mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55
Outcome: cited
Mr Hahnheuser was the principal actor in the three episodes that made up the conduct. He was the one mixing the ham and water in the bathroom, putting the mixture into the water container, distributing the ham and tainted water in the feedlot and giving the interviews. His name appears on the Press Alert. He did not act alone, however. At least one other person was present in the bathroom at the motel, to operate the video camera. At least two other persons were present with Mr Hahnheuser in the feedlot, one operating the video camera and one shown in the video walking with Mr Hahnheuser, wearing a tee-shirt similar to that worn by Mr Hahnheuser. In some of the television interviews, there are two people shown standing behind Mr Hahnheuser, holding up signs shaped like animals, with slogans written on them. The person whose name was given as Diana Simpson made the booking for the motel room used, and was present at the time. The person whose name was given as Mark Pearson paid for the room. The name Mark Pearson also appears on the Press Alert. In the course of his interviews, Mr Hahnheuser made admissions that there were other persons with him in the feedlot. He described what had happened as an operation that was carefully designed and planned, involving detailed investigations in advance and reconnaissance over a number of days, and as being "highly organised". It is clear that the other persons involved were willing participants; there is nothing to suggest that they were coerced, so as to prevent them from being taken to have acted in concert with Mr Hahnheuser. See Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55 at 61-63. The activities of Mr Hahnheuser and the other persons with him had the element of contemporaneousness sometimes said to be necessary for a finding of conduct in concert to be made. See Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1985) 9 FCR 425 at 433 per Keely and Pincus JJ.
Case: Farah (Australia) Pty Ltd v National Union of Workers NSW Branch (No 1) (1997) ATPR 41-583
Outcome: discussed
In this respect, there is some authority, which may shed light on the meaning of s 45DB(1). In F H Transport Pty Ltd v Transport Workers' Union of Australia (1997) 75 FCR 480, Drummond J considered whether to grant an interlocutory injunction to restrain industrial action interfering with the delivery of goods to, and the collecting of goods from, terminals operated by several transport companies. The interlocutory injunction was sought on a number of grounds, including alleged contravention of s 45DB(1) of the Trade Practices Act . At 490, his Honour suggested, in a single sentence, that the existence of evidence that part of one transport company's activities involve the movement of containers committed to international trade showed that there was a strong arguable case of infringement of s 45DB. His Honour did not discuss specifically whether the trade or commerce of a transport company, being the carriage of containers by road, was trade or commerce "involving" the movement of goods between Australia and a place outside Australia. He appears to have assumed that this was so. In Farah (Australia) Pty Ltd v National Union of Workers NSW Branch (No 1) (1997) ATPR 41-583, Sackville J rejected a claim for an interlocutory injunction, which was based on s 45D(1) and s 45DB(1) of the Trade Practices Act . In that case, a picket line was preventing the delivery of goods to premises in Sydney, occupied by an importer and wholesale distributor of clothing products, some of which were manufactured in Fiji. At 44,066-44,067, his Honour expressed a tentative view that there was not a serious issue to be tried in relation to s 45DB(1) , because there was little or nothing in the evidence suggesting that any of those involved in the picket had in mind the purpose of preventing or substantially hindering the Fijian supplier from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia. His Honour did express the view that the evidentiary position may change on a final hearing. It therefore appears that his Honour took the view that it was at least possible that the Fijian manufacturer and exporter to Australia was engaged in trade or commerce involving the movement of goods from a place outside Australia to Australia. 55 I respectfully adopt Hely J's reasoning in relation to s 45DB(1). His Honour's judgment was a considered one. To the extent to which Hely J's view is inconsistent with the views of Drummond J in F H Transport and Sackville J in Farah , Hely J's view is to be preferred. There is nothing in the reasons of Drummond J and Sackville J in those two cases to show that their Honours even considered the possibility that the words "involving the movement of goods" should be regarded as narrowing the operation of s 45DB(1), or that either of them considered the parliamentary materials.
Case: F H Transport Pty Ltd v Transport Workers' Union of Australia (1997) 75 FCR 480
Outcome: discussed
In this respect, there is some authority, which may shed light on the meaning of s 45DB(1). In F H Transport Pty Ltd v Transport Workers' Union of Australia (1997) 75 FCR 480, Drummond J considered whether to grant an interlocutory injunction to restrain industrial action interfering with the delivery of goods to, and the collecting of goods from, terminals operated by several transport companies. The interlocutory injunction was sought on a number of grounds, including alleged contravention of s 45DB(1) of the Trade Practices Act . At 490, his Honour suggested, in a single sentence, that the existence of evidence that part of one transport company's activities involve the movement of containers committed to international trade showed that there was a strong arguable case of infringement of s 45DB. His Honour did not discuss specifically whether the trade or commerce of a transport company, being the carriage of containers by road, was trade or commerce "involving" the movement of goods between Australia and a place outside Australia. He appears to have assumed that this was so. In Farah (Australia) Pty Ltd v National Union of Workers NSW Branch (No 1) (1997) ATPR 41-583, Sackville J rejected a claim for an interlocutory injunction, which was based on s 45D(1) and s 45DB(1) of the Trade Practices Act . In that case, a picket line was preventing the delivery of goods to premises in Sydney, occupied by an importer and wholesale distributor of clothing products, some of which were manufactured in Fiji. At 44,066-44,067, his Honour expressed a tentative view that there was not a serious issue to be tried in relation to s 45DB(1) , because there was little or nothing in the evidence suggesting that any of those involved in the picket had in mind the purpose of preventing or substantially hindering the Fijian supplier from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia. His Honour did express the view that the evidentiary position may change on a final hearing. It therefore appears that his Honour took the view that it was at least possible that the Fijian manufacturer and exporter to Australia was engaged in trade or commerce involving the movement of goods from a place outside Australia to Australia. 55 I respectfully adopt Hely J's reasoning in relation to s 45DB(1). His Honour's judgment was a considered one. To the extent to which Hely J's view is inconsistent with the views of Drummond J in F H Transport and Sackville J in Farah , Hely J's view is to be preferred. There is nothing in the reasons of Drummond J and Sackville J in those two cases to show that their Honours even considered the possibility that the words "involving the movement of goods" should be regarded as narrowing the operation of s 45DB(1), or that either of them considered the parliamentary materials.
Case: Hutchins v Maughan [1947] VLR 131
Outcome: cited
The amended statement of claim contained an alternative allegation of trespass to Samex's sheep, said to have been constituted by entering the feedlot and placing pig meat in the feeding and drinking systems. Counsel for the applicants made no submission on this trespass claim. This is probably because trespass to goods is limited to direct and immediate interference with possession of a chattel. Although owned by Samex, the sheep concerned were in Mr Peddie's possession at the time when Mr Hahnheuser engaged in his conduct. Further, there is no evidence that Mr Hahnheuser interfered directly with the sheep. There is an obvious distinction between direct interference of the kind required to constitute a trespass and leaving something that sheep might or might not choose to eat in a place where they might or might not choose to go for the purpose of eating. It has been held that laying baits for dogs, which were subsequently taken by the dogs of a passing drover of sheep, did not amount to trespass to the dogs. See Hutchins v Maughan [1947] VLR 131. Indeed, the evidence, so far as it goes was that there was untouched matter found in at least one of the feeding troughs, which the sheep had apparently chosen not to eat. Whether any sheep actually ingested any adulterated feed must remain a matter of speculation. 73 For reasons I have already stated in [3], there must be an order dismissing the application as against the second respondent, with no order as to costs. That order is made by consent of the applicants and the second respondent. As a result of the conclusions I have reached, there must also be an order dismissing the application as against Mr Hahnheuser. In my view, there should be no order as to costs. In particular, costs should not follow the event because Mr Hahnheuser received the benefit of pro bono legal representation (not organised through the legal referral scheme operated by the Court under O 80 of the Federal Court Rules ) until he declined to avail himself of it any further. It is not even altogether clear that the Court would have any power to award costs in his favour in those circumstances. 74 I should also say that, if I had been satisfied that there had been a contravention of s 45DB(1) of the Trade Practices Act , I should certainly not have been prepared to make a declaration, or to grant an injunction, in any of the forms specified in either of the application or the applicants' outline of argument. All of the suggested forms of both orders are inadequate to specify with the precision necessary the conduct in which Mr Hahnheuser has engaged or the conduct he would be required to refrain from engaging in. It is unnecessary to say more than that.
Case: Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659
Outcome: discussed
The view expressed by Hely J, that s 45DB(1) does not apply to acts anterior to the movement of goods from Australia to a place outside Australia, is consistent with dictionary definitions of the word "involving" and authorities dealing with the use of that word in other statutory contexts. The Macquarie Dictionary (revised edition) defines "involve" relevantly as follows: "to include as a necessary circumstance, condition, or consequence; imply; entail" and "to include, contain or comprehend within itself or its scope." The Oxford English Dictionary (2nd edition) defines "involve" relevantly as: "to enfold, envelop, entangle, include"; "to include; to contain, imply"; and "to contain implicitly; to include as a necessary (and therefore unexpressed) feature, circumstance, antecedent condition, or consequence; to imply, entail." In Rimanic v Business Licensing Authority [2001] VSC 400 , Habersberger J had to consider whether a conviction for making a threat to kill was a conviction "of an offence involving violence", disqualifying a person from obtaining a licence as a motor car trader. At [19], his Honour referred to dictionary definitions. At [45]-[46], his Honour referred to Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659, in which the question was whether certain statutory offences were offences "involving fraud or dishonesty". In Pollard , the argument that such an offence was limited to an offence "of" fraud or dishonesty was rejected, on the basis that the substitution of the word "of" for the word "involving" would fail to give the relevant provision its ordinary meaning. At [48], Habersberger J expressed the view that an offence involving violence is something less than an offence of violence, relying on Pollard . Relying on R v McCrossen [1991] Tas R 1, his Honour also expressed the view that an offence involving violence is also something less than an offence one of the essential ingredients of which is violence. As one of the relevant meanings of the word "involving" was "implying", and a threat to kill implied violence, a threat to kill was an offence involving violence.
Case: R v McCrossen [1991] Tas R 1
Outcome: cited
The view expressed by Hely J, that s 45DB(1) does not apply to acts anterior to the movement of goods from Australia to a place outside Australia, is consistent with dictionary definitions of the word "involving" and authorities dealing with the use of that word in other statutory contexts. The Macquarie Dictionary (revised edition) defines "involve" relevantly as follows: "to include as a necessary circumstance, condition, or consequence; imply; entail" and "to include, contain or comprehend within itself or its scope." The Oxford English Dictionary (2nd edition) defines "involve" relevantly as: "to enfold, envelop, entangle, include"; "to include; to contain, imply"; and "to contain implicitly; to include as a necessary (and therefore unexpressed) feature, circumstance, antecedent condition, or consequence; to imply, entail." In Rimanic v Business Licensing Authority [2001] VSC 400 , Habersberger J had to consider whether a conviction for making a threat to kill was a conviction "of an offence involving violence", disqualifying a person from obtaining a licence as a motor car trader. At [19], his Honour referred to dictionary definitions. At [45]-[46], his Honour referred to Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659, in which the question was whether certain statutory offences were offences "involving fraud or dishonesty". In Pollard , the argument that such an offence was limited to an offence "of" fraud or dishonesty was rejected, on the basis that the substitution of the word "of" for the word "involving" would fail to give the relevant provision its ordinary meaning. At [48], Habersberger J expressed the view that an offence involving violence is something less than an offence of violence, relying on Pollard . Relying on R v McCrossen [1991] Tas R 1, his Honour also expressed the view that an offence involving violence is also something less than an offence one of the essential ingredients of which is violence. As one of the relevant meanings of the word "involving" was "implying", and a threat to kill implied violence, a threat to kill was an offence involving violence.
Case: Rimanic v Business Licensing Authority [2001] VSC 400
Outcome: discussed
The view expressed by Hely J, that s 45DB(1) does not apply to acts anterior to the movement of goods from Australia to a place outside Australia, is consistent with dictionary definitions of the word "involving" and authorities dealing with the use of that word in other statutory contexts. The Macquarie Dictionary (revised edition) defines "involve" relevantly as follows: "to include as a necessary circumstance, condition, or consequence; imply; entail" and "to include, contain or comprehend within itself or its scope." The Oxford English Dictionary (2nd edition) defines "involve" relevantly as: "to enfold, envelop, entangle, include"; "to include; to contain, imply"; and "to contain implicitly; to include as a necessary (and therefore unexpressed) feature, circumstance, antecedent condition, or consequence; to imply, entail." In Rimanic v Business Licensing Authority [2001] VSC 400 , Habersberger J had to consider whether a conviction for making a threat to kill was a conviction "of an offence involving violence", disqualifying a person from obtaining a licence as a motor car trader. At [19], his Honour referred to dictionary definitions. At [45]-[46], his Honour referred to Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659, in which the question was whether certain statutory offences were offences "involving fraud or dishonesty". In Pollard , the argument that such an offence was limited to an offence "of" fraud or dishonesty was rejected, on the basis that the substitution of the word "of" for the word "involving" would fail to give the relevant provision its ordinary meaning. At [48], Habersberger J expressed the view that an offence involving violence is something less than an offence of violence, relying on Pollard . Relying on R v McCrossen [1991] Tas R 1, his Honour also expressed the view that an offence involving violence is also something less than an offence one of the essential ingredients of which is violence. As one of the relevant meanings of the word "involving" was "implying", and a threat to kill implied violence, a threat to kill was an offence involving violence.
Case: Vines v Djordjevitch [1955] HCA 19 ; (1955) 91 CLR 512
Outcome: cited
Although Mr Hahnheuser has pleaded reliance on s 45DD(3) of the Trade Practices Act in his amended defence, there is a question whether he is entitled to rely on that provision when he has not participated in the trial of the proceeding. In other words, there is a question as to whether the onus of proof of the elements of s 45DD(3) falls on the person seeking to rely on it, or whether the party contending that a contravention of s 45DB(1) has occurred carries the onus of proving that the elements of s 45DD(3) did not exist. The resolution of this question must lie in ascertaining the intention of the legislature from the provisions of the legislation. Often, the fact that a provision is expressed as an exception to a general provision, whether or not it appears in the same section as the general provision, will be a significant indicator that the onus lies on the party seeking to take advantage of the exception. This is not a conclusive rule. See Vines v Djordjevitch [1955] HCA 19 ; (1955) 91 CLR 512 at 519 and Attorney-General of the Australian Capital Territory On The Relation of Olaseat Pty Ltd v The Australian Capital Territory Minister for the Environment, Land and Planning (1993) 43 FCR 329 at 335-336.
Case: Borealis AB v Stargas Ltd [2001] UKHL 17 ; [2002] 2 AC 205
Outcome: cited
By force of ss 8 and 10 of the Sea-Carriage Documents Act , Hilditch as a lawful holder of the bill of lading for the Yubase 6 cargo was entitled to assert the rights of the shipper and was subject to its liabilities under the bill of lading. Because Art 2 of the amended Hague Rules makes the carrier subject to the responsibilities and liabilities and grants it the entitlement to the rights of immunities set out in the Rules as part of the contract of carriage of goods by sea incorporated in the bill of lading, the contractual analysis adopted by Devlin J is apposite here: cf: Borealis AB v Stargas Ltd [2001] UKHL 17 ; [2002] 2 AC 205 at 221 [26] 226-227 [31] per Lord Hobhouse of Woodborough. 97 Even if Dorval had been entitled to rely on the immunity in Art 4 r 2(i), because the causes were at least concurrent, it would have remained liable to Hilditch in damages. I am of opinion, however, that the responsibility for the damage, as a matter of commonsense, was substantively greater on the part of Dorval. Its breach of Art 3 r 2 caused the contamination to occur in the first place. The crew of the vessel were in as good a position as Hilditch to see the contamination as the cargo was passing through the ship's manifold. Both the ship's crew and Hilditch's surveyors observed, by sampling at the ship's manifold, the condition of the Yubase oil in its contaminated form. Each had the opportunity to stop the discharge. Neither did. To that extent their contribution to the damage may have been of equal efficacy, but superimposed on that were the obligations of Dorval under Art 3 r 2. There was no explanation, for example, how a proper system could have allowed the cargo to be discharged in the state it did. Dorval called no evidence as to how the cargo could have been discharged by the ship in the circumstances where there was evident contamination when it was passing through the ship's manifold which indicated the source was on the ship. I accept Capt Edgerton's evidence that good tanker practice required the valves in the tanks and connecting pipes which could permit the entry of caustic soda into the conveying lines for the Yubase to be sealed when the Yubase was being discharged. It is likely that there was some failure in that sealing process which led to the damage through contamination of the Yubase prior to its discharge from the Golden Lucy I . That being so, had the ship's crew been applying due care and acting under a proper system, they would not have permitted the discharge of the Yubase 6 to commence or continue without first investigating and stopping the source of the contamination. 98 At the hearing, Dorval only pressed an argument on the exception under Art 4 r 2(i) and did not advance any assertion that it relied on any other exception in that rule referred to in the parties' filed statement of issues.
Case: C V Sheepvaartonderneming Ankergracht v Stemcor (A/sia) Pty Ltd (2007) 160 FCR 342
Outcome: applied
The obligation of the carrier under Art 3 r 2 of the amended Hague Rules is a compound one. It requires not only that the carrier exercise reasonable care in the discharge of the goods, but also that it have a sound system for discharging them: Albacora SrL v Westcott &amp; Laurance Line Ltd [1966] 2 Lloyd's Rep 53 at 58 per Lord Reid, 62 per Lord Pierce and 64 per Lord Pearson; Shipping Corporation of India Ltd v Gamlen Chemical Co (A/sia) Pty Ltd [1980] HCA 51 ; (1980) 147 CLR 142 at 163 per Mason and Wilson JJ (with whom Gibbs J and Aickin J agreed at 149, 168); C V Sheepvaartonderneming Ankergracht v Stemcor (A/sia) Pty Ltd (2007) 160 FCR 342 at 370 [88] per Ryan and Dowsett JJ, 405 [229]-[230], 413 [266], [268] per Rares J. Dorval did not lead any evidence of the system, if any, for discharge of a cargo such as Yubase 6 from the Golden Lucy I . 80 Article 3 r 2 is, of course, expressly subject to the provisions of Art 4. The interaction between the two articles was discussed recently by the Full Court in the Ankergracht 160 FCR 342. It is well established that in order for a carrier to rely on the exceptions contained in Art 4 r 2 it must not be negligent or at fault, that is to say in breach of, relevantly, Art 3 r 2: Gamlen Chemical 147 CLR at 152, 154 per Stephen J, 164-165 per Mason and Wilson JJ; Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65 ; (1998) 196 CLR 161 at 193 [85] , 195-196 [91]-[95] per McHugh J, 216-219 [143]-[146] per Kirby J, 243 [228] per Callinan J, see too at 180-181 [49]-[50] per Gaudron, Gummow and Hayne JJ; the Ankergracht 160 FCR at 413-414 [270] per Rares J.