mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Toyota Tsusho Australia Pty Ltd v Collector of Customs [1992] FCA 282
Outcome: cited
At the very least, the examples in heading 3808 and the references to camphor and mosquito spirals and coils in sub-heading 3808.10.10 suggest that there is some ambiguity about the way in which the term insecticide is used in the heading. To adapt the language used by Burchett J in Baxter Healthcare , a legal choice must be made about possible concepts conveyed by the statutory expression, and in making that choice it is appropriate to take account of the intent and purpose of the Customs Tariff Act . In my opinion, it would have been permissible for the Tribunal to have regard to the Harmonised System Notes as an extrinsic aid to the interpretation of heading 3808. Where the language of a heading is ambiguous or susceptible to different interpretations, the Harmonised System Notes are an appropriate extrinsic aid to interpretation: Gardner Smith v Collector of Customs Victoria (1986) 66 ALR 377 at 383-384; Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 103 ALR 565 at 571-573; and Toyota Tsusho Australia Pty Ltd v Collector of Customs [1992] FCA 282 at [22] - [30] .
Case: Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368
Outcome: cited
The Tribunal held that it was necessary to find a class or genus of goods common to all of the particular descriptive words which proceed the phrase 'and similar products' in heading 3808. The appellant was critical of this approach, but there is nothing exceptional or unorthodox about it. Such approach is commonly referred to as an application of the ejusdem generis rule, but it overstates its proper function to call it a rule. It is no more than a guide to interpretation and must be used cautiously: see Pearce and Geddes, Statutory Interpretation in Australia (5 th Ed) at [4.19]-[4.24]. The rule has been criticised by Mahoney JA in Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 373 and by Wells J in Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 at 587. There will be occasions when it is not appropriate to apply the rule having regard to the context and purpose of the particular statutory provision. There will also be occasions where the descriptive terms that precede the general words are so varied that it is futile to search for a single genus or class that can be of assistance in giving meaning to the general words. Conversely, there will be occasions where it is both sensible and appropriate to give meaning to the general words by identifying the class or genus that is indicated by the preceding particular words. All in all, the surest approach is to give meaning to general words which follow particular words in a statutory provision by determining the meaning of those words in their context and by reference to the purpose of the provision, in the same way as meaning is given to other words in a statute.
Case: Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541
Outcome: cited
The Tribunal held that it was necessary to find a class or genus of goods common to all of the particular descriptive words which proceed the phrase 'and similar products' in heading 3808. The appellant was critical of this approach, but there is nothing exceptional or unorthodox about it. Such approach is commonly referred to as an application of the ejusdem generis rule, but it overstates its proper function to call it a rule. It is no more than a guide to interpretation and must be used cautiously: see Pearce and Geddes, Statutory Interpretation in Australia (5 th Ed) at [4.19]-[4.24]. The rule has been criticised by Mahoney JA in Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 373 and by Wells J in Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 at 587. There will be occasions when it is not appropriate to apply the rule having regard to the context and purpose of the particular statutory provision. There will also be occasions where the descriptive terms that precede the general words are so varied that it is futile to search for a single genus or class that can be of assistance in giving meaning to the general words. Conversely, there will be occasions where it is both sensible and appropriate to give meaning to the general words by identifying the class or genus that is indicated by the preceding particular words. All in all, the surest approach is to give meaning to general words which follow particular words in a statutory provision by determining the meaning of those words in their context and by reference to the purpose of the provision, in the same way as meaning is given to other words in a statute.
Case: Acrow Australia Ltd v Collector of Customs (1986) 12 FCR 129
Outcome: cited
The appellant argued that it is sufficient in law if the goods in question are similar to any of the goods previously described by name, citing Acrow Australia Ltd v Collector of Customs (1986) 12 FCR 129 at 132. The appellant also submitted that if the Tribunal had asked itself the question whether the products in question were similar to insecticides, it would have been bound to answer the question affirmatively. 49 It is unnecessary for me to express any concluded view about this aspect of the appellant's argument. I have some reservations about it. It begs the question as to what standard of similarity is to be applied. Moreover, if the term insecticides were properly defined in its statutory context in the narrow way that the Tribunal determined, it would not necessarily follow that the products were similar to insecticides. 50 The appellant submitted that the Tribunal erred in law in classifying the products under sub-heading 2905.29.00 because Ch 29 only applies to chemicals or mixtures of chemicals. The products in question were not merely chemicals but rather devices for dispensing certain chemical agents.
Case: Re Bayer v Australia Ltd v Collector of Customs (NSW) (1985) 7 ALN 84
Outcome: cited
Paragraph 1(e) of the Note provides another indication that Ch 29 does not apply to dispensing devices. Its effect is that a chemical mixture will fall outside Ch 29 if the chemical compound in question is dissolved in a solvent for reasons other than safety or transport, or if the solvent renders the chemical particularly suitable for some specific commercial use rather than general use. An earlier version of the same provision was explained and applied in Re Bayer Australia Ltd v Collector of Customs (NSW) (1985) 7 ALN 84. That case concerned a chemical known as flumethrin which was the active ingredient in a cattle tick insecticide. The flumethrin was imported in 200 litre drums as a 60 per cent premix concentrate dissolved in a solvent. The Tribunal held that the chemical mixture was taken outside Ch 29 by the relevant paragraph of Note 1. This was because the addition of the solvent so as to make a standardised 60 per cent solution was not a normal and necessary method adopted solely for reasons of safety or for the purpose of transporting the goods as required by the Note; it was also adopted for several other reasons including the production of a workable solution at the place where final mixing takes place. 55 In my opinion, these indications are confirmed by a reading of the whole of Ch 29. 56 The Tribunal did not examine Note 1 to Ch 29. Nor did it specifically consider the question whether Ch 29 was confined to chemicals, and was incapable of applying to dispensing devices which incorporated a chemical dosage. Rather, the Tribunal moved directly to r 3 of Sch 2.
Case: Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
Outcome: referred to
In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Gillard J identified the elements which it is necessary for a complainant to establish in order to make good a charge of civil contempt of Court. His Honour said: "[31] In order to prove a civil contempt of Court involving a breach of an order of the Court, the plaintiff has to prove the following: (i) that an order was made by the Court; (ii) that the terms of the order are clear, unambiguous and capable of compliance; (iii) that the order was served on the alleged contemnor or excused in the circumstances, or service dispensed with pursuant to the Rules of Court; (iv) that the alleged contemnor has knowledge of the terms of the order; (v) that the alleged contemnor has breached the terms of the order. [32] It is necessary for the plaintiff to prove each element beyond reasonable doubt in accordance with the principles of the criminal law, in proving element (v) it must be proven that the act or omission which constituted the breach of the order was deliberate and voluntary." 41 There is no dispute, and I am satisfied that: &#8226; Order 1(e) was made by Gray J on 10 January 2006. &#8226; A copy of Gray J's orders was served on Mr Siminton on 23 January 2006. An amended copy of the orders was served on him on 9 May 2006. The relevant amendment was the inclusion of the endorsement required by Order 37 Rule 2(3) of the Federal Court Rules . &#8226; Mr Siminton had knowledge of the terms of the orders. Mr Siminton has put in issue the questions of whether Order 1(e) is clear and unambiguous, whether the Order has extra-territorial operation and whether APRA has established beyond reasonable doubt that he engaged in deliberate conduct which was in breach of Gray J's orders.
Case: AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 497-8 Merkel J summarised the current state of the law on when disobedience of a Court order will constitute a contempt of court. His Honour said: "Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australasian Meat Industry Employees Union v Mudginbeeri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106-107 and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530 ... However, as all proceedings for contempt are now regarded as criminal in nature, all of the charges must be proved beyond reasonable doubt: see Witham at 534." See also AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 112-3; Heatons Transport v TGWU [1973] AC 15 at 109.
Case: Australian Competition and Consumer Commissioner v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576
Outcome: referred to
This objection must fail. At all relevant times Mr Siminton has been in Australia and subject to the jurisdiction of the Court. That jurisdiction includes power, under s 23 of the Federal Court of Australia Act 1976 (Cth), to make orders of the kind which Gray J made in this proceeding: see Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 132; Australian Competition and Consumer Commissioner v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576 at 589. There was no jurisdictional obstacle to Mr Siminton being required not to perform certain acts in Australia which might lead to consequential action being taken overseas. In National Australia Bank Ltd v Dessau [1988] VR 521 at 522 Brooking J summarised the applicable legal principles as follows: "That a court of equity, acting as it does in personam, may order someone amenable to its jurisdiction to do or refrain from doing an act abroad was established quite early in our history, before even the days of the Boston Tea Party (Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132). The jurisdiction is grounded not on any pretension to the exercise of judicial power abroad but on the circumstances that the defendant, being amenable to the Court's jurisdiction can be personally directed to act or not to act ..."
Case: Heatons Transport v TGWU [1973] AC 15
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 497-8 Merkel J summarised the current state of the law on when disobedience of a Court order will constitute a contempt of court. His Honour said: "Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australasian Meat Industry Employees Union v Mudginbeeri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106-107 and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530 ... However, as all proceedings for contempt are now regarded as criminal in nature, all of the charges must be proved beyond reasonable doubt: see Witham at 534." See also AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 112-3; Heatons Transport v TGWU [1973] AC 15 at 109.
Case: ICA Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
Outcome: referred to
It is trite law that injunctive orders of the Court "should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction: see ICA Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 per Lockhart J, with whom Gummow and French JJ agreed. What is not as clear is what is comprehended, in the context, by the word "unambiguous" and what consequences flow from a finding of ambiguity if it is sought to enforce an order in proceedings for contempt. In Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 the appellant contended that, unless the language of an undertaking was unambiguous and certain, it should not be enforced by contempt proceedings. This submission was rejected by the Court. Barwick CJ said (at 492): "If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense in which the Court assigns to it. If the Court is satisfied that the party said to be in contempt bona fide believed himself bound only by a construction which the Court thinks to be erroneous, it may for that reason, in its discretion, refuse to make an order or, if it makes an order, refuse to make an order for costs against that party. But, even in such a case, the enforcement of the plaintiff's rights must not be left out of account. A party who has bona fide acted on erroneous view of an order or undertaking may, according to the circumstances, nonetheless be justly adjudged guilty of contempt in procedure. In my opinion, this is equally so where, because of its terms or circumstances, the order or undertaking requires construction in order to determine its meaning and will move ambiguities patent or latent."
Case: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 497-8 Merkel J summarised the current state of the law on when disobedience of a Court order will constitute a contempt of court. His Honour said: "Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australasian Meat Industry Employees Union v Mudginbeeri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106-107 and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530 ... However, as all proceedings for contempt are now regarded as criminal in nature, all of the charges must be proved beyond reasonable doubt: see Witham at 534." See also AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 112-3; Heatons Transport v TGWU [1973] AC 15 at 109.
Case: National Australia Bank Ltd v Dessau [1988] VR 521
Outcome: referred to
This objection must fail. At all relevant times Mr Siminton has been in Australia and subject to the jurisdiction of the Court. That jurisdiction includes power, under s 23 of the Federal Court of Australia Act 1976 (Cth), to make orders of the kind which Gray J made in this proceeding: see Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at 132; Australian Competition and Consumer Commissioner v Purple Harmony Plates Pty Ltd (No 3) (2002) 196 ALR 576 at 589. There was no jurisdictional obstacle to Mr Siminton being required not to perform certain acts in Australia which might lead to consequential action being taken overseas. In National Australia Bank Ltd v Dessau [1988] VR 521 at 522 Brooking J summarised the applicable legal principles as follows: "That a court of equity, acting as it does in personam, may order someone amenable to its jurisdiction to do or refrain from doing an act abroad was established quite early in our history, before even the days of the Boston Tea Party (Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132). The jurisdiction is grounded not on any pretension to the exercise of judicial power abroad but on the circumstances that the defendant, being amenable to the Court's jurisdiction can be personally directed to act or not to act ..."
Case: Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110
Outcome: referred to
Counsel for Mr Siminton sought to introduce expert evidence from a linguist as to how an ordinary person would construe the words " the moneys standing to the credit of the respondent" in Order 1(e). It was these moneys which Mr Siminton was prevented from dealing with. The expert opinion was that a reader of the order would understand it to apply to moneys which were in the relevant accounts on the date on which the order was made 10 January 2006 and not moneys thereafter added. I rejected the tender of this evidence because the proper construction of Order 1(e) was a matter of law, not a matter of fact: see Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at 116. 44 I allowed counsel to pursue an argument that, as a matter of law, the order was to be construed and understood in the manner contended for by the expert. As developed the submission was that "the moneys" was a reference to a definite article. When read in conjunction with " standing " the use of the present tense meant that the relevant moneys were those in the relevant accounts on 10 January 2006 rather than "future moneys" in "future accounts". 45 Counsel for APRA submitted that Order 1(e) was properly to be construed as applying to any moneys standing to the credit of a relevant account during the currency of the order. Attention was directed to other parts of Gray J's orders, for example, paras 1 (a), (b) and (c), which restrained Mr Siminton from doing things in the future. Counsel conceded that, if Mr Siminton's construction argument succeeded, no contraventions of Order 1(e) could be established. 48 In Universal Music Branson J (with whom Lindgren and Finkelstein JJ agreed), having referred to Morgan and a number of older authorities, concluded (at 119-120) that: "...the authorities discussed above reveal that an injunction is not rendered invalid, or incapable of founding a charge of contempt, merely because it leaves a respondent with room to wonder whether future conduct falls within it. At least where the true construction of the order is one which ought fairly to have been in the contemplation of the person to whom the order was directed ... the Court which entertains the charge of contempt will be required to determine that construction. Of course, it may be highly relevant to the question of punishment that a respondent failed to comply with the order because he, she or it placed a construction on the order that was not its true construction."
Case: RPS v R [2000] HCA 3 ; (2000) 199 CLR 620
Outcome: referred to
In seeking to make good each of these charges APRA invites the Court to draw certain inferences. This invitation is made in circumstances in which neither Mr Siminton nor any other persons, such as the Holzheimers, who might reasonably have been expected to have knowledge of relevant events, gave evidence. No adverse inference can be drawn merely because Mr Siminton has chosen not to give or call evidence in defence of the charges. The failure is nonetheless of potential significance. This is because, as the High Court explained in RPS v R [2000] HCA 3 ; (2000) 199 CLR 620 at 632-633: "...it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting and apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen: '[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.' "(footnotes omitted). The inferences which APRA invited the Court to draw are founded on uncontradicted evidence. Counsel for Mr Siminton did not make any specific submissions as to why the inferences for which APRA contended should not be drawn. 57 In each case I am satisfied beyond reasonable doubt that those inferences ought to be drawn, that the conclusions contended for by APRA are supported by the evidence and that the evidence does not support a finding that there is any reasonable or rational hypothesis consistent with Mr Siminton's innocence of any of these charges. 58 I am also satisfied that the affidavit and documentary evidence tendered by APRA strongly supports the case made by it and that this evidence establishes each of the matters of fact necessary to make good each of the charges.