mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bray v F Hoffman-La Roche Ltd (2003) ATPR 41-906
Outcome: referred to
As Merkel J said in Bray v F Hoffman-La Roche Ltd (2003) ATPR 41-906 at [24], the level of generality permitted in a representative pleading should not be so great that the respondents cannot reasonably be expected to know, with any precision, the case they have to meet. This decision was reversed on appeal on other grounds, but that does not affect Merkel J's statement of the principle.
Case: BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd (No 2) [2002] FCA 87
Outcome: cited
Other authorities to similar effect are Shelton v National Roads and Motorists' Association (2004) 51 ACSR 278 at [18] [21] (per Tamberlin J) and BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd (No 2) [2002] FCA 87 at [20] (per Mansfield J).
Case: Cadence Asset Management Pty Ltd v Concept Sports Ltd (2006) 58 ACSR 435 
Outcome: applied
This principle is no less applicable today. It was reiterated by Young J in Cadence Asset Management Pty Ltd v Concept Sports Ltd (2006) 58 ACSR 435 at [34] [35]. 35 Young J observed in Cadence at [35] that the authorities establish that any want of clarity in the pleading can be cured by amendment or by particulars, although he also said that particulars cannot be used to fill gaps in material facts, which must be alleged. His Honour went on to say at [37] that consistent with the rules of pleading, a case can be pleaded at different levels of generality: But, whatever level of generality is adopted in the statement of claim, it must adhere to the basic principle that the purpose of pleadings is to define the issues and thereby inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it ... On the other hand, a pleading will infringe the applicable practice rules if it contains nothing more than broad conclusions asserted at such a high level of generality that the opposite party cannot understand the case it has to meet. 39 In Cadence at [40] Young J referred to earlier authority of the Court which emphasises that the case management and individual docket system is such that it is well placed to ensure no embarrassment or prejudice about pleadings. Usually this can be addressed by requiring particulars to be supplied or by other means short of striking out the pleading: see Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 at [8] [9] (per Merkel J). 43 The effect of what Young J said in Cadence at [40] is that a strike-out motion is a blunt instrument, to be used only in the event that the Court's case management procedures cannot be adapted to enable the matter to go forward. 44 However, it seems to me that this is a case where the defect in the pleading is so fundamental that it cannot be allowed to stand in this form.
Case: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82
Outcome: referred to
The difficulty which arises is that [13] of the Statement of Claim is central to the allegation that statements made in the prospectus, and in the August 2004 and October 2004 announcements, were rendered false by reason of events which occurred later. But as a Full Court observed in Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88, the non-fulfilment of a prediction when the time for performance arrives does not of itself establish that the prediction was false when made or that its maker did not have an adequate foundation for its content (per Bowen CJ, Lockhart and Fitzgerald JJ). 46 What is required in the present case is a statement of the material facts in terms sufficiently clear to enable the respondents to understand precisely what the facts are that are relied upon to establish the falsity of the alleged representations or the absence of reasonable grounds. 47 The Statement of Claim does not meet this test because the eight adverse profitability circumstances are stated at a level of generality which does not enable the respondents to know what is alleged. In particular, they are not linked to any comparison with the contents, express or implied, of the prospectus or the August 2004 or October 2004 announcements and they are unlimited in point of time. 48 I accept that the actual dates when relevant matters became known are within the knowledge of the directors of Village Life. But it is for Hanne to plead whether by inference from other facts, or otherwise, matters which disclose an arguable case that the directors were, or ought to have been, aware of particular circumstances which affected the accuracy of the earlier predictions. 49 It may well be that Hanne can do so. It is notable that Village Life does not seek to strike out the claim on the ground that the Statement of Claim is hopeless or does not disclose a cause of action. The proximity of the downgrades in February 2005 and May 2005 to the announcements made in late 2004 is pertinent. So too is Mr Gageler's submission that the matters alleged in general terms in [13] of the Statement of Claim did not happen overnight. What occurred was apparently revealed by events over a period of time.
Case: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 
Outcome: applied
In Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 293, Dawson J observed that pleadings are but a means to an end, not an end in themselves. His Honour referred to an early authority of the High Court in which it was said that the function of pleadings is to state with sufficient clarity the case which the other party to the proceeding is required to meet: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517.
Case: Ipex ITG Pty Ltd v Melbourne Water Corporation (No 3) [2006] VSC 83
Outcome: referred to
The importance of formulating a claim in an intelligible form was also stressed by Byrne J in Ipex ITG Pty Ltd v Melbourne Water Corporation (No 3) [2006] VSC 83 at [42] .
Case: Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 
Outcome: referred to
In Cadence at [40] Young J referred to earlier authority of the Court which emphasises that the case management and individual docket system is such that it is well placed to ensure no embarrassment or prejudice about pleadings. Usually this can be addressed by requiring particulars to be supplied or by other means short of striking out the pleading: see Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569 at [8] [9] (per Merkel J).
Case: Northam v Favelle Favco Holdings Pty Ltd (unreported, Sup Ct of NSW, Bryson J, 7 March 1995)
Outcome: referred to
In Northam v Favelle Favco Holdings Pty Ltd (unreported, Sup Ct of NSW, 7 March 1995), Bryson J observed that it is not fair to require a defendant to flesh out general expressions or indirect allusions.
Case: P Dawson Nominees Pty Ltd v Multiplex Ltd (2007) 64 ACSR 53
Outcome: distinguished
Sometimes a Notice to Produce may be an appropriate method of case management: see eg P Dawson Nominees Pty Ltd v Multiplex Ltd (2007) 64 ACSR 53 at [30] per Heerey J. But that would usually be where the notice, or a subpoena, would be expected to produce documents that have at least potential relevance to the issues in the case: see P Dawson at [31]. 53 Here, the difficulty which arises is that the issues are not defined because the pleading is too general to enable that to occur. It is the pleadings which inform the question of the content of a valid Notice to Produce. It is not for Hanne to issue a Notice to Produce to find out what case it might be able to plead. That is not to say that in due course a Notice to Produce may still be impermissible. It will be a question of whether Hanne can plead a case appropriate to what is admittedly an early stage of the proceedings. 54 Moreover, [31] of the Statement of Claim is also defective because it obscures a fact which is fundamental to the claim of reliance. Did Hanne read the prospectus or the August 2004 or October 2004 announcements? If it did, this should be pleaded. If it did not, the pleading should reflect this because there may be serious consequences for the constitution of the proceeding and the composition of the represented group.
Case: Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 
Outcome: referred to
In the Full Court decision of Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at [129] [136], Sackville J set out the principles applicable to pleadings in representative actions under Part IVA of the Federal Court of Australia Act . His Honour observed that unless the rules of pleading permit a degree of flexibility, serious inroads would be made into the utility of the representative procedure. 41 However, it is clear from what Sackville J said that the level of generality which may be permitted in pleadings in representative actions is concerned with the pleading of facts material to the claims of each member of the represented group: see Philip Morris at [134], [136], cf. Bray v Hoffman La Roche [2003] FCAFC 153 ; (2003) 200 ALR 607 at [122] per Carr J, at [199] per Branson J (dissenting), and at [248] per Finkelstein J.
Case: Shelton v National Roads and Motorists' Association (2004) 51 ACSR 278 
Outcome: cited
Other authorities to similar effect are Shelton v National Roads and Motorists' Association (2004) 51 ACSR 278 at [18] [21] (per Tamberlin J) and BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd (No 2) [2002] FCA 87 at [20] (per Mansfield J).
Case: Smith v The Queen [2001] HCA 50 ; (2001) 206 CLR 650
Outcome: referred to
However, views can differ about whether evidence is relevant, as is evident from the different approaches of the members of the High Court in Smith v The Queen [2001] HCA 50 ; (2001) 206 CLR 650. Even if the accounting evidence of SEA can be characterised as relevant, in the statutory sense, it appears to me to be evidence caught by s 76(1) of the Evidence Act and not saved by s 79. That is, it is not admissible because it is opinion evidence about the existence of a fact furnished to prove the fact's existence. Ms Wheatley's evidence is, in substance, that Mr Akdogan should have known and is led to prove he did know. For the purposes of s 79 , her field of expertise and specialised knowledge is accounting practices. It is not in the behavioural sciences enabling evidence to be given about how accountants or anyone else might in fact behave in particular circumstances. 118 If I am wrong, and the accounting evidence should be considered in the mix of evidence, it involved no more, at its highest, than an opinion that Mr Akdogan should have had doubts about the Boomerang companies' capacity to meet its obligations under the invoicing agreement. That was Ms Wheatley's view, but not a view shared by Mr Phillips, although he did say that had a reasonably competent chief financial officer had been asked to investigate the invoicing arrangement, further information would have been requested. For the reasons I have given, I am not satisfied, notwithstanding the accounting evidence, that Mr Akdogan or Mr Cassell actually knew of the Boomerang companies' poor trading history and level of indebtedness to SEA at the time the invoicing agreement was made. Also, for those reasons, I am not satisfied that the information in the accounting records (apart from the views expressed by the experts about what they might reveal) which were seen by Mr Akdogan and Mr Cassell alerted them to the trading and general financial position the Boomerang companies were then in, or had been in for the preceding two years or so. 119 CPI alleged SEA engaged in misleading and deceptive conduct or conduct likely to mislead or deceive. The conduct relied upon was three representations and, generally, SEA's failure to disclose the true position concerning the Boomerang companies' trading history and its then current indebtedness, that is, its silence. Two of the representations were made at a meeting on 19 May 2003 and the third at a meeting on 7 June 2003.
Case: Commissioner of Taxation v Chubb Australia Ltd (1995) 56 FCR 557
Outcome: cited
The first part of the submission was common ground, at least as a matter of words. See Diethelm Manufacturing Pty Ltd v Commissioner of Taxation (1993) 44 FCR 450 at 472, Commissioner of Taxation v Chubb Australia Ltd (1995) 56 FCR 557 at 559 and Clean Investments Pty Ltd v Commissioner of Taxation [2001] FCA 80 ; (2001) 105 FCR 248 at [91] . However the parties differed as to what was entailed in the single composite question, and in particular as to the second part of Cascade's submission.
Case: Clean Investments Pty Ltd v Commissioner of Taxation [2001] FCA 80 ; (2001) 105 FCR 248
Outcome: considered
The first part of the submission was common ground, at least as a matter of words. See Diethelm Manufacturing Pty Ltd v Commissioner of Taxation (1993) 44 FCR 450 at 472, Commissioner of Taxation v Chubb Australia Ltd (1995) 56 FCR 557 at 559 and Clean Investments Pty Ltd v Commissioner of Taxation [2001] FCA 80 ; (2001) 105 FCR 248 at [91] . However the parties differed as to what was entailed in the single composite question, and in particular as to the second part of Cascade's submission. 17 Cascade also sought to derive support from Clean Investments , which concerned a concession for goods "of a kind ordinarily used for household purposes". What was in question was coin operated washing machines. Lindgren J, with whom Lee and Cooper JJ agreed, said at [91]-[93]: "I respectfully agree with Hill J in Diethelm (at 472) ... that it is preferable to pose the statutory question as a single composite question. In some cases it may be misleading to address separately the question of identification of the 'genus' to which the particular goods in question belong, and the question whether that genus meets the description 'ordinarily used for household purposes'. The problem can be indicated by the question 'What kind of kind of goods is the Item speaking of?' Answering the genus question separately as a threshold one will assume, without making explicit, an answer to this question. Goods and purposes can be equally correctly described in different ways, in particular, broadly or narrowly, yet the description selected may dictate the answer to the statutory question. For example, an architect's stool, an office chair and a kitchen stool or chair may be described as 'stools' or 'chairs' and their purpose as being 'to provide seating'. Yet it would be wrong to conclude that the architect's stool or the office chair is of a kind ordinarily used for household purposes for no other reason than that, like the kitchen chair, it is ordinarily used for the purpose of providing seating." (Emphasis in original.) 21 Nor do I think the passage in Clean Investments relied on by Cascade (set out at [17]) discloses any departure from Hygienic Lily . After an elaborate examination of the earlier cases, especially Hygienic Lily (which had not been drawn to the primary judge's attention), Lindgren J distilled the propositions he derived from them. The one preceding the proposition set out at [17] is: "The statutory question is not whether those goods of the taxpayer will in fact be used for household purposes but whether they are goods 'of a kind ordinarily used for household purposes' (Chubb per Hill J (with whom Tamberlin J agreed) at 571; Diethelm per Hill J at 470)." Further, in the second paragraph set out at [17] his Honour identified the existence of two questions. He was not saying there was not two questions, but that in some cases it may be misleading to address them separately.
Case: Customs and Excise Commissioners v Mechanical Services (Trailer Engineers) Ltd [1979] 1 WLR 305
Outcome: considered
The Commissioner sought to derive support for his contention from Hygienic Lily Ltd v Commissioner of Taxation (1987) 13 FCR 396. The question there was whether waxed paper cups used by McDonald's Restaurants were "goods ... of a kind ordinarily used for household purposes". Gummow J at 399 said: "the setting in which the phrase 'goods of a kind' appears suggests it is directed not to the use for which the particular goods in question were designed or manufactured, nor to the purpose to which it is intended these particular goods shall be put, but rather to the nature, quality and adaptation of goods in the class or genus in question. Thus, goods are 'of a kind ordinarily used for household purposes' if they are to be recognised as members of a class or genus which commonly or regularly (albeit not necessarily exclusively or principally) is used for household purposes; cf Customs and Excise Commissioners v Mechanical Services (Trailer Engineers) Ltd (1979) 1 WLR 305, at 312-313, 315, 316-317." At 400 his Honour pointed out that other items in the Schedule there in question directed attention not to goods identified by the purposes for which goods of that kind are ordinarily used, but to the goods in question themselves or to the identity or character of a particular user. He concluded that the cups were of a kind ordinarily used for household purposes because they were "members of a class or genus (paper cups) which commonly or regularly (albeit not necessarily exclusively or principally) was used for household purposes (viz the carrying of beverages and the consumption thereof)". 19 In Air International Hill J, dissenting, quoted with approval the decision of the Court of Appeal in Customs and Excise Commissioners v Mechanical Services (Trailer Engineers) Ltd [1979] 1 WLR 305, to which Gummow J had referred in Hygienic Lily . The question in the English case was whether couplings and winches were to be classified for value added tax purposes as "Goods of a kind suitable for use as parts of goods within item 1 or item 5". Hill J said at [28]: "Brown LJ held that the words 'goods of a kind' referred to some class or category or genus of goods which had characteristics in common. That holding is generally consistent with the Australian sales tax cases referred to in Clean Investments." Hill J then quoted with approval this passage from Megaw LJ's judgment (at 316-317): "It is not 'the goods' the particular articles, here the couplings and the winch which have to be suitable for use as parts. It is the kind of goods to which these particular articles belong, their genus, which has to be thus suitable. The addition of 'of a kind', would be meaningless if goods which are themselves suitable are necessarily also goods of a kind which is suitable. The question is, first, what is the relevant 'kind of goods' of which they are members; and, secondly, is that kind of goods generically, suitable for use as parts of the goods comprised in items 1 and 5 of Group 3."
Case: Telstra Corporation Ltd v Commissioner of Taxation (1996) 68 FCR 566
Outcome: applied
It was common ground that the word "infants" in item 13 is to be given its ordinary meaning. That meaning is to be determined by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence: Telstra Corporation Ltd v Commissioner of Taxation (1996) 68 FCR 566 at 570. 28 Cascade's submission is that in item 13 the ordinary meaning of infant includes any child up to seven years of age. It relies on several dictionary definitions. Australian Oxford : "1 a. a child during the earliest period of its life. b. a schoolchild in the first years of school." The Oxford English Dictionary : "1 a. A child during the earliest period of life (or still unborn); now most usually applied to a child in arms, a babe; but often extended to include any child under seven years of age." The Penguin Pocket Dictionary : "1. in an early stage of development. 2. concerned with or intended for young children, esp those aged 5 to 7 or 8." 29 Cascade also relies on Macquarie's definition of "'infants' school": "a school, or classes attached to a primary school, for children from about five to eight years of age. Also, 'infant school'." 37 At least implicitly Cascade characterises the meaning I prefer as a narrow construction. It relies on cases which it says establishes that the classification of goods attracting exemptions (eg for sales tax purposes) should be liberally construed unless the text or context requires a narrow construction: Diethelm at 464; Telstra at 569; IGY Manufacturing Pty Ltd v Commissioner of Taxation (1999) 42 ATR 544 at [14]. In Diethelm at 464 French J said: "Classifications of goods attracting exemptions or beneficial rates should be liberally construed unless the text or context requires a narrow construction."
Case: IGY Manufacturing Pty Ltd v Commissioner of Taxation (1999) 42 ATR 544
Outcome: cited
At least implicitly Cascade characterises the meaning I prefer as a narrow construction. It relies on cases which it says establishes that the classification of goods attracting exemptions (eg for sales tax purposes) should be liberally construed unless the text or context requires a narrow construction: Diethelm at 464; Telstra at 569; IGY Manufacturing Pty Ltd v Commissioner of Taxation (1999) 42 ATR 544 at [14]. In Diethelm at 464 French J said: "Classifications of goods attracting exemptions or beneficial rates should be liberally construed unless the text or context requires a narrow construction."
Case: Ansell v Wells and Others (1982) 63 FLR 127
Outcome: cited
In R v O'Sullivan; Ex parte Clarke [1967] WAR 168, the Full Court of the Supreme Court of Western Australia found that a delay in filing an application for a writ of certiorari, issued more than three months after the Court's decision, was regarded as substantial and ' an important factor in the exercise of the court's decision to refuse relief... ' In Ansell v Wells and Others (1982) 63 FLR 127 Lockhart J at page 156 said '[d]elay, coupled with prejudice to the defendant or a third party, may debar a plaintiff from discretionary relief. ' In Re David Smith and The West Australian Development Corporation; Ex parte Rundle and Others (1992) 5 WAR 295 Malcolm CJ, delivering the judgment of the Full Court observed in relation to the time limit prescribed by the Rules of the Supreme Court of Western Australia: 'The time limit in O 65, r 11(1) of six months has its justification in the need to act promptly in relation to proceedings to quash the decision of an inferior court or tribunal. Great inconvenience could be caused by permitting the decision to stand and allowing people to act on the assumption that the decision was valid. The six months time limit was introduced in England in 1740 by the statute 13 GeoII, c 18 s 5 which provided that no certiorari should issue for the removal of orders made by justices of the peace after six months. The court had no discretion to extend time: see R v Anglesea Justices (1846) 10 Jur 817. The 1740 statute was repealed by the Statute Law Revision Act 1888 . The court has an express power to extend the time under the rule. In my opinion it is, at the least, extremely doubtful whether the rule applies to decisions of bodies or persons other than inferior courts or statutory tribunals. If it does not, the rule would not apply to a decision such as that made by the minister in the present case. Even if the rule does not apply, however, the nature of the remedy of certiorari is such that the court would require it to be sought promptly.'