mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Chu v Telstra Corporation Ltd [2005] FCA 1730 (2005) 147 FCR 505
Outcome: cited
28 October 2004, the Tribunal affirmed the respondent's decision. The appellant appealed to this Court. On 1 December 2005, Finn J set aside the Tribunal's decision and remitted the matter to the Tribunal for re-determination. See Chu v Telstra Corporation Ltd [2005] FCA 1730 (2005) 147 FCR 505. At [34] , his Honour found that the Tribunal did not address itself to the express terms of s 24A of the FOI Act, by asking itself whether reasonable steps had been taken, rather than whether all reasonable steps had been taken. At [35]-[37], his Honour said: It is understandable, where the decision as to the taking of all reasonable steps is left to the agency or Minister concerned (subject to Tribunal review), why this more stringent requirement has been imposed. A person requesting access to a document that has been in that agency's or Minister's possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question. Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised. The Tribunal's failure to appreciate the significance of "all" has, in my view, led it to adopt a tempered and erroneous view of what is required to be done for s 24A purposes. In saying this I infer, as I earlier indicated, that it adopted the approach to s 24A espoused in earlier Tribunal decisions. In consequence I am not satisfied that the Tribunal properly understood the critical evaluation it was required to make of the steps taken by Telstra. The case at first instance The notice of appeal from the Tribunal's decision, dealt with by the Federal Magistrates Court, was 23 pages long. It identified 10 questions, said to be questions of law. A substantial amount of the 20 pages of the document devoted to the grounds of appeal was taken up by detailed comments on the facts, including suggestions that the Tribunal ought to have mentioned in its reasons for decision details which the appellant said were in the evidence before it. When he turned to dealing with his questions of law, in some cases the appellant also took issue with the Tribunal about the facts. In her reasons for judgment, the federal magistrate dealt with all ten of the questions raised by the appellant. In addition, her Honour dealt with six additional questions and with an attempt by the appellant to provide the Court with further submissions after the hearing of the appeal.
Case: Chu v Telstra Corporation Ltd [2008] FMCA 645
Outcome: cited
appellant appealed from the Tribunal's decision to this Court, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). By that subsection, such an appeal is limited to a question of law. Pursuant to s 44AA of the AAT Act, the appeal was transferred to the Federal Magistrates Court. On 15 August 2008, the learned federal magistrate dismissed the appeal with costs. Her Honour's reasons for judgment are published as Chu v Telstra Corporation Ltd [2008] FMCA 645. The appellant then appealed to this Court from that judgment. The appellant remains convinced that the respondent has further documents that fall within his request under the FOI Act. He maintains that there are further searches that could be carried out to locate those documents, and that it would be reasonable for Telstra to conduct those searches. He is unable to accept that the Tribunal's decision concluded this issue against him, and that its decision was essentially one of fact. The appellant has had difficulty arguing his appeal by reference to questions of law. The facts The relevant facts are summarised in the reasons for judgment of the federal magistrate. The appellant's employment history with the respondent goes back to 1989, when the respondent was Telecom Australia. After the appellant had been retrenched on 8 September 1997, solicitors acting on his behalf made a request, by letter dated 13 November 1997, pursuant to the FOI Act, for access to all of the files held by the respondent in relation to the appellant. The appellant did not pay the required application fee until 13 February 1998, after which the respondent began to process the request. By letter dated 20 April 1998, the respondent advised the appellant that it had decided to grant full access to all the documents that had been found. Those documents were described in the following terms: a complete copy of the legal file compiled in anticipation of an unfair dismissal case concerning Mr. Chu, including all available documents from Mr. Chu's Managers and all available personnel documents a copy of all paperwork dealing with the payout of Mr. Chu's redundancy a copy of all standard system reports dealing primarily with leave and pay history details; as previously discussed such standard reports include any information generally considered to be of use to a non-systems person and they are released free of charge
Case: Stockdale v Alesios [1999] VSCA 128 ; [1999] 3 VR 169
Outcome: cited
4 of the notice of appeal focused on the way in which the Federal Magistrates Court had dealt with the appellant's attempt to make further submissions after the hearing of the appeal by that court. The federal magistrate dealt with this attempt in an addendum to her Honour's reasons for judgment. At [94]-[95], her Honour said: After the conclusion of the hearing, the applicant sent to my associate two emails which purported to be post hearing submissions. It did not come to my attention for some weeks that the applicant had purported to file post hearing submissions. When I learned of them, I asked my associate to email the applicant, advising him that post hearing submissions could not be received by the court without leave. I did not at that stage read the purported post hearing submissions. The applicant eventually decided to file an application seeking leave to rely on the purported post hearing submissions. The respondent filed material in response to that application, which was heard on 12 August 2008. The applicant explained to the court in an affidavit that he had not put forward at the hearing the matters contained in his purported post hearing submissions because it was a long day and he was tired, particularly because of his age and a hearing problem. He also said that the submissions merely highlighted aspects of the evidence, which the court should have been aware of in any event. At [96]-[97], her Honour cited Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20 ; (1981) 147 CLR 246 at 257-258 per Mason J and Stockdale v Alesios [1999] VSCA 128 ; [1999] 3 VR 169. Both these cases are authority for the proposition that a court cannot receive further submissions after a hearing without granting leave for such submissions. In the latter case at 179, Phillips JA spoke of certain exceptions to that general principle, "such as an unexpected change in the position of the parties which bears upon the disposition of the appeal or the discovery after argument concludes of relevant legislation or some further decision of authority to which the court should be referred."
Case: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Outcome: applied
the Federal Magistrate identified at [10] of his reasons, what the appellant seeks is merits review of the Tribunal's fact finding function. That is not the role of this Court: see Pt 8 of the Act and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]; SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303 ; (2003) 134 FCR 43 at [12] .
Case: SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303 ; (2003) 134 FCR 43
Outcome: applied
the Federal Magistrate identified at [10] of his reasons, what the appellant seeks is merits review of the Tribunal's fact finding function. That is not the role of this Court: see Pt 8 of the Act and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]; SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303 ; (2003) 134 FCR 43 at [12] .
Case: Centurian Constructions Pty Ltd v Beca Developments Pty Ltd (In Liq) (1996) 129 FLR 364
Outcome: cited
for the creditor developed an interesting argument based upon ss 459C J (inclusive) of the Corporations Act 2001 (Cth) that were said to be cognate with the provisions in question here. It was submitted that the approach to those provisions (exemplified by Centurian Constructions Pty Ltd v Beca Developments Pty Ltd (In Liq) (1996) 129 FLR 364 and David Grant &amp; Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265) would result in there being no effective proceeding unless the strict requirements of the Act are met. It would also follow that the defect could not be cured pursuant to s 306 of the Act because there is no effective proceeding as required by that section.
Case: David Grant &amp; Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 
Outcome: cited
for the creditor developed an interesting argument based upon ss 459C J (inclusive) of the Corporations Act 2001 (Cth) that were said to be cognate with the provisions in question here. It was submitted that the approach to those provisions (exemplified by Centurian Constructions Pty Ltd v Beca Developments Pty Ltd (In Liq) (1996) 129 FLR 364 and David Grant &amp; Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265) would result in there being no effective proceeding unless the strict requirements of the Act are met. It would also follow that the defect could not be cured pursuant to s 306 of the Act because there is no effective proceeding as required by that section.
Case: Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 ; (1999) 88 FCR 445
Outcome: cited
is pointed out by counsel for the creditor that each of subrules (2), (3) and (4) includes the word 'must' which, it is submitted, compels the conclusion that each is a mandatory requirement. Counsel was unable to refer to any direct authority as to the effect of non-compliance with r 30.02(4) of the 2001 Rules or the later r 3.02(3) of the Federal Magistrates Court (Bankruptcy) Rules 2006 , which is in similar terms. Counsel pointed out that the provision was also in similar terms to the former Federal Court Rule O 77 r 13(4). Although not directly on point, counsel drew the Court's attention to the decision of the Full Court in Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 ; (1999) 88 FCR 445 and the decision of Branson J in Crimmins v Glenview Home Units [1999] FCA 515 , dealing with other provisions of O 77 r 13. The decision in Hubner v Australia and New Zealand Banking Group Ltd does not provide any real guidance as, in that case, the application to set aside the bankruptcy notice had not been filed within the time for compliance with it. The Full Court's agreement with the finding that the proceedings were defective, in that the applications were not accompanied by appropriate affidavits, does not decide the issue here. The decision of Branson J in Crimmins v Glenview Home Units appears to have something for both sides. Her Honour said (at [11]): 'Unless the Court in any case exercises the discretion given to it by O 1 r 8 of the Federal Court Rules to dispense with the compliance with any of the requirements of the Rules, parties to litigation before the Court are bound by the Federal Court Rules .' No application was made in that case for dispensation. It was found that the affidavits which accompanied the application did not comply strictly with O 77 r 13(3)(c) (corresponding to r 30.02(3)(c)) but nonetheless the Court gave such a dispensation.
Case: Australian Securities &amp; Investments Commission In the Matter of Richstar Enterprises Pty Ltd ACN 009 071 968 v Carey (No 18) [2007] FCA 1718
Outcome: cited
In relation to Mr Rundle, ASIC relied upon evidence of asset dissipation prior to these proceedings. The transaction relied upon involved the transfer to his wife of his interest in their matrimonial home. It was described in my reasons for judgment given on 9 November 2007 in connection with consent orders affecting Mr Rundle: Australian Securities &amp; Investments Commission In the Matter of Richstar Enterprises Pty Ltd ACN 009 071 968 v Carey (No 18) [2007] FCA 1718. In that case, as I noted, ASIC was prepared to accept the proposed consent orders which dispensed with the continued appointment of a receiver to Mr Rundle's property on the basis that: 1. The process of identification of the property was complete. 2. He had been generally cooperative with the receiver and ASIC expected that he would comply with the freezing orders then proposed. 16 ASIC drew something of a distinction between Mr Carey and Mr Rundle in its submissions on the basis that Mr Carey remains a key subject of its investigations. It placed particular emphasis on the disclosure, through the examination process and ancillary Court orders, of his involvement in overseas entities and the movement of certain funds overseas. He was said to have failed to disclose a significant involvement over many years with the entities under his control or acting on his behalf in relation to the movement of significant amounts of money at his direction into accounts under his control, located both in Australia and overseas. 17 ASIC pointed out that in proceedings in the Real Estate and Business Agents Supervisory Board Mr Carey deposed to having total assets with a current estimated value of $1,169,547. In disclosure affidavits in these proceedings he told the Court and the receiver that he had assets of a mere $69,457. One of the additional assets disclosed in the Real Estate and Business Agents Supervisory Board proceedings was an interest in the Westpoint Realty Pty Ltd (In Liq) rent roll said to have an estimated realisable value of $400,000.
Case: Corporate Affairs Commission v Price Commodities Pty Ltd (1987) 5 ACLC 787
Outcome: cited
The imposition of restrictions upon a person's freedom of movement is a serious step not lightly to be undertaken. Such authority as there is on the imposition of such restrictions under s 1323 of the Act mandates caution in imposing them: Corporate Affairs Commission v Price Commodities Pty Ltd (1987) 5 ACLC 787 at 789-790; Australian Securities and Investments Commission v Wiggins (1998) 30 ACSR 190; Australian Securities and Investments Commission v Ivey (1998) 29 ACSR 391; ASIC v Australian Investors Forum Pty Ltd [2001] NSWSC 1180 and ASIC v Mauer-Swisse Securities Ltd [2002] NSWSC 684.
Case: Australian Securities and Investments Commission v Wiggins (1998) 30 ACSR 190
Outcome: cited
The imposition of restrictions upon a person's freedom of movement is a serious step not lightly to be undertaken. Such authority as there is on the imposition of such restrictions under s 1323 of the Act mandates caution in imposing them: Corporate Affairs Commission v Price Commodities Pty Ltd (1987) 5 ACLC 787 at 789-790; Australian Securities and Investments Commission v Wiggins (1998) 30 ACSR 190; Australian Securities and Investments Commission v Ivey (1998) 29 ACSR 391; ASIC v Australian Investors Forum Pty Ltd [2001] NSWSC 1180 and ASIC v Mauer-Swisse Securities Ltd [2002] NSWSC 684.
Case: Australian Securities and Investments Commission v Ivey (1998) 29 ACSR 391
Outcome: cited
The imposition of restrictions upon a person's freedom of movement is a serious step not lightly to be undertaken. Such authority as there is on the imposition of such restrictions under s 1323 of the Act mandates caution in imposing them: Corporate Affairs Commission v Price Commodities Pty Ltd (1987) 5 ACLC 787 at 789-790; Australian Securities and Investments Commission v Wiggins (1998) 30 ACSR 190; Australian Securities and Investments Commission v Ivey (1998) 29 ACSR 391; ASIC v Australian Investors Forum Pty Ltd [2001] NSWSC 1180 and ASIC v Mauer-Swisse Securities Ltd [2002] NSWSC 684.
Case: ASIC v Australian Investors Forum Pty Ltd [2001] NSWSC 1180
Outcome: cited
The imposition of restrictions upon a person's freedom of movement is a serious step not lightly to be undertaken. Such authority as there is on the imposition of such restrictions under s 1323 of the Act mandates caution in imposing them: Corporate Affairs Commission v Price Commodities Pty Ltd (1987) 5 ACLC 787 at 789-790; Australian Securities and Investments Commission v Wiggins (1998) 30 ACSR 190; Australian Securities and Investments Commission v Ivey (1998) 29 ACSR 391; ASIC v Australian Investors Forum Pty Ltd [2001] NSWSC 1180 and ASIC v Mauer-Swisse Securities Ltd [2002] NSWSC 684.
Case: ASIC v Mauer-Swisse Securities Ltd [2002] NSWSC 684
Outcome: cited
The imposition of restrictions upon a person's freedom of movement is a serious step not lightly to be undertaken. Such authority as there is on the imposition of such restrictions under s 1323 of the Act mandates caution in imposing them: Corporate Affairs Commission v Price Commodities Pty Ltd (1987) 5 ACLC 787 at 789-790; Australian Securities and Investments Commission v Wiggins (1998) 30 ACSR 190; Australian Securities and Investments Commission v Ivey (1998) 29 ACSR 391; ASIC v Australian Investors Forum Pty Ltd [2001] NSWSC 1180 and ASIC v Mauer-Swisse Securities Ltd [2002] NSWSC 684.
Case: Mobileworld Operating Pty Ltd v Telstra Corporation Limited [2005] FCA 1365
Outcome: cited
As was pointed out by Weinberg J in Mobileworld Operating Pty Ltd v Telstra Corporation Limited [2005] FCA 1365 at par [21] : "The threshold for 'a serious question to be tried' is not particularly onerous". 16 Although there may be a dispute as to some of the relevant facts involving the activities of the second respondent and Mr Locke prior to the painting of the first respondent's store in Cheltenham Road, there is no real factual dispute about the painting and get up of the respondents' store. Further, there was no challenge by the respondents to the fact that the name "Clark Rubber" had become distinctive and was capable of appropriate protection. However, this case is not about the appropriation of a name but rather about the appropriation of get up, albeit in the context of a colour scheme. 17 The respondents submitted that the first respondent's premises was sufficiently dissimilar in its appearance to the Clark Rubber stores and it did not an amount to an attempt to pass itself off as a Clark Rubber store. Further, the respondents contended that there was no proprietorial stake in the colour yellow per se which they contended was the yardstick of the applicants' claim. The respondents also contended that the use of the "Oasis Foam &amp; Rubber" logo would be sufficient to enable customers not to be misled as to the identity or association of the first respondent's store.
Case: Philmac Pty Ltd v Registrar of Trade Marks [2002] FCA 1551 ; (2002) 126 FCR 525
Outcome: cited
I consider that there is a serious question to be tried that Clark Rubber stores are well known to the Australian public and Australian consumers by reference to the distinctive Clark Rubber colour scheme which they display and have displayed for many years. I also consider that there is a serious question to be tried that what the applicants have described as the Clark Rubber colour scheme, particularly its yellow background, has acquired a secondary meaning in relation to Clark Rubber stores and has become distinctive of Clark Rubber stores. In this respect it is significant to note that the colours adopted and used in Clark Rubber stores are not functional or utilitarian in their nature. They do not have an ornamental or economic function: see Philmac Pty Ltd v Registrar of Trade Marks [2002] FCA 1551 ; (2002) 126 FCR 525 at 546. There is no suggestion that the goods sold at Clark Rubber stores naturally bring to mind or suggest the colours of the Clark Rubber colour scheme. As Senior Counsel for the applicants submitted, the colours chosen, and their juxtaposition, is entirely idiosyncratic. It follows that there is a serious question to be tried that the Clark Rubber colour scheme indicates a distinctive connection in the course of trade between the colours in the Clark Rubber colour scheme and their relationship to Clark Rubber stores. 19 There is also a serious question to be tried that the first respondent by painting or causing to be painted the outside of its store in the manner in which it has, has passed off the first respondent's store as and for a business which is associated in some way with the Clark Rubber stores and that its conduct in so painting the outside of its store is misleading or deceptive or likely to mislead and deceive persons who see it before entering the store. 20 Although one can point to differences between the outside fa&ccedil;ade of the Clark Rubber stores and the first respondent's store in relation to the painting applied to them, and although the words "Clark Rubber" appear on the Clark Rubber stores and the words "Oasis" will appear on the first respondent's store, the critical issue will be the visual impression created by the fa&ccedil;ade of the first respondent's store on persons who see it and whether they will consider there is an association with Clark Rubber stores. This is not a case where the consumers will be able to undertake a side by side comparison as they might with products on the store's shelf. There is a serious question to be tried that the Clark Rubber colour scheme is quite distinctive and that it creates a strong impression with consumers who view it independently of the name "Clark Rubber".
Case: BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557
Outcome: cited
As to the time spent on objections to admissibility of affidavit evidence, in many instances objections taken by Bickfords were unsuccessful. However, some objections taken were successful, and Hansen was given the opportunity during the trial to mend its hand. In particular, Bickfords' objections to Mr Alford's evidence were successful, which took up a significant part of the hearing and submissions. Nevertheless, I have come to the view that this is not a case where Bickfords was involved in 'the injudicious pursuit of issues without substance' (see eg Stena [2007] FCA 1141 at [12] ) or was involved in any unreasonable or inappropriate conduct (see eg BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557 at [18] ). In this proceeding the evidence and its presentation were important, and Bickfords was entitled to take the objections, although some were not upheld.
Case: Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325
Outcome: referred to
has since been applied by other single judges: see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [68] (per Weinberg J); Maghiar v State of Western Australia [2002] FCA 262 at [18] (per French J); and Stanislawa Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492 at [4] (per Tracey J). More recently a Full Court, in Hurst v State of Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562 , accepted that s 46PO(3) imposed "temporal limits" on any claim brought under s 46PO(1). The Court was referred to Charles and its reasoning proceeded on the basis that Charles was correctly decided.