mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Heptonstall v Gaskin (No 2) (2005) 138 IR 103
Outcome: referred to
The University submitted that while an implied term of mutual trust and confidence is part of the law of the United Kingdom, there remains a question whether such a term may be implied by law in an Australian contract of employment. I accept that the law is not certain in this respect ( Heptonstall v Gaskin (No 2) (2005) 138 IR 103 at [22]-[23]). However, the implied term as pleaded (which does not involve mutual obligations) finds some support in Australian authorities ( Burazin v Blacktown City Guardian [1995] IRCA 660 Madgwick J's consideration of this issue was not disapproved by the Full Court on appeal in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186). It would not be appropriate on the present motion to foreclose argument on the important question of whether an Australian employer has the implied obligation pleaded in par 10 of the Statement of Claim.
Case: Murex Diagnostics Australia Pty Limited v Chiron Corporation (1995) 55 FCR 194
Outcome: cited
As this proceeding was instituted before 1 December 2005, the power conferred on the Court by O 20 r 2 is to be exercised to ensure that a clearly untenable case that cannot possibly succeed does not proceed to trial ( General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125; Murex Diagnostics Australia Pty Limited v Chiron Corporation (1995) 55 FCR 194). The lower threshold of 'no reasonable prospect of successfully prosecuting the proceeding' , for which s 31A(2)(b) of the Federal Court of Australia Act 1976 (Cth) now provides, has no application in respect of a proceeding instituted before 1 December 2005 (Item 44 of Part 2 of Schedule 1 of the Migration Litigation Reform Act 2005 (Cth)).
Case: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 204 ALR 26
Outcome: considered
It is premature, in my view, to give detailed consideration to whether the Statement of Claim adequately pleads an appropriate nexus between the losses allegedly suffered by Dr Wearne and the relief claimed by her. I note, however, that the High Court observed with respect to the Trade Practices Act in Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 204 ALR 26 at [45] : 'The Act's references to "loss or damage" can be given no narrow meaning. Section 4K of the Act provides that loss or damage includes a reference to injury. It follows that the loss or damage spoken of in ss 82 and 87 is not confined to economic loss. What kinds of detriment constitute loss or damage, when a detriment is to be identified as occurring or likely to occur, and what remedies are to be awarded, may all raise further difficult questions. Especially is that so when it is recalled that remedies may be awarded to compensate, prevent or reduce loss or damage that has been or is likely to be suffered by conduct in contravention of the Act.' (citation omitted) 39 I am not satisfied that Dr Wearne does not have a reasonable cause of action, or reasonable causes of action, against the University. The application for the proceeding to be dismissed or permanently stayed therefore fails. 40 However, I conclude that the Statement of Claim does not comply with the rules of pleading. Its deficiencies are so extensive that it would be counterproductive, in my view, for individual paragraphs or groups of paragraphs to be struck out. The Statement of Claim will therefore be wholly struck out. However, in my view it is appropriate that Dr Wearne have one final opportunity to plead her case against the University.
Case: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
Outcome: cited
The University submitted that while an implied term of mutual trust and confidence is part of the law of the United Kingdom, there remains a question whether such a term may be implied by law in an Australian contract of employment. I accept that the law is not certain in this respect ( Heptonstall v Gaskin (No 2) (2005) 138 IR 103 at [22]-[23]). However, the implied term as pleaded (which does not involve mutual obligations) finds some support in Australian authorities ( Burazin v Blacktown City Guardian [1995] IRCA 660 Madgwick J's consideration of this issue was not disapproved by the Full Court on appeal in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186). It would not be appropriate on the present motion to foreclose argument on the important question of whether an Australian employer has the implied obligation pleaded in par 10 of the Statement of Claim.
Case: Stoelwinder v Southern Health Care Network (2000) 177 ALR 501
Outcome: cited
I accept, at least, that the argument that such conduct was 'conduct in trade and commerce' could not be characterised as clearly untenable (see, for example, Stoelwinder v Southern Health Care Network (2000) 177 ALR 501). However, par 106 does not plead that the relevant conduct was 'in trade or commerce' ; it is drawn on the apparent assumption that it is sufficient for the relevant contract to be in respect of trade or commerce. In Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 603 the High Court observed with respect to the identical expression in s 52 of the Trade Practices Act: 'it is plain that s. 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities.'
Case: Adelaide Petroleum NL &amp; Ors v Poseidon Limited &amp; Ors (1988) 10 ATPR 40-901
Outcome: cited
It has been suggested that, because the deeming within the meaning of s 51A(2) takes effect unless the corporation adduces some evidence to the contrary, this does not mean that the onus of proof (which otherwise lies with the applicant) is reversed, but merely requires the corporation to go into evidence ( ACCC v Universal Sports Challenge Ltd [2002] FCA 1276 at [46] ). The weight of authority however is that the person making the representation can only avoid the deeming in s 51A(2) by establishing on the usual balance of probabilities that there were reasonable grounds for making the representation: Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [82] , Ting [1993] FCA 524 ; 118 ALR 543 at 552, Bowler v Hilda Pty Ltd (1998) 153 ALR 95 at 108 and 117, Sykes 88 FCR 511 at 513-514, Adelaide Petroleum NL &amp; Ors v Poseidon Limited &amp; Ors (1988) 10 ATPR 40-901 at 49,700, Phoenix Court Pty Ltd (1997) ATPR 46-179 (and cf other cases in support of this proposition listed at Miller , 29th ed para 1.51A.37).
Case: Amadio Pty Ltd v Henderson (1998) 81 FCR 149
Outcome: cited
Further, it is not fatal to a claim of reliance that the applicant does not give express and direct evidence of reliance : see analysis of Lindgren J in MGICA (1992) Ltd v Kenny &amp; Good Pty Ltd (1996) 140 ALR 313 at 358 and observations of the Full Court in Amadio Pty Ltd v Henderson (1998) 81 FCR 149 at 245-246.
Case: Australian Competition and Consumer Commission v Telstra Corporation Ltd [2007] 244 ALR 470
Outcome: cited
There is no doubt that historical performance can be a factor relevant to the reasonableness of a forecast of future performance (see, for example, ACCC v Top Snack Foods Pty Ltd [1999] FCA 752 , ACCC v Telstra Corporation Ltd [2007] 244 ALR 470). However in determining whether a person had reasonable grounds for expressing an opinion or making a prediction as to a future matter, is necessary to judge the matter as at the date of the representation (see Lyndel Nominees Pty Ltd v Mobil Oil Australia Ltd (1997) 37 IPR 599 at 625, Sykes 88 FCR 511 at 513, City of Botany Council [2001] NSWCA 94 at [83] ). Historical performance is one factor, although it is an important factor. In paras 19(e) and (f) the applicants claim that the respondents had in their possession Packing Shed data computer records which disclosed the matters referred to in paras 19(a), (b) and (c). I have already considered the claims in paras 19(a), (b) and (c) and found that the respondents had reason to distrust the information in the Packing Shed records to which the applicants refer. Further, I do not consider that the applicants have substantiated the "true position" with respect to, inter alia , the Packing Shed records as claimed by the applicants in paras 19(d)-(g). I shall return to this issue later in my judgment.
Case: Australian Competition and Consumer Commission v Top Snack Foods Pty Ltd [1999] FCA 752
Outcome: cited
There is no doubt that historical performance can be a factor relevant to the reasonableness of a forecast of future performance (see, for example, ACCC v Top Snack Foods Pty Ltd [1999] FCA 752 , ACCC v Telstra Corporation Ltd [2007] 244 ALR 470). However in determining whether a person had reasonable grounds for expressing an opinion or making a prediction as to a future matter, is necessary to judge the matter as at the date of the representation (see Lyndel Nominees Pty Ltd v Mobil Oil Australia Ltd (1997) 37 IPR 599 at 625, Sykes 88 FCR 511 at 513, City of Botany Council [2001] NSWCA 94 at [83] ). Historical performance is one factor, although it is an important factor. In paras 19(e) and (f) the applicants claim that the respondents had in their possession Packing Shed data computer records which disclosed the matters referred to in paras 19(a), (b) and (c). I have already considered the claims in paras 19(a), (b) and (c) and found that the respondents had reason to distrust the information in the Packing Shed records to which the applicants refer. Further, I do not consider that the applicants have substantiated the "true position" with respect to, inter alia , the Packing Shed records as claimed by the applicants in paras 19(d)-(g). I shall return to this issue later in my judgment.
Case: Australian Competition and Consumer Commission v Universal Sports Challenge Ltd [2002] FCA 1276
Outcome: cited
It has been suggested that, because the deeming within the meaning of s 51A(2) takes effect unless the corporation adduces some evidence to the contrary, this does not mean that the onus of proof (which otherwise lies with the applicant) is reversed, but merely requires the corporation to go into evidence ( ACCC v Universal Sports Challenge Ltd [2002] FCA 1276 at [46] ). The weight of authority however is that the person making the representation can only avoid the deeming in s 51A(2) by establishing on the usual balance of probabilities that there were reasonable grounds for making the representation: Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [82] , Ting [1993] FCA 524 ; 118 ALR 543 at 552, Bowler v Hilda Pty Ltd (1998) 153 ALR 95 at 108 and 117, Sykes 88 FCR 511 at 513-514, Adelaide Petroleum NL &amp; Ors v Poseidon Limited &amp; Ors (1988) 10 ATPR 40-901 at 49,700, Phoenix Court Pty Ltd (1997) ATPR 46-179 (and cf other cases in support of this proposition listed at Miller , 29th ed para 1.51A.37).
Case: Australian Retail Enterprises Pty Ltd v ND Cowan Nominees Pty Ltd [2000] VSC 538
Outcome: cited
Such change in circumstances at the properties as lack of maintenance over the space of a year potentially means that an inspection of the properties in June 2006, when Mr Frick prepared his report, would have been of limited assistance to him in preparing his report (cf observations of Beach J in Australian Retail Enterprises Pty Ltd v ND Cowan Nominees Pty Ltd [2000] VSC 538 at [27] - [28] ). I consider that the failure of Mr Frick to visit the properties at the time of the preparation of his report does not make his evidence inadmissible, but if anything goes only to weight. Objection: Primary reference material DPI publication 313 Mr Frick's evidence was that his primary source of data with respect to yields and yield forecasts was the DPI publication "The Economics of Growing Citrus in The Central Burnett Region of Queensland" by J R Peter Hardman, published in 1994 ("the DPI publication"). The applicants did not in their submissions fault the authority of this publication as a primary source, however they claim that: a. Mr Frick failed in his report to identify the differences or the potential differences between the Central Burnett and the South Burnett regions; and b. Notwithstanding Mr Frick's reliance on the DPI publication, the reliability of his expert opinion was fatally damaged by his failure to identify persons whom he consulted to validate the application of the data in the DPI publication to the South Burnett region. 314 I shall deal with the second issue separately below.
Case: Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: considered
A problem with this approach is that it is not clear from paras 17A(g)-(k) why the failure to disclose the emails to which those paragraphs referred constituted conduct allegedly in breach of s 52, other than a blanket pleading in para 19A that the first and second applicants had a reasonable expectation that the emails would be disclosed in the circumstances referred to in para 17. This is a fundamental issue. As Mason CJ and Gaudron J observed in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286: The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liq) per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness.
Case: Bodney v Bennell [2008] FCAFC 63
Outcome: cited
It is clear from cases decided under the Evidence Act that the "basis" rule does not feature in s 79. Strictly speaking, it is not necessary for an expert opinion to be admissible for the factual basis of the opinion to be itself proven by admissible evidence ( Neowarra v Western Australia [2003] FCA 1399 ; (2003) 134 FCR 208 at [22] and [37], Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374, Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [10] , Bodney v Bennell [2008] FCAFC 63 at [90] ). Instead, provided the expert evidence: &#8226; is opinion evidence which satisfies s 79 ; and &#8226; is relevant within the meaning of s 55(1). as a general rule it is admissible under s 56(1) , and the general discretion of the Court to refuse to admit evidence under s 135 is sufficient to deal with problems that might arise in respect of the opinion the basis of which is not disclosed ( Quick 87 FCR 371 per Branson J at 617, Emmett J agreeing; Bodney [2008] FCAFC 63 at [91] ). 350 Seventh, as I observed earlier in this judgment this is not a situation where the expert has sought to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, and which is hearsay, as a basis for the expert opinion (cf for example Bodney [2008] FCAFC 63 at [92] , Alphapharm [2008] FCA 63 at [762] ).
Case: Bowler v Hilda Pty Ltd (1998) 153 ALR 95
Outcome: cited
It has been suggested that, because the deeming within the meaning of s 51A(2) takes effect unless the corporation adduces some evidence to the contrary, this does not mean that the onus of proof (which otherwise lies with the applicant) is reversed, but merely requires the corporation to go into evidence ( ACCC v Universal Sports Challenge Ltd [2002] FCA 1276 at [46] ). The weight of authority however is that the person making the representation can only avoid the deeming in s 51A(2) by establishing on the usual balance of probabilities that there were reasonable grounds for making the representation: Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [82] , Ting [1993] FCA 524 ; 118 ALR 543 at 552, Bowler v Hilda Pty Ltd (1998) 153 ALR 95 at 108 and 117, Sykes 88 FCR 511 at 513-514, Adelaide Petroleum NL &amp; Ors v Poseidon Limited &amp; Ors (1988) 10 ATPR 40-901 at 49,700, Phoenix Court Pty Ltd (1997) ATPR 46-179 (and cf other cases in support of this proposition listed at Miller , 29th ed para 1.51A.37). 476 In any event to the extent that the first respondent was required to qualify its representations to the applicants in order that representations as to future conduct could be said to be made on reasonable grounds. I consider that the respondents appropriately and effectively did so. This is not an issue which was raised by the applicants, and indeed as Allsop J observed in Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [627] it does not follow that any statement in any commercial context which can be characterised as a promise must be accompanied by any existing legal or factual qualification. I address the issue in the interests of completeness in light of comments in such cases as Wheeler Grace &amp; Pierucci Pty Ltd v Wright (1989) 16 IPR 189 at 201-2, Bowler 153 ALR 95 at 108, Famel Pty Ltd v Burswood Management Ltd (1989) ATPR 40-962 and Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [627] .
Case: Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd (1990) 3 ACSR 649
Outcome: cited
Leaving aside for one moment the issue whether the first respondent, through Mr Breed, actually made the oral and written representations claimed by the applicants in para 16 Further Amended Statement of Claim, I consider that Mr Breed would have had at least ostensible authority from the first respondent to make such representations on its behalf within the meaning of s 84(2)(a) of the Act and such cases as Freeman &amp; Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 and Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd (1990) 3 ACSR 649. 516 It is clear that Mr Strahley, as managing director of the parent company of the first respondent, and also as an executive director of the first respondent itself, had actual authority on behalf of the first respondent to make representations binding the first respondent in the transaction with Mr Tracy. Mr Strahley was also clearly the primary contact of Mr Tracy in the purchase transaction, particularly with respect to budgetary and financial information. Further, the evidence is that, after contracts had been exchanged, Mr Strahley had given Mr Palfreeman the responsibility of communicating with Mr Tracy until settlement, which included communicating with the Packing Shed any request for information from Mr Tracy, and to that extent Mr Palfreeman would have had actual authority to provide Mr Tracy with information (TS 1114 ll 17-19, 1231 ll 30-31). These issues are not in dispute. 517 In relation to Mr Breed, the respondents admitted in para 3(2) of the Defence that Mr Breed acted as agent of the first respondent within the scope of his employment. Mr Breed was the farm manager of the first respondent. That does not necessarily mean that Mr Breed had authority to make representations binding the first respondent in relation to budgetary and financial issues. The key question is whether Mr Breed's authority extended to making such binding representations, or whether the conduct of the first respondent had clothed Mr Breed with such authority by way of apparent or ostensible authority.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364
Outcome: cited
While Mr Perry's submission that the expert opinion of Mr Frick did not comply with the relevant Practice Direction was technically correct, in the circumstances before me I make the following observations: a. It is clear from Mr Frick's affidavit, p 1 of his expert report (MBF-02) and the annexure MBF-03 (the Index to Documents (Crop Expert) indexing the material in the Brief to Crop Expert) that, in preparing his expert report, Mr Frick reviewed data in the Brief to Crop Expert volumes. b. Mr Frick's affidavit with the annexures including the expert report had been available to the applicants since 2006. c. Mr Bell QC informed the Court that the data in the Brief to Crop Expert was already in evidence before the Court at the time Mr Frick was sworn as a witness. I accept this information, and in any event note from reviewing the Brief to Crop Expert that the following material, of which copies were included in the Brief to Crop Expert, was already in evidence by the time that Mr Frick was called as a witness: exhibits A32, A5, R30, A16, A12, A13, A17, A19, A21, A37, A39, A43, A45, A52, A30, A58, A64 and A66. d. Although the two volumes of material composing the Brief to Crop Expert were not physically annexed to Mr Frick's expert report as provided by cl 2.7, it is well established that compliance with a practice note is not a criterion of admissibility of evidence: Centurion Roller Shutters Pty Ltd v Automatic Technology (Australia) Pty Ltd [1999] FCA 1118 at [4] , Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 at [13] .
Case: CE Heath Underwriting and Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (unreported, Supreme Court of Victoria, 3 August 1995)
Outcome: cited
In my view Mr Breed's unsigned statement is of no weight in relation to any matter in dispute in these proceedings. Mr Breed is a respondent to proceedings, for whom the solicitor for the applicants had prepared a statement (which Mr Breed refused to sign) purportedly reflecting his views. To adopt the language of Batt J in CE Heath Underwriting and Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (unreported, Supreme Court of Victoria, 3 August 1995) In my view it is little better than a document on plain paper containing only the numbered paragraphs... 119 Further however, the applicants submitted that adverse inferences should be drawn against the respondents because the respondents tendered Mr Breed's affidavit but failed to call him as a witness.
Case: Centurion Roller Shutters Pty Ltd v Automatic Technology (Australia) Pty Ltd [1999] FCA 1118
Outcome: cited
While Mr Perry's submission that the expert opinion of Mr Frick did not comply with the relevant Practice Direction was technically correct, in the circumstances before me I make the following observations: a. It is clear from Mr Frick's affidavit, p 1 of his expert report (MBF-02) and the annexure MBF-03 (the Index to Documents (Crop Expert) indexing the material in the Brief to Crop Expert) that, in preparing his expert report, Mr Frick reviewed data in the Brief to Crop Expert volumes. b. Mr Frick's affidavit with the annexures including the expert report had been available to the applicants since 2006. c. Mr Bell QC informed the Court that the data in the Brief to Crop Expert was already in evidence before the Court at the time Mr Frick was sworn as a witness. I accept this information, and in any event note from reviewing the Brief to Crop Expert that the following material, of which copies were included in the Brief to Crop Expert, was already in evidence by the time that Mr Frick was called as a witness: exhibits A32, A5, R30, A16, A12, A13, A17, A19, A21, A37, A39, A43, A45, A52, A30, A58, A64 and A66. d. Although the two volumes of material composing the Brief to Crop Expert were not physically annexed to Mr Frick's expert report as provided by cl 2.7, it is well established that compliance with a practice note is not a criterion of admissibility of evidence: Centurion Roller Shutters Pty Ltd v Automatic Technology (Australia) Pty Ltd [1999] FCA 1118 at [4] , Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 at [13] .