mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32
Outcome: cited
the lack of any direct written evidence of an agreement between Adnunat and ITW, Adnunat contends that one must be inferred from their conduct. A contract may in certain circumstances be inferred from conduct, even where no offer and acceptance can be identified: see Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326 ; Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 ( Vroon ); Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129. However the existence or otherwise of an enforceable agreement depends ultimately on the manifest intention of the parties, objectively ascertained: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-50 (Gleeson CJ) and his Honour's reference to Gissing v Gissing [1970] UKHL 3 ; [1971] AC 886 ; see also Cheshire &amp; Fifoot's Law of Contract (9 th ed, LexisNexis, 2008) at [3.5] and [3.9]. Where mutual promises are sought to be inferred, the conduct relied upon must, on an objective assessment, evince a tacit agreement with sufficiently clear terms. It is not enough that the conduct is consistent with what are alleged to be the terms of a binding agreement. The evidence must positively indicate that both parties considered themselves bound by that agreement: Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129 at [137] - [138] and [142]; Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 ( Pacific Brands ) at [47]. Second, it is true that ITW continued to order 9 tonne anchors from Adnunat over a period spanning four months from March to June 2005. However as I have said earlier, the parties' intentions as revealed by that conduct alone are not unequivocal. Taking into account the matters I have referred to at [41]-[43], it is reasonably arguable that the parties were simply content as a practical commercial matter to continue a pre-existing anchor purchase and supply relationship, without having directed their attention to whether ITW would be bound by the Settlement Deed. It is of some relevance in that regard that this is not a case in which the relevant conduct took place over a long period of time (cf Pacific Brands [2005] FCA 288 and Vroon [1994] 2 VR 32) but instead came to an apparently abrupt end after only four months. It may be that ITW considered it commercially expedient to continue sourcing anchors from Adnunat rather than to challenge the Patent and manufacture the 9 tonne anchors it required itself. While that is speculation at this stage, it highlights the difficulty in finding that ITW has no reasonable prospects. Adnunat relied in particular on the email from Mr Pleysiar (see [10]) and contended that it was consistent only with a demand for supply pursuant to the Settlement Deed. However the email makes no reference to the Settlement Deed and the insistence on supply might be said to have arisen just as much from the commercial exigencies ITW faced at the time, compounded by Adnunat's apparent inability to meet existing purchase orders.
Case: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: followed
principles governing the operation of s 31A of the Act were canvassed in detail by Lindgren J in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 ( White Industries ) and Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ( Boston ). In White Industries 160 FCR at [59], Lindgren J considered that a claim requires "real" as opposed to "fanciful" or "merely arguable" prospects in order for it to have reasonable prospects of success as required by s 31A. Justice Rares in Boston 236 ALR at [45] was of the view that, unless there are no real issues of fact such that "only one conclusion can be said to be reasonable" summary judgment (or dismissal) ought not be given pursuant to s 31A. The Full Court has recently considered the summary judgment standard in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) ( Jefferson Ford ). Although different views were taken as to the precise operation of s 31A, the following principles appear to have been endorsed:
Case: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216
Outcome: cited
corporation may be found to have contravened s 52 even though it lacked any intention to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216 at 228 per Stephen J.
Case: Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177
Outcome: cited
order to establish that conduct is misleading or likely to mislead it is usually necessary to show that it conveys, in all the circumstances of the case, a misrepresentation: cf. Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 at 202 per Deane and Fitzgerald JJ; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No. 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 555 per Lockhart J. Evidence that some people may have been misled is not essential but it is admissible and may be persuasive if given: Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 at 202 per Deane and Fitzgerald JJ.
Case: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No. 1) [1988] FCA 40 ; (1988) 39 FCR 546
Outcome: cited
order to establish that conduct is misleading or likely to mislead it is usually necessary to show that it conveys, in all the circumstances of the case, a misrepresentation: cf. Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 at 202 per Deane and Fitzgerald JJ; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No. 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 555 per Lockhart J.
Case: Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309
Outcome: cited
Applicant seeks declarations that the Respondent has contravened s 52, s 53(e) and s 53(g) of the Act. I consider that there is a significant public interest in these proceedings and that it is appropriate for the Court to make declarations which identify the particular contraventions of the Act of which the Respondent has been found guilty. There is ample authority to justify the making of a declaration in a case such as this: Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 at [35] - [36] per Sackville J. The declarations should identify with some precision the facts that have led the Court to the conclusion that a particular contravention has occurred. I would not make a declaration that did no more than declare that the Respondent had contravened a provision of the Act. On the question of injunctive relief Mr Webb submitted that there was no evidence of any threatened repetition of the conduct alleged to have given rise to a contravention of the Act. However, I consider it appropriate to grant injunctive relief for a number of reasons.
Case: Australian Competition and Consumer Commission v FFE Building Services Pty Ltd [2003] FCAFC 132 ; (2003) 130 FCR 37
Outcome: cited
Ms Baird accepted that the respondent, being a corporation, cannot invoke the privilege against self-incrimination: Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477. Thus she accepted that Order 2 could not be set aside on the ground that an order requiring a respondent in criminal or civil penalty proceedings to file and serve evidence prior to the hearing could detract from the privilege against self-incrimination: cf Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [1999] FCA 672 ; (1999) 163 ALR 465 ; Australian Competition and Consumer Commission v FFE Building Services Pty Ltd [2003] FCAFC 132 ; (2003) 130 FCR 37.
Case: Australian Competition and Consumer Commission v Info4pc.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24
Outcome: referred to
In Australian Competition and Consumer Commission v Info4pc.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 , RD Nicholson J summarised (at 27[2]) the nature of contempt proceedings in the Federal Court as follows: 'The jurisdiction of the Court to punish contempts arises from s 31 of the Federal Court of Australia Act 1976 (Cth). It has by virtue of that section such power and authority as is possessed by the High Court in respect of contempts of that court. The section therefore does not create an offence of contempt but is declaratory of an attribute of judicial power of the Commonwealth vested in federal courts by s 71 of the Constitution of the Commonwealth: Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 395 [16] per Gleeson CJ and Gummow J. Contempt of court is a distinctive offence attracting remedies which are sui generis: Morris v Crown Office [1970] 2 QB 114 at 129 referred to by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 115.'
Case: Australian Securities and Investments Commission v Reid [2006] FCA 699
Outcome: referred to
This aspect of the reasoning of the High Court was emphasised by Lander J in Australian Securities and Investments Commission v Reid [2006] FCA 699. In that case, his Honour held that the principle in Dietrich v The Queen [1991] HCA 57 ; (1992) 177 CLR 292 , which allows an indigent accused in serious criminal proceedings to apply for a stay if legal representation is not provided, does not apply to proceedings for contempt of court. As Lander J pointed out, the procedure in contempt proceedings in the Federal Court is governed by FCR , O 40. In particular, O 40 r 7 requires evidence in support of a charge to be given by affidavit unless the Court directs otherwise, while O 40 r 5(1) requires an allegation that contempt has been committed in connection with a proceeding in the Court to be made by motion on notice in the proceeding. Neither of these procedural requirements applies in criminal proceedings.
Case: Dietrich v The Queen [1991] HCA 57 ; (1992) 177 CLR 292
Outcome: cited
This aspect of the reasoning of the High Court was emphasised by Lander J in Australian Securities and Investments Commission v Reid [2006] FCA 699. In that case, his Honour held that the principle in Dietrich v The Queen [1991] HCA 57 ; (1992) 177 CLR 292 , which allows an indigent accused in serious criminal proceedings to apply for a stay if legal representation is not provided, does not apply to proceedings for contempt of court. As Lander J pointed out, the procedure in contempt proceedings in the Federal Court is governed by FCR , O 40. In particular, O 40 r 7 requires evidence in support of a charge to be given by affidavit unless the Court directs otherwise, while O 40 r 5(1) requires an allegation that contempt has been committed in connection with a proceeding in the Court to be made by motion on notice in the proceeding. Neither of these procedural requirements applies in criminal proceedings.
Case: Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477
Outcome: referred to
Ms Baird accepted that the respondent, being a corporation, cannot invoke the privilege against self-incrimination: Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477. Thus she accepted that Order 2 could not be set aside on the ground that an order requiring a respondent in criminal or civil penalty proceedings to file and serve evidence prior to the hearing could detract from the privilege against self-incrimination: cf Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [1999] FCA 672 ; (1999) 163 ALR 465 ; Australian Competition and Consumer Commission v FFE Building Services Pty Ltd [2003] FCAFC 132 ; (2003) 130 FCR 37.
Case: Colgate-Palmolive Co &amp; Anor v Cussons Pty Ltd [1993] FCA 536 ; (1993) 118 ALR 248
Outcome: considered
The Respondents have submitted that costs ought to be ordered on an indemnity basis. They acknowledge that the ordering of costs on this basis is exceptional requiring some special or unusual feature: Colgate-Palmolive Co &amp; Anor v Cussons Pty Ltd [1993] FCA 536 ; (1993) 118 ALR 248 at 257. They also acknowledge that there is a general reluctance to make an order for costs to be paid on an indemnity basis against the litigant in person: Bhagat v Global Custodians Ltd [2002] FCA 223 at [57] and [60] per O'Loughlin, Whitlam and Marshall JJ.
Case: Bhagat v Global Custodians Ltd [2002] FCA 223
Outcome: considered
The Respondents have submitted that costs ought to be ordered on an indemnity basis. They acknowledge that the ordering of costs on this basis is exceptional requiring some special or unusual feature: Colgate-Palmolive Co &amp; Anor v Cussons Pty Ltd [1993] FCA 536 ; (1993) 118 ALR 248 at 257. They also acknowledge that there is a general reluctance to make an order for costs to be paid on an indemnity basis against the litigant in person: Bhagat v Global Custodians Ltd [2002] FCA 223 at [57] and [60] per O'Loughlin, Whitlam and Marshall JJ.
Case: Lavercombe v Auscott Ltd [2006] NSWSC 867 ; (2006) 58 ACSR 586
Outcome: cited
In Lavercombe v Auscott Ltd [2006] NSWSC 867 ; (2006) 58 ACSR 586, Barrett J said (at [6]): 'As to the apparent non-compliance with s 459Q(b)(i), it cannot be contended that it caused the application to be a nullity. In circumstances where the necessary document was in fact annexed to the supporting affidavit rather than the contemporaneously filed originating process, the non-compliance was a "defect or irregularity in connection with the application" as referred to in s 467A(a) and, since no injustice could conceivably have been occasioned, the court was bound by s 467A not to dismiss the application merely because of the non-compliance.' 26 In this case ASIC submits that no injustice could conceivably have been occasioned. If there were substantial injustice the time to raise it was at the time of the application to strike out the proceedings for failing to comply with s 459Q of the Act made on 16 August 2006. That application went to the sufficiency of the backing affidavit. I accept that this is a case in which there is no substantial injustice arising from non-compliance with s 459Q(b)(i) and on that basis will entertain the application notwithstanding the non-compliance. 27 In so doing I apply s 467A which provides: 'An application under Part 5.4 or 5.4A must not be dismissed merely because of one or more of the following: (a) in any case a defect or irregularity in connection with the application; (b) in the case of an application for a company to be wound up in insolvency a defect in a statutory demand; Unless the Court is satisfied that substantial injustice has been caused that cannot otherwise be remedied (for example, by an adjournment or an order for costs).' Having regard to s 467A it is unnecessary to make any order under s 1322(4) as was also suggested by ASIC.
Case: Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408
Outcome: cited
In addition there was the survey material from Sweden referred to in the Tondel article, and the United Kingdom survey referred to (although also discounted) by Professor Peach, and the bundle of documents produced by the respondent which were specifically relied upon by the Tribunal. Even accepting the criticisms of the applicant in respect of the content of the material, it does nevertheless show that the hypothesis (putting aside temporal issues) was not contrary to known scientific facts, nor was so obviously fanciful, impossible, incredible or untenable, or too remote or too tenuous: see Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 414 and East 16 FCR at 533. 40 In any event, it was not for the Tribunal to necessarily determine opposing views, just have regard to them in examining the validity of the reasoning which supports the hypothesis: see Bushell 195 CLR at 413-416. This, in my view, was the task the Tribunal undertook. 41 I mention one further matter for completeness. The respondent seemed to suggest that assistance could be obtained by s 119 of the VE Act.
Case: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564
Outcome: cited
Where a claim relates to operational service, the standard of proof to be applied to the question as to whether a death is war-caused is proscribed by s 120(1) and (3) of the VE Act. Those provisions are to be applied in the manner explained by the High Court in Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571: The position may be summarised as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
Case: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28
Outcome: cited
There may be an issue whether a denial of procedural fairness is an error of law, but in the circumstances of this case where the lack of procedural fairness is clearly apparent on the reasoning of the Tribunal, in my view, the reasons of the Tribunal do disclose an error of law: see Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28.
Case: Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151
Outcome: cited
I have a discretion under s 44(4) of the AAT Act, which includes not remitting the matter if that is appropriate. This is not a case where this Court can be sure what decision would have been reached had procedural fairness be accorded. I cannot be satisfied for the reasons given above that there is no possibility of a different result: see Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 165-166; and O'Sullivan (2003) 128 FCR at [62].
Case: Harradine v Secretary, Department of Social Security (1989) 25 FCR 35
Outcome: cited
Generally speaking, if a court decides that the Tribunal has erred in law, the Tribunal decision is set aside and the matter is remitted for determination according to law: see Morales v Minister for Immigration &amp; Ethnic Affairs (1995) 60 FCR 550 and compare with Harradine v Secretary, Department of Social Security (1989) 25 FCR 35.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
Section 39(1) of the AAT Act provided that, subject to provisions which are irrelevant for present purposes, the Tribunal must ensure that every party sitting before a Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision, and to make submissions in relation to those documents. It seems to be clear that the section provides that the Tribunal must apply notions of procedural fairness: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J and O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2003) 128 FCR 590 at [45] . Obviously the requirements will depend upon the particular circumstances of each case. It may be in some circumstances where a party is represented then there is some onus upon a party to be proactive in requesting from the Tribunal an opportunity to present its case such as, for instance, in seeking an adjournment: see, e.g. Schiffer v Pattison [2001] FCA 1094. However, as I have said, in this case the Tribunal and the respondent effectively represented there would be an opportunity for the applicant to present further submissions on the issue of the bundle of documents once those documents had been seen. That opportunity was not given.
Case: Mason v Repatriation Commission [2000] FCA 1409
Outcome: cited
No reliance can be placed upon s 119 of the VE Act to fill in gaps where there is insufficient evidence to assist the respondent's case: see Repatriation Commission v Bey (1997) 79 FCR 364 at 373-374 and Mason v Repatriation Commission [2000] FCA 1409. However, in my view there were no relevant gaps in the material before the Tribunal, and for the reasons I have indicated, the evidence before the Tribunal supported the Tribunal's conclusions.
Case: Morales v Minister for Immigration &amp; Ethnic Affairs (1995) 60 FCR 550
Outcome: cited
Generally speaking, if a court decides that the Tribunal has erred in law, the Tribunal decision is set aside and the matter is remitted for determination according to law: see Morales v Minister for Immigration &amp; Ethnic Affairs (1995) 60 FCR 550 and compare with Harradine v Secretary, Department of Social Security (1989) 25 FCR 35.
Case: O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2003) 128 FCR 590
Outcome: cited
Section 39(1) of the AAT Act provided that, subject to provisions which are irrelevant for present purposes, the Tribunal must ensure that every party sitting before a Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision, and to make submissions in relation to those documents. It seems to be clear that the section provides that the Tribunal must apply notions of procedural fairness: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J and O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2003) 128 FCR 590 at [45] . Obviously the requirements will depend upon the particular circumstances of each case. It may be in some circumstances where a party is represented then there is some onus upon a party to be proactive in requesting from the Tribunal an opportunity to present its case such as, for instance, in seeking an adjournment: see, e.g. Schiffer v Pattison [2001] FCA 1094. However, as I have said, in this case the Tribunal and the respondent effectively represented there would be an opportunity for the applicant to present further submissions on the issue of the bundle of documents once those documents had been seen. That opportunity was not given. 63 Another way to approach the present issue is to treat the actions of the Tribunal as a breach of s 39(1) of the AAT Act, and thus there was a failure to comply with its statutory duty. This would itself be an error of law: see O'Sullivan (2003) 128 FCR at [60]. 64 I have a discretion under s 44(4) of the AAT Act, which includes not remitting the matter if that is appropriate. This is not a case where this Court can be sure what decision would have been reached had procedural fairness be accorded. I cannot be satisfied for the reasons given above that there is no possibility of a different result: see Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 165-166; and O'Sullivan (2003) 128 FCR at [62].
Case: Repatriation Commission v Bey (1997) 149 ALR 721
Outcome: cited
No reliance can be placed upon s 119 of the VE Act to fill in gaps where there is insufficient evidence to assist the respondent's case: see Repatriation Commission v Bey (1997) 79 FCR 364 at 373-374 and Mason v Repatriation Commission [2000] FCA 1409. However, in my view there were no relevant gaps in the material before the Tribunal, and for the reasons I have indicated, the evidence before the Tribunal supported the Tribunal's conclusions.