mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cypressvale Pty Ltd v Retail Shopping Lease Tribunal [1995] QCA 187 ; [1996] 2 Qd R 462 
Outcome: considered
reasons must be adequate they do not need to be self-contained their sufficiency can depend on the manner in which a case was conducted, and such matters as the 'basic stock of knowledge common to both parties': Cypressvale Pty Ltd v Retail Shopping Lease Tribunal [1995] QCA 187 ; [1996] 2 Qd R 462 per McPherson and Davies JJA at 492. Similar observations were more recently made by Flick J in Comcare v Davies (2008) 173 IR 294 at [31] and [32]: ... The nature and extent of this obligation [under s 43(2B) of the AAT Act] has been extensively canvassed. For the purposes of the resolution of the present appeal it is sufficient to note that the reasons of the Tribunal are 'meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed' : Minister for Immigration &amp; Ethnic Affairs v Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. But it is equally important 'to review the Tribunal's reasons to be satisfied that the Tribunal has in fact had regard to the matters which it must address' : Zhang v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 30 at [14] . 32. The extent of the reasoning provided in accordance with s 43(2B) must also be considered against the backdrop of the contentions advanced for resolution and the evidence presented. The Tribunal is exhorted by s 2A of the 1975 Act to 'pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick' . When carrying out its functions the Tribunal is also obliged to 'ensure that every party to a proceeding ... is given a reasonable opportunity to present his or her case' : s 39(1). The person who made the decision being reviewed by the Tribunal is also required to 'use his or her best endeavours to assist the tribunal to make its decision in relation to the proceeding' : s 33(1AA). (Emphasis added)
Case: Dodds v Comcare Australia (1993) 31 ALD 690
Outcome: considered
adequacy of reasons provided, however, is also a matter of 'substance': Dodds v Comcare Australia (1993) 31 ALD 690. Burchett J at 691 there observed: The obligation to furnish reasons, and to furnish reasons which are adequate, is a very important obligation. It is a pillar of the system of administrative decision-making by the Tribunal, and it is essential that the Court should insist on its fulfilment. But it is the substance of the obligation that matters . Indeed, as Lord Sumner pointed out in SS Hontestroom v SS Sagaporack [1927] AC 37 at 50, even a Judge's reasons on a question of fact will not be vitiated by 'imperfections in form and expression'. Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons exposed the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include 'findings on material questions of fact '. (Emphasis added) On reviewing [11] [18] of the Tribunal's reasons, one can discern two fundamental conclusions or findings on material questions of fact or mixed fact and law: (1) The finding at [13] that the Tribunal did not accept 'that the current condition suffered by Mrs Sagigi was a result of her employment'. (2) The finding at [13] that the Tribunal 'simply cannot make a finding that there was any relevant impairment or permanent impairment on the evidence before [it]'; and the similar finding at [18] that the Tribunal 'cannot find that she has any permanent impairment relevantly under Table 9.6'. The conclusion or finding in [19(1)] above is supported by reference to the following process of reasoning: (1) Inconsistencies in the evidence of the applicant in the Tribunal and the histories given to the various doctors (at [9] and [11]). (2) The evidence of Dr McGill 'that the back condition may be related to other factors or an underlying degenerative condition' (at [15]). (3) That Dr McGill's evidence was 'more plausible, given that he has seen this patient on three occasions, whereas Dr Berry and Dr Bodel have only seen her on two occasions' (at [15]); to which I would add, on three occasions over seven years, not five years as referred to at [12] of the Tribunal's reasons.
Case: Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378
Outcome: considered
standard of perfection is not required. It is sufficient if the basis of the decision is apparent, and one can reasonably understand or discern why the decision was reached. In Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 381, Hutley JA (with whom Samuels JA agreed) said: The extent to which a court must go in giving reasons is incapable of precise definition. A court must not nullify rights of appeal by giving no or nominal reasons, but there is no duty to expound reasons so as to facilitate appeals. This applies particularly to the situation where a judge has to decide between conflicting witnesses, including experts. The choice between conflicting experts may have to be a matter of judgment, not of detailed reasoning.
Case: O'Keefe v Comcare [1998] FCA 603
Outcome: referred to
the course of the hearing, counsel for the applicant submitted that the Tribunal did not consider the submission, founded upon the observations of von Doussa J in O'Keefe v Comcare [1998] FCA 603 and of Mansfield J in Comcare v Moon [2003] FCA 569 ; (2003) 75 ALD 160 at [50] , consistent with the approach taken by Jenkinson J in Comcare v Amorebieta (1996) 66 FCR 83 that a finding of permanent impairment under Tables 9.5 or 9.6 was available despite Dr McGill's findings on examination. In that last-mentioned case, Jenkinson J said at 99: It was a further ground of appeal that the Tribunal, having found 'that there are occasions on which [the respondent] has a full range of movement if movement is to be measured in a technical sense', erred in law in failing to recognise that the word 'loss' in Table 9.6 and particularly in the phrase 'loss of less than half normal range of movement' requires that that degree of restriction of movement be always present. In that stark form the submission was perhaps not pressed. Nor do I accept it. The finding was based on some of the evidence by medical practitioners who at particular examinations found the respondent able to move within the normal range. But what is done on a particular occasion under medical observation is not determinative of the assessment which Table 9.6 requires.
Case: Corrs Pavey Whiting &amp; Burn v Collector of Customs (1987) 14 FCR 434
Outcome: cited
In order to succeed in a claim for a breach of confidence, Bluescope and Castrip must first identify, with some specificity, information that is said to be confidential. Next, they must show that the information has the necessary quality of confidentiality. Finally, they must show that the information was received in such circumstances as to import an obligation of confidence. There may then be an injunction to restrain threatened disclosure and there may be an account of profits in respect of actual disclosure ( Corrs Pavey Whiting &amp; Burn v Collector of Customs (1987) 14 FCR 434 at 443).
Case: Faccenda Chicken Limited v Fowler [1985] FSR 105
Outcome: cited
There is a category of information that an employee must treat as confidential but which, once learned, necessarily remains in the head of the employee and becomes part of his own skill and knowledge. While that information may have been acquired in the course of the employer's business, the employee will be allowed to use his full skill and knowledge for his own benefit, even in competition with his former employer after he leaves that employment. Such information is often referred to as " know how ", being the skill and knowledge that an employee gains during the course of his employment, which is not capable of protection in favour of the employer. Even so, however, that type of information may be protected from use or disclosure by express contractual arrangement (see Faccenda Chicken Limited v Fowler [1985] FSR 105 and Wright v Gasweld Pty Ltd at 326F and 333G-334E). Such a contractual arrangement will be enforced unless it is contrary to public policy, as being an unreasonable restraint of trade. That is to say, it will not be enforced if its effect is to deprive an employee of the ability to earn a living without adequate compensation.
Case: Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 ; (2003) 56 NSWLR 298
Outcome: cited
The object of the taking of accounts in a case such as this is to determine the profit derived by the wrong doer from the use of the confidential information. Whether it is appropriate to make an allowance in respect of Mr Kelly's skill, expertise and other expenses is a matter of judgment. As a general rule, consistently with the principle that a fiduciary must not profit from a breach of fiduciary duty, the Court will make allowance for skill, expertise and other expenses ( Warman International Ltd v Dwyer [1995] HCA 18 ; (1995) 182 CLR 544 at 562). The grant of an allowance will normally be a substitute for an apportionment of profits where a wrong doer mingled profits attributable to breach of duty and profits attributable to the wrong doer's efforts. That suggests that the onus of establishing that an allowance for skill, expertise and other expenses is called for, is on the wrong doer ( Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 ; (2003) 56 NSWLR 298 at [335] ).
Case: Warman International Ltd v Dwyer [1995] HCA 18 ; (1995) 182 CLR 544
Outcome: followed
The object of the taking of accounts in a case such as this is to determine the profit derived by the wrong doer from the use of the confidential information. Whether it is appropriate to make an allowance in respect of Mr Kelly's skill, expertise and other expenses is a matter of judgment. As a general rule, consistently with the principle that a fiduciary must not profit from a breach of fiduciary duty, the Court will make allowance for skill, expertise and other expenses ( Warman International Ltd v Dwyer [1995] HCA 18 ; (1995) 182 CLR 544 at 562). The grant of an allowance will normally be a substitute for an apportionment of profits where a wrong doer mingled profits attributable to breach of duty and profits attributable to the wrong doer's efforts. That suggests that the onus of establishing that an allowance for skill, expertise and other expenses is called for, is on the wrong doer ( Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 ; (2003) 56 NSWLR 298 at [335] ).
Case: Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317
Outcome: cited
In determining whether the information in question has the necessary quality of confidentiality, the fact that the information is jealously guarded by the claimant, that it is not readily made available to employees and that it could not, without considerable effort and risk, be acquired by others, is a relevant consideration. The fact that considerable skill and effort was actually expanded to acquire the information is also a relevant consideration ( Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 at 334). 90 There is a category of information that an employee must treat as confidential but which, once learned, necessarily remains in the head of the employee and becomes part of his own skill and knowledge. While that information may have been acquired in the course of the employer's business, the employee will be allowed to use his full skill and knowledge for his own benefit, even in competition with his former employer after he leaves that employment. Such information is often referred to as " know how ", being the skill and knowledge that an employee gains during the course of his employment, which is not capable of protection in favour of the employer. Even so, however, that type of information may be protected from use or disclosure by express contractual arrangement (see Faccenda Chicken Limited v Fowler [1985] FSR 105 and Wright v Gasweld Pty Ltd at 326F and 333G-334E). Such a contractual arrangement will be enforced unless it is contrary to public policy, as being an unreasonable restraint of trade. That is to say, it will not be enforced if its effect is to deprive an employee of the ability to earn a living without adequate compensation.
Case: Australian Competition and Consumer Commission v George Weston Foods Limited [2003] FCA 601 , 129 FCR 298
Outcome: considered
The consequence of such an order, if made, would have been to order that the documents produced by the Second Respondent to the Authority under compulsion of law were not to be returned to the Second Respondent but to the Applicant. This may have been a reason why the Second Respondent was joined as a party to the present proceedings. In most cases it will be the party upon whom a notice has been served requiring the production of documents who will be the party seeking that the notice be set aside: Australian Competition and Consumer Commission v George Weston Foods Limited [2003] FCA 601 , 129 FCR 298. Similarly, an applicant will be the entity whose premises are being compulsorily accessed: see, eg, Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144 ; on appeal, see Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403.
Case: Breen v Williams [1995] HCA 63 , 186 CLR 71
Outcome: followed
Moreover, the assertion of the Motor Trades Association that " it was plain beyond doubt that the documents sought were the Trustee's own books and records " is rejected. It is an assertion which, even if accepted, exposes no error of law in the approach adopted by the Authority and, in any event, is an assertion not established on the facts: Breen v Williams [1995] HCA 63 , 186 CLR 71 at 88 9 per Dawson and Toohey JJ. 46 A further ground separately addressed in oral submissions (albeit frankly accepted by Counsel for the Applicant as not being the strongest of the Grounds of Review ) was that of unreasonableness. Although it is a ground frequently relied upon, and perhaps has been given a more tightly confined application than it may legitimately have, it is nevertheless a ground which tends to be relied upon indiscriminately. To do so adds little to such prospects of success as a judicial review application may otherwise have and only invites consideration as to whether an applicant is essentially inviting the Court to embark upon an impermissible review of the merits of the decision. If unreasonableness is to be relied upon as a ground of review, careful consideration should be given by such an applicant as to whether it is a viable basis upon which a decision may separately be impugned. 47 Reliance upon the ground of unreasonableness in the present proceedings is but an instance of the Applicant seeking to propel the Court into a review of the merits of the decision of the Authority. The ground is rejected. It adds nothing and only detracts from the primary ground of review -- namely error of law.
Case: Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144
Outcome: considered
The consequence of such an order, if made, would have been to order that the documents produced by the Second Respondent to the Authority under compulsion of law were not to be returned to the Second Respondent but to the Applicant. This may have been a reason why the Second Respondent was joined as a party to the present proceedings. In most cases it will be the party upon whom a notice has been served requiring the production of documents who will be the party seeking that the notice be set aside: Australian Competition and Consumer Commission v George Weston Foods Limited [2003] FCA 601 , 129 FCR 298. Similarly, an applicant will be the entity whose premises are being compulsorily accessed: see, eg, Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144 ; on appeal, see Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403.
Case: Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403
Outcome: considered
The consequence of such an order, if made, would have been to order that the documents produced by the Second Respondent to the Authority under compulsion of law were not to be returned to the Second Respondent but to the Applicant. This may have been a reason why the Second Respondent was joined as a party to the present proceedings. In most cases it will be the party upon whom a notice has been served requiring the production of documents who will be the party seeking that the notice be set aside: Australian Competition and Consumer Commission v George Weston Foods Limited [2003] FCA 601 , 129 FCR 298. Similarly, an applicant will be the entity whose premises are being compulsorily accessed: see, eg, Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144 ; on appeal, see Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403.
Case: Commonwealth v Lyon [2003] FCAFC 284
Outcome: followed
The term " matter " as used in s 39B has the same meaning that it has in ss 75 , 76 and 77 of the Constitution : Commonwealth v Lyon [2003] FCAFC 284 at [24] , [2003] FCAFC 284 ; 133 FCR 265 at 272 per Branson, Madgwick and Hely JJ. The term " matter ", it has been said, " requires some immediate right, duty or liability to be established by the court ": Griffith University v Tang [2005] HCA 7 at [90] , [2005] HCA 7 ; 221 CLR 99 at 131 per Gummow, Callinan and Heydon JJ.
Case: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 , 213 CLR 543
Outcome: followed
Section 255 and other like provisions confer a power to require the production of documents. The exercise of powers requiring the compulsory production of books should be carefully scrutinised by the Courts: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 , 213 CLR 543 at 596. Justice Callinan there observed: [143] ... Creatures of the Executive of which this respondent is one are increasingly being armed with broader and more intrusive powers. That they are of these kinds requires, if anything, that the true and permissible ambit of the intrusion be carefully scrutinized and not be extended unnecessarily or in the teeth of unabridged (by legislation) fundamental, longstanding rights. ... 21 But s 255 does not expressly authorise the return of documents so produced. Nor does it impliedly do so. What happens to documents produced pursuant to s 255 and their subsequent return is simply not a subject-matter dealt with by that provision. It may be that the legislature should direct attention to the return of documents compulsorily acquired. It is not considered, however, that s 255 is the source of any authority pursuant to which the present decision of the First Respondent was taken.
Case: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296 , 68 ALD 107
Outcome: cited
Nor can reliance be placed by the Applicant upon s 11 of the Australian Prudential Regulation Authority Act as the source of the authority pursuant to which the decision was taken. A power of the kind conferred by s 11 does not authorise or require the making of any decision: cf Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 272; Salerno v National Crime Authority (1997) 75 FCR 133. As observed by the Full Court in Salerno , at 143: If a general authorisation in a statute for a decision by an organisation set up under that legislation is sufficient to make it a decision under the statute, and thus open to judicial review, every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision will be examinable by the court. The potential for massive disruption of the organisation's activities that would be the consequence of such a conclusion is manifest. Appl'd: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296 at [70] , [2001] FCA 1296 ; 113 FCR 230 at 250 1 per Finn J.
Case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748
Outcome: followed
Section 43 of the Federal Court of Australia Act confers discretion upon the Court to make an order for costs. That general discretion is " absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously ": Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213 at 219. The general approach is that costs should follow the event: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136 per Toohey J.
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: considered
Had it been necessary to consider that Motion , however, an extension would have been granted. The principles to be applied in considering any such application have been previously identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 9. 50 Notwithstanding the fact that no satisfactory explanation has been advanced as to why these proceedings were commenced approximately five months out of time, the fact remains that, prior to the commencement of these proceedings, the Applicant had repeatedly asserted its entitlement to have the documents returned to it. The Authority could have been under no impression that the issues arising from its service of the s 255 notice had been finally resolved. No prejudice was raised by the Authority in opposition to any extension of time being granted. 51 The appropriate order to be made is that the Amended Application for an Order of Review be dismissed.
Case: Hutchins v Commissioner of Taxation (1996) 65 FCR 269
Outcome: considered
Nor can reliance be placed by the Applicant upon s 11 of the Australian Prudential Regulation Authority Act as the source of the authority pursuant to which the decision was taken. A power of the kind conferred by s 11 does not authorise or require the making of any decision: cf Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 272; Salerno v National Crime Authority (1997) 75 FCR 133. As observed by the Full Court in Salerno , at 143: If a general authorisation in a statute for a decision by an organisation set up under that legislation is sufficient to make it a decision under the statute, and thus open to judicial review, every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision will be examinable by the court. The potential for massive disruption of the organisation's activities that would be the consequence of such a conclusion is manifest. Appl'd: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296 at [70] , [2001] FCA 1296 ; 113 FCR 230 at 250 1 per Finn J.