mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: American Express International v Famularo (unreported, District Court of NSW, Norton DCJ, 19 February 2001)
Outcome: distinguished
The present case bears no resemblance to the factual findings made by Judge Naughton in American Express International v Famularo (unreported, District Court of NSW, Norton DCJ, 19 February 2001). In any event, Powell JA doubted the correctness of that decision in Reynolds v Katoomba RSL at [115].
Case: Commercial Bank of Australia Ltd v Amadio and Anor [1983] HCA 14 ; (1983) 151 CLR 447
Outcome: distinguished
The claim of unconscionable conduct under ss 51AA and/or 51AB of the Trade Practices Act was not properly pleaded. However, senior counsel for Mr Foroughi conceded that the claim was based on the same matters as are the subject of the claim for misleading conduct. Reference was made in Mr Foroughi's written submissions to well-known authorities including Commercial Bank of Australia Ltd v Amadio and Anor [1983] HCA 14 ; (1983) 151 CLR 447. 140 I do not consider that Mr Foroughi was under any special disability. Nor do I consider that Star City took advantage of him within the well-known statements of principle in Amadio . The findings I have made about the circumstances in which the exclusion order was made are quite inconsistent with any suggestion of unconscionable conduct.
Case: Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: discussed
The High Court observed in Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 602-604 that s 52 was not intended to extend to all conduct in which a corporation may engage in the course of, or for the purposes of, its trading or commercial business. 93 Section 52 of the Trade Practices Act is concerned with the conduct of a corporation towards persons with whom the corporation has or may have dealings, in the course of those activities which bear a trading or commercial character: see Concrete Constructions at 604. 94 It is true, as the High Court said, that the dividing line may not always be clear and may require identification of what imports the requisite trading or commercial character to the impugned conduct. In the present case, the point was not fully argued and accordingly I do not propose to express a concluded view on this question. 95 The claim for breach of statutory duty under s 85 of the Casino Control Act was not argued at the hearing. In any event, the legislative history and the case law indicate that the intention of the Casino Control Act was not to confer a private right of action for damages on problem gamblers who may enter a casino in breach of an exclusion order. 96 The enactment of the Casino Control Act was preceded by an inquiry into the Establishment and Operation of Legal Casinos in New South Wales conducted by Sir Lawrence Street. Sir Lawrence's recommendations were adopted when the Casino Control Bill was introduced by the Minister; see Second Reading Speech, 5 March 1992, Legislative Assembly, pp 513, 514 and 516. 97 Sir Lawrence said in plain terms that the provisions dealing with exclusion orders should not include a requirement that a casino be required by law to exclude persons whose gambling appeared to be out of control. He considered that this may be seen as creating a statutory duty with a correlative right of action upon the gambler to sue the casino for damages, which he rejected. These comments applied in equal terms to voluntary and non-voluntary exclusion orders: see the report of the Hon. Sir Lawrence Street AC KCMG, "Inquiry into the Establishment and Operation of Legal Casinos in New South Wales" (27 November 1991) at [4.6.6] to [4.6.10] ("the Street Report").
Case: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Outcome: applied
I am not bound to accept Mr Foroughi's evidence of what took place on 16 December 2005 even though it was unchallenged in cross-examination; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-588. I reiterate what I have said about Mr Foroughi's credit. But even on his version of what took place on that day, the evidence does not establish that Star City knew that Mr Foroughi was gambling in the casino in breach of the terms of his voluntary exclusion order. Thus, s 85 would not have been engaged. 105 Mr Foroughi called evidence from Mr Ross Colquhoun, a clinical psychologist, to support his case. Mr Colquhoun saw Mr Foroughi on 2 and 9 November 2006 and, with the assistance of a colleague, took a history and administered a series of psychological tests. 106 Mr Colquhoun concluded that Mr Foroughi met the diagnostic criteria for pathological gambling stipulated in the Diagnostic and Statistical Manual of Mental Disorders (4 th ed text revision, American Psychiatric Association Washington, 2000) ("DSM-IV").
Case: Perre v Apand Pty Limited [1999] HCA 36 ; (1999) 198 CLR 180
Outcome: applied
In support of this view, his Honour pointed at [26] to authoritative statements of principle by the High Court in Perre v Apand Pty Limited [1999] HCA 36 ; (1999) 198 CLR 180 and Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 in which emphasis was placed, in the development of the law of negligence, on the acceptance by individuals of personal responsibility for their own actions.
Case: Preston v Star City Pty Ltd [1999] NSWSC 1273
Outcome: applied
Moreover, in Preston v Star City Pty Ltd [1999] NSWSC 1273 at [87] , Wood CJ in Common Law referred to the Street Report to support the view that the requisite legislative intention to confer a private right of action was not to be found in the Casino Control Act . 99 Preston was not concerned with a breach of s 85 of the Casino Control Act , which was pleaded in the present case. Nevertheless, his Honour's remarks at [87] were directed at the establishment of the regulatory scheme as a whole. He said that the Street Report and the Second Reading Speech point towards "the establishment of the regulatory scheme as the means of addressing the negative aspects of legalised gambling." He continued by saying: "There is nothing in that material, or in the Act itself, to suggest that there should be a private right of action additional to the obligations imposed upon casino operators."
Case: Preston v Star City Pty Limited (No 3) [2005] NSWSC 1223
Outcome: distinguished
More recent authority does not assist Mr Foroughi's claim. In Preston v Star City Pty Limited (No 3) [2005] NSWSC 1223 , Hoeben J permitted a claim in negligence to proceed to trial because the allegations went beyond those made in Reynolds v Katoomba RSL. The claim was that Star City knew of the plaintiff's problem and actively encouraged and exploited it. No such claim is made in the present proceedings.
Case: Rixon v Star City Pty Ltd [2001] NSWCA 265
Outcome: discussed
Even if a private right of action exists against Star City, no such cause of action was established in the present case. In Rixon v Star City Pty Ltd [2001] NSWCA 265 , Sheller JA (with whom Priestley and Heydon JJA agreed) said that s 85(2) of the Casino Control Act combines two prerequisites of knowledge on the part of the casino operator, or other person to whom the section applies. 101 These requirements are, first, knowledge that a particular person is in the casino, and, second, knowledge that the person is the subject of an exclusion order: see Rixon at [33]. 102 Here, with the exception of the two occasions on which Mr Foroughi was detected in the casino in early 2006, the evidence disclosed only one occasion on which Mr Foroughi was present in the casino to the knowledge of Star City, after the exclusion order was made. That was on 16 December 2005 when he said he was offered admission to the high rollers' facilities. 103 Mr Foroughi was not challenged on that evidence, although the reliability of his evidence as to the actual dates of entry stated in Mr Foroughi's schedule were put directly in issue by Star City.
Case: The Application of Commonwealth Life Ltd (2003) 12 ANZ Insurance Cases 90-117
Outcome: cited
principles to be applied in applications for dispensation such as this one have been referred to in a number of cases. Those cases have recognised that the policy underlying s 191(2)(c) is to give every affected policy holder a summary of the scheme and an opportunity, if he or she so desires, to make submissions to the Court in respect of any application for confirmation of the scheme ( The Application of Commonwealth Life Ltd (2003) 12 ANZ Insurance Cases 90-117 per Sackville J at [8]). A right to be heard in relation to a proposed scheme is of little value if a person is unaware of the proposal ( Commonwealth Life Limited at [8]). For these reasons, it was emphasised by Gyles J in Challenger Life Limited [2004] FCA 618 that it would be unfortunate if a notion gained currency that s 191(2)(c) of the Act is a formality to be dispensed with as a matter of course (at [3]).
Case: Challenger Life Limited [2004] FCA 618
Outcome: cited
principles to be applied in applications for dispensation such as this one have been referred to in a number of cases. Those cases have recognised that the policy underlying s 191(2)(c) is to give every affected policy holder a summary of the scheme and an opportunity, if he or she so desires, to make submissions to the Court in respect of any application for confirmation of the scheme ( The Application of Commonwealth Life Ltd (2003) 12 ANZ Insurance Cases 90-117 per Sackville J at [8]). A right to be heard in relation to a proposed scheme is of little value if a person is unaware of the proposal ( Commonwealth Life Limited at [8]). For these reasons, it was emphasised by Gyles J in Challenger Life Limited [2004] FCA 618 that it would be unfortunate if a notion gained currency that s 191(2)(c) of the Act is a formality to be dispensed with as a matter of course (at [3]).
Case: Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450
Outcome: cited
the question is not free from authority to the contrary (see Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450 at [19] ), it is assumed for the purposes of the applications that ' affected policy owner ' as defined by the Act includes policy holders of both the transferring (Lifetime and National) and receiving (MLC) funds. The applicants seek a dispensation of their obligation to give summaries of the schemes to: &#8226; MLC policy holders who are affected by the Lifetime Scheme or the National Scheme; and &#8226; Lifetime and National policy holders for whom the applicants have no record of a current mailing address.
Case: H v Minister for Immigration and Multicultural Affairs (2001) 63 ALD 43
Outcome: cited
This Court has power to allow grounds to be argued on appeal that were not argued before the trial judge. The principles governing the exercise of this power have been considered by the Full Court on several occasions, and those principles are well settled: see H v Minister for Immigration and Multicultural Affairs (2001) 63 ALD 43 (Branson, Katz and Marshall JJ) (" H "); and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 (North, Merkel and Weinberg JJ) (" VAAC ").
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577
Outcome: referred to
Counsel for the appellant submitted that their failure to raise the s 424A ground before the Federal Magistrates Court is explained by the fact that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP ") was handed down after Hartnett FM dismissed the appellant's application. In SAAP , the trial judge (Mansfield J) had held that, while there had been a failure to comply with s 424A , that failure had not deprived the appellant in that case of any opportunity to learn of material adverse to her claim or comment on it. In those circumstances, his Honour declined to grant relief: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577. The Full Court (Heerey, Moore and Kiefel JJ) dismissed the initial appeal: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411. However, the High Court took a different view and allowed the appeal.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411
Outcome: referred to
Counsel for the appellant submitted that their failure to raise the s 424A ground before the Federal Magistrates Court is explained by the fact that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP ") was handed down after Hartnett FM dismissed the appellant's application. In SAAP , the trial judge (Mansfield J) had held that, while there had been a failure to comply with s 424A , that failure had not deprived the appellant in that case of any opportunity to learn of material adverse to her claim or comment on it. In those circumstances, his Honour declined to grant relief: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577. The Full Court (Heerey, Moore and Kiefel JJ) dismissed the initial appeal: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411. However, the High Court took a different view and allowed the appeal.
Case: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212
Outcome: referred to
There is no reason to doubt that 'information' in s 424A(1) is used in its ordinary sense of knowledge communicated or received concerning some fact or circumstance. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") at 476-477 [24], Finn and Stone JJ set out the following propositions about the meaning of the term 'information' in its s 424A(1) setting: "(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424; Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Indigenous Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-18 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] ." The third proposition has not been doubted but its application has produced some fine distinctions. 43 The Full Court went on to distinguish Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212, where the Full Court (Whitlam, Tamberlin and Sackville JJ) held that the assertions of an informant which cast doubt on the applicant's version of events constituted information for the purposes of s 424A(1). The Full Court said that there was a material difference between assertions of an informant and observations or conclusions arrived at by the Tribunal in weighing up aspects of the evidence of an applicant by reference to gaps or defects in that evidence: see WAGP at 282 [27].
Case: NAIH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 ; (2002) 124 FCR 223
Outcome: referred to
In the course of his reasons for judgment, Allsop J discussed the decision of Branson J in NAIH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 ; (2002) 124 FCR 223 (" NAIH "), which had been cited with approval by the Full Court in WAGP . In NAIH at 226 [8], her Honour had doubted that an intention can be discerned in s 424A that the totality of the claims and assertions in a statement made by an applicant in support of his or her application, and the general impression of coherence or otherwise created by those claims and assertions, is information received by the Tribunal. Allsop J distinguished NAIH on several grounds. First, he thought that Branson J was not directing herself to a case where the very form and content of the applicant's original statement is central to the rejection of virtually all of the applicant's evidence. Secondly, while the Tribunal contrasted the applicant's evidence with the cohesive account in the earlier statement, Branson J found that the Tribunal based its decision on the unconvincing nature of the applicant's oral evidence before it.
Case: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: referred to
After argument concluded in this appeal, the Full Court (Moore, Weinberg and Allsop JJ) handed down its decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (" SZEEU ") which incorporates four related appeals. The main issue addressed by the Full Court was whether the authority of Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 (" Al Shamry ") should be reconsidered. The Court held unanimously that it should follow the construction of s 424A(3)(d) adopted in Al Shamry . 52 I do, however, wish to make one observation. In my view, it does not follow from the decisions in SAAP and SZEEU that the statutory purpose of s 424A is irrelevant to its proper construction and application. In SAAP , McHugh J at 181 [73] said that s 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review, and endorsed statements in this Court to the same effect: see SAAP at 179 [66]. Hayne J emphasised the crucial role played by the language, scope and objects of s 424A in its construction and application: see SAAP at 211 [208]. In Paul , Allsop J construed and applied s 424A in the light of its purpose of 'ensuring that the claimant is fully informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it': see Paul at 429-430 [104]. In Al Shamr y at 40 [39], Merkel J said that s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. Cases may arise in which it is appropriate to take account of the statutory purpose of s 424A in determining whether there is any information within the meaning of s 424A, or whether particular information is the reason, or a part of the reason, for the Tribunal's decision. I do not consider that there is anything to the contrary in SZEEU . 64 The HRA letter was provided to the Department in connection with the appellant's application for a protection visa; it was not given to the Tribunal for the purposes of the review application. In these circumstances, the exception in s 424A(3)(b) is inapplicable. It only applies to information that is given for the purposes of the review application before the Tribunal: see Al Shamry per Ryan and Conti JJ at 33-34 [17]-[20] and per Merkel J at 38-39 [35]; and SZEEU per Moore J at [9], per Weinberg J at [154] and per Allsop J at [199]. The first respondent did not contend that the exception applied, or dispute the appellant's submission that it was inapplicable.
Case: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624
Outcome: cited
In applying s 424A , it is necessary to focus on matters that, viewed prospectively, would be the reason or a part of the reason for the Tribunal's decision, or viewed retrospectively in the light of the Tribunal's actual decision, can be seen to be the reason, or a part of the reason, for the Tribunal's decision. At the outset of the Tribunal hearing and prior to the appellant's evidence to the Tribunal, I doubt that the Keskin information could be characterised as information that the Tribunal then considered, or might consider, would be the reason or a part of the reason for affirming the delegate's decision. By itself, the Keskin information was not adverse to the appellant. Numerous cases suggest that s 424A is concerned with information that is adverse to the interests of the visa applicant: see SAAP per McHugh J at 175 [50]; VAF per Finn and Stone JJ at 476-477 [24]; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 per French J at 637 [57]; and M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 597 per Ryan J at 615-616 [79] [83]. The Keskin information was simply factual information that might assist in testing the extent of the appellant's knowledge of the activities of the HRA in Turkey and the veracity of her claims. The same picture is presented when the matter is viewed retrospectively in the light of the Tribunal's reasons. The Tribunal attached some significance to the fact that in her evidence to the Tribunal the appellant displayed a lack of knowledge of the Keskin information, amongst other matters. In my opinion, the Keskin information cannot be characterised as the reason, or as a part of the reason, for the Tribunal's affirmation of the decision under review.