mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162
Outcome: referred to
Whilst Order 15A makes no provision as to the means whereby discovery should be given by a party such as the Minister to a party such as Telstra, it seems clear to me that discovery must be given in the manner for which Order 15 rule 2(2) provides, namely: '2(2) Unless the Court or a Judge orders otherwise, a party must give discovery by serving: (a) a list of documents required to be disclosed; and (b) an affidavit verifying the list.' Mansfield J expressed the same view in Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162 at [2] . 62 The form of the list of documents may, in my opinion, be taken to have been regulated by Order 15 rule 6, which relevantly provides: '6(1) A list of documents required by or under this Order shall, unless the Court otherwise orders, be in accordance with Form 22 and conform to the requirements of this rule. (2) A list of documents shall enumerate the documents which are ... in the possession ... of the party making the list. (3) A list of documents shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified. ... (8) Where a party making a list of documents has a solicitor in the proceeding, the solicitor shall certify on the list that, according to his instructions, the list and the statements in the list are correct.' 63 Form 22, of course, provides for documents to be enumerated one by one in either Schedule 1 Part 1, Schedule 1 Part 2 or Schedule 2 of the relevant list. The operative words in Form 22 are: '1. The party has in his possession ... the documents enumerated in Schedule 1. 2. The documents enumerated in Part 2 of Schedule 1 are privileged from production on the ground ... ...'
Case: Hall v The Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: cited
An order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may conclude the fate of the particular application in which it is made, is interlocutory only (per Taylor J in Hall v The Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 ('Hall') at 440; see also per Owen J at 447). 67 It is not of the essence of an interlocutory order that it is one made in the course of a pending action or suit (per Taylor J in Hall at 440; see also per Owen J at 447). 68 An order made on an application in proceedings preliminary to the bringing of an action, which does not preclude a further application to like effect being brought, is interlocutory (per Taylor J in Hall at 440; see also per Owen J at 447). 69 The character of proceedings such as an application under Order 15A rule 6 may be of more significance than the result for an applicant, in determining whether an order is interlocutory or not (per Windeyer J in Hall at 445).
Case: Cardale v Watkins (1820) V Maddock 18
Outcome: referred to
In Cardale v Watkins (1820) V Maddock 18, a case where a bill for discovery was sought but for no stated purpose, Vice Chancellor, Sir John Leach observed: 'a Court of Equity does not compel Discovery for the mere gratification of curiosity, but in aid of some other Proceeding either pending or intended, and ... there must be Allegations to that effect.' 74 In Laussat's edition of 'Fonblanque on Equity' (1831) Vol 1, Chapter 1, paragraph 3 note (f) reference was made to those circumstances in which resort may be had to the 'extraordinary powers of a court of equity' to compel discovery. 75 In Story Vol 1 at paragraph 74 it is stated: '... to maintain the jurisdiction for relief, as consequent on discovery, it is necessary, in the first place, to allege in the bill, that the facts are material to the plaintiff's case, and that the discovery of them by the defendant is indispensable, as proof; for if the facts lie within the knowledge of witnesses, who may be called in a court of law, that furnishes a sufficient reason for a court of equity to refuse its aid. The bill must, therefore, allege (and if required, the fact must be established) that the plaintiff is unable to prove such facts by other testimony. ...' (footnote omitted)
Case: Re Refugee Review Tribunal; ex parte AALA [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: cited
Constitutional writ relief under s 75(v) of the Constitution is discretionary. (See Re Refugee Review Tribunal; ex parte AALA [2000] HCA 57 ; (2000) 204 CLR 82 ('AALA') at [5], [18]-[62], [145]-[150], [172] and [217]; see also Lam at [25] per Gleeson CJ.) 96 In AALA Gaudron and Gummow JJ said at [55]: '55 No doubt the discretion with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s 73 of the Constitution . The discretion is to be exercised against the background of the animating principle described by Gaudron J in Enfield City Corporation v Development Assessment Commission . Her Honour said: "Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less." (Footnote omitted.)' (footnotes omitted) 102 The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making (per Gaudron and Gummow JJ in AALA at [62]; see also per McHugh and Gummow JJ in Lam at [48]).
Case: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1
Outcome: cited
A company, of course, is an abstraction. It has no mind of its own, and its state of mind must consequently be found in the person or persons who is or are really the directing mind and will of the company, 'the very ego and centre of the personality of the corporation' (see per Hunt J, as his Honour then was, in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 5). 120 It is clear that Mr Smith's standing in the Telstra hierarchy was well down the ladder. No evidence was called as to the information available to Telstra, within the meaning of Order 15A rule 6(b), from Mr Smith's superiors, Messrs Goldsworthy and Booth, from the head of the Project Team within Telstra in relation to the Infrastructure Programme, Mr Don Pinel, or from the senior executive within Telstra whose judgment on any application for funding, to be submitted by Telstra, was critical, namely its Chief Executive Officer, Mr Sol Trujillo. What is more, no evidence was tendered as to the discussions, if any, at board level concerning the information available to Telstra and any consideration by the board of the question as to whether or not to commence a proceeding against the Minister in the Court. 121 In my opinion, there is insufficient evidence to enable the Court to conclude that after making all reasonable enquiries, Telstra does not have sufficient information to enable a decision to be made whether to commence a proceeding in the Court against the Minister to obtain the foreshadowed relief.
Case: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51
Outcome: considered
The term "unconscionable" as used in s 51AA of the TP Act bears a particular legal meaning. It is the meaning conferred by "the unwritten law, from time to time, of the States and Territories", that is, the common law of Australia: see Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at 71. The concept of unconscionability, so understood, was explained by Gummow &amp; Hayne JJ in Berbatis Holdings by reference to earlier authority. Their Honours said (at 76 - 77) that: "In Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 47 at 461 to 463, Mason J referred to passages in the judgments of Fullagar J and Kitto J in Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 at 405, 415. Mason J said (at 462): 'It is made plain enough, especially by Fullagar J, that the situations mentioned are no more than particular exemplifications of an underlying general principle which may be invoked whenever one party by reason of some condition [or] circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created. I qualify the word 'disadvantage' by the adjective 'special' in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interest, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.' His Honour went on to emphasise at (462 - 463) the need for the plaintiff seeking relief to establish the taking of unconscientious advantage of the plaintiff's disabling condition or circumstance. It will be apparent that the special disadvantage at which Mason J spoke in this passage was one seriously affecting the ability of the innocent party to make a judgment as to that party's own best interests." Disadvantage of the kind referred to by Fullagar and Mason JJ can take many forms. Fullagar J cited by way of example "poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary": Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 at 405.
Case: Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362
Outcome: referred to
The term "unconscionable" as used in s 51AA of the TP Act bears a particular legal meaning. It is the meaning conferred by "the unwritten law, from time to time, of the States and Territories", that is, the common law of Australia: see Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at 71. The concept of unconscionability, so understood, was explained by Gummow &amp; Hayne JJ in Berbatis Holdings by reference to earlier authority. Their Honours said (at 76 - 77) that: "In Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 47 at 461 to 463, Mason J referred to passages in the judgments of Fullagar J and Kitto J in Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 at 405, 415. Mason J said (at 462): 'It is made plain enough, especially by Fullagar J, that the situations mentioned are no more than particular exemplifications of an underlying general principle which may be invoked whenever one party by reason of some condition [or] circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created. I qualify the word 'disadvantage' by the adjective 'special' in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interest, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.' His Honour went on to emphasise at (462 - 463) the need for the plaintiff seeking relief to establish the taking of unconscientious advantage of the plaintiff's disabling condition or circumstance. It will be apparent that the special disadvantage at which Mason J spoke in this passage was one seriously affecting the ability of the innocent party to make a judgment as to that party's own best interests." Disadvantage of the kind referred to by Fullagar and Mason JJ can take many forms. Fullagar J cited by way of example "poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary": Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 at 405.
Case: Evans v Balog [1976] 1 NSWLR 36
Outcome: cited
In some cases it may be appropriate to award damages on the basis contended for by the applicant. This will be so in a relatively narrow range of cases where a tenant has so damaged or modified premises that they are unlettable at the conclusion on the lease: see Joyner v Weeks [1891] 2 QB 31. Normally, however, reinstatement costs will not be awarded unless there exists some special interest in reinstatement arising from a radical change to the usage to which the property can be put following renovations by the tenant: see Evans v Balog [1976] 1 NSWLR 36.
Case: Joscelyne v Nissen [1970] 2 QB 86
Outcome: referred to
Courts have long recognised that there exists an "inherent probability that a written instrument truly represents the parties' intention because it is a document signed by the parties": see Thomas Bates and Son Limited v Wyndham's (Lingerie) Limited [1980] EWCA Civ 3 ; [1981] 1 WLR 505 at 521. Accordingly "convincing proof" is needed to support an order for rectification of a document which records a commercial agreement: see Pukallus v Cameron [1982] HCA 63 ; (1982) 180 CLR 447 at 452; Joscelyne v Nissen [1970] 2 QB 86 at 98. The classes of documents which may be rectified include leases: see Murray v Parker (1854) 19 Beav 305.
Case: Joyner v Weeks [1891] 2 QB 31
Outcome: cited
In some cases it may be appropriate to award damages on the basis contended for by the applicant. This will be so in a relatively narrow range of cases where a tenant has so damaged or modified premises that they are unlettable at the conclusion on the lease: see Joyner v Weeks [1891] 2 QB 31. Normally, however, reinstatement costs will not be awarded unless there exists some special interest in reinstatement arising from a radical change to the usage to which the property can be put following renovations by the tenant: see Evans v Balog [1976] 1 NSWLR 36.
Case: Marsden v Edward Heyes Ltd [1927] 2 KB 1
Outcome: cited
The applicant claims that the respondent, by gutting and restoring the foyer in the manner in which it has done, has committed a voluntary waste. Waste is a tort which occurs where a positive act, such as demolition, occurs which is injurious to the reversion, usually by diminishing its value: see Marsden v Edward Heyes Ltd [1927] 2 KB 1. 65 The respondent denies that its actions in altering the foyer constituted waste but, in any event, pleads that any cause of action based on waste is statute barred. 66 The Limitation of Actions Act 1958 (Vic) restricts the bringing of a cause of action in tort more than six years after the right of action accrued: see Judiciary Act 1903 (Cth), s 79 and Limitation of Actions Act 1958 (Vic), s 5(1)(a). The cause of action in question accrued no later than July 1998 when Tabcorp unequivocally stated (above at [47] and [48] that it would not restore the foyer. In my view it accrued in July and August 1997 when the works were undertaken. In either event the six year limitation had expired by the time at which the proceeding was commenced on 30 September 2005.
Case: Murray v Parker (1854) 19 Beav 305
Outcome: cited
Courts have long recognised that there exists an "inherent probability that a written instrument truly represents the parties' intention because it is a document signed by the parties": see Thomas Bates and Son Limited v Wyndham's (Lingerie) Limited [1980] EWCA Civ 3 ; [1981] 1 WLR 505 at 521. Accordingly "convincing proof" is needed to support an order for rectification of a document which records a commercial agreement: see Pukallus v Cameron [1982] HCA 63 ; (1982) 180 CLR 447 at 452; Joscelyne v Nissen [1970] 2 QB 86 at 98. The classes of documents which may be rectified include leases: see Murray v Parker (1854) 19 Beav 305.
Case: Pukallus v Cameron [1982] HCA 63 ; (1982) 180 CLR 447
Outcome: referred to
Courts have long recognised that there exists an "inherent probability that a written instrument truly represents the parties' intention because it is a document signed by the parties": see Thomas Bates and Son Limited v Wyndham's (Lingerie) Limited [1980] EWCA Civ 3 ; [1981] 1 WLR 505 at 521. Accordingly "convincing proof" is needed to support an order for rectification of a document which records a commercial agreement: see Pukallus v Cameron [1982] HCA 63 ; (1982) 180 CLR 447 at 452; Joscelyne v Nissen [1970] 2 QB 86 at 98. The classes of documents which may be rectified include leases: see Murray v Parker (1854) 19 Beav 305.
Case: Thomas Bates and Son Limited v Wyndham's (Lingerie) Ltd [1980] EWCA Civ 3 ; [1981] 1 WLR 505
Outcome: referred to
Courts have long recognised that there exists an "inherent probability that a written instrument truly represents the parties' intention because it is a document signed by the parties": see Thomas Bates and Son Limited v Wyndham's (Lingerie) Limited [1980] EWCA Civ 3 ; [1981] 1 WLR 505 at 521. Accordingly "convincing proof" is needed to support an order for rectification of a document which records a commercial agreement: see Pukallus v Cameron [1982] HCA 63 ; (1982) 180 CLR 447 at 452; Joscelyne v Nissen [1970] 2 QB 86 at 98. The classes of documents which may be rectified include leases: see Murray v Parker (1854) 19 Beav 305. 63 Even if it be accepted that the applicant, acting through Mrs Bergamin, was labouring under a mistake as to the content of the lease when she signed it, there is no evidence that, at that time, Mr Gullquist, or anyone else associated with Tabcorp, was aware of the mistake or acted in an unconscionable manner in order to take advantage of it. What is complained of is Mr Gullquist's alleged awareness, in March 1997, that the applicant asserted that the lease imposed a general "make good" obligation on Tabcorp and failed to draw attention to the falsity of the assertion. As already noted, this failure, on the part of Mr Gullquist, is susceptible of an innocent explanation. Moreover the event post-dated by some three months the execution of the lease. Rectification for unilateral mistake requires knowledge of that mistake by the other party prior to execution of the relevant document and the deliberate failure of the other party to disabuse the party labouring under the mistake in circumstances which may be characterised as unconscionable: Thomas Bates &amp; Son Ltd v Wyndham's (Lingerie) Ltd [1980] EWCA Civ 3 ; [1981] 1 All E R 1077 at 1085-6. In the present case Tabcorp was not aware, in December 1996, that Mrs Bergamin thought that the lease contained a general 'make good' clause and it neither, through action or inaction, took unconscionable advantage of Mrs Bergamin's alleged mistake. This is a matter to which I will return.
Case: Wardley Australia Ltd v The State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: referred to
By s 82(2) of the TP Act , any action brought under ss 52 or 53 (g) must be commenced within six years after the day on which the cause of action accrued. An action for loss or damage, commenced pursuant to s 82 of the TP Act , for conduct undertaken in contravention of ss 52 and 53 (g) of the TP Act requires that actual loss or damage has occurred. Anticipated loss or damage, at some time in the future, will not suffice: see Wardley Australia Ltd v The State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525, 527. No doubt, it is for this reason, that the applicant claims that it "has" suffered loss and damage. Any such loss and damage occurred at the time that the demolition and renovations occurred in July and August 1997. Any cause of action accrued at that time. As a result, the alleged causes of action are statute barred. 90 As already noted the applicant seeks damages for Tabcorp's breaches of Clause 2.13 of the lease. The quantum of damages sought is $1,380,000. This figure is made up of the estimated cost of reinstatement of the foyer to its former condition ($580,000) and loss of rental income during the four month period in which such works are undertaken ($800,000). 91 It is common ground that reinstatement of the foyer will not occur prior to the conclusion of Tabcorp's tenancy. This will not occur, at the earliest, until 2012. If Tabcorp exercises its option to extend the lease by a further five years, it will not occur until 2017. The parties make competing submissions as to the appropriate measure of damages. The applicant seeks the costs of reinstatement of the foyer. Tabcorp, on the other hand, submits that damages should be measured by reference to the diminution, if any, in value of the building occasioned by the works undertaken in the foyer.
Case: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 
Outcome: cited
Although, because of the construction that I have adopted of s 853(2) of the WR Act, it is not necessary for me finally to determine whether the judgment of the District Court pronounced on 15 October 2007 is interlocutory, I strongly incline in favour of the view that it is interlocutory. In Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] - [5] McHugh ACJ, Gummow and Heydon JJ said: ...the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. The order of Gleeson CJ refusing to grant leave to issue process was an interlocutory order. It did not finally determine Ms Luck's rights against the various defendants, if she has any such rights...(emphasis in original) 28 A similar view of the distinction between a final order and an interlocutory order had been taken by McHugh, Kirby and Callinan JJ in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225. In that case their Honours characterised an order of a judge of the High Court dismissing an application for the removal of a cause pending in the Family Court into the High Court as an interlocutory order.