Aust) Pty Ltd v Victoria [1993] HCA 61 ; (1993) 179 CLR 15 at 41, McHugh J said: 'The Trade Practices Act is a fundamental piece of remedial and protectionist legislation. Such legislation should be construed broadly so as "to give the fullest relief which the fair meaning of its language will allow".' Mason CJ expressed similar views concerning the provisions of Part IV of the TPA in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44.
Case: Zaravinos v Diary Farmers Co-Operative Ltd (1985) 7 FCR 195
Outcome: cited
In Zaravinos v Diary Farmers Co-Operative Ltd (1985) 7 FCR 195 at 198, Lockhart J explained the particular statutory purposes of Div 2A somewhat more narrowly: 'The rationale behind Div 2A is that liability for defects in goods should be borne by the manufacturer rather than the retailer because of modern methods of packaging, labelling, distribution and promotion of goods. Division 2A does not apply where there is a contract between the manufacturer and the consumer. It applies where the manufacturer supplies goods to another person, usually a distributor or retailer, who acquires the goods for the purposes of resupply. The Division applies to the supply of goods which are of a kind ordinarily acquired for personal, domestic or household use or consumption that is, consumer goods.' 76 Notwithstanding the more particular statutory purposes which underpin Div 2A, I consider that a uniform approach should be adopted when construing the definitional phrase found in s 74A(2)(a) and in other provisions of the TPA. Moreover, in my opinion, the statutory phrase should be construed broadly, wherever it appears in the TPA, so as to give the fullest relief which the fair meaning of its language will allow. 77 In general terms, the authorities provide relatively clear guidance as to the way in which the phrase 'goods of a kind ordinarily acquired for personal, domestic or household use or consumption' should be construed and applied. Many of the relevant authorities, however, concern the meaning and application of similar but not identical expressions found in sales tax legislation or tariff classification legislation, and care must be exercised in translating what was said in those contexts to the present context.
Case: Crago v Multiquip Pty Ltd &amp; Dunogan Farm Tech Pty Ltd (1998) ATPR 41-620
Outcome: discussed
Subject to the caveat just mentioned, the sales tax cases contain the most helpful discussion of the principles that should guide the construction of the statutory phrase in s 74A(2)(a). There are some relevant decisions in the trade practices area dealing directly with the construction of the statutory phrase or substantially similar expressions: see Crago v Multiquip Pty Ltd &amp; Dunogan Farm Tech Pty Ltd (1998) ATPR 41-620 (' Crago' ); Minchillo v Ford Motor Company of Australia [1995] 2 VR 594 (' Minchillo') ; Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 (' Jillawarra') ; Carpet Call Pty Ltd v Chan (1987) ASC 55-553 (' Carpet Call' ); and Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 (' Westminster') . However, these cases tend to illustrate the application of the statutory phrase, rather than provide any illuminating discussion of the relevant principles of construction. 88 Beyond endorsing a commonsense approach, the cases that have been decided under s 74A(2)(a) or s 52A(5) of the TPA do not take the analysis much further. In Crago , Lehane J considered whether an ostrich egg incubator and hatcher were goods falling within s 74A(2)(a). Lehane J concluded that they were not. In reaching this conclusion, he said that it was appropriate to ask whether the nature of particular goods is such that they are or are not of a kind ordinarily acquired for personal, domestic or household use or consumption, even in the absence of evidence of actual use: see at 40,798. Lehane J also placed weight on evidence that the goods were used in the ostrich egg 'industry' and that ostriches and their eggs were traded at high prices, and on the lack of evidence that the incubators were in fact acquired for personal, domestic or household use. His Honour drew a distinction between products which might be regarded as of a kind acquired for personal, domestic or household use 'as a matter of common sense' (such as a carpet, a washing machine or a television set) and an ostrich egg incubator.
Case: Minchillo v Ford Motor Company of Australia [1995] 2 VR 594
Outcome: discussed
Subject to the caveat just mentioned, the sales tax cases contain the most helpful discussion of the principles that should guide the construction of the statutory phrase in s 74A(2)(a). There are some relevant decisions in the trade practices area dealing directly with the construction of the statutory phrase or substantially similar expressions: see Crago v Multiquip Pty Ltd &amp; Dunogan Farm Tech Pty Ltd (1998) ATPR 41-620 (' Crago' ); Minchillo v Ford Motor Company of Australia [1995] 2 VR 594 (' Minchillo') ; Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 (' Jillawarra') ; Carpet Call Pty Ltd v Chan (1987) ASC 55-553 (' Carpet Call' ); and Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 (' Westminster') . However, these cases tend to illustrate the application of the statutory phrase, rather than provide any illuminating discussion of the relevant principles of construction. 90 In Minchillo, the Court of Appeal upheld the trial judge's decision that a prime mover was not 'goods' to which Div 2A of Part V of the TPA applied. Ormiston J, with whose reasons Fullagher and Brooking JJ concurred, stated at 617: 'The argument must be rejected, for it takes no proper account of the use of the words "ordinarily acquired". Although the words "domestic or household" have a similar connotation, "personal" use is clearly intended to cover a wider field, but the primary contrast intended to be drawn is with commercial or business use, whatever other personal activities a vehicle may be used for. In the case of a prime mover it is hard to see that it would, in the ordinary understanding of those words, be "ordinarily acquired for personal ... use." The causes of action under ss 74B and 74D relied upon by the appellants were therefore rightly dismissed by the trial judge.'
Case: Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441
Outcome: discussed
Subject to the caveat just mentioned, the sales tax cases contain the most helpful discussion of the principles that should guide the construction of the statutory phrase in s 74A(2)(a). There are some relevant decisions in the trade practices area dealing directly with the construction of the statutory phrase or substantially similar expressions: see Crago v Multiquip Pty Ltd &amp; Dunogan Farm Tech Pty Ltd (1998) ATPR 41-620 (' Crago' ); Minchillo v Ford Motor Company of Australia [1995] 2 VR 594 (' Minchillo') ; Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 (' Jillawarra') ; Carpet Call Pty Ltd v Chan (1987) ASC 55-553 (' Carpet Call' ); and Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 (' Westminster') . However, these cases tend to illustrate the application of the statutory phrase, rather than provide any illuminating discussion of the relevant principles of construction. 89 In Jillawarra, Toohey J held that an air seeder purchased by the applicant for use in its farming business fell outside s 74A(2)(a). Toohey J rejected the applicant's contention that goods of a kind acquired for a farmer's personal, domestic and household purposes would encompass everything which is used on or in connexion with his farm: at 45,090.
Case: Carpet Call Pty Ltd v Chan (1987) ASC 55-553
Outcome: discussed
Subject to the caveat just mentioned, the sales tax cases contain the most helpful discussion of the principles that should guide the construction of the statutory phrase in s 74A(2)(a). There are some relevant decisions in the trade practices area dealing directly with the construction of the statutory phrase or substantially similar expressions: see Crago v Multiquip Pty Ltd &amp; Dunogan Farm Tech Pty Ltd (1998) ATPR 41-620 (' Crago' ); Minchillo v Ford Motor Company of Australia [1995] 2 VR 594 (' Minchillo') ; Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 (' Jillawarra') ; Carpet Call Pty Ltd v Chan (1987) ASC 55-553 (' Carpet Call' ); and Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 (' Westminster') . However, these cases tend to illustrate the application of the statutory phrase, rather than provide any illuminating discussion of the relevant principles of construction. 92 In Carpet Call, Thomas J considered that carpet installed in a nightclub was within the scope of the statutory phrase. It was unnecessary for Thomas J to discuss the point at length as he decided the case on other grounds, but his Honour observed at 57,187: 'In my view "carpet" is a commodity, or goods, ordinarily acquired for domestic consumption, and it does not lose that description by reason of a commercial rating, or some quality which makes it last longer than other carpet normally supplied for use in a domestic setting. In fact the carpet supplied (as to which the warranty is alleged to apply) was of a domestic rating. The point may deserve discussion at greater length, but for the purpose of noting the submissions and expressing a provisional view, it is not necessary to engage in such discussion here.' 93 Two aspects of the sales tax cases merit further discussion because they have influenced my approach to the construction and application of the phrase found in s 74A(2)(a) of the TPA. The first aspect concerns the significance that attaches to the statutory context and small differences in the language of the statutory phrase. The issue is whether the statutory context of s 74A(2)(a), and the slightly different language used in that section, requires an approach to characterisation that differs from that adopted in the sales tax and customs cases. The second and related aspect concerns the proper scope of the evidence that can be taken into account in answering the statutory question posed by s 74A(2)(a).
Case: Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191
Outcome: discussed
Subject to the caveat just mentioned, the sales tax cases contain the most helpful discussion of the principles that should guide the construction of the statutory phrase in s 74A(2)(a). There are some relevant decisions in the trade practices area dealing directly with the construction of the statutory phrase or substantially similar expressions: see Crago v Multiquip Pty Ltd &amp; Dunogan Farm Tech Pty Ltd (1998) ATPR 41-620 (' Crago' ); Minchillo v Ford Motor Company of Australia [1995] 2 VR 594 (' Minchillo') ; Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 (' Jillawarra') ; Carpet Call Pty Ltd v Chan (1987) ASC 55-553 (' Carpet Call' ); and Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 (' Westminster') . However, these cases tend to illustrate the application of the statutory phrase, rather than provide any illuminating discussion of the relevant principles of construction. 91 In Westminster , the applicant brought a claim against the respondent pursuant to s 52A of the TPA, which prohibited a corporation from engaging in unconscionable conduct. By force of subs (5), s 52A only applied to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption. The Full Court held that building services provided by the respondent pursuant to a contract to erect a multi-storey office block were not services of a kind ordinarily acquired for personal, domestic or household use or consumption: at 206-207 per Kennedy J. Kennedy J also said that s 52A is directed essentially at consumer-type transactions, although the wording of the section is not such as to automatically exclude even substantial corporations from the category of consumer in every case: at 207.
Case: ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation (Vic) (1987) 82 ATC 5110
Outcome: distinguished
First, the word 'ordinarily' means 'commonly' or 'regularly', not 'principally', 'exclusively' or 'predominately': see Clean Investments at 273 [97] per Lindgren J; Chubb at 560 per Burchett J, and at 57 per Hill J; Hygienic Lily at 399-400 per Gummow J. Counsel for the respondent invited me to depart from these authorities, and to hold that the word 'ordinarily' as used in s 74A(2)(a) means 'predominately'. In view of the authorities to which I was referred, I doubt that I am free to adopt such a construction. In any event, I am not persuaded that the word 'ordinarily' in s 74A(2)(a) means 'predominately' rather than 'commonly' or 'regularly'. On the contrary, I consider that the meaning which best accords with the policy and the purposes of the TPA is that of 'commonly' or 'regularly'. I am conscious that the Full Court of the Victorian Supreme Court in ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation (Vic) (1987) 82 ATC 5110 said at 5112 that the concept of 'ordinarily used for' equals 'whose primary but not necessarily exclusive purpose and customary use is'. However, I do not agree that the word 'ordinarily' should be given such a connotation in s 74A(2)(a) or elsewhere in the TPA.
Case: Commissioner of Taxation (Cth) v Newbound &amp; Co Pty Ltd (1952) 10 ATD 59; 26 ALJR 386
Outcome: cited
French J drew attention to the statutory context and the general principles that the classification of goods attracting exemptions or beneficial rates of tax should be liberally construed unless the text or context requires a narrower construction, and that words or phrases should be construed according to their popular meaning unless the evidence establishes that they carry a special commercial or trade meaning in their context: at 457 and 464. His Honour also noted that generalisations about the construction of statutory classifications are to be undertaken with caution, and that subtle changes in language can significantly alter the meaning and operation of a particular provision. French J contrasted the construction given by the authorities to the expression 'ordinarily used for household purposes' with the construction given to the expression 'goods for use' in some specified activity or by some specified person or entity. The former expression has attracted an objective test for characterisation of the goods said to fall within it: see Commissioner of Taxation (Cth) v Newbound &amp; Co Pty Ltd (1952) 10 ATD 59; 26 ALJR 386 at 387 per Dixon CJ; Commissioner of Taxation (Cth) v Sherwood Overseas Pty Ltd (1985) 75 FLR 474 at 477; O R Cormack Pty Ltd v Commissioner of Taxation (Cth) (1992) 92 ATC 4121 at 4123; and Hygienic Lily at 399. In the light of these authorities, French J expressed the test as follows, at 460: 'The question whether goods are "ordinarily used for household purposes" does not depend critically upon the use to which they are in fact put but on an assessment of their "essential character". That assessment does not involve fine semantic distinctions but a judgment which pays regard to the commercial realities of their manufacture and sale.'