mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Huddart Parker &amp; Co Pty Ltd v Moorehead [1909] HCA 36 ; (1908) 8 CLR 330
Outcome: cited
Later, at 552-553, Menzies J said: The difference between a trading corporation and a municipal corporation was noticed in this Court as early as 1908 in Huddart Parker &amp; Co. Pty. Ltd. v. Moorehead when Isaacs J., in considering the language of s. 51(xx.) of the Constitution , said [1909] HCA 36 ; [(1908) 8 C.L.R. 330 , at p.393]: ". . . it is always a preliminary question whether a given company is a trading or financial corporation or a foreign corporation. This leaves entirely outside the range of federal power, as being in themselves objects of the power, all those domestic corporations, for instance, which are constituted for municipal, mining, manufacturing, religious, scholastic, charitable, scientific, and literary purposes, and possibly others more nearly approximating a character of trading; a strong circumstance to show how and to what extent the autonomy of the States was intended to be safe-guarded. The federal power was sufficiently limited by specific enumeration, and there is no need to place further limits on the words of the legislature."
Case: Meriwether v Garrett [1880] USSC 120 ; 102 US, 472
Outcome: cited
Of these powers conferred by the LGA, it is worth noting that in Wingadee Shire Council v Willis [1910] HCA 35 ; (1910) 11 CLR 123 , Barton J, at 136, cited with approval the following passage of the judgment of Field J in the United States Supreme Court case of Meriwether v Garrett [1880] USSC 120 ; 102 US, 472 at 511: Municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged or entirely withdrawn at its pleasure.
Case: Mid Density Development v Rockdale Municipal Council [1992] FCA 634 ; (1992) 39 FCR 579
Outcome: considered
It was alleged in Mid Density Development v Rockdale Municipal Council [1992] FCA 634 ; (1992) 39 FCR 579 that the council concerned was a trading corporation. The Federal Court rejected that claim, at 585, largely by application of the activities test: Davies J at 584. The judgment of Davies J was overturned on appeal to the Full Court of the Federal Court, but on other grounds. The Full Court did not consider the question of whether the Council was a trading corporation: Mid Density Developments v Rockdale Municipal Council [1993] FCA 408 ; (1993) 44 FCR 290 , per the Court, at 302.
Case: Mid Density Developments v Rockdale Municipal Council [1993] FCA 408 ; (1993) 44 FCR 290
Outcome: cited
It was alleged in Mid Density Development v Rockdale Municipal Council [1992] FCA 634 ; (1992) 39 FCR 579 that the council concerned was a trading corporation. The Federal Court rejected that claim, at 585, largely by application of the activities test: Davies J at 584. The judgment of Davies J was overturned on appeal to the Full Court of the Federal Court, but on other grounds. The Full Court did not consider the question of whether the Council was a trading corporation: Mid Density Developments v Rockdale Municipal Council [1993] FCA 408 ; (1993) 44 FCR 290 , per the Court, at 302.
Case: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191
Outcome: cited
Those submissions also referred to decisions in the Federal Court and other superior courts. Those cases were concerned with entities such as charities: E v Australian Red Cross Society [1991] FCA 20 ; (1991) 27 FCR 310 ; statutory corporations set up under State legislation which conduct various business activities: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 ; corporations that conduct universities: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 ; and schools: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436; yachting organisations: Forbes &amp; Anor v Australian Yachting Federation Inc. (1996) 131 FLR 241; legal aid bodies: Aboriginal Legal Service of Western Australia Inc. v Lawrence [2007] WAIRC 435 ; and animal welfare organisations: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191. 140 The written submissions on behalf of the Etheridge Shire Council ask the question " How is the significance or substantiality of the trading activities to be assessed?" (a) It is undoubtedly a fact of fact and degree (Adamson at 234); (b) A measurement of what is received from the alleged trading activities against total receipts as an indication of substantiality and significance has been accepted and adopted in a number of cases including:- (i) E v Red Cross [1991] FCA 20 ; (1991) 27 FCR 310 at 345; (ii) United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 at 351; (iii) Orion Pet Products v RSPCA [2002] FCA 860 ; (2002) 120 FCR 191 at 219; (iv) Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 at 272 and 273.
Case: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243
Outcome: cited
Those submissions also referred to decisions in the Federal Court and other superior courts. Those cases were concerned with entities such as charities: E v Australian Red Cross Society [1991] FCA 20 ; (1991) 27 FCR 310 ; statutory corporations set up under State legislation which conduct various business activities: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 ; corporations that conduct universities: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 ; and schools: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436; yachting organisations: Forbes &amp; Anor v Australian Yachting Federation Inc. (1996) 131 FLR 241; legal aid bodies: Aboriginal Legal Service of Western Australia Inc. v Lawrence [2007] WAIRC 435 ; and animal welfare organisations: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191. 139 The Etheridge Shire Council submitted in its written submissions that a trading corporation: [I]nvolves the buying and selling for the purposes of receiving revenue Adamson at page 235 (Mason J) and is a broad concept. Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 at 261. A corporation may trade even though it enjoys a monopoly. St George County Council's case at 539 or is not motivated by the decision to make a profit. Ku-ring-gai Co-operative Building Society (No. 12) Ltd (1978) 36 FLR 134 at 167. 140 The written submissions on behalf of the Etheridge Shire Council ask the question " How is the significance or substantiality of the trading activities to be assessed?" (a) It is undoubtedly a fact of fact and degree (Adamson at 234); (b) A measurement of what is received from the alleged trading activities against total receipts as an indication of substantiality and significance has been accepted and adopted in a number of cases including:- (i) E v Red Cross [1991] FCA 20 ; (1991) 27 FCR 310 at 345; (ii) United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 at 351; (iii) Orion Pet Products v RSPCA [2002] FCA 860 ; (2002) 120 FCR 191 at 219; (iv) Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 at 272 and 273.
Case: Re Dingjan; Ex parte Wagner [1995] HCA 16 ; (1995) 183 CLR 323
Outcome: discussed
The High Court in the Work Choices Case , by a majority of five to two, held that the Work Choices Act was valid. The majority concluded that the understanding of the power conferred by s 51(xx) as explained by Mason CJ, Deane and Gaudron JJ in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 ; 128 ALR 81 ; [1995] HCA 16 ( Re Dingjan) and amplified by Gaudron J in Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 ; 172 ALR 257 ; [2000] HCA 34 ( Pacific Coal ) should be adopted. 17 The majority in the Work Choices Case , in seeking to determine the ambit of laws which apply to constitutional corporations, referred to the dissenting members of the Court in Re Dingjan [1995] HCA 16 ; (1995) 183 CLR 323. The majority said, at [177]: ... Particular reference need now be made only to the reasons of Gaudron J (with which Deane J agreed). Her Honour's reasoning proceeded by the following steps. [1995] HCA 16 ; [(1995) 183 CLR 323 at 365; [1995] HCA 16 ; 128 ALR 81 at 111]. First, the business activities of corporations formed within Australia signify whether they are trading or financial corporations, and the main purpose of the power to legislate with respect to foreign corporations must be directed to their business activities in Australia. Second, it follows that the power conferred by s 51(xx) extends "at the very least" [1995] HCA 16 ; [(1995) 183 CLR 323 at 365; [1995] HCA 16 ; 128 ALR 81 at 111] to the business functions and activities of constitutional corporations and to their business relationships. Third, once the second step is accepted, it follows that the power "also extends to the persons by and through whom they carry out those functions and activities and with whom they enter into those relationships". [1995] HCA 16 ; [(1995) 183 CLR 323 at 365; [1995] HCA 16 ; 128 ALR 81 at 111].
Case: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346
Outcome: cited
Those submissions also referred to decisions in the Federal Court and other superior courts. Those cases were concerned with entities such as charities: E v Australian Red Cross Society [1991] FCA 20 ; (1991) 27 FCR 310 ; statutory corporations set up under State legislation which conduct various business activities: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 ; corporations that conduct universities: Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 ; and schools: Educang Limited v Queensland Industrial Relations Commission (2006) 154 IR 436; yachting organisations: Forbes &amp; Anor v Australian Yachting Federation Inc. (1996) 131 FLR 241; legal aid bodies: Aboriginal Legal Service of Western Australia Inc. v Lawrence [2007] WAIRC 435 ; and animal welfare organisations: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals [2002] FCA 860 ; (2002) 120 FCR 191. 140 The written submissions on behalf of the Etheridge Shire Council ask the question " How is the significance or substantiality of the trading activities to be assessed?" (a) It is undoubtedly a fact of fact and degree (Adamson at 234); (b) A measurement of what is received from the alleged trading activities against total receipts as an indication of substantiality and significance has been accepted and adopted in a number of cases including:- (i) E v Red Cross [1991] FCA 20 ; (1991) 27 FCR 310 at 345; (ii) United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346 at 351; (iii) Orion Pet Products v RSPCA [2002] FCA 860 ; (2002) 120 FCR 191 at 219; (iv) Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243 at 272 and 273.
Case: Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977
Outcome: considered
The High Court, in Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 , upheld the validity of a power granted to the Widgee Shire Council, which was a local authority in a country district, to make by-laws made for the protection of roads under their control. In doing so, Griffith CJ said, at 983: In my opinion, the legislature has deliberately and intentionally made the local authority, subject to the approval of the Governor in Council, the sole judge of such matters, subject only to this qualification, that, if a by-law is such that no reasonable man, exercising in good faith the powers conferred by the Statute, could under any circumstances pass such a by-law, it might be held invalid on that ground as being an abuse of the power, and therefore not within it. 44 The Etheridge Shire Council has numerous other powers and responsibilities under the LGA, including making a local law which creates an offence constituted by contravening a local law and fixing a penalty for an offence against a local law: s 26 of the LGA. 45 Having regard to the submissions of counsel for all the parties, it is plain that if the Etheridge Shire Council is not a constitutional corporation, then each of the applicants is entitled to the relief which it seeks.
Case: Wingadee Shire Council v Willis [1910] HCA 35 ; (1910) 11 CLR 123
Outcome: considered
Of these powers conferred by the LGA, it is worth noting that in Wingadee Shire Council v Willis [1910] HCA 35 ; (1910) 11 CLR 123 , Barton J, at 136, cited with approval the following passage of the judgment of Field J in the United States Supreme Court case of Meriwether v Garrett [1880] USSC 120 ; 102 US, 472 at 511: Municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged or entirely withdrawn at its pleasure.
Case: Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (in liquidation) [2006] FCA 146) 
Outcome: related
Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (inliquidation) (No 2) [2006] FCA 157 (27 February 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 157 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (inliquidation) (No 2) [2006] FCA 157 (27 February 2006) Last Updated: 28 February 2006 FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (in liquidation) (No 2) [2006] FCA 157 TRADE PRACTICES form of relief indemnity for likely loss and damage pursuant to s 87 Trade Practices Act 1974 (Cth), s 87 Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (in liquidation) [2006] FCA 146) related Leda Holdings Pty Ltd v Oraka Pty Ltd (1998) ATPR 41-601 cited Oraka Pty Ltd v Leda Holdings Pty Ltd (1997) ATPR 41-558 cited State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 cited Wardley Australia Ltd v State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 cited AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v GLOBAL PREPAID COMMUNICATIONS PTY LTD (ACN 095 154 108) (IN LIQUIDATION), IN TOUCH NETWORKS PTY LTD (ACN 098 279 746) (IN LIQUIDATION), NICHOLAS YATES, FRANK YATES, NICHOLAS RHODIN, DANIEL ALBERT AND RUSSELL FIELDING NSD 328 OF 2003 GYLES J 27 FEBRUARY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 328 OF 2003 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT AND: GLOBAL PREPAID COMMUNICATIONS PTY LTD (ACN 095 154 108) (IN LIQUIDATION) FIRST RESPONDENT IN TOUCH NETWORKS PTY LTD (ACN 098 279 746) (IN LIQUIDATION) SECOND RESPONDENT NICHOLAS YATES THIRD RESPONDENT FRANK YATES FOURTH RESPONDENT NICHOLAS RHODIN FIFTH RESPONDENT DANIEL ALBERT SIXTH RESPONDENT RUSSELL FIELDING SEVENTH RESPONDENT JUDGE: GYLES J DATE: 27 FEBRUARY 2006 PLACE: SYDNEY SUPPLEMENTARY REASONS FOR JUDGMENT 1 I delivered reasons for judgment in this matter on 24 February 2006 ( Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (ACN 095 154 108) (in liquidation) [2006] FCA 146) and stood the matter over until today to enable orders to be made. My attention has been drawn to the fact that I did not explicitly deal with the form of order for compensation to be made in respect of Loncaric and Carlon Pty Limited insofar as there was a claim for contingent loss.
Case: Andi-Co Australia Pty Ltd v Meyers [2004] FCA 1358
Outcome: considered
And finally, there are observations by Heerey J in Andi-Co Australia Pty Ltd v Meyers [2004] FCA 1358 , which are apposite in the context of the affidavit material filed in the present application. Heerey J said of the case before him at [17]: ... Mr Meyers has filed a substantial amount of affidavit material sworn by himself and others. However, it needs to be kept in mind that the issue is not whether his version of events is more plausible than Andi-Co's, but whether the alleged debts are the subject of genuine disputes and whether the alleged offsetting claims are genuine, that is to say, real and authentic as opposed to false, illegitimate, phoney, counterfeit and false. Accordingly, I shall not engage in an assessment of the rival merits. 18 The plaintiff asserts two offsetting claims. The first of the offsetting claims relates to what is said to be a genuine claim of the plaintiff against the defendant for the infringement of three patents, arising out of the defendant's manufacture and sale of water meter assemblies. 19 The second offsetting claim relates to an order for costs made in favour of the plaintiff against the defendant by me on 9 August 2004 in action Q69 of 2003.
Case: Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37
Outcome: considered
Lockhart J in Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 referred to the above observations of Hayne J and Thomas J, and also to the observations of Beazley J in Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1993) 12 ACSR 341 at 356-7.
Case: Fleur De Lys Pty Ltd v Jarrett (2004) 51 ACSR 238
Outcome: considered
Such an order was made by Hely J in Fleur De Lys Pty Ltd v Jarrett (2004) 51 ACSR 238. 56 The application by the plaintiff seeks an order for costs on an indemnity basis, relying on the fact that its solicitor had corresponded with the solicitor for the defendant indicating that the plaintiff claimed that it had a cross demand for damages for infringement of patents. The defendant nonetheless persisted in resisting the setting aside of the statutory demand. 57 In my opinion, it is not appropriate that there be an order for costs on an indemnity basis.
Case: Gujarat NRE Australia v Williams [2006] NSWSC 518
Outcome: considered
Austin J in Gujarat NRE Australia v Williams [2006] NSWSC 518 said: [20] Effectively, the standard to be reached to persuade a court that there is an offsetting claim is the same as the standard to be reached to persuade a court that there is a genuine dispute between the alleged debtor and the party claiming to be creditor. The most effective cited description of the standard for establishing a genuine dispute is a passage in the judgment of McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 787. There, his Honour said that the expression "genuine dispute" connotes a plausible contention requiring investigation, and raises much the same sort of considerations as the "serious question to be tried" criterion which arises in an application for an interlocutory injunction or for the extension or removal of a caveat. [21] It is of fundamental importance for parties to proceedings of this kind to understand that the court does not enter into the merits of any dispute between the parties. The court merely satisfies itself, to the standard described by McLelland CJ in Eq, that the dispute, or the assertion of an offsetting claim, is "genuine". If it is, then the statutory demand procedure is out of place. The whole purpose of the reforms introduced to corporate insolvency law, when the present Pt 5.4 was introduced, was to remove litigation about disputed claims from the winding up process. That is why courts have said, time and again, that if a creditor is aware that there is a dispute, asserted on behalf of the alleged debtor with sufficient plausibility to meet that relatively low threshold described by his Honour, issuing a statutory demand is wholly inappropriate. The correct course is to have the dispute resolved by proceedings asserting the debt.
Case: Intag Microelectronics Pty Ltd v AWA Ltd (1995) 18 ACSR 284
Outcome: applied
Having regard to the expert evidence of Mr Fox, the claims are, it seems to me, genuine claims put forward in good faith, and which are more than mere assertion. The claims are seriously disputed, as the expert evidence of Mr Collins demonstrates. Without looking too deeply at the issues of validity and infringement, the claims of the plaintiff in respect of damages for infringement are such that they have " some real chance of success ", to use the words of Young J in Intag Microelectronics Pty Ltd v AWA Ltd (1995) 18 ACSR 284 at 289. 41 In my opinion, the conclusion that there is an offsetting claim in respect of the costs orders made by the Court on 9 August 2004 are even stronger. 42 On that day, the Court ordered that the decision of the AAT to affirm the decision of the Commissioner of Patents to decline an extension of time was set aside, and the matter was remitted to the AAT for consideration according to law. The Court ordered that the second respondent pay the costs of the applicant to be taxed if not agreed.
Case: Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743
Outcome: considered
Palmer J in Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 at [18] said: In my opinion, a genuine offsetting claim for the purposes of CA s 459H (1) and (2) means a claim on a cause of action advanced in good faith, for an amount claimed in good faith. 'Good faith' means arguable on the basis of facts asserted with sufficient particularity to enable the Court to determine that the claim is not fanciful. In a claim for unliquidated damages for economic loss, the Court will not be able to determine whether the amount claimed is claimed in good faith unless the plaintiff adduces some evidence to show the basis upon which the loss is said to arise and how that loss is calculated. If such evidence is entirely lacking, the Court cannot find that there is a genuine offsetting claim for the purposes of s 459H.
Case: Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACSR 362
Outcome: considered
The expression " genuine claim " was considered by Hayne J in the Supreme Court of Victoria in Mibor Investments Pty Ltd v Commonwealth Bank of Australia (1993) 11 ACSR 362, where his Honour said: ... any application to set aside a statutory demand must be made very quickly; it must be made within 21 days. Second, the statute contemplates a summary procedure, the only outcome of which will be an order affecting the statutory demand, not an order or judgment declaring a debt to be owing or not to be owing or ordering payment of any money sum. Third, the only significance that the statutory demand has is that if there is a failure to comply with it then the company is deemed to be insolvent. Thus the demand is no more than a precursor to an application for winding up in insolvency. Fourth, an application to wind up in insolvency must be determined within 6 months (unless the court is satisfied that special circumstances justify an extension of that time): s 459R. Firth, on the hearing of the application to wind up, the company may not oppose the application on grounds that it might have taken in any application to set aside the demand, unless those grounds are material to proving that the company is solvent. 11 Hayne J then said: These matters, taken in combination, suggest that at least in most cases, it is not expected that the court will embark upon any extended inquiry in order to determine whether there is a genuine dispute between the parties and certainly will not attempt to weigh the merits of that dispute. All that the legislation requires is that the court conclude that there is a dispute and that it is a genuine dispute.