mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Horwitz Grahame Books Pty Ltd v Performance Publications Pty Limited (1987) 8 IR 25
Outcome: cited
Seven maintains that s 65A(1)(a) deals with "self-advertisements", corresponding with provision for advertisements published on behalf of others in s 65A(1)(b). The information provider is liable for a contravention of s 52 where the publication relates to the supply of its own services, such as the promotion of future programmes ( Horwitz Grahame Books Pty Ltd v Performance Publications Pty Limited (1987) 8 IR 25). Seven submits that, if the services in subparagraph (a)(vi)(A) may be goods or services of a third person, s 65A(1)(b) would be otiose because an advertisement would meet the description of being a publication pursuant to a contract, arrangement or understanding with a person who supplies the goods or services the subject of the publication. Such an interpretation would, it is submitted, be contrary to the proper construction of statutes. Seven says that the limitation of paragraph (a) to self-advertisements would also be consistent with views expressed generally about paragraph (a): that it deals with advertisements published by the information provider for its own products, while paragraph (b) deals with advertisements published by the information provider for the products of others (see Heydon, JD Trade Practices Law Vol 2 at 12.1030). However, counsel were not able to point to any authority or commentary that specifically examined the construction of subparagraph (vi) and, in particular, (vi)(A). 97 Seven does not have any commercial interest in the content of the information contained in the Episodes. A general commercial interest in publishing or promoting successful programs or programs which attract viewers is not a relevant commercial interest for the purposes of s 65A ( Advanced Hair Studio at 10-11 per French J; Horwitz at 29 per Wilcox J).
Case: ICI v Trade Practices Commission (1992) 38 FCR 248
Outcome: cited
The Commission submits that, whether or not it appears to the Court that Seven intended to engage in conduct in contravention of the Act or to broadcast the representations found to be in contravention of the Act, orders should be made as against Seven Network and the Seven Licensees on "public policy grounds". It relies on ICI v Trade Practices Commission (1992) 38 FCR 248 at 255 257 per Lockhart J. However, his Honour observed that it is relevant to consider questions of repetition of conduct and whether the conduct has occurred before or whether imminent substantial damage is likely. While Lockhart J was of the view that absence of any one or more of these elements is not fatal to the grant of an injunction under s 80 of the Act, none of those elements have been established by the Commission. No basis for the orders against Seven Network has been made out other than the asserted "public policy". No basis has been established as to why the declaratory relief sought is insufficient to protect the public, particularly in circumstances where the Seven Licensees did not make the Mentoring Program representation. 110 No basis has been established for the injunctive relief sought against the Seven Network. 111 I have found that the Seven Licensees made the Wildly Wealthy Women representations in the Episodes. I am prepared to make orders pursuant to s 80 of the Act permanently restraining the Seven Licensees from making or causing to be made in any form the Wildly Wealthy Women representations or any representations to substantially the same effect.
Case: Johnson &amp; Johnson Pacific Pty Limited v Unilever Australia Limited (No 2) (2006) 70 IPR 574 
Outcome: cited
The Episodes must be considered in their entirety ( Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199 per Gibbs CJ). That involves taking account of content and presentation and also the circumstances in which the Episodes were broadcast ( Johnson &amp; Johnson Pacific Pty Limited v Unilever Australia Limited (No 2) (2006) 70 IPR 574 at [16]). The question for the Court is whether reasonably minded viewers would take from the Episodes the representations which are alleged ( Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45). There is no dispute that viewers would be unlikely to engage in a detailed analysis of textual or linguistic nuances. The question is one of the overall impression of each Episode.
Case: Lovatt v Consolidated Magazines Pty Ltd (1988) 12 IPR 261
Outcome: cited
In Lovatt v Consolidated Magazines Pty Ltd (1988) 12 IPR 261 at 273 Wilcox J, in considering subparagraph (a)(v), expressed the view that s 65A was intended ' to exclude the application of the specified provisions of the Act to ordinary items of news and comment but to continue to subject the information provider to those provisions in connection with any items directly promoting the supply of its own goods or services or the disposal by it of interests in land '. In other words, in boosting its own business, the provider was subject to s 52. His Honour did not make reference to subparagraph (vi). 99 Section 65A(1)(a) concerns the supply of goods or services or the sale or grant of an interest in land. Accepting that the general interest of a prescribed information provider in expanding circulation, attracting the information-consuming public and providing quality and interesting information is not relevantly a commercial interest, the subject matter of paragraph (a) does, in the ordinary course, contain a commercial element. Section 65A excludes from the exemption publications where the information provider has a commercial interest in the content. However, the submission that the only exception to the exemption is where the broadcaster has a commercial interest in the content of the broadcast does not sit well with s 65A(1)(b). Section 65A(1)(b) excepts from the exemption third party advertising generally. A broadcaster may have a similar commercial interest in a third party advertisement as in a contract arrangement or understanding with a third person to publish in connection with that person's supply or promotion of the third person's goods or services. In both cases the broadcaster may have a commercial interest in the publication. In neither case does the broadcaster have a commercial interest in the content. If it were necessary to have a commercial interest under s 65A(1)(a)(vi) or s 65A(1)(b) , it would be in the publication. 100 However, in the present case, the Commission does not suggest that Seven has any commercial interest in either the publication or the content. If the Commission were required to establish that a commercial interest was necessary for the exception to apply, it has failed to do so. If that were the case, Seven would have the benefit of the exemption.
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
The Episodes must be considered in their entirety ( Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 199 per Gibbs CJ). That involves taking account of content and presentation and also the circumstances in which the Episodes were broadcast ( Johnson &amp; Johnson Pacific Pty Limited v Unilever Australia Limited (No 2) (2006) 70 IPR 574 at [16]). The question for the Court is whether reasonably minded viewers would take from the Episodes the representations which are alleged ( Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45). There is no dispute that viewers would be unlikely to engage in a detailed analysis of textual or linguistic nuances. The question is one of the overall impression of each Episode.
Case: Shipping Corporation of India Limited v Gamlen Chemical Co (Australasia) Proprietary Limited [1980] HCA 51 ; (1980) 147 CLR 142
Outcome: cited
There is a qualification to the rule in Vines , namely that where one has an exception (of whatever type) to an exception (of whatever type), the onus of proof lies on the person who asserts the exception to the exception (the Glendarroch [1894] P 226 at 231, applied by the High Court in Shipping Corporation of India Limited v Gamlen Chemical Co (Australasia) Proprietary Limited [1980] HCA 51 ; (1980) 147 CLR 142 at 168). Accordingly, the Commission has the burden of establishing that the exception in s 65A(1)(a) to the general exemption in s 65A(1) applies.
Case: The Glendarroch [1894] P 226
Outcome: cited
There is a qualification to the rule in Vines , namely that where one has an exception (of whatever type) to an exception (of whatever type), the onus of proof lies on the person who asserts the exception to the exception (the Glendarroch [1894] P 226 at 231, applied by the High Court in Shipping Corporation of India Limited v Gamlen Chemical Co (Australasia) Proprietary Limited [1980] HCA 51 ; (1980) 147 CLR 142 at 168). Accordingly, the Commission has the burden of establishing that the exception in s 65A(1)(a) to the general exemption in s 65A(1) applies.
Case: Vines v Djordjevitch [1955] HCA 19 ; (1955) 91 CLR 512
Outcome: cited
As the High Court said in Vines v Djordjevitch [1955] HCA 19 ; (1955) 91 CLR 512 at 519: 'But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.' 68 It follows that this principle applies both to exemptions and exceptions. 69 There is a qualification to the rule in Vines , namely that where one has an exception (of whatever type) to an exception (of whatever type), the onus of proof lies on the person who asserts the exception to the exception (the Glendarroch [1894] P 226 at 231, applied by the High Court in Shipping Corporation of India Limited v Gamlen Chemical Co (Australasia) Proprietary Limited [1980] HCA 51 ; (1980) 147 CLR 142 at 168). Accordingly, the Commission has the burden of establishing that the exception in s 65A(1)(a) to the general exemption in s 65A(1) applies.
Case: Ann Street Mezzanine Pty Limited (in liq) v Beck (2009) 225 ALR 324 
Outcome: cited
there is a real risk of the same facts being re-litigated. That is plainly oppressive to Owston. Owston should not be exposed to two (or possibly more) trials of the same issue, particularly given the nature of the relief sought in this action. As non-parties the investors are not bound by any findings in Owston's favour: Ann Street Mezzanine Pty Limited (in liq) v Beck (2009) 225 ALR 324 at [26] and [32] per Finkelstein J. Owston's primary submission is that it will not be bound in later proceedings by a finding of fact or law, other than the latter's precedential value that is made against its interests in this action. Although unable to bring proceedings which amount to a collateral attack on the result in these proceedings, Owston submits it is entitled to defend itself from attack by re-litigating issues decided against its interest. (Hon K Handley " Res Judicata: General Principles and Recent Developments " (1999) 18 Aust Bar Review 214 at 220 and the authority cited). That findings made in these proceedings are not binding in any later proceedings brought by any investors is consistent, it says, with the structure of the Act. It observes that ASIC can bring, but has not brought, representative proceedings under s 1325(3) of the Act provided certain condition are met. It also points to the fact that under s 1317F certain findings of breach of a civil penalty provision are binding on the defendants. The legislature has decided that only findings in civil penalty proceedings are binding, and not findings in other proceedings brought by ASIC. Owston acknowledges that these submissions "may not be unquestionably right". Third, where the relief sought in these proceedings is calculated to encourage re-litigation of the issues this will likely bring the administration of justice into disrepute. The possibility of re-litigation according to Owston is not a mere risk but rather is the very purpose of these proceedings. It is not the function of this Court, or proper exercise of a power under the Act, to promote litigation. Fourth, in the event of the issues in these proceedings being re-litigated there is the obvious potential for inconsistent findings. That is a possibility to be avoided, not encouraged. These proceedings are calculated to promote the re-litigation of the same issues in which inconsistent findings are possible.
Case: Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd [2007] FCA 1868 ; (2007) 164 FCR 487
Outcome: referred to
J in ASIC v West (2008) 100 SASR 496 at [203] adopted the same approach to the grant of declaratory relief in favour of ASIC. More recently a bare declaration was granted by Finkelstein J in Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd [2007] FCA 1868 ; (2007) 164 FCR 487. The Court declared that the "scheme" in question was an unregistered managed investment scheme in contravention of s 601ED(5) of the Act. His Honour said that the power to do so may be exercised whether or not other relief is sought and rejected the defendant's submission that a mere declaration would have no utility as the scheme had already been wound up following the winding up of the HLP companies, for the reason that: ... it is appropriate to make the declaration sought by ASIC. Many people put money into the scheme. They are entitled to know that the scheme was illegal and that is one reason why the HLP group was wound up. The declaration will not enable the investors to recover their money. But at least it will inform them what they had got themselves into.
Case: Australian Securities &amp; Investments Commission v McDougall (2006) 57 ACSR 175 
Outcome: referred to
submits that the s 1324B order is not consequential on the declarations sought and that in terms it can only be consequential on a finding of a breach of the Act. It says that here the order sought is relevantly disconnected from the breach with no sufficient nexus, citing ASIC v McDougall (2006) 57 ACSR 175 at [69]. It says that it is not a remedy in the true sense for the alleged wrong, but amounts, in effect, to advice from ASIC, with the Court's endorsement, to the shareholders concerned. It says that a final determination between the parties of an issue that has no practical consequence between those parties does not convert a hypothetical question into a "matter", otherwise all hypothetical questions would be a "matter" once a contradictor was found. As Young J in Re McDougall: Australian Securities &amp; Investments Commission v McDougall (2006) 57 ACSR 175 at [55] observed, the courts, since Australian Softwood Forest Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121 have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596 at 603; 14 ACLR 644 at 647; Australian Securities &amp; Investments Commission v Sweeney [2001] NSWSC 114 at [30] - [31] ; Australian Securities &amp; Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561-574.
Case: Australian Securities &amp; Investments Commission v Pegasus Leveraged Options Group Pty Ltd [2002] NSWSC 310 ; (2002) 41 ACSR 561 
Outcome: referred to
Young J in Re McDougall: Australian Securities &amp; Investments Commission v McDougall (2006) 57 ACSR 175 at [55] observed, the courts, since Australian Softwood Forest Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121 have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596 at 603; 14 ACLR 644 at 647; Australian Securities &amp; Investments Commission v Sweeney [2001] NSWSC 114 at [30] - [31] ; Australian Securities &amp; Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561-574. Davies AJ in Australian Securities &amp; Investments Commission v Pegasus Leveraged Options Group Pty Ltd [2002] NSWSC 310 ; (2002) 41 ACSR 561 at [38] adopted what Austin J had said in Sweeney as well as by Young J in Corporate Affairs Commission v Transphere Pty Ltd (1989) 7 ACLC 205 at 209. In particular his Honour agreed with the views expressed by their Honours that when declarations are sought by a public authority such as ASIC then the declaration should be made if it is in the public interest to do so (at [39]).
Case: Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440 ; (2004) 139 FCR 394 
Outcome: cited
submits that no final determination or resolution of the alleged contravention will take place without additional factual findings and determinations of issues of law and that accordingly, the Court is being asked to consider a hypothetical situation where its decision will produce no foreseeable consequences for the parties as to which it relies upon Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 ; Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440 ; (2004) 139 FCR 394. Owston also cites Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440 ; (2004) 139 FCR 394. However in that case the applicant sought declarations "independently of any specific factual allegations" [29] which went "merely to future events or circumstances" which would not quell any existing controversy between the parties to the proceedings [31] and which was, in effect, seeking an advisory opinion [32]. A Full Court of this Court has expressed doubt as to whether an application for a declaration as to the legality of proposed future conduct involves a "matter" within the meaning of ss 75 , 76 and 77 of the Constitution of the Commonwealth: IMF (Australia) Ltd v Sons of Gwalia Ltd (Administrator appointed) [2005] FCAFC 75 ; (2005) 143 FCR 274 per Moore and Emmett at [16], [67] and [68]; (cf IMF (Australia) Ltd v Sons of Gwalia (Administrator Appointed) (2004) 211 ALR 231 per then French J at [43]. That, however, is not this case. In the present proceedings, by contrast, ASIC has made quite specific factual allegations concerning past events so that the court's decision will quell the controversy between it and Owston. Australian Institute of Private Detectives is not authority for the proposition that declarations must quell all controversies about an issue that might arise between a defendant and persons who are not parties to the litigation and who might sue that defendant about the same or similar issues.
Case: Australian Securities &amp; Investments Commission v West (2008) 100 SASR 496
Outcome: cited
J in ASIC v West (2008) 100 SASR 496 at [203] adopted the same approach to the grant of declaratory relief in favour of ASIC. More recently a bare declaration was granted by Finkelstein J in Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd [2007] FCA 1868 ; (2007) 164 FCR 487. The Court declared that the "scheme" in question was an unregistered managed investment scheme in contravention of s 601ED(5) of the Act. His Honour said that the power to do so may be exercised whether or not other relief is sought and rejected the defendant's submission that a mere declaration would have no utility as the scheme had already been wound up following the winding up of the HLP companies, for the reason that: ... it is appropriate to make the declaration sought by ASIC. Many people put money into the scheme. They are entitled to know that the scheme was illegal and that is one reason why the HLP group was wound up. The declaration will not enable the investors to recover their money. But at least it will inform them what they had got themselves into.
Case: Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 161 ALR 399 
Outcome: cited
submits that in order for a " matter " to exist for the purposes of s 39B(1A) of the Judiciary Act , there must be a controversy as to some immediate right, duty or liability to be established by the Court's determination: Re: Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; Direct Factory Outlets Pty Ltd v Westfield Management Ltd [2003] FCA 1095 ; (2003) 132 FCR 428. Owston submits that on ASIC's case, no liability will be established on the part of Owston should ASIC be successful and points to the fact that ASIC does not seek recovery of damages in a representative capacity for shareholders, nor does the pleaded contravention give rise to a civil penalty. It claims that the relief sought is an advisory opinion on a purported contravention of the Act and does not quell any controversy between the parties. Here, Owston relies upon Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 161 ALR 399 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [61] - [62] per Gaudron and Gummow JJ. Bass v Permanent Trustee Co Ltd does not assist Owston. There is nothing hypothetical or advisory about the present proceedings. They involve the corporate regulator alleging various actual breaches of the law. The defendants deny those breaches. The result will quell that real controversy between them and will finally determine, subject only to any appeals, ASIC's allegations of breaches of s 727 of the Act and whether declarations of contraventions should be made together with consequential relief under s 1324B.
Case: British American Tobacco Australia Ltd v Western Australia [2003] HCA 47 ; (2003) 217 CLR 30
Outcome: cited
is defined by "matter(s)" because the Commonwealth's judicial power is derived from Chapter III of the Constitution , which requires jurisdiction to be defined in those terms: IMF (Australia) Ltd v Sons of Gwalia (Administrator Appointed) (2004) 211 ALR 231 at [43]; Litmus Australia Pty Ltd (in liq) v Canty [2006] NSWSC 196 ; (2006) 57 ACSR 71 at [35] citing British American Tobacco Australia Ltd v Western Australia [2003] HCA 47 ; (2003) 217 CLR 30 at [5] [6].