mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Home Office v Harman [1981] QB 534
Outcome: cited
applicant was concerned that material already discovered in the arbitration could not be used for the purpose of considering whether or not to institute proceedings under the TP Act in this Court, in particular against the first respondent: Home Office v Harman [1981] QB 534. Consequently, by letter on 5 March 2003, the applicant requested copies of documents from the first respondent for the purpose of determining whether it may have a claim against the first respondent under the TP Act, and offered to pay the first applicant's reasonable costs of producing such documents. The request was in the following terms: Alstom believes that it may have a right of action against [the first respondent, the second respondent and a third party, related to the second respondent] for misleading and deceptive conduct, or unconscionable conduct under the [TP Act] in respect of the matters set out in this letter. Alstom wishes to review [eight specified documents or categories of documents] in the possession, custody or control of [the first respondent] in order to enable it to decide whether to commence proceedings against [the first and second respondents and the third party], or any one or more of them, in relation to the matters referred to in paragraph 24: ... Alstom is unable to obtain the [eight specified documents or categories of documents] referred to in paragraph 25 from any source other than [the first and second respondents, and the third party]. As stated in paragraph 10, Alstom does not know who, as between those entities, has possession of the documents relating to the project. The applicant also stated in that letter that it intended to apply to the Court for an order compelling production of the documents if the first respondent did not agree to the request within the time stipulated. By letter dated 11 March 2003, the first respondent refused to supply the documents sought, and suggested that the applicant should bring any such claims under the TP Act within the arbitration, in accordance with the contract, in the following terms: The contract documents ... include dispute resolution and other relevant clauses which apply to the issues covered in your letter including to the request for access to documents. [The first respondent] suggests that if your client wishes to pursue any matters relating to this contract they should do so in accordance with the contract and the procedures available under the contract.
Case: C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864
Outcome: cited
successful application under O 15A r 6 for pre-action discovery does not give automatic entitlement to the costs of making that application, and nor does a partially unsuccessful opposition to the orders sought in such an application prevent a party against whom discovery is ordered from recovering its costs of the application: C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864. The Court has power to order costs in such an application pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth), and O 15A r 11 and O 62 r 3(1) of the Rules. The power to order costs in such an application is a discretionary one. There are several factors influencing the exercise of that discretion in the present circumstances. First, the first respondent submits that the application in this Court was unnecessary, in the face of the existing arbitration, as the applicant could have brought (and ultimately did bring) its claims under the TP Act in the arbitration. The first respondent submits: In insisting [the applicant] bring its [TP Act claims] in the arbitration before making that discovery available, [the first respondent] cannot be criticised for preferring the convenience and cost effectiveness of bringing those claims in the existing Arbitration over the risk and attendant cost of multiple proceedings in both this Court and the Arbitration. I agree with Selway J's observations at [6] and [11] of the primary judgment. The first respondent's position was in error, as acknowledged by the first respondent at the hearing before Selway J. Insofar as the first respondent refused the requests for access to the documents that were already discovered in the arbitration on the basis that the applicant was obliged to bring any claims under the TP Act in the arbitration, the respondent unreasonably put the applicant to the costs of the hearing of the application on that issue. The fact that the applicant could, and ultimately did, pursue its claims under the TP Act in the arbitration does not, in my view, make its application to this Court either unnecessary, or inappropriate. The failure of the first respondent, until the hearing, to indicate clearly that the applicant could use the documents already discovered in the arbitration for the purpose of considering whether the applicant might have and bring a claim under the TP Act in this Court was unreasonable. I consider that is a matter which weighs in favour of the first respondent bearing the costs or some of the costs of the application.
Case: Cappuccio v Australia &amp; New Zealand Banking Group Ltd [1999] FCA 1188
Outcome: cited
authorities, however, clearly consider the outcome of any subsequent substantive proceedings that an applicant may bring against a respondent in the light of any order for pre-action discovery as a very relevant issue: Cappuccio v Australia &amp; New Zealand Banking Group Ltd [1999] FCA 1188. Normally, the costs of a pre-action discovery order followed by a proceeding would follow the event when the proceeding was resolved. I see no reason why that starting point should not be adopted when the proceeding is by way of arbitration, rather than in the Court in which the order for pre-action discovery was made. The applicant put no submission to suggest that such a circumstance provided a distinguishing element. The failure of the applicant to succeed on its TP Act claim in the arbitration heavily weighs in the first respondent's favour of obtaining costs of the application or part of those costs. On the application, there was further a dispute about the appropriate extent of any order for pre-action discovery. The scope of the discovery ordered by Selway J was wider than the scope of the documents discovered in the arbitration, and wider than that contended for by the first respondent, but narrower than the scope of documents that the applicant sought in its pre-action discovery application. As Selway J held at [16] of the primary judgment, the categories of documents which the first respondent was required to discover were narrowed both by concession by the applicant during the hearing, and further narrowed by Selway J in the primary judgment orders. The first respondent says that the scope of discovery was "significantly narrowed". The first respondent also submits: It is impossible to speculate as to whether [the first respondent] would have provided the informal discovery requested by [the applicant] if the request had been made on more reasonable terms, say for example the form of order made by Selway J. However, the scope of the order sought by [the applicant] must have been a significant factor in [the first respondent's] decision to oppose the orders sought.
Case: Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535
Outcome: cited
It was the evidence of both Mr and Mrs White, which I accept, that they did not read the disclaimer in the brochure or have any regard to it. I make that finding notwithstanding that Mr White said that it was possible that Mrs Bahr had showed him the disclaimer. Even if the applicants had read the disclaimer that would not have been fatal to their case: Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 per Burchett J at 556-558; Bowler &amp; Another v Hilda Pty Ltd &amp; Others (1998) 80 FCR 191 per Heerey J at 207. However, if they had read the disclaimer they might well have concluded the disclaimer was included to protect the first respondent and the CPAs. Paragraph 2 of the disclaimer represents that the brochure has been completed from information supplied by the first respondent. It also represents that the fourth respondent was associated with the provision of that information in the brochure. If they had read the disclaimer it would have supported the applicants' evidence in that they said that they placed greater reliance on the brochure because it had been prepared by a firm of CPAs.
Case: Bowler &amp; Another v Hilda Pty Ltd &amp; Others (1998) 80 FCR 191
Outcome: cited
It was the evidence of both Mr and Mrs White, which I accept, that they did not read the disclaimer in the brochure or have any regard to it. I make that finding notwithstanding that Mr White said that it was possible that Mrs Bahr had showed him the disclaimer. Even if the applicants had read the disclaimer that would not have been fatal to their case: Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 per Burchett J at 556-558; Bowler &amp; Another v Hilda Pty Ltd &amp; Others (1998) 80 FCR 191 per Heerey J at 207. However, if they had read the disclaimer they might well have concluded the disclaimer was included to protect the first respondent and the CPAs. Paragraph 2 of the disclaimer represents that the brochure has been completed from information supplied by the first respondent. It also represents that the fourth respondent was associated with the provision of that information in the brochure. If they had read the disclaimer it would have supported the applicants' evidence in that they said that they placed greater reliance on the brochure because it had been prepared by a firm of CPAs.
Case: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 2) (1989) 40 FCR 76
Outcome: considered
In any event, it is no part of the first, second and third respondents' case that there was any delay on the part of the applicants in the bringing of these proceedings. Indeed, their case was predicated upon the basis that the applicants bought a viable business which was subsequently badly managed and subject to other circumstances which affected the business' viability. In those circumstances, this is not a case of the kind in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 2) (1989) 40 FCR 76 where the Court held that the damages should be limited to a point of time when the respondents should have abandoned the business. 225 I do not intend to reduce the applicants' damages by reason of their continuing to conduct the business up until trial. 226 It is the applicants' case that the representations which I have found made, were made in trade or commerce and were misleading or deceptive or likely to mislead or deceive contrary to and in breach of s 52 of the Trade Practices Act and/or s 10 of the Fair Trading Act . The applicants pleaded that the representations were made by the first respondent through the medium of the second respondent: paragraph 10 of the statement of claim. The representations relied upon are those in the brochure: paragraph 11 of the statement of claim. It is not pleaded that the third respondent made the representations. They claim that they relied upon the representations. The first applicant claims that in reliance on the representations it entered into the agreement of 28 December 1999 with the first respondent and that it paid a deposit, and that it proceeded to settlement on or about 28 February 2000 and acquired the business. It further claims that in reliance upon the representations it entered into a lease with the first respondent of the premises. It is pleaded that the third applicant, also in reliance upon the representations, gave up her job as a teacher to work full time in the business. There is no separate plea that the second applicant did or did not do anything in reliance upon the representations. I will return to that.
Case: State of Western Australia v Wardley (1991) 30 FCR 245
Outcome: followed
Section 79, as I have said, is in like terms to s 82 as it was prior to the amending Act. Section 82 of the Trade Practices Act was considered by the Full Court of the Federal Court of Australia in State of Western Australia v Wardley (1991) 30 FCR 245. Section 79 creates a right and gives a remedy. Section 79(2) prescribes a time limitation which has a procedural character. It follows, as was said in State of Western Australia v Wardley at 259, that s 79(2) is 'a condition of the remedy rather than an element in the right and a prerequisite to jurisdiction which cannot be waived'. The Court said at 259: 'It follows that it is for a defendant to assert non-compliance, rather than for a plaintiff to assert compliance with s 82(2) as an element of the cause of action.' 257 More importantly, the Court continued at 259: 'The need for compliance with s 82(2) may be waived by the defendant and an estoppel may prevent the defendant denying such a waiver. If the defendant fails to plead the limitation, this may be taken as a waiver of the need for compliance with s 82(2). '
Case: Murphy and Another v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388
Outcome: cited
More recently, the High Court said in Murphy and Another v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 at [56] that the onus of establishing that a party's claim was statute barred lay on the respondent and could be discharged by pleading and establishing that defence.
Case: Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159
Outcome: cited
I set out the taxation profit and loss statement for that year and for the previous year. The 1998 figures were disclosed in the 1999 financial statements but, in any event, the applicants also tendered the first respondent's taxation returns for the financial years ended 1997 and 1998. 'THIRSTY POINT PTY LTD TRADING AS THIRSTY LIQUOR STORE TRADING, PROFIT AND LOSS STATEMENT FOR THE YEAR ENDED 30 TH JUNE 1999 1999 $ 1998 $ SALES Sales 364,708 440,816 LESS: COST OF GOODS SOLD Opening Stock 82,883 55,000 Purchases 233,729 349,713 316,612 404,713 Closing Stock 57,066 82,883 259,546 321,830 GROSS PROFIT FROM TRADING 105,162 118,986 OTHER INCOME Lease Rentals - 5,216 Other Revenue 8,400 8,578 Capital Gain (Loss) on Sale of Non-current Assets - 4,200 8,400 17,994 113,562 136,980 EXPENDITURE Accountancy Fees 4,480 - Advertising 659 5,233 Bank Charges 6,077 7,638 Borrowing Costs 896 648 Casual Wages - 6,000 Depreciation 12,427 18,256 Electricity 10,785 11,425 Filing Fees 200 200 Freight and Cartage 672 220 Hire of Plant &amp; Equipment 245 - Hire Purchase Charges - 1,964 Insurance 5,043 5,219 Interest Paid 16,899 16,499 Legal costs 5,200 - Licensing fees 2,302 6,452 Motor Vehicle Expenses 12,864 17,656 Printing and Stationery 4,458 1,168 Rates and Taxes 1,963 2,479 Repairs and Maintenance Furniture, Fixtures and Fittings 480 - Telephone 7,503 9,137 Travelling Expenses 3,762 3,469 Wages 13,664 12,000 110,579 125,663 NET PROFIT 2,983 11,317 The accompanying notes form part of these financial statements. This report is to be read in conjunction with the attached compilation report.' 147 The gross profit from trading disclosed in the taxation profit and loss statement was $105,162. The net profit disclosed for taxation purposes by the first respondent was $2,983. The taxation profit and loss statement returned for the purpose of taxation should be compared with the brochure profit and loss statement contained in the brochure. 148 In the brochure profit and loss statement the total income disclosed is $373,109. That figure is the same as the sum of the sales and other revenue ($8,400) disclosed in the taxation profit and loss statement. It would be better for comparison purposes to leave out of account the other revenue when comparing the two profit and loss statements. The other revenue is not a trading profit and may not be generated in the business. That would mean on a comparison basis notionally reducing the brochure profit and loss statement sales by $8,400. 259 Where a statute of limitations bars the remedy but not the right, the defence under the statute must be expressly pleaded: Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 at 171; Pullen v Guttridge, Haskins and Davey Pty Ltd (1993) 1 VR 27 at 71-72.
Case: Pullen v Guttridge, Haskins and Davey Pty Ltd (1993) 1 VR 27
Outcome: cited
Where a statute of limitations bars the remedy but not the right, the defence under the statute must be expressly pleaded: Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 at 171; Pullen v Guttridge, Haskins and Davey Pty Ltd (1993) 1 VR 27 at 71-72.
Case: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216
Outcome: cited
A corporation may contravene s 52 without intending that its conduct mislead or deceive another person: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216 at 228. A corporation therefore acting honestly can still be found to have contravened the section: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 197.
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
A corporation may contravene s 52 without intending that its conduct mislead or deceive another person: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216 at 228. A corporation therefore acting honestly can still be found to have contravened the section: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 197.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: considered
Section 75B was considered by the High Court in Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. In that case, a corporation sold its business to the appellants. A land agent, which was also a corporation, acted on behalf of the vendor. A director of that land agent acted in the sale of the business. The trial judge found that the vendor had contravened s 52 of the Trade Practices Act . He also found that the land agent company had contravened s 52 but unwittingly. He found that a director of the vendor had aided and abetted or, alternatively, was knowingly concerned in the contravention by the vendor and by virtue of s 75B was a person involved in the vendor's contravention. However, he found that a director of the land agent company was unaware and had no reason to suspect the information supplied by the director of the vendor and thereby the vendor was incorrect. He dismissed the case against the director of the land agent company on the ground that the appellant had failed to prove that the director was aware or should have been aware of the relevant facts before he could be said to have been involved in the contravention. His decision was upheld by the Full Court of the Federal Court and the purchasers appealed to the High Court. The appellants argued that the respondent was caught by paragraphs (a) and (c) of s 75B(1). They argued that s 75B(1) , or at least paragraphs (a) and (c), did not require the appellants to prove any intent on the part of the respondent based upon knowledge of the material facts.
Case: Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473
Outcome: cited
In dealing with paragraph (a) of s 75B(1) , Mason ACJ, Wilson, Deane and Dawson JJ (the majority) applied principles of the criminal law because the words used in s 75B(1)(a) are taken directly from the criminal law. In particular, they relied upon a previous decision of that Court in Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473 which had held that in the criminal law where a party is accused of aiding and abetting, the party must have knowledge of the essential matters which go to make up the offence before the party can form the requisite intention even if the party does not know that those matters amount to a crime. The majority said at 667-668: 'If par.(a) of s 75B imports the requirements of the criminal law, it is clear in the light of Giorgianni v The Queen that Lucas could only be brought within that paragraph if he intentionally aided, abetted, counselled or procured a contravention by the Lucas company of s 52 of the Trade Practices Act . Upon the findings of the trial judge, however, Lucas lacked the knowledge necessary to form the required intent. A contravention of s 52 involves conduct which is misleading or deceptive or likely to mislead and deceive and the conduct relied upon in this case consisted of the making of false representations. Whilst Lucas was aware of the representations indeed they were made by him he had no knowledge of their falsity and could not for that reason be said to have intentionally participated in the contravention.' 274 A similar construction was given to s 75(1)(c). The majority said at 670: 'There can be no question that a person cannot be knowingly concerned in a contravention unless he has knowledge of the essential facts constituting the contravention.' 275 The majority concluded at 670: 'In our view, the proper construction of par.(c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention.'
Case: Pereira v Director of Public Prosecutions [1988] HCA 57 ; (1988) 82 ALR 217
Outcome: cited
It must be actual knowledge not constructive knowledge that is established. There may be circumstances where knowledge may be inferred: Pereira v Director of Public Prosecutions [1988] HCA 57 ; (1988) 82 ALR 217 at 219-220. But that is still a factual inquiry as to whether the particular person was seized of the actual knowledge. Where knowledge is sought to be inferred it must be the only rational inference available. The person said to be accessorily liable, if s 75B(1)(c) is relied on, must not only have the necessary knowledge, the person must also be involved in a contravention of the relevant provision of the Act. Therefore, there must be some evidence of a participation in the contravention by the corporation.
Case: Arms v WSA Online Limited (ACN 081 121 495) [2005] FCA 943
Outcome: cited
In their joint judgment, Carr, Tamberlin and RD Nicholson JJ set out the appellants contentions: ' 7 The first is that the conduct of Mr Price, which was the conduct of Idyllic in this matter, was itself in trade or commerce and attracted primary liability under ss 10 , 77 and 79 of the FTA, because that conduct was misleading. 8 Secondly, the appellants contend that it is no part of a cause of action under those sections that a director or agent engages in misleading conduct "on his own account". 9 Thirdly, the appellants say that the statement of claim adequately raised a cause of action under those sections of the FTA against Mr Price. 10 Finally, the appellants say that, if they do not succeed on their third point, the statement of claim pleaded all the facts found at trial sufficient to sustain a cause of action under ss 10 , 77 and 79 of the FTA against Mr Price and he would have been afforded procedural fairness had judgment been entered against him.' 290 In Arms v WSA Online Limited (ACN 081 121 495) [2005] FCA 943 , the primary judge was concerned with representations made by two employees in the course of their employment of a corporation.
Case: Arms v Houghton [2006] FCAFC 46
Outcome: cited
That matter went on appeal. The Full Court of the Federal Court in Arms v Houghton [2006] FCAFC 46 discussed the decisions in Arktos Pty Ltd v Idyllic Nominees Pty Ltd, Citibank Ltd v Liu , and Wong v Citibank and concluded at [38] that there was authority both in the Full Court of this Court and in the Court of Appeal in New South Wales that 'an employee can be found to have engaged in misleading or deceptive conduct for actions taken within the scope of his actual authority; that is, not independently of such authority'.