mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition &amp; Consumer Commission v Seven Network Limited [2007] FCA 1505
Outcome: referred to
Both parties referred me to several authorities in which s 65A of the TP Act has arisen for consideration: Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd (1987) 8 IPR 25; Bond v Barry [2007] FCA 1484 ; Australian Competition &amp; Consumer Commission v Seven Network Limited [2007] FCA 1505. None of these cases resolves the issue raised here.
Case: Bond v Barry [2007] FCA 1484
Outcome: referred to
Both parties referred me to several authorities in which s 65A of the TP Act has arisen for consideration: Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd (1987) 8 IPR 25; Bond v Barry [2007] FCA 1484 ; Australian Competition &amp; Consumer Commission v Seven Network Limited [2007] FCA 1505. None of these cases resolves the issue raised here.
Case: Bright v Femcare Limited (2002) 195 ALR 574
Outcome: cited
The importance of the identification of the group members on whose behalf a representative proceeding under Pt IVA of the FCA Act is brought, and of the specification of the common questions of law and fact hardly needs to be emphasised: see, for example, Bright v Femcare Limited (2002) 195 ALR 574; Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61. The reasons for careful identification of the group members have been explained in those two authorities.
Case: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Outcome: cited
The objection made is that these are not true imputations because, in substance, they simply repeat the express terms "Bankrupts", "Clearouts" or "Clearouts (watched)" or "Payment Default" as the case may be. Veda relies on Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [83] ff. In my view the criticism is well made. The pleading does not impute an act to, or state about, the applicant or other group member beyond that which is inherent in the expression used in Schedule "A" to the amended statement of claim. 38 This issue arises from paragraph 18 of the amended statement of claim (as at 03.08.07). Paragraph 18 (common to all three proceedings) pleads a case alternative to publication to the minds of officers of the subscribing credit providers. It commences: 18. To the extent, if at all (which is not admitted), that the Court found that, notwithstanding the publication of the information in paragraph 16 above, the said information was not read in its entirety by an individual on behalf of the subscribers of the Respondent to whom such information was published, but was interpreted or assessed, wholly or in part, by a computer, which computer recommended that any application for credit be declined, the latter information and/or recommendation was nevertheless published by the Respondent (via computer) to the said subscriber or subscribers of the Respondent, and the said publication was read and comprehended by the said subscribers (by one or more natural persons who were servants or agents of each such subscriber) and conveyed the following imputations ... 39 On 31 July 2007, Ebsworth &amp; Ebsworth, solicitors for Veda, wrote to Gerard Malouf &amp; Partners, solicitors for the applicants, asking them to specify the facts, matters and circumstances relied on in support of the allegation that Veda "nevertheless published" the information and/or recommendation. Gerard Malouf &amp; Partners replied that paragraph 18 spoke for itself.
Case: Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd (1987) 8 IPR 25
Outcome: referred to
Both parties referred me to several authorities in which s 65A of the TP Act has arisen for consideration: Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd (1987) 8 IPR 25; Bond v Barry [2007] FCA 1484 ; Australian Competition &amp; Consumer Commission v Seven Network Limited [2007] FCA 1505. None of these cases resolves the issue raised here.
Case: Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61
Outcome: cited
The importance of the identification of the group members on whose behalf a representative proceeding under Pt IVA of the FCA Act is brought, and of the specification of the common questions of law and fact hardly needs to be emphasised: see, for example, Bright v Femcare Limited (2002) 195 ALR 574; Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61. The reasons for careful identification of the group members have been explained in those two authorities.
Case: St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147
Outcome: applied
In St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147 at 153-154 Hely J summarized a series of propositions which he derived from cases which had considered the construction of O 15A r 6. Those propositions were: "(a) the rule is to be beneficially construed, given the fullest scope that its language would reasonably allow, with the proper brake on excesses lying in the discretion of the Court, exercised in the particular circumstances of each case ..; (b) each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established ... Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves ...; (c) the test for determining whether the applicant has "reasonable cause to believe", as required by subpara (a), is an objective one ... The applicant does not have to make out a prima facie case ...; (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action ...; (e) while uncertainty as to only one element of a cause of action might be compatible with the "reasonable cause to believe" required by subpara (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe ...; (f) the question posed by subpara (b) of the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the court ... Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defendants, or to determine the extent of the respondent's breach and the likely quantum of any damages award ...; (g) whether an applicant has "sufficient information" for the purposes of subpara (b) also requires an objective assessment to be made ... The subparagraph contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings; (h) it is no answer to an application under the rule to say that the proceeding is in the nature of a "fishing expedition" ... Indeed order 15A r 6 "expressly contemplates" what once might have been castigated as "fishing" ..." See also Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216 at [44] .
Case: Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216
Outcome: cited
In St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147 at 153-154 Hely J summarized a series of propositions which he derived from cases which had considered the construction of O 15A r 6. Those propositions were: "(a) the rule is to be beneficially construed, given the fullest scope that its language would reasonably allow, with the proper brake on excesses lying in the discretion of the Court, exercised in the particular circumstances of each case ..; (b) each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established ... Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves ...; (c) the test for determining whether the applicant has "reasonable cause to believe", as required by subpara (a), is an objective one ... The applicant does not have to make out a prima facie case ...; (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action ...; (e) while uncertainty as to only one element of a cause of action might be compatible with the "reasonable cause to believe" required by subpara (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe ...; (f) the question posed by subpara (b) of the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the court ... Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defendants, or to determine the extent of the respondent's breach and the likely quantum of any damages award ...; (g) whether an applicant has "sufficient information" for the purposes of subpara (b) also requires an objective assessment to be made ... The subparagraph contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings; (h) it is no answer to an application under the rule to say that the proceeding is in the nature of a "fishing expedition" ... Indeed order 15A r 6 "expressly contemplates" what once might have been castigated as "fishing" ..." See also Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216 at [44] .
Case: Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58
Outcome: cited
In Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 at [43] Black CJ and Sackville J held that Hely J had "correctly summarised" the principles governing the proper construction of O 15A r 6 insofar as his summary dealt with O 15A r 6(a). 33 In his affidavit Mr Brown seeks to establish that each of the conditions, imposed by O 15A r 6, has been met. He deposes that Newcrest believes that it has or may have a right to obtain relief against the respondents on the basis that it believes that the respondents have breached a contractual obligation to provide Newcrest with its fair pro-rated share of gas produced from the Brookes field and that the respondents have made statements which may constitute misleading and deceptive conduct in contravention of s 52 of the TPA and/or s 10 of the Fair Trading Act 1987 (WA). He says that the attempts made by Newcrest to obtain relevant information have proved fruitless and that he believes that the respondents have or are likely to have relevant documents in their possession. 34 For reasons already given in dealing with Apache's argument relating to jurisdiction, I consider that there is reasonable cause to believe that Newcrest may have a right to obtain relief under the TPA. The evidence suggests that each element of a cause of action under s 52 of the TPA may be present. Moreover, Apache did not seriously contest Newcrest's contention that it had, in addition, a viable cause of action for breach of its supply contract with Apache.
Case: NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 ; (2003) 134 FCR 377
Outcome: cited
These circumstances raise an issue as to the nature of this application. An order dismissing an application for an order nisi is interlocutory: see NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 ; (2003) 134 FCR 377 at 378 [3] . Accordingly, leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant has not obtained leave to appeal. 3 However, counsel for the first respondent informed the Court that the first respondent did not oppose this application being treated as an application for leave to appeal. I have proceeded on that basis and will treat this application as an application for leave to appeal.
Case: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: cited
An application for leave to appeal falls to be determined by reference to the principles established by the Full Court's decision in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. That case applied a two-limbed test to determine when leave to appeal from an interlocutory decision should be granted. First, the decision below must be attended with sufficient doubt to warrant its being reconsidered by this Court; secondly, substantial injustice must be demonstrated if leave were to be refused, supposing the decision to be wrong: at 398. 5 The principal submission made on behalf of the first respondent was that the applicant has not satisfied the first of these requirements. That is, the first respondent submitted that the Federal Magistrate's decision is not attended with sufficient doubt as to warrant its reconsideration by this Court. 6 It is convenient to note the origins of this proceeding. The applicant filed an application in the High Court for an order nisi on 21 April 2003, which was remitted to the Federal Court by Heydon J on 25 August 2003. The matter was remitted to the Federal Magistrates Court by Emmett J on 5 August 2005.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41
Outcome: cited
The question whether conduct is sufficiently serious to amount to persecution is a factual matter for the Tribunal: see Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at [50] - [53] ; Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] FCA 334 ; (2002) 125 FCR 68 at [3] , [50] [53]. On a fair reading of the Tribunal's reasons, the reference to harassment and discrimination not reaching a sufficient level of seriousness to be characterised as persecution referred to the harassment and discrimination suffered by the applicant and his family after the war. In my view, the Tribunal's reference was not directed to the physical assault that the applicant suffered. In any event, I am not satisfied that the Tribunal's findings of fact were unreasonable or erroneous or not reasonably open to it.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] FCA 334 ; (2002) 125 FCR 68
Outcome: cited
The question whether conduct is sufficiently serious to amount to persecution is a factual matter for the Tribunal: see Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at [50] - [53] ; Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] FCA 334 ; (2002) 125 FCR 68 at [3] , [50] [53]. On a fair reading of the Tribunal's reasons, the reference to harassment and discrimination not reaching a sufficient level of seriousness to be characterised as persecution referred to the harassment and discrimination suffered by the applicant and his family after the war. In my view, the Tribunal's reference was not directed to the physical assault that the applicant suffered. In any event, I am not satisfied that the Tribunal's findings of fact were unreasonable or erroneous or not reasonably open to it.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The second ground relied upon by the applicant is that the Tribunal applied the wrong test in applying s 91R(1)(a) of the Act. The applicant submitted that the Tribunal found that the essential and significant motivation for the harm feared by the applicant was that criminals wanted to take control of his family's assets. According to the applicant, the Tribunal arrived at this conclusion erroneously by considering the 'primary motivating factor' in the actions taken by the criminals. In substance, the applicant's argument is that the expression 'primary motivating factor' departed from the language of the Act and led the Tribunal to address the wrong question, giving rise to a jurisdictional error: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. 24 The Tribunal's reasons for decision ought not to be read in an over-technical or pedantic way. They must be read fairly and in context. The expression 'primary motivating factor' was used by the Tribunal on one occasion. Elsewhere in its reasons, both before and afterwards, the Tribunal used the phrase 'the essential and significant reason' or 'the essential and significant motivation'. These expressions correctly reflect the test that is required in relation to s 91R(1)(a). I agree with the submission made on behalf of the first respondent that when the various passages in the Tribunal's reasons are considered together and in context, it becomes clear that the Tribunal applied the correct test. In my opinion, there was no error in the Tribunal's conclusion that the applicant's evidence concerning what happened to his family strongly suggest that the essential and significant reason for these events was that criminals wanted to take control of his family's assets. 25 This conclusion was reached by Scarlett FM and I agree with his Honour's reasons.
Case: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259
Outcome: cited
The third ground raised by the applicant was that the Tribunal did not adequately consider whether or not the State of Bangladesh had tolerated, condoned or was complicit in the criminal activities of Mohammed Ali and his associates. The applicant submitted that the Tribunal had therefore failed to deal with the integers of the applicant's claim, thereby constituting a jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42]; W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at [31]-[38]; SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [40] . The applicant contended that the criminal activities directed at his family were instigated, and were successful, because the criminals knew that the State would fail to offer protection to the applicant and his family due to their Pakistani ethnicity. The applicant complained that there was evidence before the Tribunal of the State's tolerance and complicity in the criminal activity perpetrated against his family and himself because of their ethnicity.
Case: W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69
Outcome: cited
The third ground raised by the applicant was that the Tribunal did not adequately consider whether or not the State of Bangladesh had tolerated, condoned or was complicit in the criminal activities of Mohammed Ali and his associates. The applicant submitted that the Tribunal had therefore failed to deal with the integers of the applicant's claim, thereby constituting a jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42]; W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at [31]-[38]; SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [40] . The applicant contended that the criminal activities directed at his family were instigated, and were successful, because the criminals knew that the State would fail to offer protection to the applicant and his family due to their Pakistani ethnicity. The applicant complained that there was evidence before the Tribunal of the State's tolerance and complicity in the criminal activity perpetrated against his family and himself because of their ethnicity.
Case: SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65
Outcome: cited
The third ground raised by the applicant was that the Tribunal did not adequately consider whether or not the State of Bangladesh had tolerated, condoned or was complicit in the criminal activities of Mohammed Ali and his associates. The applicant submitted that the Tribunal had therefore failed to deal with the integers of the applicant's claim, thereby constituting a jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42]; W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at [31]-[38]; SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [40] . The applicant contended that the criminal activities directed at his family were instigated, and were successful, because the criminals knew that the State would fail to offer protection to the applicant and his family due to their Pakistani ethnicity. The applicant complained that there was evidence before the Tribunal of the State's tolerance and complicity in the criminal activity perpetrated against his family and himself because of their ethnicity.
Case: Appellant S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: cited
As counsel for the first respondent conceded, this statement is problematical: see Appellant S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1. There is, therefore, substance in the applicant's complaint that the Tribunal asked the wrong question by stating that the applicant could avoid persecution on his return to Bangladesh. The Tribunal should have inquired into what may happen to the appellant if he returned to Bangladesh. However, I do not regard this deficiency in the Tribunal's reasons as providing a basis for granting leave to appeal. The Tribunal determined the case adversely to the applicant on the basis that it was not satisfied that the essential and significant reason for any harm that the applicant has suffered in the past, or fears in the future, was for a Convention reason. The Tribunal did not fall into error in reaching that conclusion.
Case: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1
Outcome: cited
As counsel for the first respondent conceded, this statement is problematical: see Appellant S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1. There is, therefore, substance in the applicant's complaint that the Tribunal asked the wrong question by stating that the applicant could avoid persecution on his return to Bangladesh. The Tribunal should have inquired into what may happen to the appellant if he returned to Bangladesh. However, I do not regard this deficiency in the Tribunal's reasons as providing a basis for granting leave to appeal. The Tribunal determined the case adversely to the applicant on the basis that it was not satisfied that the essential and significant reason for any harm that the applicant has suffered in the past, or fears in the future, was for a Convention reason. The Tribunal did not fall into error in reaching that conclusion.