mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Randall (1993) 44 FCR 324
Outcome: referred to
power conferred by s 201 is constrained by the requirement that the Court be " satisfied that there are reasonable grounds for the application ". Grounds which provide no more than a speculative basis for a suspicion will not suffice: Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162. When considering the terms of earlier comparable legislation, French J there formulated the approach to be applied as follows (at 166): "Reasonable ground for the application" The question for the Court mandated by s 219(b) of the Industrial Relations Act 1988 is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute "an irregularity in relation to an election for an office in the organisation". The question whether there is such an irregularity lies at the heart of this jurisdiction. Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant's opinion that there has been irregularity unless that opinion rests upon some substantial factual foundation. Necessary conditions to establish the requisite state of satisfaction can be multiplied. It is harder to state what is sufficient to satisfy the Court beyond the words of the section itself which require an evaluative judgment at this preliminary stage. See also: Re Randall (1993) 44 FCR 324 at 325 per French J. The same approach should be applied to s 201(b) of the 2009 Act. Upon an application being made, the task presently entrusted to this Court is that set forth in s 201(b), namely to reach a state of satisfaction " that there are reasonable grounds for the application ". It is no part of the task now entrusted to the Court to attempt to pre-empt the result of any inquiry that may be held. As observed by French J (as His Honour then was) in Re Post , the task presently before the Court " require[s] an evaluative judgment at this preliminary stage ": (1992) 40 IR at 167. In Re Randall , His Honour referred to an application of the present kind as involving " threshold questions ": (1993) 44 FCR at 325.
Case: Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559
Outcome: cited
The power expressly vested in the Supreme Court by s 4 of the Restraints of Trade Act may be exercised by this Court when determining a controversy within its jurisdiction to which the Act is relevant ( Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559). No party addressed me on the relevance for present purposes of the requirement in s 4(3) of the Act for an application to be made by a person subject to the restraint. 14 Luxottica did not place reliance on s 182 and s 183 of the Corporations Act , or on any alleged breach of fiduciary duties owed by Mr Carr to Luxottica. It relied only upon alleged breaches of his contract of employment. 15 In my view, the evidence placed before the Court was insufficient to sustain an inference that Mr Carr has breached, or threatens to breach, clause 21 of his contract of employment.
Case: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: applied
To obtain the interlocutory relief which it seeks Luxottica must demonstrate three things: (a) that there is a serious question to be tried; (b) that it will suffer irreparable injury for which damages will not be adequate compensation; and (c) that the balance of convenience favours the grant of interlocutory relief ( Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153 per Mason ACJ). To some extent these three things overlap and it is not uncommon for the adequacy of damages as compensation to be considered as an aspect of the balance of convenience. 8 For the reasons set out below I am not satisfied that Luxottica is entitled to interlocutory relief against either Mr Carr or Hinkler. 9 Mr Carr signed a contract of employment with OPSM Pty Ltd on 21 June 2005. The contract is governed by the law of New South Wales. The ACN of OPSM Pty Ltd shown on the contract is the ACN of Luxottica as shown on its application. OPSM Pty Ltd must be assumed to have changed its name to Luxottica after 21 June 2005. 20 The degree of likelihood of success in Luxottica's case is a relevant consideration in assessing the balance of convenience ( Castlemaine Tooheys Ltd v South Australia at 154). The evidence reveals that every existing optometry business in Bundaberg is within a radius of five kilometres of the Sugarland premises. For this reason it is likely to be argued at trial that the maximum geographic restraint sought to be imposed on Mr Carr by clause 23 is unreasonable and constitutes an attempt to prevent his practising at all in Bundaberg other than with Luxottica. The second level of geographic restraint for which clause 23 provides is within a radius of three kilometres of the Sugarland premises. The Hinkler premises are outside this radius. 21 I am not satisfied that, to the extent that Luxottica's case against Mr Carr depends on the five kilometre radius restraint for which clause 23 provides, if the evidence remains as it is, it is probable, as opposed to possible, that Luxottica will be held entitled to relief. 22 Luxottica contended that the quasi-medical nature of optometry renders it likely that Mr Carr's clients will follow him with the result that he, together with Hinkler, will gain an unjustifiable headstart or 'springboard' as competitors of Luxottica unless interlocutory relief is granted. Luxottica also argued that it will be difficult for it to recruit another qualified optometrist.
Case: Geraghty v Minter [1979] HCA 42 ; (1979) 142 CLR 177
Outcome: cited
However, I accept that there is a serious question to be tried as to the extent of the restraint of trade validly imposed on Mr Carr by clause 23 of his contract of employment and as to whether he is in breach of that restraint. While an employer is not entitled to be protected from mere competition from a former employee, it is entitled to protect the goodwill of its business and, for that purpose, to prevent the former employee from misusing his or her acquaintance with the employer's customers and taking advantage of the employer's trade connections ( Geraghty v Minter [1979] HCA 42 ; (1979) 142 CLR 177). The Restraints of Trade Act will ensure the validity of clause 23 to the extent that it is not contrary to public policy. 18 Luxottica contended that damages will not be an adequate remedy should it succeed in its action against Mr Carr. It argued that its loss and damage will be unquantifiable because of the difficulties that will attend the establishment of a causal link between Mr Carr's breach of clause 23 of his contract of employment and loss of profits by Luxottica. 19 Mr Carr has sworn that he does not have a list of the customers of Luxottica's Sugarland business and does not know who are the customers of that business. He has offered to keep a record of every customer who he examines and a record of all charges rendered in respect of each customer including charges for spectacles. This record will, in my view, go a significant way towards overcoming the problems which Luxottica foresees in establishing its damages should it succeed against Mr Carr at trial.
Case: Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Ltd [2001] Aust Contract Reports 90-129
Outcome: cited
Section 4(1) of the Restraints of Trade Act 1976 (NSW) provides that a restraint of trade is valid to the extent to which it is not against public policy, whether it is in severable terms or not. Section 4(3) of the Act authorises a person subject to a restraint of trade to apply to the Supreme Court of New South Wales where the operation of a restraint of trade would have a manifestly unreasonable operation. In Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Ltd [2001] Aust Contract Reports 90-129; [2001] NSWCA 111 the Court of Appeal observed that s 4 does not authorise the remaking of the restraint; rather, where there is a postulated breach of the restraint, it permits the Court to enforce the restraint to the extent that is reasonable in the circumstances of the postulated breach.
Case: Ace Contractors &amp; Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728
Outcome: referred to
J in Ace Contractors &amp; Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 at [44] summarised the authorities governing the operation of s 459C of the Act. The summary included these propositions: The respondent is presumed to be insolvent and as such bears the onus of proving its solvency: s 459C(2) and (3); Elite Motor Campers Australia v Leisureport Pty Ltd (1996) 22 ACSR 235 ; Commissioner of Taxation v Simionato Holdings Pty Ltd (1997) 15 ACLC 477. In order to discharge that onus the Court should ordinarily be presented with the "fullest and best" evidence of the financial position of the respondent: Commonwealth Bank of Australia v Begonia (1993) 11 ACLC 1075 at 1081. Unaudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency. Nor are bald assertions of solvency arising from a general review of the accounts, even if made by qualified accountants who have detailed knowledge of how those accounts were prepared: Simionato Holdings Pty Ltd (supra); Re Citic Commodity Trading Pty Ltd v JBL Enterprises (WA) Pty Ltd [1998] FCA 232 ; Leslie v Howship Holdings Pty Ltd (1997) 15 ACLC 459 at 463.
Case: ASIC v Eastlands Pty Ltd (No 3) [2006] FCA 1702 
Outcome: cited
was subject to a presumption of insolvency when receivers were appointed to it pursuant to a floating charge: s 459C(2)(c) of the Corporations Act 2001 (Cth) ("the Act"). Australian Securities and Investment Commission ("ASIC") has applied to wind up Lanepoint on the basis of this presumption. This discharges ASIC's obligation to demonstrate a prima facie case that Lanepoint is insolvent and therefore meets the condition for the grant of leave under s 459P(3) of the Act: ASIC v Forestview Nominees Pty Ltd (No 3 ) [2006] FCA 1710 at [53] and ASIC v Eastlands Pty Ltd (No 3) [2006] FCA 1702 at [64] .
Case: ASIC v Forestview Nominees Pty Ltd (No 3 ) [2006] FCA 1710 
Outcome: cited
was subject to a presumption of insolvency when receivers were appointed to it pursuant to a floating charge: s 459C(2)(c) of the Corporations Act 2001 (Cth) ("the Act"). Australian Securities and Investment Commission ("ASIC") has applied to wind up Lanepoint on the basis of this presumption. This discharges ASIC's obligation to demonstrate a prima facie case that Lanepoint is insolvent and therefore meets the condition for the grant of leave under s 459P(3) of the Act: ASIC v Forestview Nominees Pty Ltd (No 3 ) [2006] FCA 1710 at [53] and ASIC v Eastlands Pty Ltd (No 3) [2006] FCA 1702 at [64] .
Case: Equity Australia Corporation Pty Ltd v Falgat Constructions Pty Ltd (2005) 54 ACSR 813 
Outcome: cited
summary was adopted with approval by Barrett J in Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 21 ACLC 684 and again on appeal in that case: Expile Pty Ltd v Jabb's Excavations Pty Ltd (No 2) [2003] NSWCA 163 ; (2003) 45 ACSR 711 as well as in Equity Australia Corporation Pty Ltd v Falgat Constructions Pty Ltd (2005) 54 ACSR 813.
Case: Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 21 ACLC 684 
Outcome: cited
summary was adopted with approval by Barrett J in Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 21 ACLC 684 and again on appeal in that case: Expile Pty Ltd v Jabb's Excavations Pty Ltd (No 2) [2003] NSWCA 163 ; (2003) 45 ACSR 711 as well as in Equity Australia Corporation Pty Ltd v Falgat Constructions Pty Ltd (2005) 54 ACSR 813.
Case: Expile Pty Ltd v Jabb's Excavations Pty Ltd (No 2) [2003] NSWCA 163 ; (2003) 45 ACSR 711 
Outcome: cited
summary was adopted with approval by Barrett J in Expile Pty Ltd v Jabb's Excavations Pty Ltd (2003) 21 ACLC 684 and again on appeal in that case: Expile Pty Ltd v Jabb's Excavations Pty Ltd (No 2) [2003] NSWCA 163 ; (2003) 45 ACSR 711 as well as in Equity Australia Corporation Pty Ltd v Falgat Constructions Pty Ltd (2005) 54 ACSR 813.
Case: Ocean City Ltd v Southern Oceanic Hotels Pty Ltd [1993] FCA 86 ; (1993) 10 ACSR 483
Outcome: followed
Lanepoint submits that there is a genuine dispute as to the amount of its indebtedness to WIF. In an appropriate case the Court may exercise its discretion to determine such a dispute rather than to stay the winding-up application to await the curial resolution of the dispute: Ocean City Ltd v Southern Oceanic Hotels Pty Ltd [1993] FCA 86 ; (1993) 10 ACSR 483 at 486-487. A great deal of evidence was adduced in this respect including detailed cross-examination of, amongst others, Mr Carey, Ms Karen Carey and Mr Gregory Nairn, a former senior Lanepoint executive. No suggestion was made that there was other relevant evidence available going to the resolution of this question. If such an alleged dispute is raised and can be resolved during such an application then in my opinion it ought to be. It would only add to the costs of the parties as well as to the public to put it off. Lanepoint submits that the affidavit of ASIC's expert, Mr Honey, sworn on 27 October 2006 confirms the following: (i) The work in progress on the Regency Motel redevelopment was, as at 31 January 2006, about $7 million. That work in progress is also estimated by Ernst &amp; Young at $6,544,235 according to the affidavit of Mr Fraser, one of Lanepoint's receivers, sworn on 11 March 2008, based on information provided but that the Receiver and Managers were not able to determine the final quantum of renovation costs." (ii) In relation to liabilities as at 31 January 2006, the Suncorp Metway loan stood at $4,855,000 and WIF at $2,267,000. (iii) There were intercompany loans to Westpoint, Keypoint and Keyworld at $864,000 but there were other sources of finance of some $700,000
Case: Powell v Fryer (2000) 18 ACLC 480 
Outcome: cited
commercial solvency of a company is not proved by merely looking at its accounts and making a mechanical comparison of its assets and liabilities. Insolvency is a question of fact falling to be decided as a matter of commercial reality in light of all the circumstances with things being viewed as it would be by someone operating in a practical business environment: Powell v Fryer (2000) 18 ACLC 480 at [9]. The background is uncontroversial and the following is taken substantially from ASIC's closing submissions. Lanepoint redeveloped the Regency Motel site on Great Eastern Highway, Rivervale in Western Australia. This was financed, in part, by secured funds obtained from Suncorp Metway Limited and Westpoint Management Pty Ltd as responsible entity for the Westpoint Income Fund ("WIF"). Westpoint Management was a related or associated company within the Westpoint Group and WIF was a managed investment scheme, which raised funds from the public for use in relation to Westpoint Group projects. The first stage of the Regency Motel redevelopment was undertaken for Lanepoint by Westpoint Constructions Pty Ltd. As a result of the redevelopment 40 strata title lots were almost completed for sale and one lot was left vacant for the second stage. Adjacent to the redeveloped property are three lots, which were proposed for the third stage.
Case: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 
Outcome: followed
This is not a case in which there were specific aspects of the appellant's account that may have been open to doubt and as to which the Tribunal was found to ask the appellant to explain: SZBEL at [47]. Rather, as I have said, the reasons given by the Tribunal addressed gaps in the applicant's evidence. It was for him to give his full account and for the Tribunal to determine whether to accept it: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [187] .
Case: Avon Downs Pty Limited v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360
Outcome: referred to
Reference was also made to the observations of Dixon J in Avon Downs Pty Limited v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360. 78 I have already found that the Tribunal's conclusion was affected by a mistake of law and a failure to take into consideration an aspect of the claim that the Tribunal was required to consider. I do not consider that it is necessary to proceed to determine whether this also amounts to irrationality or illogicality in the sense referred to in the authorities. 79 There is sufficient merit in the appellant's submissions to permit the grant of leave to raise this ground. However, I do not propose to decide the appeal on this basis.
Case: Branir Pty Ltd v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424 
Outcome: referred to
Without departing from the principles stated by the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1, and by a Full Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424, a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 commented on the practice of raising arguments for the first time on appeals in migration matters.
Case: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 
Outcome: referred to
What the Tribunal was required to do to complete the exercise of its jurisdiction was to apply the "real chance test" that was stated by the High Court in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. It was for the decision-maker to determine whether the past events relied upon by the appellant gave rise to a likelihood of future harm: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 ; (2006) 231 ALR 544 at [3] .
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 
Outcome: referred to
Without departing from the principles stated by the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1, and by a Full Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424, a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 commented on the practice of raising arguments for the first time on appeals in migration matters.
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 
Outcome: applied
In my view, the "issues" which the appellant identifies do not fall within the principle stated in SZBEL. Rather, they are either gaps in the appellant's account of his claim or part of the mental processes of the Tribunal. The Tribunal member was not required to disclose them to the appellant: SZBEL at [48]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; Minister for Immigration &amp; Citizenship v Applicant A 125 of 2003 [2007] FCAFC 162 at [89] .
Case: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: applied
It follows in my view that the Tribunal failed to consider a substantial aspect or integer of the appellant's case that was sufficiently plain on the facts that were established: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at [24] ; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [55] [57].
Case: Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 
Outcome: referred to
It is well established that in determining whether the persecutory conduct claimed by an applicant amounts to serious harm, the Tribunal is under a duty to consider the "totality of the case put forward": NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95 at [54] [62]; VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [62]; Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 at [31] . In doing so, it must consider each integer of the claims: VTAO at [62]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244.
Case: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 
Outcome: applied
It is well established that in determining whether the persecutory conduct claimed by an applicant amounts to serious harm, the Tribunal is under a duty to consider the "totality of the case put forward": NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95 at [54] [62]; VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [62]; Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 at [31] . In doing so, it must consider each integer of the claims: VTAO at [62]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244.
Case: Minister for Immigration &amp; Citizenship v Applicant A 125 of 2003 [2007] FCAFC 162 
Outcome: applied
In my view, the "issues" which the appellant identifies do not fall within the principle stated in SZBEL. Rather, they are either gaps in the appellant's account of his claim or part of the mental processes of the Tribunal. The Tribunal member was not required to disclose them to the appellant: SZBEL at [48]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; Minister for Immigration &amp; Citizenship v Applicant A 125 of 2003 [2007] FCAFC 162 at [89] .
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 
Outcome: referred to
What the Tribunal was required to do to complete the exercise of its jurisdiction was to apply the "real chance test" that was stated by the High Court in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. It was for the decision-maker to determine whether the past events relied upon by the appellant gave rise to a likelihood of future harm: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 ; (2006) 231 ALR 544 at [3] .
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 
Outcome: referred to
This amounted to a constructive failure to exercise the Tribunal's jurisdiction: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597; NABE at [48] [49]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44].
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 
Outcome: referred to
The fifth ground is illogicality in the sense referred to by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [145] , ie. that the satisfaction of the decision-maker was based on findings which were not supported by logical grounds. 76 Grounds 3 and 4 sufficiently dispose of the appeal. It is therefore unnecessary for me to consider the fifth ground. This is that the satisfaction of the decision-maker was based on the findings of fact which were not supported by probative material or logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [37] [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34] [37]; Eshetu at [131] [145].