mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sanders v Snell [1998] HCA 64 ; (1998) 196 CLR 329
Outcome: cited
tort of interference with trade or business interests by unlawful means, as distinct from interference with contractual relations, has not yet been recognised by the High Court, although neither has it been rejected. In Mengel at 343 and Sanders v Snell [1998] HCA 64 ; (1998) 196 CLR 329 at [35] - [40] , it was referred to as an embryonic or emerging tort. For the purposes of the present motion, I proceed on the assumption that it forms part of Australian law. I do not understand the basis on which "interference with trade" is pleaded as distinct from a pleading of interference with contractual relations by unlawful means. If the tort is recognised, the unlawfulness concerned will be not just unauthorised conduct but prohibited conduct: see Sanders v Snell , above, at [35]-[36]. Counsel for Mr Whittaker puts the interference with trade case on two bases: an intentional interference with the business of the applicants, or an interference with their business by illegal means . The former seems to be nothing other than the claim of interference with contractual relations. As to the alternative, the illegal means identified is "the threat of an illegal act, namely what we have previously pleaded, or alternatively illegal false imprisonment, or alternatively trespass to goods." The "illegal means" must be pleaded with specificity. "What we have previously pleaded" is not good enough. As well, I do not understand how a threat of false imprisonment or a threat of trespass to goods, without more, could have interfered with the applicants' trade. Unlike paras 8 and 9, para 10 does not state that it is based on "the premises" of paras 6 and 7. It seems to add no cause of action beyond that of interference with the performance of the three contracts. Unless "interference with trade" is intended to be different, and the difference is clearly articulated, it should not be repleaded.
Case: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109
Outcome: cited
respondents cite H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd (1979) 30 ALR 181 ; 40 FLR 242 and Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 for the proposition that the material facts must be stated in the text of a pleading, not in "particulars". The distinction between material facts and particulars was recognised by Fisher J in Trade Practices Commission v David Jones (Australia) Pty Ltd, above (at 112 ff). His Honour described the paragraph of the statement of claim in question in that case as "merely a statement of a conclusion drawn from facts which are not in the statement of claim" (at 114). The paragraph pleaded that certain respondents had "made an arrangement or arrived at an understanding". The deficiency in that allegation was not cured by the giving of particulars of the individuals who had represented those respondents at a certain meeting, the date and place of the meeting, the identity of those present, and the effect of the arrangement or understanding. It may be that the distinction between material facts and particulars is not insisted upon as strictly nowadays as it was a few decades ago. An advantage of maintaining the distinction is that it emphasises, for the benefit of both the parties and the Court, that the applicant's position is that it is the facts pleaded in the text of the statement of claim, no more and no less, that the applicant needs to prove in order to establish the asserted cause of action. So long as the distinction is understood and observed, there will not be the confusion that arises when either party, if and when it suits its own purposes, refers to the particulars as if they formed an undifferentiated part of the pleading. The text of paras 6 and 7 is deficient. The expression "deprived him of his liberty" may mean "locked him in a room", "forcibly man-handled him into a room and stood guard at the doorway", "handcuffed him", "encircled him" and so on. The expression "restraining him" is subject to the same kind of criticism.
Case: Zhu v Treasurer of the State of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530
Outcome: cited
discussed this question of the required state of mind of the inducer in a case of inducing breach of contract in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1995] FCA 1368 ; (1995) 58 FCR 26 ( Allstate ) at 43 (in a judgment with which Lockhart and Tamberlin JJ agreed). Malice, in the sense of spite or ill will, is not an element of that tort: Zhu v Treasurer of the State of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530 at [114] ; cf Northern Territory of Australia v Mengel (1995) 185 CLR 307 ( Mengel ) at 341-342.
Case: Weekes and Child Support Registrar [2006] FLC p93-273 ; [2006] FamCA 598
Outcome: cited
Whittaker has previously taken these contentions to the stage of a special leave application before the High Court: see Whittaker v Child Support Registrar [2004] HCATrans 252. Special leave was refused. Previously Mr Whittaker's judicial power argument was rejected by Drummond J in Whittaker v Child Support Registrar [2000] FCA 1733 ; (2000) 106 FCR 105 and Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1429. His taxation power argument was rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430. On appeal, the Full Court held that Luton v Lessels "foreclos[ed] any constitutional challenge" ( Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] ). As noted above, the High Court refused special leave to appeal. Further, an attempt to limit the scope of the operation of Luton v Lessels failed in Weekes and Child Support Registrar [2006] FLC p93-273 ; [2006] FamCA 598.
Case: Whittaker v Child Support Registrar [2000] FCA 1733 ; (2000) 106 FCR 105
Outcome: cited
Whittaker has previously taken these contentions to the stage of a special leave application before the High Court: see Whittaker v Child Support Registrar [2004] HCATrans 252. Special leave was refused. Previously Mr Whittaker's judicial power argument was rejected by Drummond J in Whittaker v Child Support Registrar [2000] FCA 1733 ; (2000) 106 FCR 105 and Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1429. His taxation power argument was rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430. On appeal, the Full Court held that Luton v Lessels "foreclos[ed] any constitutional challenge" ( Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] ). As noted above, the High Court refused special leave to appeal. Further, an attempt to limit the scope of the operation of Luton v Lessels failed in Weekes and Child Support Registrar [2006] FLC p93-273 ; [2006] FamCA 598.
Case: Whittaker v Child Support Registrar [2002] FCA 1429
Outcome: cited
Whittaker has previously taken these contentions to the stage of a special leave application before the High Court: see Whittaker v Child Support Registrar [2004] HCATrans 252. Special leave was refused. Previously Mr Whittaker's judicial power argument was rejected by Drummond J in Whittaker v Child Support Registrar [2000] FCA 1733 ; (2000) 106 FCR 105 and Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1429. His taxation power argument was rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430. On appeal, the Full Court held that Luton v Lessels "foreclos[ed] any constitutional challenge" ( Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] ). As noted above, the High Court refused special leave to appeal. Further, an attempt to limit the scope of the operation of Luton v Lessels failed in Weekes and Child Support Registrar [2006] FLC p93-273 ; [2006] FamCA 598.
Case: Whittaker v Child Support Registrar [2003] FCAFC 114
Outcome: cited
Whittaker has previously taken these contentions to the stage of a special leave application before the High Court: see Whittaker v Child Support Registrar [2004] HCATrans 252. Special leave was refused. Previously Mr Whittaker's judicial power argument was rejected by Drummond J in Whittaker v Child Support Registrar [2000] FCA 1733 ; (2000) 106 FCR 105 and Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1429. His taxation power argument was rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430. On appeal, the Full Court held that Luton v Lessels "foreclos[ed] any constitutional challenge" ( Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] ). As noted above, the High Court refused special leave to appeal. Further, an attempt to limit the scope of the operation of Luton v Lessels failed in Weekes and Child Support Registrar [2006] FLC p93-273 ; [2006] FamCA 598.
Case: Whittaker v Child Support Registrar [2004] HCATrans 252
Outcome: cited
Whittaker has previously taken these contentions to the stage of a special leave application before the High Court: see Whittaker v Child Support Registrar [2004] HCATrans 252. Special leave was refused. Previously Mr Whittaker's judicial power argument was rejected by Drummond J in Whittaker v Child Support Registrar [2000] FCA 1733 ; (2000) 106 FCR 105 and Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1429. His taxation power argument was rejected by Dowsett J in Whittaker v Child Support Registrar [2002] FCA 1430. On appeal, the Full Court held that Luton v Lessels "foreclos[ed] any constitutional challenge" ( Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] ). As noted above, the High Court refused special leave to appeal. Further, an attempt to limit the scope of the operation of Luton v Lessels failed in Weekes and Child Support Registrar [2006] FLC p93-273 ; [2006] FamCA 598.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
In D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Federal Court considered as an 'appropriate litmus test for the general run of cases, in which leave to appeal from an interlocutory decision is sought' (at 399), being the two principles stated in Niemann v Electronic Industries Ltd [1978] VR 431, namely, whether in all the circumstances the interlocutory decision is attended by sufficient doubt to warrant reconsideration by a court on appeal, and whether substantial injustice would result if leave were refused, supposing the decision be wrong. 9 The Full Court in D&eacute;cor (at 400) also endorsed the proposition that leave will be more readily granted where the decision the subject of appeal determined a ' substantive right ' rather than a ' point of practice '. 10 In the present case, the Federal Magistrate's decision determined points of practice and/or procedure, that is to say, first whether the application purportedly filed on 13 January 2006 was filed in breach of an order of the Federal magistrate Court which required the applicant to first obtain leave of the FMC to appeal, secondly whether that leave should be granted, and thirdly whether the application was incompetent insofar as it related to the decision of the Minister's delegate. The Minister submitted that the court should be reluctant to grant leave in such circumstances. 11 The Minister submitted further that the applicant would need to meet both of the principles enunciated in D&eacute;cor before the Court would be willing to grant the applicant leave to appeal, and moreover that the applicant did not meet either of those principles for the reasons below. 12 The proposed grounds of appeal in the draft notice of appeal merely state general propositions which do not purport to illuminate the basis upon which the applicant would seek to appeal. 13 Moreover there are complaints made in the applicant's written submissions which indicate other proposed grounds of appeal intend to be relied upon. For instance, the applicant asserts a breach of s 424A of the Migration Act 1958 (Cth) as a result of the Tribunal's alleged failure to put to the applicant pursuant to that section inconsistencies between, inter alia , the applicant's claims in his protection visa application and those made in his oral evidence at the hearing before the RRT.
Case: Niemann v Electronic Industries Ltd [1978] VR 431
Outcome: applied
In D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Federal Court considered as an 'appropriate litmus test for the general run of cases, in which leave to appeal from an interlocutory decision is sought' (at 399), being the two principles stated in Niemann v Electronic Industries Ltd [1978] VR 431, namely, whether in all the circumstances the interlocutory decision is attended by sufficient doubt to warrant reconsideration by a court on appeal, and whether substantial injustice would result if leave were refused, supposing the decision be wrong.
Case: Global Brand Marketing Inc v YD Pty Ltd (2008) 76 IPR 161
Outcome: cited
The parties agreed that, in proceedings such as this, the Court would ordinarily order that the unsuccessful party or parties pay the costs of successful party or parties on the claim and cross-claim respectively: see, e.g., Global Brand Marketing Inc v YD Pty Ltd (2008) 76 IPR 161. Thus, ordinarily, the applicants would pay Redberry's costs of the application and Redberry would pay the cross-respondents' costs of the cross-claim. In this case, however, the position is complicated by Redberry's offers of settlement. 19 I turn first to Redberry's latest offer of compromise of 21 August 2007, which invoked O 23 of the Rules. The offer complied with the formal requirements of the order, which are set out in O 23 r 3. The offer also provided a time for acceptance in accordance with O 23 r 5(3). 20 Currently, O 23 r 11(6) of the Rules applies "[i]f ... an offer is made by a respondent and not accepted by the applicant; and ... the respondent obtains an order or judgment on the claim to which the offer relates as favourable to the respondent, or more favourable to the respondent, than the terms of the offer". If applicable, this provision creates a presumptive entitlement in the respondent to indemnity costs after 11 am on the day after the offer was made. This provision is, however, a comparatively new one, having commenced operation only on 2 August 2008. The provision cannot apply to Redberry's offer of compromise, which was made in the preceding year, in August 2007: see Federal Court of Australia Act 1976 (Cth), s 59(4) and the Legislative Instruments Act 2003 (Cth), s 12(2)(b).
Case: Coshott v Learoyd [1999] FCA 276
Outcome: cited
As at August 2007, the only provision in connection with costs following an applicant's rejection of a respondent's offer of compromise was O 23 r 11(5), which deals with the position "[i]f ... an offer is made by a respondent and not accepted by the applicant; and ... the applicant obtains judgment on the claim to which the offer relates not more favourable than the terms of the offer". If applicable, this provision also creates a presumptive entitlement in the respondent to indemnity costs. The provision cannot apply to Redberry's offer of compromise, however, because the applicant not only rejected the respondent's offer but was wholly unsuccessful in the claim. In this circumstance, O 23 r 11(5) of the Rules has no application: see Coshott v Learoyd [1999] FCA 276 at [37] per Wilcox J; Dukemaster [2003] FCAFC 1 at [6] per Sundberg and Emmett JJ; and Seven Network Ltd v News Ltd (2007) 244 ALR 374 at [32] per Sackville J.
Case: Seven Network Ltd v News Ltd (2007) 244 ALR 374
Outcome: referred to
As at August 2007, the only provision in connection with costs following an applicant's rejection of a respondent's offer of compromise was O 23 r 11(5), which deals with the position "[i]f ... an offer is made by a respondent and not accepted by the applicant; and ... the applicant obtains judgment on the claim to which the offer relates not more favourable than the terms of the offer". If applicable, this provision also creates a presumptive entitlement in the respondent to indemnity costs. The provision cannot apply to Redberry's offer of compromise, however, because the applicant not only rejected the respondent's offer but was wholly unsuccessful in the claim. In this circumstance, O 23 r 11(5) of the Rules has no application: see Coshott v Learoyd [1999] FCA 276 at [37] per Wilcox J; Dukemaster [2003] FCAFC 1 at [6] per Sundberg and Emmett JJ; and Seven Network Ltd v News Ltd (2007) 244 ALR 374 at [32] per Sackville J. 23 The authorities recognise that the making of an offer outside O 23 by a respondent, which is rejected by an applicant who turns out to be wholly unsuccessful, is a matter to be taken into account in determining the nature of the costs order to be made. In such a case, a respondent claiming indemnity costs must show that the rejection of the offer of compromise was imprudent or unreasonable: see Dukemaster [2003] FCAFC 1 at [7] ; University of Western Australia v Gray (No 21) [2008] FCA 1056 at [36] per French J; and Seven Network 244 ALR 374 at [39] and [51]. Where a cross-claimant makes an offer, which is rejected by a cross-respondent, and the cross-claimant ultimately fails, the position is quite different since there is little, if any, basis for saying that the rejection of the offer of compromise was imprudent and unreasonable. 24 The question is, therefore, whether or not it can be said that the applicants acted imprudently or unreasonably in rejecting Redberry's offer of compromise in relation to the applicants' claim. Plainly enough, even in the present circumstances, the mere refusal of an offer of compromise is not sufficient to satisfy this test: see John S Hayes &amp; Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 at 206 per Hill J and Dukemaster [2003] FCAFC 1 at [7] . Although the refusal of the offer is a factor to take into account, it is not determinative on the question of indemnity costs. As Sackville J said in Seven Network 244 ALR 374 at [65], "the court is required to consider whether the rejection of the offer of compromise was unreasonable by considering, among any other relevant circumstances, the strengths and weaknesses of the applicants' case, looking at the claim prospectively at the time the offer was made" (emphasis original).
Case: John S Hayes &amp; Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201
Outcome: cited
The question is, therefore, whether or not it can be said that the applicants acted imprudently or unreasonably in rejecting Redberry's offer of compromise in relation to the applicants' claim. Plainly enough, even in the present circumstances, the mere refusal of an offer of compromise is not sufficient to satisfy this test: see John S Hayes &amp; Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 at 206 per Hill J and Dukemaster [2003] FCAFC 1 at [7] . Although the refusal of the offer is a factor to take into account, it is not determinative on the question of indemnity costs. As Sackville J said in Seven Network 244 ALR 374 at [65], "the court is required to consider whether the rejection of the offer of compromise was unreasonable by considering, among any other relevant circumstances, the strengths and weaknesses of the applicants' case, looking at the claim prospectively at the time the offer was made" (emphasis original).
Case: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: cited
The applicants were unsuccessful on this aspect of their case: see Redberry [2008] FCA 1588 at [85] - [87] . By itself this does not establish misconduct on their part; and nor does it establish that they sought to advance "groundless contentions" in the sense used in the authorities: see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J. The applicants pressed these arguments in good faith. The arguments were not so untenable that it could be said that the applicants acted unreasonably in pressing them. Much of the applicants' conduct in this regard is attributable to the newness of the statutory regime, especially in its application to the fashion industry. In the circumstances, I would not take the view that the applicants' conduct with regard to this aspect of their case was so unreasonable as to justify an award of indemnity costs: see Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at [20] per Gray J, with whom Carr and Goldberg JJ agreed.
Case: Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659
Outcome: cited
The applicants were unsuccessful on this aspect of their case: see Redberry [2008] FCA 1588 at [85] - [87] . By itself this does not establish misconduct on their part; and nor does it establish that they sought to advance "groundless contentions" in the sense used in the authorities: see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J. The applicants pressed these arguments in good faith. The arguments were not so untenable that it could be said that the applicants acted unreasonably in pressing them. Much of the applicants' conduct in this regard is attributable to the newness of the statutory regime, especially in its application to the fashion industry. In the circumstances, I would not take the view that the applicants' conduct with regard to this aspect of their case was so unreasonable as to justify an award of indemnity costs: see Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at [20] per Gray J, with whom Carr and Goldberg JJ agreed.
Case: University of Western Australia v Gray (No 21) [2008] FCA 1056
Outcome: cited
The authorities recognise that the making of an offer outside O 23 by a respondent, which is rejected by an applicant who turns out to be wholly unsuccessful, is a matter to be taken into account in determining the nature of the costs order to be made. In such a case, a respondent claiming indemnity costs must show that the rejection of the offer of compromise was imprudent or unreasonable: see Dukemaster [2003] FCAFC 1 at [7] ; University of Western Australia v Gray (No 21) [2008] FCA 1056 at [36] per French J; and Seven Network 244 ALR 374 at [39] and [51]. Where a cross-claimant makes an offer, which is rejected by a cross-respondent, and the cross-claimant ultimately fails, the position is quite different since there is little, if any, basis for saying that the rejection of the offer of compromise was imprudent and unreasonable.