mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 ; [2007] FCA 1903
Outcome: cited
for Ms Yousif also contended that there was a term implied by law that the Bank would act in good faith. An authority cited in support of the implication of such a term was the judgment of Rothman J in Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104 ; (2007) 69 NSWLR 198. However, there is a preponderance of authority against the implication of such a term: Aldersea v Public Transport Corporation (2001) 3 VR 499 ; Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114 ; [2005] FCA 1678 ; McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 ; [2007] FCA 1903. Was there a breach of the implied terms?
Case: Russell v Trustees of Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 ; (2008) 176 IR 82
Outcome: cited
for Ms Yousif relied on a line of authority which has accepted that a term of trust and confidence is implied by law in contracts of employment. By this term an employer must not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the parties as employee and employer: Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371 ; (1996) 142 ALR 144 ; Malik v Bank of Credit &amp; Commerce International SA (in liq) [1997] UKHL 23 ; [1998] AC 20 ( Malik ); Gogay v Hertfordshire County Council [2000] IRLR 783 ; Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 ; [2002] FCA 939 ; Russell v Trustees of Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 ; (2008) 176 IR 82. The effect of the conduct must be viewed objectively: Malik [1997] UKHL 23 ; [1998] AC 20 at 47B and G per Lord Steyn.
Case: Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 ; [2002] FCA 939
Outcome: cited
for Ms Yousif relied on a line of authority which has accepted that a term of trust and confidence is implied by law in contracts of employment. By this term an employer must not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the parties as employee and employer: Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371 ; (1996) 142 ALR 144 ; Malik v Bank of Credit &amp; Commerce International SA (in liq) [1997] UKHL 23 ; [1998] AC 20 ( Malik ); Gogay v Hertfordshire County Council [2000] IRLR 783 ; Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 ; [2002] FCA 939 ; Russell v Trustees of Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 ; (2008) 176 IR 82. The effect of the conduct must be viewed objectively: Malik [1997] UKHL 23 ; [1998] AC 20 at 47B and G per Lord Steyn.
Case: Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114 ; [2005] FCA 1678
Outcome: cited
for Ms Yousif also contended that there was a term implied by law that the Bank would act in good faith. An authority cited in support of the implication of such a term was the judgment of Rothman J in Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104 ; (2007) 69 NSWLR 198. However, there is a preponderance of authority against the implication of such a term: Aldersea v Public Transport Corporation (2001) 3 VR 499 ; Walker v Citigroup Global Markets Pty Ltd (2005) 226 ALR 114 ; [2005] FCA 1678 ; McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 ; [2007] FCA 1903. Was there a breach of the implied terms?
Case: Cutts v Head [1984] 2 WLR 349
Outcome: cited
On 4 August 2008, the respondent's solicitors sent a letter to the solicitors for the applicant in these terms: We refer to the abovementioned matter listed to be heard before His Honour Justice Greenwood on Friday 8 August 2008, Saturday 9 August and Sunday 10 August 2008. We are instructed our clients are prepared to settle the Proceeding on the following basis ("Offer"). 1. The Proceeding be dismissed. 2. There be no order as to costs, alternatively an order that each party bear their own costs. This offer will remain open until 5.00pm on Wednesday 6th August 2008 after which time it will lapse and will not be available for acceptance by your client. In the event that this Offer is not accepted by your client and orders are made at hearing which are not more favourable then the terms of this Offer, our client will rely on this letter and produce it to the Court as and when appropriate in support of an application for indemnity, solicitor/client or party/party costs on the basis of the principles set out in Calderbank v Calderbank [1975] 3 ALL ER 333 , Cutts v Head [1984] 1 C8 290, Mutual Community Limited v Lorden Holding Pty Ltd &amp; Ors (unreported, Supreme Court of Victoria, per Byrne J, 28 April 1993) and M T Associates Pty Ltd v Aquamax Pty Ltd &amp; Anor (3) [2000] VSC 163 , 3 May 2000. We look forward to receiving your reply ... 9 That assessment will take account of the complexity of the issues and the basis upon which the Court resolved the controversy. Although an applicant may have been unsuccessful in obtaining the relief sought, the applicant may have successfully resisted a significant proportion of what was said to be an answer to the relief claimed. An applicant may have established the integers of the cause of action upon which the relief is based yet relief may be refused on discretionary grounds. Although in an absolute sense, a respondent simply seeks to resist the relief sought in the proceeding and any successful ground of doing so is sufficient , the basis upon which the Court resolves the controversy assists in understanding whether an unsuccessful applicant acted reasonably in electing to proceed and thus assume the risk of a less favourable outcome than that available when choosing to go on. The letter of offer need not nor should it, engage in an analysis of the underlying contentions. The focus of the letter is to put the offer in clear and precise terms so that the recipient can understand what is offered and the Court can later see without obfuscation just exactly what was offered and rejected. As to the general principles see: Calderbank v Calderbank [1975] 3 All ER 333 ; Cutts v Head [1984] 2 WLR 349; Aljade and MKIC v OCBC [2004] VSC 351 ; SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 ; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No. 2) [2008] NSWCA 273 ; and Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72.
Case: Aljade and MKIC v OCBC [2004] VSC 351
Outcome: cited
That assessment will take account of the complexity of the issues and the basis upon which the Court resolved the controversy. Although an applicant may have been unsuccessful in obtaining the relief sought, the applicant may have successfully resisted a significant proportion of what was said to be an answer to the relief claimed. An applicant may have established the integers of the cause of action upon which the relief is based yet relief may be refused on discretionary grounds. Although in an absolute sense, a respondent simply seeks to resist the relief sought in the proceeding and any successful ground of doing so is sufficient , the basis upon which the Court resolves the controversy assists in understanding whether an unsuccessful applicant acted reasonably in electing to proceed and thus assume the risk of a less favourable outcome than that available when choosing to go on. The letter of offer need not nor should it, engage in an analysis of the underlying contentions. The focus of the letter is to put the offer in clear and precise terms so that the recipient can understand what is offered and the Court can later see without obfuscation just exactly what was offered and rejected. As to the general principles see: Calderbank v Calderbank [1975] 3 All ER 333 ; Cutts v Head [1984] 2 WLR 349; Aljade and MKIC v OCBC [2004] VSC 351 ; SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 ; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No. 2) [2008] NSWCA 273 ; and Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72.
Case: SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Outcome: cited
That assessment will take account of the complexity of the issues and the basis upon which the Court resolved the controversy. Although an applicant may have been unsuccessful in obtaining the relief sought, the applicant may have successfully resisted a significant proportion of what was said to be an answer to the relief claimed. An applicant may have established the integers of the cause of action upon which the relief is based yet relief may be refused on discretionary grounds. Although in an absolute sense, a respondent simply seeks to resist the relief sought in the proceeding and any successful ground of doing so is sufficient , the basis upon which the Court resolves the controversy assists in understanding whether an unsuccessful applicant acted reasonably in electing to proceed and thus assume the risk of a less favourable outcome than that available when choosing to go on. The letter of offer need not nor should it, engage in an analysis of the underlying contentions. The focus of the letter is to put the offer in clear and precise terms so that the recipient can understand what is offered and the Court can later see without obfuscation just exactly what was offered and rejected. As to the general principles see: Calderbank v Calderbank [1975] 3 All ER 333 ; Cutts v Head [1984] 2 WLR 349; Aljade and MKIC v OCBC [2004] VSC 351 ; SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 ; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No. 2) [2008] NSWCA 273 ; and Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72.
Case: County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No. 2) [2008] NSWCA 273
Outcome: cited
That assessment will take account of the complexity of the issues and the basis upon which the Court resolved the controversy. Although an applicant may have been unsuccessful in obtaining the relief sought, the applicant may have successfully resisted a significant proportion of what was said to be an answer to the relief claimed. An applicant may have established the integers of the cause of action upon which the relief is based yet relief may be refused on discretionary grounds. Although in an absolute sense, a respondent simply seeks to resist the relief sought in the proceeding and any successful ground of doing so is sufficient , the basis upon which the Court resolves the controversy assists in understanding whether an unsuccessful applicant acted reasonably in electing to proceed and thus assume the risk of a less favourable outcome than that available when choosing to go on. The letter of offer need not nor should it, engage in an analysis of the underlying contentions. The focus of the letter is to put the offer in clear and precise terms so that the recipient can understand what is offered and the Court can later see without obfuscation just exactly what was offered and rejected. As to the general principles see: Calderbank v Calderbank [1975] 3 All ER 333 ; Cutts v Head [1984] 2 WLR 349; Aljade and MKIC v OCBC [2004] VSC 351 ; SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 ; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No. 2) [2008] NSWCA 273 ; and Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: cited
That assessment will take account of the complexity of the issues and the basis upon which the Court resolved the controversy. Although an applicant may have been unsuccessful in obtaining the relief sought, the applicant may have successfully resisted a significant proportion of what was said to be an answer to the relief claimed. An applicant may have established the integers of the cause of action upon which the relief is based yet relief may be refused on discretionary grounds. Although in an absolute sense, a respondent simply seeks to resist the relief sought in the proceeding and any successful ground of doing so is sufficient , the basis upon which the Court resolves the controversy assists in understanding whether an unsuccessful applicant acted reasonably in electing to proceed and thus assume the risk of a less favourable outcome than that available when choosing to go on. The letter of offer need not nor should it, engage in an analysis of the underlying contentions. The focus of the letter is to put the offer in clear and precise terms so that the recipient can understand what is offered and the Court can later see without obfuscation just exactly what was offered and rejected. As to the general principles see: Calderbank v Calderbank [1975] 3 All ER 333 ; Cutts v Head [1984] 2 WLR 349; Aljade and MKIC v OCBC [2004] VSC 351 ; SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 ; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No. 2) [2008] NSWCA 273 ; and Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72.
Case: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Outcome: followed
The defendants resist the plaintiff's claim for indemnity costs. They contend, correctly, that the usual course is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from that normal course; see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233, per Sheppard J and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 1844 at [3] and [17], per Gray J. 5 The categories of cases in which indemnity costs may be granted are not closed. The overriding consideration is the justice of the particular case. This includes the recognition that there are circumstances which justify the order of indemnity costs, including when a party unreasonably causes another party to incur costs; see Colgate-Palmolive at 233 and Leahy Petroleum at [17].
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 1844
Outcome: followed
The defendants resist the plaintiff's claim for indemnity costs. They contend, correctly, that the usual course is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from that normal course; see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233, per Sheppard J and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 1844 at [3] and [17], per Gray J. 5 The categories of cases in which indemnity costs may be granted are not closed. The overriding consideration is the justice of the particular case. This includes the recognition that there are circumstances which justify the order of indemnity costs, including when a party unreasonably causes another party to incur costs; see Colgate-Palmolive at 233 and Leahy Petroleum at [17].
Case: J Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, West Australia Branch (No 2) (1993) 46 IR 301
Outcome: followed
After the conclusion of the evidence, the defendants persisted "in what should on proper consideration be seen to be a hopeless case": see J Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers, West Australia Branch (No 2) (1993) 46 IR 301 at 303 per French J. This is particularly so when they had about two weeks to reflect on their position before coming to Court on the final day of the hearing to present their submissions. In those circumstances, I consider that the plaintiff should have her costs with respect to the hearing on 28 November 2007 paid on an indemnity basis. Indeed, ultimately, counsel for the defendants did not oppose that course. There is no reason to depart from the usual order that costs follow the event in respect of the balance of the proceedings. 9 The remaining issue requiring resolution is which of the defendants should pay the plaintiff's costs. The plaintiff contends that it should be the first and second defendants. The defendants submit that it should be the first defendant only. I agree with the later submission. The first defendant was the key decision maker for the defendants. The second defendant is an elderly lady and her actions as a director of the third and fourth defendants were influenced by the first defendant. The evidence bears out that he decided, without reference to the second defendant, to deny the plaintiff her correct entitlement to shares in the third and fourth defendants. 10 As each party has had some degree of success in the matters requiring resolution today, no order will be made concerning the costs of today's hearing.
Case: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1995) 187 CLR 384
Outcome: applied
In CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1995) 187 CLR 384 , Brennan CJ, Dawson, Toohey and Gummow JJ, with whom Gaudron J agreed on this point, said at 408: 'It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd , if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.' 32 In HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 Hill J, with whom Stone J and Allsop J agreed, said at [44]: 'It is clear, both having regard to the modern principles of interpretation as enunciated by the High Court in cases such as CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 and s 15AA of the Acts Interpretation Act 1901 (Cth) that the Court will prefer an interpretation of a statute which would give effect to the legislative purpose, as opposed to one that would not. This requires the Court to identify that purpose, both by reference to the language of the statute itself and also any extrinsic material which the Court is authorised to take into account.'
Case: Envestra Limited (ACN 078 551 685) v Commissioner of Taxation [2008] FCA 249
Outcome: cited
Effective 1 July 2002, Australia introduced a consolidation regime to allow a wholly owned group of resident entities to consolidate their tax position rather than be treated as separate entities. The consolidation regime is principally contained in Pt 3 - 90 of the ITAA 97, comprising Divs 700 to 721. The only judicial consideration of these provisions of which I am aware is the very recent decision of Mansfield J in Envestra Limited (ACN 078 551 685) v Commissioner of Taxation [2008] FCA 249 (unreported) on 7 March 2008 that concerned a discrete aspect of the tax cost setting rules and has no connection with the issues in the present case. By the time of the introduction of the consolidation regime, the measures quarantining the franking surpluses of a corporate tax entity on it ceasing to be an exempting entity and becoming a former exempting entity were embodied in Div 208 of Pt 3 - 6 of the ITAA 97. Subdivision 709-B of Pt 3 - 90 of the ITAA 97 modifies the operation of Div 208 in relation to consolidated groups in a number of different ways, depending on the status of the head company and its subsidiary member at the joining time. 4 This case involves a consideration of the provisions of Div 208 of Pt 3 - 6 as modified by the provisions of Subdiv 709-B of Pt 3 - 90 of the ITAA 97. Although this interaction has been the subject of academic and other writings, for example, see Stephen Barkoczy, "Consolidation and Imputation" (2003) 6(1) Journal of Australian Taxation 78, it certainly has not been the subject of any judicial consideration before now. 5 I do not propose to set out the description of the 'scheme' as it appears in the notice of private ruling; merely the salient features necessary for an understanding of the dispute between the applicants and the Commissioner, and its resolution. 6 On 10 April 1979, Austral Refrigeration Pty Limited ('Austral Refrigeration') was incorporated in NSW. From this time to 20 May 2002, it was effectively owned (not less than 95%) by non-residents. 7 From 13 May 1997 to 20 May 2002, Austral Refrigeration was taken to be an exempting company by virtue of s 160APHBA of the ITAA 36 by the enactment on 16 July 1999 of the Taxation Laws Amendment Act (No 2) 1999 (Cth) (Act No 93 of 1999).
Case: HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553
Outcome: applied
On a purely textual analysis of the relevant provisions, I am of the view that either argument is reasonably tenable, although I have a marginal preference for the applicants' argument. On the other hand, having regard to the principles of construction more recently enunciated by the High Court of Australia ( CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 10 ; (1997) 187 CLR 297) , followed by Full Courts of this Court ( HP Mercantile Pty Limited v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553) , not only with respect to taxation statutes but statutes generally, it would be inappropriate to confine oneself to a purely textual analysis. This is not to say that recourse may not be made to a textual analysis where there is a lack of guidance as to legislative policy from legitimate sources or where that policy as identified is incapable of manifestation through the text of the statute: Cf. Reliance Carpet Co Pty Ltd v Commissioner of Taxation (2007) 160 FCR 449. But that is not this case. 32 In HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 Hill J, with whom Stone J and Allsop J agreed, said at [44]: 'It is clear, both having regard to the modern principles of interpretation as enunciated by the High Court in cases such as CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 and s 15AA of the Acts Interpretation Act 1901 (Cth) that the Court will prefer an interpretation of a statute which would give effect to the legislative purpose, as opposed to one that would not. This requires the Court to identify that purpose, both by reference to the language of the statute itself and also any extrinsic material which the Court is authorised to take into account.'