mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Rainsford v Victoria [2004] FMCA 707 ; (2004) 184 FLR 110
Outcome: cited
The second proceeding was filed in the Federal Magistrates Court on 8 November 2001 against both current respondents. It concerned the Charlotte Management Unit claim and was consolidated with the proceeding remitted from the Full Federal Court. The combined proceeding was heard before Bryant CFM in September 2003. In June 2004, before she had delivered judgment, the Chief Federal Magistrate was appointed Chief Justice of the Family Court. Regrettably, the matter had to be reheard before a different Federal Magistrate, Raphael FM. That hearing took place on 26 27 August 2004 and was, pursuant to a direction made by the Federal Magistrate, a hearing of certain separate questions. Raphael FM answered the two separate questions adversely to Mr Rainsford and, in consequence of those unfavourable answers, dismissed the entire proceeding: Rainsford v Victoria [2004] FMCA 707 ; (2004) 184 FLR 110.
Case: Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324
Outcome: cited
The accommodation of prisoners in cells within the prison system is similarly an inherent part of incarceration. Prisoners must be housed somewhere within the prison system and that this is so demonstrates that for a prisoner to have a cell is not a helpful or beneficial activity so far as the prisoner is concerned. In so far as there is choice in the allocation of prison cells, it is a purely administrative and prison management matter. It does not, of itself, provide prisoners with a benefit. Rather, it is better described as being "part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services", to adopt the words of Underwood J in Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 Tas R 324 at 341.
Case: Hurst v Education Queensland [2005] FCA 405
Outcome: cited
In the case of the transport claim, I accept that Mr Rainsford experienced some pain and suffering as a result of being transported in the manner in which he was. There is however, another problem with his claim on this point. It is that he was able to comply with the condition that was imposed. Mr Rainsford attempts to get around this problem by saying that the requirement was that he be transported without access to conditions that would protect his back from injury. In support of this negative formulation of the condition, he relies on the recent Full Court decision in Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562. In that case, the appellant was a deaf child who was denied access to an Auslan teacher or interpreter. The trial judge found that because the child could cope in a regular classroom without Auslan assistance, she could comply with the condition that she "accept an education and receive instruction in English without the assistance of an Auslan teacher or an Auslan interpreter": Hurst v Education Queensland [2005] FCA 405 at [85] . The Full Court found that the trial judge erred in his construction of s 6(c) of the DDA. Ryan, Finn and Weinberg JJ said at 151 FCR at [134]: "His Honour's own findings ought to have led him to conclude that [the appellant] was relevantly 'not able to comply' with the requirement or condition that she be taught in English, without the assistance of Auslan. In our view, it is sufficient to satisfy that component of s 6(c) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can 'cope' with the requirement or condition. A disabled person's inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage. In [the appellant's] case, the evidence established that it had done so." The evidence referred to in this passage included that without Auslan in the classroom the appellant "would cope, but not reach her full educational potential": Hurst 151 FCR at [44] and [108] [113].
Case: Clarke v Catholic Education Office (2003) 202 ALR 340
Outcome: cited
The Full Court made it plain (at Hurst 151 FCR at [132]) that the outcome depended on the highly specific facts of the case. There was almost no discussion of whether a claimant who suffers something less than 'serious disadvantage' in complying with a condition would satisfy s 6(c) of the DDA. There is, however, one obiter paragraph that is fatal to Mr Rainsford's claim. After discussing the first instance decision of Madgwick J in Clarke v Catholic Education Office (2003) 202 ALR 340, in which his Honour had found in favour of another deaf child who would have faced 'serious' or 'substantial' disadvantage by not being educated with Auslan, the Full Court said at Hurst 151 FCR at [120]: "there appears to be no real difference between his Honour's [ie Madgwick J's] use of the term 'substantial disadvantage' in relation to the comparable base group, and his use of the term 'serious disadvantages' in relation to the issue of ability to comply. On the other hand, neither formulation accords with [the submission of counsel for the intervener, the Human Rights and Equal Opportunity Commission,] that 'non-trivial disadvantage' is all that s 6(c) contemplates. That submission goes too far, and cannot be accepted." Later on, their Honours note that they do not do deal with the 'various construction arguments' put by counsel for HREOC: Hurst 151 FCR at [135]. There was no evidence before me as to what those arguments were.
Case: KC Park Safe (SA) Pty Ltd v Adelaide Terrace Investments Pty Ltd (unreported, Mansfield J, 17 September 1998)
Outcome: cited
The application to strike out the defence was brought on the basis that it was an abuse of the process of the Court under O 11 r 16. The onus is on the party bringing the application to satisfy the court that there is an abuse of process: KC Park Safe (SA) Pty Ltd v Adelaide Terrace Investments Pty Ltd (unreported, Mansfield J, 17 September 1998). There is no exhaustive list of what would constitute an abuse of process: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275, at 279.
Case: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Outcome: cited
The application to strike out the defence was brought on the basis that it was an abuse of the process of the Court under O 11 r 16. The onus is on the party bringing the application to satisfy the court that there is an abuse of process: KC Park Safe (SA) Pty Ltd v Adelaide Terrace Investments Pty Ltd (unreported, Mansfield J, 17 September 1998). There is no exhaustive list of what would constitute an abuse of process: Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275, at 279. 17 While it is permissible for evidence to be adduced in proceedings such as these (see Re Elders Australia Ltd; Super John Pty Ltd v Futuris Rural Pty Ltd (No 2) (unreported, Foster J, 24 December 1997); Munnings v Australian Government Solicitor [1993] HCA 66 ; (1994) 118 ALR 385, at 389; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 109), the Court should be cautious not to preclude a party from relying on a defence that might be proved at trial merely because evidence exists which brings it into doubt: National Mutual Holdings v The Sentry Corporation (unreported, 27 September 1989); Sea Culture International v Scoles (1991) 32 FCR 275.
Case: Remington v Scoles [1897] 2 Ch D 1
Outcome: cited
The plaintiff argued that the defence was an abuse of process because the substantive defence was a sham. I accept that a sham defence may amount to an abuse of process and may be struck out: see Remington v Scoles [1897] 2 Ch D 1.
Case: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509
Outcome: discussed
The plaintiff sought to adduce evidence to show that the claim that the signatory to the agreement and to the mortgage on behalf of the owner did not have the requisite authority could not genuinely be raised. Obviously, the Court should be slow to be persuaded that a pleaded defence based on a matter of fact is not genuinely raised. However, if the Court is satisfied that a defendant has pleaded a fact which it does not genuinely maintain, the inference must follow that it has some extraneous reason for asserting that fact. It may be as simple as an attempt to delay the inevitable. There may be other reasons. If the fact is pleaded for an extraneous purpose, then it may amount to an abuse of process: see e.g. Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509. Care must be taken, as Mason CJ, Dawson, Toohey and McHugh JJ pointed out at 526-527, to ensure that the relevant or immediate purpose is not misunderstood.
Case: Re Elders Australia Ltd; Super John Pty Ltd v Futuris Rural Pty Ltd (No 2) (unreported, Foster J, 24 December 1997)
Outcome: cited
While it is permissible for evidence to be adduced in proceedings such as these (see Re Elders Australia Ltd; Super John Pty Ltd v Futuris Rural Pty Ltd (No 2) (unreported, Foster J, 24 December 1997); Munnings v Australian Government Solicitor [1993] HCA 66 ; (1994) 118 ALR 385, at 389; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 109), the Court should be cautious not to preclude a party from relying on a defence that might be proved at trial merely because evidence exists which brings it into doubt: National Mutual Holdings v The Sentry Corporation (unreported, 27 September 1989); Sea Culture International v Scoles (1991) 32 FCR 275.
Case: Munnings v Australian Government Solicitor [1993] HCA 66 ; (1994) 118 ALR 385
Outcome: cited
While it is permissible for evidence to be adduced in proceedings such as these (see Re Elders Australia Ltd; Super John Pty Ltd v Futuris Rural Pty Ltd (No 2) (unreported, Foster J, 24 December 1997); Munnings v Australian Government Solicitor [1993] HCA 66 ; (1994) 118 ALR 385, at 389; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 109), the Court should be cautious not to preclude a party from relying on a defence that might be proved at trial merely because evidence exists which brings it into doubt: National Mutual Holdings v The Sentry Corporation (unreported, 27 September 1989); Sea Culture International v Scoles (1991) 32 FCR 275.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
While it is permissible for evidence to be adduced in proceedings such as these (see Re Elders Australia Ltd; Super John Pty Ltd v Futuris Rural Pty Ltd (No 2) (unreported, Foster J, 24 December 1997); Munnings v Australian Government Solicitor [1993] HCA 66 ; (1994) 118 ALR 385, at 389; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 109), the Court should be cautious not to preclude a party from relying on a defence that might be proved at trial merely because evidence exists which brings it into doubt: National Mutual Holdings v The Sentry Corporation (unreported, 27 September 1989); Sea Culture International v Scoles (1991) 32 FCR 275.
Case: National Mutual Holdings v The Sentry Corporation (unreported, 27 September 1989)
Outcome: cited
While it is permissible for evidence to be adduced in proceedings such as these (see Re Elders Australia Ltd; Super John Pty Ltd v Futuris Rural Pty Ltd (No 2) (unreported, Foster J, 24 December 1997); Munnings v Australian Government Solicitor [1993] HCA 66 ; (1994) 118 ALR 385, at 389; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 109), the Court should be cautious not to preclude a party from relying on a defence that might be proved at trial merely because evidence exists which brings it into doubt: National Mutual Holdings v The Sentry Corporation (unreported, 27 September 1989); Sea Culture International v Scoles (1991) 32 FCR 275.
Case: Bank of South Australia v Ferguson [1998] HCA 12 ; (1998) 192 CLR 248
Outcome: cited
In Australian law, even if the defence of the lack of authority of Al-Enazy to have signed the documents on behalf of the owner were established, it is likely on the presently available material that (a) the owner would be required to repay the monies advanced in any event: Bank of South Australia v Ferguson [1998] HCA 12 ; (1998) 192 CLR 248; and (b) the owner would be estopped by its conduct from saying that the two documents were not validly executed, provided that the plaintiff showed that it had acted on the representations as to the existence of the agreement and of the agreement/mortgage. 29 No evidence exists as to whether Kuwaiti law would have the same consequences, and of course the matter in (a) would only result in the existence of an unsecured indebtedness to the plaintiff. 30 The second category of evidence takes the matter further.
Case: Colgate-Palmolive Co v Cussons Pty ltd (1993) 46 FCR 225
Outcome: cited
The defendant and the owner should pay the costs of the notice of motion to date to the plaintiff in any event. I accept the contention of counsel for the plaintiff that those costs should be payable on an indemnity basis, given my reason for striking out the defence: see Colgate-Palmolive Co v Cussons Pty ltd (1993) 46 FCR 225 per Sheppard J at 232-234. 43 I direct that the time from which any application for leave to appeal from this decision should run from the date of publication of these reasons for decision. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 17 April 2007 Counsel for the Applicant: Mr HNG Austin Solicitor for the Applicant: Minter Ellison Counsel for the Respondent: Mr I Maitland Solicitor for the Respondent: Wallmans Lawyers Date of Hearing: 9 February 2007 Date of Close of Submissions: 28 February 2007 Date of Judgment: 11 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/550.html
Case: Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1
Outcome: referred to
Telstra submitted that the detriment asserted by MWO cannot amount to "damage" sufficient to found a cause of action pursuant to ss 82 or 87 of the TPA. That is, according to Telstra, the pleading failed to establish a causal connection between the alleged damage and the conduct of Telstra alleged in paragraph 20 of the statement of claim. In support of this submission, Telstra referred to numerous authorities, including Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494 (" Marks ") at 503-4, Wardley Australia Ltd v Western Australia (1992) 175 CR 514 (" Wardley ") at 525, Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 at 14; HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 501 [130] , and I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at 121 [31] . Telstra submitted that MWO failed to allege the "better" position that it would have been in "but for" its reliance on the representation, or otherwise to seek to connect the damage alleged in paragraph 29 of its statement of claim to any such "better" position. Telstra submitted that the authorities establish that MWO had thus failed to meet a fundamental pleading requirement if it is to make out its cause of action under ss 52 and 82 or 87 of the TPA in respect of the no cap representation.
Case: HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640
Outcome: referred to
Telstra submitted that the detriment asserted by MWO cannot amount to "damage" sufficient to found a cause of action pursuant to ss 82 or 87 of the TPA. That is, according to Telstra, the pleading failed to establish a causal connection between the alleged damage and the conduct of Telstra alleged in paragraph 20 of the statement of claim. In support of this submission, Telstra referred to numerous authorities, including Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494 (" Marks ") at 503-4, Wardley Australia Ltd v Western Australia (1992) 175 CR 514 (" Wardley ") at 525, Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 at 14; HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 501 [130] , and I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at 121 [31] . Telstra submitted that MWO failed to allege the "better" position that it would have been in "but for" its reliance on the representation, or otherwise to seek to connect the damage alleged in paragraph 29 of its statement of claim to any such "better" position. Telstra submitted that the authorities establish that MWO had thus failed to meet a fundamental pleading requirement if it is to make out its cause of action under ss 52 and 82 or 87 of the TPA in respect of the no cap representation.
Case: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 501
Outcome: referred to
Telstra submitted that the detriment asserted by MWO cannot amount to "damage" sufficient to found a cause of action pursuant to ss 82 or 87 of the TPA. That is, according to Telstra, the pleading failed to establish a causal connection between the alleged damage and the conduct of Telstra alleged in paragraph 20 of the statement of claim. In support of this submission, Telstra referred to numerous authorities, including Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494 (" Marks ") at 503-4, Wardley Australia Ltd v Western Australia (1992) 175 CR 514 (" Wardley ") at 525, Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 at 14; HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 501 [130] , and I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at 121 [31] . Telstra submitted that MWO failed to allege the "better" position that it would have been in "but for" its reliance on the representation, or otherwise to seek to connect the damage alleged in paragraph 29 of its statement of claim to any such "better" position. Telstra submitted that the authorities establish that MWO had thus failed to meet a fundamental pleading requirement if it is to make out its cause of action under ss 52 and 82 or 87 of the TPA in respect of the no cap representation.
Case: I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: referred to
Telstra submitted that the detriment asserted by MWO cannot amount to "damage" sufficient to found a cause of action pursuant to ss 82 or 87 of the TPA. That is, according to Telstra, the pleading failed to establish a causal connection between the alleged damage and the conduct of Telstra alleged in paragraph 20 of the statement of claim. In support of this submission, Telstra referred to numerous authorities, including Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494 (" Marks ") at 503-4, Wardley Australia Ltd v Western Australia (1992) 175 CR 514 (" Wardley ") at 525, Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 at 14; HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640; Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 501 [130] , and I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 at 121 [31] . Telstra submitted that MWO failed to allege the "better" position that it would have been in "but for" its reliance on the representation, or otherwise to seek to connect the damage alleged in paragraph 29 of its statement of claim to any such "better" position. Telstra submitted that the authorities establish that MWO had thus failed to meet a fundamental pleading requirement if it is to make out its cause of action under ss 52 and 82 or 87 of the TPA in respect of the no cap representation.
Case: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388
Outcome: discussed
In response to Telstra's strike out application, MWO relied chiefly on the High Court's decision in Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 (" Murphy "). 10 In Murphy , the Court determined what, if any, relief under Pt VI of the TPA the appellants should have for a contravention of Pt V. They had been induced to enter into a lease of a unit in a retirement village. The lease provided that they should pay certain outgoings. The trial judge found that, in entering into the lease, they had relied on a misrepresentation that the figure for likely outgoings had been calculated taking into account all relevant costs. The figure had not been so calculated and turned out to be much higher than that nominated when the lessors entered the lease. The trial judge found that, had the lessors known the true position, they would not have entered into the lease. The High Court held that the appellants' undertaking of the obligation to pay the increased outgoings figure gave rise to the possibility that they could demonstrate that they had suffered loss and damage: Murphy at 415-6 [74]. 11 MWO submitted that, in Murphy , the High Court did not require the appellants to establish what agreement they would have entered into had the misrepresentation not been made. MWO noted that the Court found that the Full Federal Court had erred in applying the "but for" test for which Telstra contended. In written and oral submissions, MWO put their response to Telstra in this way: "Thus in Murphy : (a) Overton represented that the outgoings would be calculated on a certain basis; (b) The Murphys' relied upon it and were induced to enter into the lease; (c) No loss was suffered at the time of entering into the lease; (d) The loss arose when Overton charged outgoings on a higher basis than that represented; (e) The Murphys were entitled to recover the difference between the outgoings as represented and those charged. By analogy here: (a) Telstra represented that if [MWO] entered into the 2003 Agreement, it would not enforce the cap ...; (b) Telstra's representation was relied upon by [MWO] and induced [MWO] to do the things alleged in sub paragraphs 24(a) to 24(e); (c) Telstra's representation did not result in any loss to [MWO] at the time of entering into the 2003 Agreement; (d) the loss to [MWO] arose when Telstra ... sought, contrary to the Representation, to enforce the cap; (e) once Telstra sought to enforce the cap, [MWO] suffered damage, namely the difference between the remuneration capped and uncapped. (f) Accordingly, [MWO is] entitled to recover this difference as pleaded."