mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Walton Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387
Outcome: considered
MWO contended that the causal connection between the no cap representation and warranty and the detriment was constituted by its entry into the 2003 agreement and doing the other acts as alleged in reliance on the representation and warranty. The detriment was the non-fulfilment of the no cap representation and warranty. MWO relied on Walton Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387 at 428-9, Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 at 442-6 and Giumelli v Giumelli [1999] HCA 10 ; (1998) 196 CLR 101 at 112-4, as well as the reasons for judgment of Gyles J in the Full Court of this Court in Murphy (which MWO said met with the High Court's approval) in support of the proposition that there was no deficiency in its pleading to support its estoppel claim. MWO also referred to its proposed amendment to paragraph 34D, which, so it said, "makes plain that [it] relies upon the particulars subjoined to paragraph 24 as to the acts which it did to its detriment and relies upon the particulars subjoined to paragraph 29 as to the loss and damage occasioned by Telstra's failure to fulfil the assumption or expectation induced in [it] by making the [no cap representation] and Warranty". MWO submitted that this claim was plainly arguable.
Case: Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394
Outcome: referred to
MWO contended that the causal connection between the no cap representation and warranty and the detriment was constituted by its entry into the 2003 agreement and doing the other acts as alleged in reliance on the representation and warranty. The detriment was the non-fulfilment of the no cap representation and warranty. MWO relied on Walton Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387 at 428-9, Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 at 442-6 and Giumelli v Giumelli [1999] HCA 10 ; (1998) 196 CLR 101 at 112-4, as well as the reasons for judgment of Gyles J in the Full Court of this Court in Murphy (which MWO said met with the High Court's approval) in support of the proposition that there was no deficiency in its pleading to support its estoppel claim. MWO also referred to its proposed amendment to paragraph 34D, which, so it said, "makes plain that [it] relies upon the particulars subjoined to paragraph 24 as to the acts which it did to its detriment and relies upon the particulars subjoined to paragraph 29 as to the loss and damage occasioned by Telstra's failure to fulfil the assumption or expectation induced in [it] by making the [no cap representation] and Warranty". MWO submitted that this claim was plainly arguable.
Case: Giumelli v Giumelli [1999] HCA 10 ; (1998) 196 CLR 101
Outcome: referred to
MWO contended that the causal connection between the no cap representation and warranty and the detriment was constituted by its entry into the 2003 agreement and doing the other acts as alleged in reliance on the representation and warranty. The detriment was the non-fulfilment of the no cap representation and warranty. MWO relied on Walton Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387 at 428-9, Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 at 442-6 and Giumelli v Giumelli [1999] HCA 10 ; (1998) 196 CLR 101 at 112-4, as well as the reasons for judgment of Gyles J in the Full Court of this Court in Murphy (which MWO said met with the High Court's approval) in support of the proposition that there was no deficiency in its pleading to support its estoppel claim. MWO also referred to its proposed amendment to paragraph 34D, which, so it said, "makes plain that [it] relies upon the particulars subjoined to paragraph 24 as to the acts which it did to its detriment and relies upon the particulars subjoined to paragraph 29 as to the loss and damage occasioned by Telstra's failure to fulfil the assumption or expectation induced in [it] by making the [no cap representation] and Warranty". MWO submitted that this claim was plainly arguable.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: applied
Prior to the enactment of s 31A of the Federal Court of Australia Act 1976 (Cth), which came into force on 1 December 2005, the standard to be satisfied before any order would be made under this provision was settled law. The Court would exercise its powers under this rule with great care and only make an order against an applicant in a very clear case that disclosed no tenable claim: see, e.g., Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130; Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 (" Fancourt ") at 99; and Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598. Whether or not the Court is satisfied that that there is no real question to be tried (see Fancourt at 99) will depend entirely on the circumstances of the case.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: applied
Prior to the enactment of s 31A of the Federal Court of Australia Act 1976 (Cth), which came into force on 1 December 2005, the standard to be satisfied before any order would be made under this provision was settled law. The Court would exercise its powers under this rule with great care and only make an order against an applicant in a very clear case that disclosed no tenable claim: see, e.g., Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130; Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 (" Fancourt ") at 99; and Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598. Whether or not the Court is satisfied that that there is no real question to be tried (see Fancourt at 99) will depend entirely on the circumstances of the case.
Case: Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87
Outcome: applied
Prior to the enactment of s 31A of the Federal Court of Australia Act 1976 (Cth), which came into force on 1 December 2005, the standard to be satisfied before any order would be made under this provision was settled law. The Court would exercise its powers under this rule with great care and only make an order against an applicant in a very clear case that disclosed no tenable claim: see, e.g., Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130; Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 (" Fancourt ") at 99; and Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598. Whether or not the Court is satisfied that that there is no real question to be tried (see Fancourt at 99) will depend entirely on the circumstances of the case.
Case: Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598
Outcome: referred to
Prior to the enactment of s 31A of the Federal Court of Australia Act 1976 (Cth), which came into force on 1 December 2005, the standard to be satisfied before any order would be made under this provision was settled law. The Court would exercise its powers under this rule with great care and only make an order against an applicant in a very clear case that disclosed no tenable claim: see, e.g., Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130; Fancourt v Mercantile Credits Ltd [1983] HCA 25 ; (1983) 154 CLR 87 (" Fancourt ") at 99; and Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598. Whether or not the Court is satisfied that that there is no real question to be tried (see Fancourt at 99) will depend entirely on the circumstances of the case.
Case: Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 292
Outcome: referred to
Although the pleadings have been amended from time to time, the nature of the claims made are, for present purposes, sufficiently described in the reasons for judgment of Crennan J in Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 292 (" Mobileworld (1) ") at [3] to [4]. Further, as reference to her Honour's decision shows, this is not the first time that this aspect of MWO's pleading has been challenged: see Mobileworld (1) at [25]-[30].
Case: Murphy v Overton Investments Pty Ltd (2001) 112 FCR 183
Outcome: referred to
For similar reasons, I would not strike out the pleadings in so far as they raise a claim of estoppel against Telstra. Examination of the statement of claim shows that it sufficiently pleads the requisite elements of an estoppel as disclosed in the authorities mentioned in [14] above. These authorities establish that a pre-contractual representation can form the basis for an estoppel. In the case as pleaded, the unconscionability, if any, is said to lie in the fact that Telstra unilaterally departed from the assumption it had created by the no cap representation after the 2003 agreement was made. Having regard to the reasons for judgment of Gyles J in Murphy v Overton Investments Pty Ltd (2001) 112 FCR 183 at 225-228, it would not be a proper exercise of discretion to strike out this part of the pleading as clearly untenable. Further, the decision of the High Court in Murphy does not support such a course. 24 For the reasons stated, I would dismiss Telstra's motion, notice of which was given on 5 June 2006. No party suggested that there should be any departure from the ordinary provision as to the costs of an unsuccessful motion. 25 MWO applied to have the quantification of any loss or damage suffered by MWO as alleged under paragraph 41 of the Second Further Amended Statement of Claim ("SFASC") determined subsequently and separately to all other matters in the proceeding. MWO also sought to be relieved of the obligation to file, prior to trial, evidence going to the quantification of this loss.
Case: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718
Outcome: referred to
Order 29 rule 2 of the Rules confers power on the Court to make orders for "... the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceeding". The principles that govern the circumstances in which an order of the kind presently sought may be made were set out in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 (" Reading" ) at [7] and [8] per Branson J. French J reiterated these principles in Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 (" Olbers" ) at [7]. In Reading at [8], Branson J summarised the relevant principles as follows: "The principles that govern the circumstances in which an order will be made under O 29 r 2 are relatively well established. They may be summarised as follows: (a) the term "question" in O 29 r 1 includes any question or issue of fact or law in a proceeding. ... ; (b) a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties' rights ...; (c) however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties ...; (d) where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined ...; (e) care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not "ripe" for separate and preliminary determination. ...; (f) factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may - (i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or (ii) contribute to the settlement of the litigation ... . (g) factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may (i) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial ...; (ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding ... . This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or (iii) prolong rather than shorten the litigation ...." (Citations omitted)
Case: Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1
Outcome: referred to
It is almost goes without saying that care is needed in determining whether the separate question procedure ought be used: compare Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 at 55 per Kirby and Callinan JJ. It is common enough to find that the separate determination of questions in a proceeding does not result in the expeditious resolution of the proceeding, although all parties thought it would at the time the separate determination was ordered. Indeed, such orders can have the opposite effect and the resulting fragmentation can add to the expense and time involved in the proceeding. As Kirby and Heydon JJ noted in Waterways Authority v Fitzgibbon [2005] HCA 57 ; (2005) 79 ALJR 1816 at [37] : "It is notorious that the course of ordering that a preliminary separate question be tried, and deciding the case on that question, rather than deciding the case on all issues, is a course which can create graver difficulties than those which it is intended to solve."
Case: Waterways Authority v Fitzgibbon [2005] HCA 57 ; (2005) 79 ALJR 1816
Outcome: referred to
It is almost goes without saying that care is needed in determining whether the separate question procedure ought be used: compare Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 at 55 per Kirby and Callinan JJ. It is common enough to find that the separate determination of questions in a proceeding does not result in the expeditious resolution of the proceeding, although all parties thought it would at the time the separate determination was ordered. Indeed, such orders can have the opposite effect and the resulting fragmentation can add to the expense and time involved in the proceeding. As Kirby and Heydon JJ noted in Waterways Authority v Fitzgibbon [2005] HCA 57 ; (2005) 79 ALJR 1816 at [37] : "It is notorious that the course of ordering that a preliminary separate question be tried, and deciding the case on that question, rather than deciding the case on all issues, is a course which can create graver difficulties than those which it is intended to solve."
Case: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: applied
An application to amend a pleading should be permitted where the justice of the case so demands: see Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 155 per Dawson, Gaudron and McHugh JJ and 167-172 per Kirby J. In the circumstances of this case, save for the matters raised by Telstra, I would have little hesitation in permitting MWO to abandon claims that it no longer wishes to pursue, whether out of a spirit of cooperation or for purely forensic reasons.
Case: Goldsmith v Sandilands [2002] HCA 31 ; (2002) 76 ALJR 1024
Outcome: referred to
Whilst paragraph 37(a) is not the subject of MWO's application to amend, paragraphs 40A and 41 are. It is, as Telstra submitted, unclear from the proposed pleading whether MWO is alleging that it has received a total of remuneration that is less than that to which it is entitled under the 2003 agreement, or whether it is alleging that there are specific unpaid items and it does not know if the total amount of remuneration that it was paid was less than its entitlement. The proposed particularisation of the alleged loss and damage by reference to the taking of a proper account and enquiry at a later date fails to state with sufficient clarity the case that Telstra must meet at trial. As Gleeson CJ said in Goldsmith v Sandilands [2002] HCA 31 ; (2002) 76 ALJR 1024 at 1025 [2] : "The facts in issue in a civil action case emerge from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to the facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but 'to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial'." (Citation omitted) MWO's particulars under paragraph 41 fail in this regard. Telstra is entitled to have, by way of particulars to MWO's pleading, the details referred to in [53] above as best MWO can provide them and, if it cannot provide such details as fully as it would wish, then Telstra is entitled to have MWO state what MWO requires to complete this task. This obligation cannot be discharged simply by providing some information to Telstra through letters from MWO's solicitors. 56 Accordingly, pursuant to O 13 r 2 of the Rules, I would grant leave to MWO to amend its application and statement of claim in accordance with the SFASC, which is exhibit NJA 20 to the affidavit of Mr Anderson sworn 8 June 2006 and in accordance with these reasons, including further and better particulars of paragraph 41. 57 MWO and Telstra disagreed as to the disposition of the applicant's motion if the applicant were unsuccessful. In all the circumstances, and in particular having regard to the outcome of the principal applications made on the motion, I would dismiss the applicant's motion. I would order that the applicant pay the respondents' costs of the motion.
Case: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 
Outcome: cited
Justice Gordon proceeded upon the basis that an appeal does not operate as a stay but that the Court could grant a stay if the Court considers that, in all the circumstances, the matter is an appropriate case for the grant of the stay. The approach adopted by her Honour was undoubtedly right. In Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 the Full Court of this Court, after observing that O 52 r 17 did not limit the broad discretion reposing in the Court, followed a decision of the Court of Appeal in New South Wales in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 where it was said at 694 that it was "sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour." In other words, no special or exceptional circumstances need be shown. It is enough to satisfy the Court that the proceeding is one where it is appropriate that the Court exercise its discretion to grant the order.
Case: Bahonko v Sterjov [2007] FCA 867
Outcome: referred to
On 24 May 2007 during the proceeding before Jessup J and before its determination, the applicant made an oral application for leave to file a statement of charge for contempt against the respondents and their legal representatives and to challenge the competency of two of the witnesses called on behalf of the respondents, amongst other things. Those applications were refused by Jessup J: Bahonko v Sterjov [2007] FCA 867. 6 On 30 May 2007 the applicant sought leave to appeal from Jessup J's refusal to grant leave, but on 9 June 2007 Finkelstein J directed the Registrar that the notice of motion of 30 May 2007 be refused for filing. 7 In reasons published on 15 August 2007, that part of the consolidated proceedings seeking relief under the two statutes was dismissed by Jessup J. However, Jessup J found that the fourth respondent had defamed the applicant and awarded the applicant $50 in damages: Bahonko v Sterjov [2007] FCA 1244. 57 The fourth order sought in the notice of motion before Gordon J, insofar as it sought to impugn Finkelstein J's direction, was again, with respect, misconceived. Justice Finkelstein made a direction pursuant to O 46 r 7A(2)(b) of the Rules that the Registrar refuse for filing the notice of motion seeking leave to appeal from Jessup J's decision not to grant leave to file the statement of charge for contempt.
Case: Bahonko v Sterjov [2007] FCA 1244
Outcome: referred to
In reasons published on 15 August 2007, that part of the consolidated proceedings seeking relief under the two statutes was dismissed by Jessup J. However, Jessup J found that the fourth respondent had defamed the applicant and awarded the applicant $50 in damages: Bahonko v Sterjov [2007] FCA 1244.
Case: Bahonko v Sterjov [2007] FCA 1341
Outcome: referred to
On 31 August 2007 Jessup J made orders as to costs in the substantive proceedings: Bahonko v Sterjov [2007] FCA 1341. The orders made by Jessup J on 31 August 2007 were: 1. The applicant pay the respondents' costs of proceeding VID 756/2006 to the extent that such costs were incurred on or before 6 November 2006. 2. The applicant pay three-quarters of the respondents' costs of and incidental to the applicant's notice of motion dated 22 September 2006. 3. The applicant pay the respondents' costs of and incidental to the applicant's notice of motion dated 27 October 2006. 4. The applicant pay the respondents' costs of and incidental to the applicant's notice of motion dated 5 February 2007. 5. The applicant pay one-half of the balance remaining of the respondents' costs of the proceeding to the extent that such costs were incurred after 6 November 2006 after the deduction of so much of the respondents' costs of the notice of motion referred to in orders 2, 3 and 4 above as were incurred after 6 November 2006. 12 On 21 September 2007 the applicant amended her notice of appeal to include grounds of appeal against the orders made by Jessup J for costs on 31 August 2007. 13 There were two notices of motion before Gordon J. In the first notice of motion (VID 743/2007) the applicant sought the following relief in these terms: 1. Transcripts of proceedings in the matters VID 114/06 and VID 756/06 be made available to the appellant: (a) in an electronic form; or (b) in a printed form. 2. Orders given by Justice Jessup on 31 August 2007 to stay until the appeal is fully determined. 3. Mr. M. McKenney and Mr Felix Vitiello to step down from a legal representation in the appeal matter VID 743/07. 4. Appellant's claims of Contempt of the Court by Mr. McKenney, Mr. Vitiello, the Defendants and their witness Ms. Esther Keji Matthew to be determined prior to the appeal hearing &amp; the Contempt of the Court proceeding is deemed to commenced.
Case: Bahonko v Sterjov [2007] FCA 1555
Outcome: referred to
This is an application for leave to appeal and for consequential orders from orders made by Gordon J on 8 October 2007. There were two separate notices of motion before Gordon J. She made orders in each of the proceedings and published separate reasons for those orders: Bahonko v Sterjov [2007] FCA 1555 ; Bahonko v Sterjov [2007] FCA 1556. The orders made in both proceedings are the subject of this application for leave to appeal.