mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571
Outcome: cited
It is unnecessary for present purposes to characterise the effect of the stipulated condition, although I am satisfied that in this context it conditioned the performance not the formation of the contract: see Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571. It is equally unnecessary, given what later occurred, to express a concluded view on the date on which the contract was made. My own view is that it probably was around the time of, but prior to, the 17 July meeting. What is clear is that it was on foot when the deposit of $10,000 was paid on 7 August. Even if that payment was to be regarded strictly as a deposit, the contract's conditional character was spent shortly thereafter when Chehade paid $50,000 on 25 August 2000 and began employment with Tiltform Australia on 1 September 2000. At best by then, it had become an instalment contract and no more. This, I would note, seems to be the submission put on behalf of Sladojevic in relation to the alleged Fifth Misrepresentation. In reaching the above conclusions I have accepted the essence of Benson's evidence. I have rejected much of Chehade's evidence. I do not accept either Bell's or Sladojevic's evidence concerning when and how they respectively became aware of Chehade's investment or decision to invest. In particular I am satisfied that by 17 July 2000 Bell was aware that Chehade had made a commitment to Benson to invest $500,000. 315 To foreshadow matters, my conclusions here have quite some bearing on my findings in relation to the alleged misrepresentations. 316 Bell's evidence is that he started to talk with Chehade about Chehade buying into the accountancy practice in late July 2000. He said that Sladojevic was by then suggesting to him that he should become a director of Tiltform Licensing. He met with Chehade on 26 July 2000 and then, it seems, offered to sell 90 per cent of the practice to Chehade and/or Tripodi for $200,000. I again note that Tripodi did not start work until 31 July although Bell in oral evidence suggested he must have started earlier. I would also note that there is no evidence that Tripodi was a qualified accountant. There is evidence that he was not.
Case: Waterman v Gerling Australia Insurance Co Pty Ltd [2005] NSWSC 1066 ; (2005) 194 FLR 419
Outcome: cited
I have already referred to cll 2.1 and 2.5 of the Policy which link the provision of the cover to full payment of the policy, cl 2.5 providing that if full payment of the gross premium is not made, "there is no cover". By way of contrast, cl 11.1(a)(v) of the Policy acknowledges the insurer's right to cancel the policy under s 60 of the Insurance Contracts Act where (inter alia) the insured "failed to pay the premium for this policy". This distinction between what I will call "cessation of cover" on the one hand and cancellation of the policy on the other is recognised explicitly in the Act in the manner in which it regulates instalment contracts of general insurance: see s 39 and s 62; and see generally Waterman v Gerling Australia Insurance Co Pty Ltd [2005] NSWSC 1066 ; (2005) 194 FLR 419; Sutton, Insurance Law in Australia , 7.42 (3 rd ed 1999). 393 It is a question of construction of the policy, admittedly under the shadow of the Insurance Contracts Act , as to whether in the circumstances Mr Bell had the cover provided by the CGU at the time of notification of the claims, i.e. 27/28 June 2001. Apart from recognising the difference between cessation of cover and cancellation, the Act does not apply to or regulate directly provisions such as cl 2.5. On its face that sub-clause is a self-executing one. Once the contingency on which it is premised occurs, the cover ceases. The cover may later be revived by the making of payment in full, assuming an election to cancel for non-payment had not by then been made. Unless and until that occurred, there would be no cover notwithstanding that the Policy itself may remain on foot. Far from throwing any doubt on this construction the policy itself supports it.
Case: Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2005) 223 ALR 560
Outcome: cited
I have not considered it necessary to give detailed consideration to the principles applied in the construction of contracts of insurance. These have recently been essayed by Brereton J in Waterman's case. For my own part, I respectfully agree with his Honour's conclusion in that case. It deals with the very issue raised here though with a clause not quite as unmistakeably explicit as here. I would merely wish to emphasise that while I well understand that an automatic cessation of cover might have the same undesirable policy effects as the Australian Law Reform Commission identified in relation to automatic cancellation: see ALRC Report 20 Insurance Contracts , 1982 [246]-[247], I agree with Brereton J that there is nothing in the Insurance Contracts Act , that Report and the now accepted principles of interpretation of contracts: see e.g. Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2005) 223 ALR 560 at [71] ff; affd [2006] FCAFC 144 ; (2006) 156 FCR 1; that would permit the torturing of the clear and coherent terms and text of a contract so as to effectuate that policy in some way. That is a matter for the legislature to address. 395 Accordingly, I am satisfied that there was no insurance cover on 27/28 June 2001; that CGU's defence has been made out; and that the cross-claims must be dismissed with costs. 396 I do not intend to consider the other defences raised by CGU, given that the only live issue between CGU and Bell is costs (having regard to my findings in the Rawley and Chehade matters). However, I should indicate this much. Those defences called into question (i) whether Bell's actions giving rise to the claims against him arose from the conduct of the business planning consultancy covered by the Policy, it being contended that he was acting in the management of Tiltform Licensing by June and July 2000; (ii) whether he was relevantly acting as an "officer of Tiltform Australia and so subject to an express exclusion of the Policy"; (iii) whether Bell's conduct fell within the "unintentional dishonest" acts or omissions exception to the Policy; (iv) whether the policy was voidable under s 28 of the Insurance Contracts Act on account of fraudulent representations contained in the proposal for insurance, or else CGU would have been entitled to reduce its liability to nil. I am of the view in respect of each of these that CGU had a reasonably arguable defence on the material before me.
Case: Resort Huntervalley Pty Limited v Commissioner of Taxation [2009] FCA 301
Outcome: related
the face of what I was told yesterday, I released the respondent from the undertaking which he had given on 13 March 2009 (see Resort Huntervalley Pty Limited v Commissioner of Taxation [2009] FCA 301). The matter was again listed before me this morning. When the matter was called on, I was informed by the legal representatives for the parties that the respondent sought an order that the Application be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and that the respondent also sought a further order that the applicants pay the respondent's costs as agreed, or failing agreement, as taxed. I was handed a document which bears the signature of the solicitor for the first and second applicants and the signature of an authorised officer of the respondent. I was also told that the respondent relied upon O 20 r 5 of the Federal Court Rules in support of his application. That rule is in the following terms: 5 Stay or dismissal (proceedings commenced on or after 1 December 2005) (1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding: (a) the proceeding or claim is frivolous or vexatious; or (b) the proceeding or claim is an abuse of the process of the Court. (2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief. (3) The Court may receive evidence on the hearing of an application for an order under subrule (2). Note For a proceeding commenced on or after 1 December 2005 in which the prosecuting party has no reasonable prospect of success, see subsection 31A (2) of the Act. I have not been given a full explanation or, for that matter, much of an explanation as to what occurred on 13 March 2009 during the course of that day and before the undertakings were given on that day. Nor, indeed, have I been given any explanation of what has subsequently occurred insofar as the assets of the applicants are concerned.
Case: AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: cited
is therefore not only Mr Jones' private interest that must be considered but the public interest in protecting "the effective administration of justice by demonstrating that the court's orders will be enforced": AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 107. In this case, Dr Toben's conduct has amounted to a public defiance of the September 2002 orders and the November 2007 undertaking. He made it clear to the public immediately after the hearing before Moore J that he would not honour his undertaking or comply with the orders. The Court therefore has an interest over and above Mr Jones' private interest in securing the benefit of the September 2002 orders and the November 2007 undertaking and having Dr Toben comply with its orders. His public defiance of the Court's orders has called into play the "penal or disciplinary" jurisdiction of the Court: Whitham v Holloway (1995) 183 CLR 525 at 533; AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; 161 CLR 98 at 108. The primary purpose to be achieved in this case is the vindication of the Court's authority.
Case: Coonan &amp; Denlay Pty Ltd v Superstar Australia Pty Ltd (No 2) [1981] FCA 197 ; (1981) 57 FLR 118
Outcome: cited
Court has the same power to punish contempts as the High Court: s 31 of the Federal Court of Australia Act 1976 (Cth). The High Court has the same power to punish for contempts as was possessed by the Supreme Court of Judicature in England at the time of the enactment of the Judiciary Act 1903 (Cth). The High Court Rules 2004 (r 11.04.1(a)) provide that the High Court may order "that the contemnor pay a fine, be committed to prison, or both pay a fine and be committed to prison". This Court has power to punish by way of fine: Coonan &amp; Denlay Pty Ltd v Superstar Australia Pty Ltd (No 2) [1981] FCA 197 ; (1981) 57 FLR 118. The Court has the duty of ensuring that its orders are complied with. If its orders can be disobeyed with impunity, public confidence in the administration of justice will be undermined.
Case: Whitham v Holloway (1995) 183 CLR 525
Outcome: cited
Court therefore has an interest over and above Mr Jones' private interest in securing the benefit of the September 2002 orders and the November 2007 undertaking and having Dr Toben comply with its orders. His public defiance of the Court's orders has called into play the "penal or disciplinary" jurisdiction of the Court: Whitham v Holloway (1995) 183 CLR 525 at 533; AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; 161 CLR 98 at 108. The primary purpose to be achieved in this case is the vindication of the Court's authority.
Case: SZKRJ v Minister for Immigration and Citizenship [2008] FCA 271
Outcome: cited
When the appeal was called on for hearing on 4 March 2008, the Appellant failed to appear. In the exercise of the power conferred by s 25(2B)(b)(ii) of the Federal Court of Australia Act 1976 (Cth) ("Federal Court of Australia Act"), I thereupon dismissed the appeal : SZKRJ v Minister for Immigration and Citizenship [2008] FCA 271. On 4 April 2008, the Appellant filed a notice of motion by which she sought that the orders made on 4 March 2008 be set aside and that appeal proceed. She filed an affidavit in support of that application that same day. 3 The order which I made on 4 March 2008 was entered on 12 March 2008. 4 The nature of today's application therefore is, in effect, for the reopening of the appeal as a consequence of a requested setting aside of an order of dismissal.
Case: SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648
Outcome: cited
In SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 , Jacobson J had occasion to consider the power of the court to entertain a notice of motion to set aside an order dismissing an appeal where an Appellant had failed to appear. The circumstances of that case were slightly different to the present in this sense, in the proceedings before Jacobson J the application to set aside the dismissal order was filed before the entry of the dismissal order. As it happened, his Honour considered that there were two sources of power to set aside the dismissal order. One related to the fact that the application had been made before the formal entry of the order. That need not be explored further in the circumstances of this case. The nature of the other basis of power is neatly summarised by the following quote from his Honour's decision at para 4: The second is an implied power under section 23 of the Act to overcome the court's failure to provide a party with a hearing; see Yevad Products Pty Limited v Brookfield [2005] FCAFC 263 at [26] - [33] and the authorities there cited; see also DJL v Central Authority (2000) 201 CLR 226 at [189]. 6 It was accepted by counsel appearing for the Minister that the Court has power to set aside the orders made by me on 4 March 2008. Having regard to the passage which I have quoted from Jacobson J's judgment and the authorities mentioned by his Honour, I am quite satisfied that this concession was appropriately made in law. 7 The principles to be applied in relation to the consideration of an application of this kind are, in my opinion, as follows: 1. is there a satisfactory explanation in respect of the failure to attend at the time and place appointed for the hearing of the appeal; 2. what are the merits of the prospective appeal in the sense that, does it enjoy at least a reasonable prospect of success. 8 Though separate, those considerations are not unrelated in the sense that a case which had patent merit might well attract a favourable exercise of the power to set aside a dismissal order, even though one might have reservations as to whether the explanation for absence was satisfactory. The prejudice occasioned by the initial failure to attend in such circumstances to the Respondent party could be ameliorated by an appropriate order in respect of costs, were the appeal successful. I proceed then to consider the application having regard to each of the considerations that I have mentioned.
Case: Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215
Outcome: referred to
is tolerably clear that in identifying the hypothetical individual contemplated by the joint judgment in Campomar and in considering the effect of the impugned conduct on that individual, the Court can identify from a general and diverse group which may constitute the audience, a hypothetical individual who is most likely to be misled but only in the sense used in the following quotation. That is, one can test the effect of the conduct on a subclass of that general and diverse group. So much is apparent from the judgment of the Full Court in Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215. The Full Court said (at [24]): [The trial judge] (at [16]) summarised the text formulated by the High Court in Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [103] - [105] in these terms: "First, where the persons allegedly misled are not identified individuals but are members of a class it is necessary to isolate "a representative member" of the class and enquire whether this hypothetical individual is likely to be deceived. Second, when considering the likely effect of the misrepresentation on this hypothetical person he (or she) should be judged as an 'ordinary' or 'reasonable' member of the class. In this way, reactions to the representation that are 'extreme' or 'fanciful' will be disregarded." Having identified the test his Honour then said (at [21]): "How then is one to identify and give characteristics to Campomar Sociedad 's hypothetical individual? Logic demands that if one is dealing with a diverse group then, for the purpose of determining whether particular conduct has the capacity to mislead, it is necessary to select a hypothetical individual from that section of the group which is most likely to be misled. If the court is satisfied that this hypothetical individual is likely to have been misled by that conduct, that would be sufficient." The appellants' complaint appears to be that his Honour should have considered the effect of the notices on the "ordinary or reasonable" recipient. However in our view his Honour accurately summarised the Campomar test. There is no inconsistency between testing the effect of the representation by reference to ordinary or reasonable members of the class and by reference to the hypothetical individual. The attribution of characteristics to the ordinary and reasonable members of the class must be objective in order to allow for the wide range of persons who would in fact make up the class: National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 49 ACSR 369 at [68] per Jacobson and Bennett JJ. Within a large class there may be a number of subclasses of ordinary and reasonable people. Thus in the present case there may be ordinary and reasonable persons who were well informed about the internet and the domain name registration system and other persons, equally ordinary and reasonable, who were not.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: referred to
A decision will be vitiated by Wednesbury unreasonableness, unless no decision-maker, acting reasonably, could have made that decision or it is shown that the decision was so unreasonable that no reasonable person could have come to it. In applying this standard a court must proceed with caution lest it exceed its supervisory role by reviewing the decision on the merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41 42, per Mason J; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36 37, per Brennan J. It is not enough to show that another decision-maker might have reached a different result or even that the Court takes the view that a different decision would have been more appropriate: Eshetu at 626 627, per Gleeson CJ and McHugh J; 'Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28 at 59 65, per Sackville J.
Case: Australian Postal Corporation v Oudyn [2003] FCA 318
Outcome: referred to
The parties agreed before the Tribunal that the decision of 6 January 2004 be set aside: it could not stand in the terms in which it was expressed, since it is not permissible to cease liability 'on and from' , thereby apparently precluding any future claims which may be made: Australian Postal Corporation v Oudyn [2003] FCA 318 and Rosillo v Telstra Corporation Limited [2003] FCA 1628.
Case: Comcare v Hill (1999) 56 ALD 487
Outcome: referred to
In Comcare v Hill (1999) 56 ALD 487, Spender J in particular at [9] endorsed the approach of Sackville J.
Case: March v E &amp; MH Stramare Pty Ltd [1991] HCA 12 ; (1991) 171 CLR 506
Outcome: referred to
For a disease to be compensable under the SRC Act something more than a mere temporal connection must be found; there must be a material contribution towards either the contraction of the disease or an aggravation of it: See the definition of 'disease' in s 4(1) of the SRC Act and Treloar v Australian Telecommunications Commission (1990) 26 FCR 316. The Tribunal's finding that there had been a temporal connection only between the onset of the applicant's symptoms and his work precludes any finding that the applicant had suffered a work-related disease which was therefore compensable. That finding was a finding of fact: March v (E &amp; MH) Stramare Pty Ltd [1991] HCA 12 ; (1991) 171 CLR 506 esp. per Mason CJ at 515-517.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: referred to
The giving by a tribunal of allegedly inadequate weight to certain matters and undue weight to others does not, itself, establish a case of unreasonableness of the kind referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation Ltd [1947] EWCA Civ 1 ; [1948] 1 KB 223; Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. 53 A decision will be vitiated by Wednesbury unreasonableness, unless no decision-maker, acting reasonably, could have made that decision or it is shown that the decision was so unreasonable that no reasonable person could have come to it. In applying this standard a court must proceed with caution lest it exceed its supervisory role by reviewing the decision on the merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41 42, per Mason J; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36 37, per Brennan J. It is not enough to show that another decision-maker might have reached a different result or even that the Court takes the view that a different decision would have been more appropriate: Eshetu at 626 627, per Gleeson CJ and McHugh J; 'Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28 at 59 65, per Sackville J.
Case: Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: referred to
The giving by a tribunal of allegedly inadequate weight to certain matters and undue weight to others does not, itself, establish a case of unreasonableness of the kind referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation Ltd [1947] EWCA Civ 1 ; [1948] 1 KB 223; Minister for Immigration &amp; Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. 53 A decision will be vitiated by Wednesbury unreasonableness, unless no decision-maker, acting reasonably, could have made that decision or it is shown that the decision was so unreasonable that no reasonable person could have come to it. In applying this standard a court must proceed with caution lest it exceed its supervisory role by reviewing the decision on the merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41 42, per Mason J; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36 37, per Brennan J. It is not enough to show that another decision-maker might have reached a different result or even that the Court takes the view that a different decision would have been more appropriate: Eshetu at 626 627, per Gleeson CJ and McHugh J; 'Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28 at 59 65, per Sackville J.
Case: Rosillo v Telstra Corporation Limited [2003] FCA 1628
Outcome: referred to
The parties agreed before the Tribunal that the decision of 6 January 2004 be set aside: it could not stand in the terms in which it was expressed, since it is not permissible to cease liability 'on and from' , thereby apparently precluding any future claims which may be made: Australian Postal Corporation v Oudyn [2003] FCA 318 and Rosillo v Telstra Corporation Limited [2003] FCA 1628.