mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773 (2004) 83 ALD 529
Outcome: cited
This examination of S152/2003 demonstrates that it is impossible to uphold the contention, put on behalf of the appellant in the present case, that the majority judgment in that case cannot be taken as an expression of the authoritative test to apply when the issue is whether the country of nationality of an applicant for a protection visa alleges that that country lacks the ability effectively to protect him or her from the harmful actions of non-state antagonists. By the time the case reached the High Court, it was a case about the adequacy of state protection. It had become such a case because the Full Court had held that the Tribunal had failed to deal with the ability of the Ukrainian Government to prevent future harm. The majority of the High Court allowed the appeal on the basis that the Tribunal had no evidence before it that would have justified a finding that the necessary state machinery of Ukraine fell below the required standard for protection of its citizens. The majority expressed this norm by reference to international standards, and made it clear that there is no requirement that a state provide absolute protection for its citizens. In the light of what the majority said, the view of McHugh J cannot be regarded as authoritative. In Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773 (2004) 83 ALD 529 at [35] - [42] , Mansfield J analysed S152/2003 . It is clear that his Honour thought that the view expressed by the majority was authoritative. I respectfully share his Honour's view. Even if what the majority said could be characterised technically as obiter, it would be necessary to characterise the view of McHugh J in the same way. It would be a bold step for a judge of this Court, or a federal magistrate, and especially a Tribunal member, to ignore what the majority said in favour of adopting the view of McHugh J.
Case: Horvath v Secretary of State for the Home Department [2001] 1 AC 489
Outcome: cited
The quotation is from Horvath v Secretary of State for the Home Department [2001] 1 AC 489 at 510. At [78], McHugh J said: If there is a real chance that the asylum seeker will be persecuted for a Convention reason, the fear of persecution is well-founded irrespective of whether law enforcement systems do or do not operate within the State. 22 At [79], his Honour pointed out that an asylum seeker would have to show more than that persons whose circumstances were similar were being persecuted. The asylum seeker would have to show that there is "a real chance that he or she will be one of the victims of that persecution." This might be done either by showing that the particular person has a greater chance of harm than other persons, or to show that a very high percentage of such persons are persecuted. At [83], his Honour said: once the asylum seeker is able to show that there is a real chance that he or she will be persecuted, refugee status cannot be denied merely because the State and its agencies have taken all reasonable steps to eliminate the risk. Nothing in the Convention supports such a conclusion.
Case: Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
Outcome: referred to
The first such restatement of principle cited by Idoshore was that enunciated by Priestly JA as a member of the New South Wales Court of Appeal in relation to a building and engineering contract in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 260: 'There is nothing in the slightest novel in the implication of terms requiring reasonableness by parties to a contract in implementing terms of the contract.' And further at 268: 'The result is that people generally... have grown used to the courts applying standards of fairness to contract which are wholly consistent with the existence in all contracts of a duty upon the parties of good faith and fair dealing in its performance. In my view this is in these days the expected standard, and anything less is contrary to prevailing community expectations.' In framing those principles, his Honour acknowledged the briefly reported dictum of Dixon J (as he then was) in Gullett v Gardner (1948) 22 ALJ 151, as follows: 'This appeal depends upon the interpretation that should be placed upon a transaction of a somewhat curious nature between the two parties, the plaintiff and the defendant. It depends upon its interpretation in the wide sense; not the mere construction of the language in which it is expressed, but the extraction from the documents and the circumstances to which they refer and in which they were made of the full intention which the parties had or are to be considered as having with reference to the question now arising from the events that have occurred' (that emphasis appearing in the foregoing dictum was that of Dixon J). To similar effect was the dictum of Handley JA appearing in Renard at 280. Meagher JA reached the same outcome in decision-making, upon the operation of the contractual material addressed, as did Priestly and Handley JJA, though (at 275) his Honour rejected the notion '... that reasonableness could be imported as a limitation on the existence of cl 44 powers...' , upon the basis that '[s]uch a limitation, if it existed, could only arise either from the express words of the contract or by way of an implied term' .
Case: Gullett v Gardner (1948) 22 ALJ 151
Outcome: referred to
The first such restatement of principle cited by Idoshore was that enunciated by Priestly JA as a member of the New South Wales Court of Appeal in relation to a building and engineering contract in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 260: 'There is nothing in the slightest novel in the implication of terms requiring reasonableness by parties to a contract in implementing terms of the contract.' And further at 268: 'The result is that people generally... have grown used to the courts applying standards of fairness to contract which are wholly consistent with the existence in all contracts of a duty upon the parties of good faith and fair dealing in its performance. In my view this is in these days the expected standard, and anything less is contrary to prevailing community expectations.' In framing those principles, his Honour acknowledged the briefly reported dictum of Dixon J (as he then was) in Gullett v Gardner (1948) 22 ALJ 151, as follows: 'This appeal depends upon the interpretation that should be placed upon a transaction of a somewhat curious nature between the two parties, the plaintiff and the defendant. It depends upon its interpretation in the wide sense; not the mere construction of the language in which it is expressed, but the extraction from the documents and the circumstances to which they refer and in which they were made of the full intention which the parties had or are to be considered as having with reference to the question now arising from the events that have occurred' (that emphasis appearing in the foregoing dictum was that of Dixon J). To similar effect was the dictum of Handley JA appearing in Renard at 280. Meagher JA reached the same outcome in decision-making, upon the operation of the contractual material addressed, as did Priestly and Handley JJA, though (at 275) his Honour rejected the notion '... that reasonableness could be imported as a limitation on the existence of cl 44 powers...' , upon the basis that '[s]uch a limitation, if it existed, could only arise either from the express words of the contract or by way of an implied term' .
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: referred to
Idoshore cited also what appeared more recently in the unanimous reasons of the High Court in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ), concerning the bearing of surrounding circumstances upon the construction of written contracts, as follows: 'The construction of the letters of indemnity is to be determined by what a reasonable person in the position of Pacific would have understood them to mean. That requires consideration, not only of the text of the documents, but also the surrounding circumstances known to Pacific and BNP and the purpose and object of the transaction.' 147 The surrounding circumstances implicitly known to Idoshore and Foundation included the nature and extent of Idoshore's then existing business activities, described by the Agreement as the provision of 'facilities and services to medical practitioners to facilitate the conduct of their individual medical practices carried out in and from the Premises...', such premises being of course the subject of the medical operations of Idoshore's medical practitioners by the time of formation of the Business Sale &amp; Purchase Agreement. As I have foreshadowed, at the time of formation of the Agreement, Foundation was already itself engaged extensively in the operation of business activities of that general description, though on a much larger scale than Idoshore. 148 As I have already placed on record, Idoshore listed the following matters in summary as the principal focus of its case, being of course the case the subject of its several claims (I put aside for the moment Foundation's briefly framed cross-claim): '(a) the representations made to [Mr] O'Shanassy about exchanging a higher price for an Earn-Up provision; (b) the pre-contractual representations as to [Foundation's] intention to grow the Business [and] the Heads of Agreement; (c) the contractual provisions of the Business Sale &amp; Purchase Agreement setting out [Foundation's] intention to grow the Business; (d) the express obligation [of Foundation] not to make any material change to the Business; and (e) the contractual warranties by Idoshore as to maintenance of post acquisition EBITDA.' As to (a) above, the same is apparently a reference to representations made in the course of pre-contract negotiations, as is explicitly the case in (b) above.
Case: Australian Competition &amp; Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035
Outcome: cited
The ACCC commenced these proceedings on 1 November 2006 alleging contraventions by various parties of s 45 of the Act and the Code. The alleged contraventions involved price fixing in the provision of educational consultancy services to overseas students of Korean origin. The proceedings were commenced against Kokos, Chad Kim, IAE, Young Gil Pae, Sang-Hong Jung and Rebekah Cabalt. Study Overseas Now Pty Ltd (Study Overseas Now) was joined as a respondent to the proceedings subsequently. On 17 August 2007 the ACCC was given leave to serve on Mr Seow Bing Yeo, a director of that company, a notice of motion seeking his joinder, such service to be effected out of the jurisdiction in Japan through a diplomatic channel. For the reasons set out in Australian Competition &amp; Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 , that latter requirement was dispensed with and an order for substituted service made. 5 The corporate respondents and Sang-Hong Jung are each said to have been in the business of providing educational consultancy services to students of Korean origin. The services allegedly involved providing information to students about courses in secondary and tertiary education institutions in Western Australia and arranging for their enrolment at institutions of their choice. The corporate respondents and Ms Jung are said to have been remunerated by commissions paid by the institutions. 6 The corporate respondents and Ms Jung are said to have made oral and written agreements in 2004 and 2005 under which they agreed not to offer or accept discounted tuition fees. Any party to the agreements that offered or agreed to accept a discounted tuition fee would be referred to a 'Council of Korean Agency' comprising representatives of each of the parties to the agreement. Such parties would be banned from enrolling students in the relevant institutions for a period of three months. It was alleged that copies of the written agreement were sent to a number of educational institutions. The ACCC alleged that the conduct of the corporate respondents and Ms Jung was in contravention of s 45 of the Act and of the Code. The other natural person respondents were said to have been involved in the contraventions.
Case: Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515
Outcome: cited
The ACCC set out in its submissions a non-exhaustive list of the principles and factors relevant to the determination of pecuniary penalties. They were: (a) The nature and extent of the contravening conduct. (b) The amount of loss or damage caused. (c) The circumstances in which the conduct took place. (d) The size of the contravening company. (e) The degree of power it has, as evidenced by its market share and ease of entry into the market. (f) The deliberateness of the contravention and the period over which it extended. (g) Whether the contravention arose out of the conduct of senior management or at a lower level. (h) Whether the company has a corporate culture conducive to compliance with the Act as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. (i) Whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention. (j) Whether the respondents have engaged in similar conduct in the past. (k) The financial position of the respondents. (l) The deterrent effect of the proposed penalty. The ACCC referred to Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 and Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515. Although there has been repeated discussion in later cases of the factors relevant to the quantum of pecuniary penalties, I am satisfied that the above list is sufficiently comprehensive. It is to be applied by reference to the general principle that the purpose of pecuniary penalties is to deter the contravenor and others from future contraventions of the Act.
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: cited
The ACCC set out in its submissions a non-exhaustive list of the principles and factors relevant to the determination of pecuniary penalties. They were: (a) The nature and extent of the contravening conduct. (b) The amount of loss or damage caused. (c) The circumstances in which the conduct took place. (d) The size of the contravening company. (e) The degree of power it has, as evidenced by its market share and ease of entry into the market. (f) The deliberateness of the contravention and the period over which it extended. (g) Whether the contravention arose out of the conduct of senior management or at a lower level. (h) Whether the company has a corporate culture conducive to compliance with the Act as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. (i) Whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention. (j) Whether the respondents have engaged in similar conduct in the past. (k) The financial position of the respondents. (l) The deterrent effect of the proposed penalty. The ACCC referred to Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 and Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515. Although there has been repeated discussion in later cases of the factors relevant to the quantum of pecuniary penalties, I am satisfied that the above list is sufficiently comprehensive. It is to be applied by reference to the general principle that the purpose of pecuniary penalties is to deter the contravenor and others from future contraventions of the Act.
Case: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401
Outcome: cited
Because of their present relevance, I will refer to the observations of French J in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] where his Honour said that that judgment may be made: ... by reference to evidence put on in support of an application under s31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established. 30 Order 20 r 5 of the Federal Court Rules empowers the Court (inter alia) to order that a proceeding be dismissed if satisfied that it is frivolous, vexatious or an abuse of process. 31 The Council's grounds for summary dismissal are, as I have said, layered. The first two grounds relate to the competence of the purported s 88 application. The first ground is that Mr Wilkshire is not a "person aggrieved"; the second, that his application has not enlivened any of the grounds specified in s 88(2) which are the only grounds available for making an order under s 88(1). (a) "A person aggrieved"
Case: Kraft Foods Inc v Gaines Pet Food Corporation (1996) 65 FCR 104
Outcome: cited
The concept of "an aggrieved person" in this context has been considered in many cases: see the discussion by Sackville J in Kraft Foods Inc v Gaines Pet Food Corporation (1996) 65 FCR 104 at 111-114. For present purposes it is sufficient for me to refer, as others have done, to McLelland J's comment on it in Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 193: ... the expression would embrace any person having a real interest in having the Register rectified, or the trade mark removed in respect of any goods, as the case may be, in the manner claimed, and thus would include any person who would be, or in respect of whom there is a reasonable possibility of his being, appreciably disadvantaged in a legal or practical sense by the Register remaining unrectified, or by the trade mark remaining unremoved in respect of any goods, as the case may be, in the manner claimed.
Case: Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158
Outcome: cited
The concept of "an aggrieved person" in this context has been considered in many cases: see the discussion by Sackville J in Kraft Foods Inc v Gaines Pet Food Corporation (1996) 65 FCR 104 at 111-114. For present purposes it is sufficient for me to refer, as others have done, to McLelland J's comment on it in Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 193: ... the expression would embrace any person having a real interest in having the Register rectified, or the trade mark removed in respect of any goods, as the case may be, in the manner claimed, and thus would include any person who would be, or in respect of whom there is a reasonable possibility of his being, appreciably disadvantaged in a legal or practical sense by the Register remaining unrectified, or by the trade mark remaining unremoved in respect of any goods, as the case may be, in the manner claimed.
Case: Qantas Airways Ltd v Gama [2008] FCAFC 69
Outcome: cited
Mr Wilkshire's affidavits are replete with speculations about, and assertions and allegations of, impropriety, be it of the Delegate, the Council's witnesses, or both parties' lawyers. While accepting he may be able to point to inconsistencies in evidence relating to events long prior to the preparation of the declarations of witnesses for the Council, or to the non-production of documents created over a decade earlier, he has provided no plausible justification at all for the regularly made and, at first flush, seemingly preposterous consequential allegations of impropriety. I note in passing the standard of proof s 140 of the Evidence Act 1995 (Cth) provides for such allegations: see Qantas Airways Ltd v Gama [2008] FCAFC 69 at [123] - [139] . 42 Importantly there is nothing at all to suggest that the very specific matters which were central to his case and in particular the discrepancies in the evidence on the Council's use of its mark as between April and June 1997 were themselves material, or of any causative significance, in the Council obtaining registration of that mark. The supposedly tainted evidence had no bearing on the Delegate's decision. 43 I refer to these matters because what would be involved in allowing Mr Wilkshire to amend his application would be the articulation of an, as yet, indiscernible claim (possibly under s 62A) and a claim, moreover, which there is no reason to believe on the material before me will have any substance, legal or factual.
Case: Re South American and Mexican Co [1895] 1 Ch 37
Outcome: cited
It is the case generally that the dismissal of a proceeding in this Court by consent can found res judicata and issue estoppels and attract the Anshun doctrine: see generally Maiden, "Recent steps in the evolution of res judicata , cause of action estoppel and the Anshun doctrine in Australia" (2004) 25 Australian Bar Review 130 esp at 138. As was said in Re South American and Mexican Co [1895] 1 Ch 37 at 50: ... a judgment by consent is intended to put a stop to litigation between the parties, just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2002) 119 FCR 1 at [1148] ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21 ; (1988) 164 CLR 502 at 508. This said, there is real controversy as to the extent to which decisions on appeal in opposition proceedings (whether by consent or otherwise) can found an issue estoppel or attract the Anshun doctrine in s 88 applications given the view of the Full Court in Lomas v Winton Shire Council [2002] FCAFC 413 at [18] that an opposition proceeding had a "quasi summary nature". The Court went on (at [18]) to say that: An unsuccessful opponent would always have the opportunity to bring an expungement proceeding if the opposition proceeding fails. In an expungement proceeding, the validity of a trade mark can be fully explored. That is a reason for concluding that there should not be a full exploration of the prospective validity of a trade mark on an appeal in an opposition proceeding. See also Clinique Laboratories Inc v Luxury Skin Care Brands Pty Ltd [2003] FCA 1517 ; (2003) 61 IPR 130 at [13] ; Health World Ltd v Shin-Sun Australia Pty Ltd (2006) 68 IPR 557 at [31]-[48].