mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: cited
As to the Full Court's observation in Kowalski FC referred to above, I do not consider than in the circumstances it provides much by way of support to MMA Super. The Court's observation may well be said to provide an indication of the substantial difficulties that may be confronted by an applicant in trying to bring within the scope of s 52 conduct of the type alleged in a trustee-beneficiary relationship. While there are obvious difficulties in the way of demonstrating in a case such as the present that the conduct of MMA Super was in trade of commerce: cf Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 602-604; a matter to which I will return below, I am satisfied Mr Kowalski properly and genuinely believed that the TP Act had previously been found to be capable of being applied to a superannuation trustee hence his reliance on State Superannuation Board v Trade Practices Commission [1982] HCA 72 ; (1982) 150 CLR 282, albeit it was a case concerned with Part IV of the Act. 51 As is now well settled, the phrase "in trade or commerce" has a restrictive operation. It does not encompass conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of a trading or commercial business. Rather, the phrase refers only to conduct which is itself one aspect or element of activities or transactions which, of their nature, bear a trading or commercial character: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 602-604; Hearn v O'Rourke [2003] FCAFC 78 ; (2003) 129 FCR 64. In Concrete Constructions the allegedly misleading conduct that was relied upon and which resulted in physical injury being sustained, consisted of internal communications made in the course of the ordinary activities of employees of a construction company when constructing a building. This conduct was held not to be in trade or commerce.
Case: State Superannuation Board v Trade Practices Commission [1982] HCA 72 ; (1982) 150 CLR 282 
Outcome: cited
As to the Full Court's observation in Kowalski FC referred to above, I do not consider than in the circumstances it provides much by way of support to MMA Super. The Court's observation may well be said to provide an indication of the substantial difficulties that may be confronted by an applicant in trying to bring within the scope of s 52 conduct of the type alleged in a trustee-beneficiary relationship. While there are obvious difficulties in the way of demonstrating in a case such as the present that the conduct of MMA Super was in trade of commerce: cf Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 602-604; a matter to which I will return below, I am satisfied Mr Kowalski properly and genuinely believed that the TP Act had previously been found to be capable of being applied to a superannuation trustee hence his reliance on State Superannuation Board v Trade Practices Commission [1982] HCA 72 ; (1982) 150 CLR 282, albeit it was a case concerned with Part IV of the Act.
Case: Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) ATPR 41-743
Outcome: cited
Distinctly, MMA Super submits that, even if not colourable, the TP Act claim ought be characterised as "trivial and insubstantial" and seemingly be disregarded for jurisdictional purposes. Reliance in this is placed on Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) ATPR 41-743 at [46]-[47]; WG &amp; B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111. The description "trivial and unsubstantial" does not in this setting signify that the TP Act claim is unarguable: see e.g. Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272; Allsop, at 42. Rather it requires a judgment to be made about the character the claim has as an aspect of the whole of the controversy between the parties: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 609-610.
Case: WG &amp; B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111
Outcome: cited
Distinctly, MMA Super submits that, even if not colourable, the TP Act claim ought be characterised as "trivial and insubstantial" and seemingly be disregarded for jurisdictional purposes. Reliance in this is placed on Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) ATPR 41-743 at [46]-[47]; WG &amp; B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111. The description "trivial and unsubstantial" does not in this setting signify that the TP Act claim is unarguable: see e.g. Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272; Allsop, at 42. Rather it requires a judgment to be made about the character the claim has as an aspect of the whole of the controversy between the parties: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 609-610.
Case: Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272
Outcome: cited
Distinctly, MMA Super submits that, even if not colourable, the TP Act claim ought be characterised as "trivial and insubstantial" and seemingly be disregarded for jurisdictional purposes. Reliance in this is placed on Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) ATPR 41-743 at [46]-[47]; WG &amp; B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111. The description "trivial and unsubstantial" does not in this setting signify that the TP Act claim is unarguable: see e.g. Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272; Allsop, at 42. Rather it requires a judgment to be made about the character the claim has as an aspect of the whole of the controversy between the parties: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 609-610.
Case: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570
Outcome: cited
Distinctly, MMA Super submits that, even if not colourable, the TP Act claim ought be characterised as "trivial and insubstantial" and seemingly be disregarded for jurisdictional purposes. Reliance in this is placed on Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) ATPR 41-743 at [46]-[47]; WG &amp; B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111. The description "trivial and unsubstantial" does not in this setting signify that the TP Act claim is unarguable: see e.g. Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272; Allsop, at 42. Rather it requires a judgment to be made about the character the claim has as an aspect of the whole of the controversy between the parties: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 609-610.
Case: Lindsey v Philip Morris Ltd [2004] FCA 797 
Outcome: cited
As put the contention of MMA Super is that the TP Act claim discloses no reasonable cause of action. While the same is not said of the allegations of failure by MMA Super to perform its duties, it is said nonetheless that the clear inference is there to be drawn that the proceedings as a whole were issued to avoid the effect of the orders of Justice Bleby and of Mr Kowalski's disagreement with the State Supreme Court over waiver of fees and as such are an abuse of process. It has not been suggested, though, that the trust claims have been determined in another forum on their merits. The contrary was conceded in oral argument, although again some comfort was sought to be derived from what was said by the Court about the trust claims in Kowalski FC . Neither has it been suggested that in the plethora of proceedings brought to date any issue estoppel has arisen. Again it is conceded that, unlike in Lindsey v Philip Morris Ltd [2004] FCA 797 where an abuse of process was found, the present is not a matter in which Mr Kowalski has been attempting to re-litigate despite prior actual decisions on the evidence. 38 I can deal with this contention shortly. While I am satisfied for reasons I give below that the TP Act claim is unarguable, it has not been suggested that the same is the case with the non-TP Act or "trust claims" as I will for convenience call them. At best it is said that the pleading is vague, not particularly revealing and, in the case of the claim against MMA Super to be provided with his entitlement, has been brought against the wrong respondent. 39 If the trust claims had been previously determined on the evidence, there would, in my view, be obvious grounds for the submission that Mr Kowalski was abusing the processes of this Court. Such, though, is not the case. While Mr Kowalski has been declared a vexatious litigant in the State Courts, he has in this Court advanced trust claims which MMA Super has not sought to have dismissed as having no reasonable prospects of success: see Federal Court of Australia Act 1976 , s 31A(2). In these circumstances, unless I am satisfied that the present proceeding is vexatious, I can see no justification for characterising as an abuse of process Mr Kowalski's invocation of the jurisdiction of this Court.
Case: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909
Outcome: cited
By way of background to the application of these provisions, it is important to have regard to the fundamental principle on which they entrench. This is that every person has a "constitutional right" of access to a court of competent jurisdiction to obtain redress in consequence of an alleged breach of his or her rights by some other person: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977; Ramsey v Skyring (1999) 164 ALR 378 at 389; Freeman v National Australia Bank Ltd (2006) 230 ALR 213 at 218-219. The purpose of the powers given under the Rules is to reinforce the power of the Court to protect its own processes against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring [1992] HCA 39 ; (1992) 66 ALJR 810 at 814. This said, an order under the Rules will not lightly be made because of its serious impact on the right of access to the courts of this country.
Case: Ramsey v Skyring (1999) 164 ALR 378
Outcome: cited
By way of background to the application of these provisions, it is important to have regard to the fundamental principle on which they entrench. This is that every person has a "constitutional right" of access to a court of competent jurisdiction to obtain redress in consequence of an alleged breach of his or her rights by some other person: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977; Ramsey v Skyring (1999) 164 ALR 378 at 389; Freeman v National Australia Bank Ltd (2006) 230 ALR 213 at 218-219. The purpose of the powers given under the Rules is to reinforce the power of the Court to protect its own processes against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring [1992] HCA 39 ; (1992) 66 ALJR 810 at 814. This said, an order under the Rules will not lightly be made because of its serious impact on the right of access to the courts of this country.
Case: Freeman v National Australia Bank Ltd (2006) 230 ALR 213
Outcome: cited
By way of background to the application of these provisions, it is important to have regard to the fundamental principle on which they entrench. This is that every person has a "constitutional right" of access to a court of competent jurisdiction to obtain redress in consequence of an alleged breach of his or her rights by some other person: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977; Ramsey v Skyring (1999) 164 ALR 378 at 389; Freeman v National Australia Bank Ltd (2006) 230 ALR 213 at 218-219. The purpose of the powers given under the Rules is to reinforce the power of the Court to protect its own processes against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring [1992] HCA 39 ; (1992) 66 ALJR 810 at 814. This said, an order under the Rules will not lightly be made because of its serious impact on the right of access to the courts of this country.
Case: Jones v Skyring [1992] HCA 39 ; (1992) 66 ALJR 810
Outcome: cited
By way of background to the application of these provisions, it is important to have regard to the fundamental principle on which they entrench. This is that every person has a "constitutional right" of access to a court of competent jurisdiction to obtain redress in consequence of an alleged breach of his or her rights by some other person: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977; Ramsey v Skyring (1999) 164 ALR 378 at 389; Freeman v National Australia Bank Ltd (2006) 230 ALR 213 at 218-219. The purpose of the powers given under the Rules is to reinforce the power of the Court to protect its own processes against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring [1992] HCA 39 ; (1992) 66 ALJR 810 at 814. This said, an order under the Rules will not lightly be made because of its serious impact on the right of access to the courts of this country.
Case: Commonwealth Bank of Australia v Heinrich [2003] FCA 540
Outcome: applied
Having regard to Mr Kowalski's proceedings in this Court and it is their character in this Court that is to be objectively judged: Commonwealth Bank of Australia v Heinrich [2003] FCA 540 ; (albeit regard may properly be had to proceedings in other courts for the light they might throw on that question of characterisation) it is impossible to conclude that he has habitually, persistently and without any reasonable ground instituted a vexatious proceeding against MMA Super in this Court. 47 In relation to O 21 r 1, I am not satisfied that the first condition required to be made out i.e. Mr Kowalski has instituted a vexatious proceeding in this court is satisfied. I will not repeat what I have said above about the proceeding. 48 I will not make any orders under O 21.
Case: Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972
Outcome: cited
I will adjourn further consideration of this matter because, as I will indicate below, I intend to dismiss summarily the TP Act claim, but to leave on foot the non-TP Act claims, though I will require that at least the Statement of Claim be amended. It is appropriate to leave the question of security until after that process has occurred bearing in mind in particular that in the present proceedings almost no attention has been given to the question whether the trust claims have any reasonable prospect of success. That question arises as a factor to be considered on a security application: see Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972; and on any possible application made under s 31A of the Federal Court of Australia Act .
Case: Toohey's Ltd v Commissioner of Stamp Duties (1960) 60 SR (NSW) 539
Outcome: cited
I had deferred consideration of MMA Super's contention that the TP Act claim disclosed no reasonable cause of action, although I have indicated that it ought be summarily dismissed as having no reasonable prospect of success: see Federal Court of Australia Act , s 31A(2). My reasons for this conclusion have been anticipated inferentially in the observations made in Kowalski FC to which I earlier referred. Assuming for present purposes s 52 of the TP Act (and not Pt 2 Div 2 of the ASIC Act) is potentially applicable to MMA Super in the circumstances, the conduct impugned must, to be actionable, have been engaged in, "in trade or commerce". The allegations made relate to whether MMA Super, as trustee at the relevant time of the superannuation fund, has properly discharged (if at all) its obligations to Mr Kowalski as a member of the trust in accordance with the provisions of the trust. Whatever may have been the consequences of that conduct for the purposes of the law of trusts the trust seems to have been of a type relatively similar to that considered in Toohey's Ltd v Commissioner of Stamp Duties (1960) 60 SR (NSW) 539 at 548 it cannot properly be said that conduct itself was "in trade or commerce".
Case: Hearn v O'Rourke [2003] FCAFC 78 ; (2003) 129 FCR 64
Outcome: cited
As is now well settled, the phrase "in trade or commerce" has a restrictive operation. It does not encompass conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of a trading or commercial business. Rather, the phrase refers only to conduct which is itself one aspect or element of activities or transactions which, of their nature, bear a trading or commercial character: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 602-604; Hearn v O'Rourke [2003] FCAFC 78 ; (2003) 129 FCR 64. In Concrete Constructions the allegedly misleading conduct that was relied upon and which resulted in physical injury being sustained, consisted of internal communications made in the course of the ordinary activities of employees of a construction company when constructing a building. This conduct was held not to be in trade or commerce.
Case: Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 210 ALR 114
Outcome: cited
In this matter it can properly be said that MAAL had its own commercial interests and purposes in mind in having a superannuation fund established for its employees that was to be administered by MAA Super. But what it did in constituting the trust was to facilitate the bringing about of the relationship of trustee and beneficiary between MAA Super and the funds members. That relationship was not intrinsically a commercial relationship nor did the conduct complained of otherwise bear a trading or commercial character: cf Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 210 ALR 114 at [52] . This is not to say that, in the management of the fund, MAA Super may not have engaged in conduct that was in trade or commerce as, for example, in the making and management of the trust's investments. The relevant conduct in question here related simply to MAA Super's performance of the obligations it had to Mr Kowalski under the trust. That conduct, in the context of their relationship, was not an aspect of an activity or transaction that bore a trading or commercial character. It related simply to the provision by MAA Super of such entitlements as Mr Kowalski had under the trust instruments by virtue of his membership of the fund to which he had had access in virtue of his employment with MAAL.
Case: Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481
Outcome: cited
I will order that that part of the proceeding that relates to a claim for relief under the Trade Practices Act 1974 (Cth) be dismissed. I should emphasise that my so doing does not alter the federal character of what remains, my jurisdiction to determine the whole controversy arising when the claims were originally made: see Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 at 481-2; Allsop, at 41 ff. 54 Finally, let me refer to the trust claims. I have already indicated some of the criticisms that have been made of these and of the relief sought. I will give Mr Kowalski the opportunity to address these also to more clearly and accurately indicate what his claims are and what, in summary, are the material facts on which he relies. The mantra-like repetition of alleged wrongdoing hardly illuminates what it is alleged was actually done or omitted to be done that gave rise to his causes of action. My giving this leave should not be interpreted as suggesting that the trust claims have reasonable prospects of success. That matter has not been agitated before me. I can only say, as Mansfield J suggested in Kowalski TJ , there are obvious obstacles confronting their prosecution. 55 I will order that: (1) the proceeding be dismissed insofar as it claims relief under the provisions of the Trade Practices Act 1974 (Cth); (2) the orders sought in paras 1, 2 and 4 of the notice of motion be dismissed and that the notice of motion otherwise be adjourned to a date to be fixed; (3) the applicant have leave to file and serve an amended application and Statement of Claim on or before Friday, 17 August 2007; and (4) the matter be adjourned for further directions to Monday, 27 August 2007 at 9.00 am. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 24 July 2007 The Applicant appeared in person. Counsel for the Respondent: Mr J White Solicitor for the Respondent: Thomson Playford Date of Hearing: 15 March 2007 Date of Judgment: 24 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1069.html
Case: Hafza v Director-General of Social Security (1985) 6 FCR 444
Outcome: cited
As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home ( Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449; Taslim v Secretary, Department of Family and Community Services [2004] FCA 789 ; (2004) 138 FCR 70 at [36] ). 9 Of course, once a person has established a home in a place, temporary absence from that place (for example, to take a holiday) does not bring the residence to an end. However, a person's residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as home ( Hafza at 449-450).
Case: Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194
Outcome: cited
Again, as a general concept, although most people reside in only one place, residence need not be exclusive; a person may reside in more than one place ( Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 198). For example, an individual who maintains two homes (say, one in Melbourne and one on the Gold Coast) and moves between them according to the seasons may be a resident of both places. 11 Pensions and other benefits under the Social Security Act are, of course, not available to everyone. A recipient of benefits paid for by Australian taxpayers is expected to have a connection with Australia. The necessary connection in the case of pensions and benefits payable under the Social Security Act , generally speaking, involves Australian residence. 12 A person who has reached pension age is qualified for an age pension if he or she satisfies any of the criteria specified in s 43(1) and (1A). As mentioned above, the criterion which the Tribunal found that Mrs Baccon satisfied was that she had '10 years qualifying Australian residence' (s 43(1)(a)).