mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bartlett v Swan Television &amp; Radio Broadcasters Pty Ltd [1995] FCA 1429 ; [1995] ATPR 41-434
Outcome: cited
in the context of O 11 r 16 includes a pleading "which is susceptible of various meanings, or contains inconsistent allegations or in which alternatives are confusingly intermixed or in which irrelevant allegations are made tending to increase expense. This list is not intended to be exhaustive": Bartlett v Swan Television &amp; Radio Broadcasters Pty Ltd [1995] FCA 1429 ; [1995] ATPR 41-434 at 40,889 per Carr J. For reasons I will give, the plaintiffs' pleading in the ASOC in relation to the ABB Grain basis contract is embarrassing and should be struck out. Again, for reasons I will give, the pleading in the proposed SASOC does not overcome the defects, and leave to amend in terms of that document will be refused. The plaintiffs may apply for leave to replead their cause of action in relation to the ABB Grain basis contract, but I will hear from the parties if such an application is made. In the proposed SASOC, the plaintiffs plead a cause of action against ABB Grain which is not pleaded in the ASOC. The cause of action is a breach of a duty of care allegedly owed by ABB Grain to the plaintiffs. Counsel for the third defendant put persuasive arguments in support of the proposition that such a duty could not arise as a matter of law (see [56] below), but it may assist the parties if I indicate that, on the submissions to date, I would not be disposed to conclude that the allegation was unarguable in the relevant sense.
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720
Outcome: referred to
have been a number of cases which have discussed the precise test posited by s 31A. The principal authorities to which I was referred are: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 ; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905.
Case: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372
Outcome: referred to
have been a number of cases which have discussed the precise test posited by s 31A. The principal authorities to which I was referred are: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 ; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905.
Case: Keynes v Rural Directions Pty Ltd [2008] FCA 1964
Outcome: referred to
plaintiffs filed and served a Statement of Claim on 4 August 2008. That pleading was replaced by an Amended Statement of Claim ("ASOC") filed and served on 18 November 2008. On 23 December 2008, I made an order striking out the ASOC against Glencore Grain ( Keynes v Rural Directions Pty Ltd [2008] FCA 1964). That led to an application by the plaintiffs for leave to file and serve a Second Amended Statement of Claim ("the proposed SASOC"). There are three notices of motion before me which, in chronological order, are a notice of motion by Glencore Grain, a notice of motion by the plaintiffs and a notice of motion by ABB Grain. Before summarising the orders sought in those notices of motion and the evidence adduced in support of the motions, it is convenient to summarise the relevant allegations in the pleadings. The plaintiffs' claim against ABB Grain The existing Statement of Claim against ABB Grain is the ASOC. It will be necessary to consider also the proposed SASOC to determine whether it overcomes the defects I find exist in the ASOC.
Case: Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd [1938] HCA 66 ; (1938) 61 CLR 286
Outcome: cited
failure by a seller of goods to comply with an obligation to deliver the goods may give rise to an action for damages by the buyer for non-delivery (see, for example, s 50(1) of Sale of Goods Act 1895 (SA)). The measure of damages where there is an available market for the goods in question is " prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered..." (see, for example, s 50(3) of Sale of Goods Act 1895 (SA)). Where there is no difference, or where a buyer fails to adduce evidence of actual damage, he or she may nevertheless recover nominal damages for breach of contract: Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd [1938] HCA 66 ; (1938) 61 CLR 286. On occasions, a Court may order specific performance of a contract for the sale and delivery of goods (see, for example, s 51 of the Sale of Goods Act 1895 (SA)). Generally speaking, a Court will not order specific performance where the goods in question are readily obtainable in the market.
Case: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905
Outcome: referred to
have been a number of cases which have discussed the precise test posited by s 31A. The principal authorities to which I was referred are: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 ; Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
As Weinberg J noted in Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 at [115] , statutes commonly require the giving of notice or the invitation of submissions before a particular decision is made. The fact that a decision is preliminary (in the sense that it does not in itself affect rights without some further action being taken) does not obviate the duty to observe natural justice. Such decisions often affect ' important interests, including reputation, or legitimate expectations ' (at [115]). It is not necessary that the decision have direct or indirect legal effect ( Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564). The rules of natural justice apply where a statute confers a power to prejudice a person's rights, interests or legitimate expectations unless they are excluded by plain words ( Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598). 242 The duty to accord procedural fairness regulates the exercise of power where a statute confers power on a public official ' to destroy, defeat or prejudice a person's rights, interests or legitimate expectations ' ( Annetts at 598 per Mason CJ, Deane and McHugh JJ) or damage reputation ( Ainsworth at 577 8). The existence of a Part A competition notice opens the door for a range of proceedings to be issued against Telstra. In so doing, it exposes Telstra to the possibility of substantial penalties which accrue from the date of issue.
Case: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: cited
As Weinberg J noted in Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 at [115] , statutes commonly require the giving of notice or the invitation of submissions before a particular decision is made. The fact that a decision is preliminary (in the sense that it does not in itself affect rights without some further action being taken) does not obviate the duty to observe natural justice. Such decisions often affect ' important interests, including reputation, or legitimate expectations ' (at [115]). It is not necessary that the decision have direct or indirect legal effect ( Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564). The rules of natural justice apply where a statute confers a power to prejudice a person's rights, interests or legitimate expectations unless they are excluded by plain words ( Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598). 242 The duty to accord procedural fairness regulates the exercise of power where a statute confers power on a public official ' to destroy, defeat or prejudice a person's rights, interests or legitimate expectations ' ( Annetts at 598 per Mason CJ, Deane and McHugh JJ) or damage reputation ( Ainsworth at 577 8). The existence of a Part A competition notice opens the door for a range of proceedings to be issued against Telstra. In so doing, it exposes Telstra to the possibility of substantial penalties which accrue from the date of issue.
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: cited
It is not the case that the Act purports to exclude the rules of natural justice. There is nothing in Pt XIB that amounts to unmistakable and unambiguous language clearly expressing an intention to exclude natural justice in connection with the issue of a Part A competition notice ( Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at [30] per Gleeson CJ; cf Minister for Immigration &amp; Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at [65] to [68] in considering s 51A of the Migration Act 1958 (Cth)). The fact that the Act provides for the provision of certain information in a s 151AKA(10) notice does not of itself evince an intention otherwise to exclude procedural fairness ( Miah at [139] per McHugh J) or, indeed, the possibility of the provision of further information or further consultation. The Act mandates the giving of certain information in a s 151AKA(10) notice as a minimum. Such latitude in the information to be provided is encompassed by the requirement to describe in summary form the kind of anti-competitive conduct proposed to be specified in the Part A competition notice. A "summary form" allows for a minimum but not a maximum of information to be provided. There is no inconsistency between the application of subss (9) and (10), which impose a minimum standard and a common law duty of procedural fairness ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [10] ). 229 The Commission contends that the requirements of procedural fairness for the issue of a Part A competition notice are less onerous than those applicable to a quasi-judicial Tribunal determining, for example, whether a person is entitled to refugee status, as in VEAL . The Commission points to the flexible nature of the duty and the need to adapt to the statutory requirements. For example, a judicial hearing with rights of appeal must precede the pecuniary consequences arising from the issue of a Part A competition notice. The Commission also challenges the impact of the reasoning in VEAL and Kioa . It emphasises the comment by Brennan J in Kioa at 628 that the person whose interests are likely to be affected by the exercise of a statutory power does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. As Brennan J recognised in Kioa , '[a] dministrative decision-making is not to be clogged' by unnecessary inquiries. That observation is particularly relevant in a statutory context where the legislature has sought to respond to the fast moving pace of telecommunications markets and, in so doing, placed the Commission under an obligation to act expeditiously.
Case: Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144
Outcome: cited
It is accepted by the Commission that Telstra is a person ' entitled to make an application to [the Court]... under section 5 ' in relation to the decision to issue the Competition Notice (s 13(1)). The Commission submits, however, that that decision is a decision in connection with the institution or conduct of proceedings in a civil court and, by the application of para (f) of Sch 2 to the ADJR Act, not a decision to which s 13 of the ADJR Act applies. The Commission relies on the following matters in support of that submission: &#8226; The investigative nature of the Commission's role in deciding whether to issue a Part A competition notice, including the "reason to believe" threshold; &#8226; The close connection between the institution of proceedings in a civil court and the issue of a Part A competition notice, including the institution of proceedings for the recovery of pecuniary penalties, as emphasised by Telstra in its submissions as to the effect of a Part A competition notice; &#8226; The breadth of the expression "in connection with" as used in para (f) of Sch 2 ( Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146); and &#8226; Authority to the effect that a decision to issue a s 155 notice is not a decision to which s 13 of the ADJR applies ( Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443).
Case: Department of Industrial Relations v Forrest (1990) 21 FCR 93
Outcome: cited
There is no general principle that uncertainty in an executive instrument spells invalidity ( Television Corporation Ltd v The Commonwealth [1963] HCA 30 ; (1963) 109 CLR 59 at 71 per Kitto J). The question is whether what has been done in fact answers the description of what the statute permits to be done in law. A statutory notice such as a s 151AKA(10) notice or a Part A competition notice (together, 'the Statutory Notices') must not be so vaguely expressed that its meaning of application is a matter of real uncertainty. The Statutory Notices must convey, with reasonable and sufficient clarity and certainty, the subject matter with which they deal and enable the recipient to know what is required if their issue is to be a valid exercise of statutory power ( Television Corporation Ltd at 70 per Kitto J; SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 369 per Fisher and French JJ (with whom Wilcox J agreed); Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 at 373, 374 per the Full Court). Where different kinds of subject matter are dealt with by different statutory provisions, the Statutory Notices should specify or make clear which particular aspects of the statutory regime are referred to and/or relied upon ( Department of Industrial Relations v Forrest (1990) 21 FCR 93 at 118 per Lockhart and Hill JJ). 41 Telstra relies on observations by Lockhart and Hill JJ in Forrest at 118 to suggest, in effect, that the Consultation Notice must make explicit on its face every nuance or explanation without regard to the fact that Telstra, as the recipient, has knowledge of and understood certain of the terminology and subject matter. Their Honours in Forrest were referring to a different kind of notice: a conclusive certificate under s 34 of the Freedom of Information Act 1982 (Cth) ('the FOI Act'). The Court there was concerned with whether that notice would be uncertain to a review Tribunal charged with the function of determining whether reasonable grounds existed for the documents the subject of the certificate to be exempt from the FOI Act. In the present case, the s 151AKA(10) notice sought information from a recipient in the industry about its own processes. 42 The purpose of a s 151AKA(10) notice is to provide the affected carrier or carriage service provider with an opportunity to make a submission to the Commission on its proposal to issue a Part A competition notice. The Commission is obliged, by the Act, to consider any such submission. To achieve its purpose, a s 151AKA(10) notice must provide sufficient detail to enable a real, practical and reasonably specific response as to whether or not the recipient is engaging in the kind of conduct alleged and whether that conduct is anti-competitive. Further, a s 151AKA(10) notice is not of a mere advisory character. It should provide sufficient information to enable consideration of a possible modification of conduct.
Case: Deputy Commissioner of Taxation v Woodhams [2000] HCA 10 ; (2000) 199 CLR 370
Outcome: cited
As I have noted earlier, where the subject matter of the Competition Notice is conduct, the recipient is entitled to know what is required of it ( Television Corporation at 70 per Kitto J). Absence of information will involve a failure to provide necessary details if, without such information, the notice will not fulfil the purpose for which it is required to be given ( Deputy Commissioner of Taxation v Woodhams [2000] HCA 10 ; (2000) 199 CLR 370 at [33] ). However, a notice analogous to a notice before action is not intended to serve the purpose of a statement of claim if and when action is taken ( Woodhams at [35] and [37]). Despite the complexity and alleged ambiguity of the Statutory Notices on which Telstra relies, in context, the conduct described is sufficiently clear within each notice.
Case: Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187
Outcome: cited
The severity of prospective penalties or consequences of failure to comply with a statutory notice that flow from the subject matter and the impact of the characterisation of the conduct are relevant factors in identifying the requisite degree of certainty (see Pyneboard at 374 , Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 208 per Hill J). Account is to be taken of the statutory context in which the issue of a statutory notice arises and of the relevant interests of third parties. To take an example relevant to a Part A competition notice, a third party may contemplate bringing an action for damages in reliance on that notice and has an interest in knowing with clarity the ambit and scope of the notice. 40 The question is whether a reasonable person in the position of the addressee of a statutory notice can fairly comply with its requirements or take advantage of the opportunity offered ( Fieldhouse at 208 per Hill J with whom Burchett J relevantly agreed). The Statutory Notices are concerned with the conduct of carriers or carriage service providers and can only be given to a carrier or a carriage service provider. In this case, the Statutory Notices were given to Telstra, a sophisticated, well-advised company with significant telecommunications experience. The notices followed a course of correspondence between Telstra and the Commission concerning the subject matter of the notices. Context may make something certain that, in the abstract, is uncertain.
Case: George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104
Outcome: cited
The Commission contends that the fact that it has "reason to believe" in relation to the conduct described in the Competition Notice is a relatively low threshold. The Commission draws in aid observations directed to the phrase "reason to believe" in cases concerning s 155 of the Act. In that context, the phrase is directed to a belief that a person is capable of furnishing information or producing, for example, documents relating to a matter that constitutes or may constitute a contravention of the Act. Telstra does not accept that this is analogous to the requisite reason to believe that a carrier or carriage service provider has engaged or is engaging in relevant anti-competitive conduct for the purposes of s 151AKA(8). It submits that the requisite state of mind requires the existence of facts which are sufficient to induce that state of mind in a reasonable person ( George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 112). 110 The basis for the belief is set out in the correspondence and in the Consultation Notice. Telstra has not demonstrated that there was an absence of such belief prior to the issue of the Competition Notice. I will turn to consider the terms of the Competition Notice. 111 The Commission accepts that, if the Consultation Notice did not conform to the requirements of the Act such that no notice was given pursuant to s 151AKA(10), it was not in the position to issue a valid Part A competition notice.
Case: Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78
Outcome: cited
As Weinberg J noted in Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 at [115] , statutes commonly require the giving of notice or the invitation of submissions before a particular decision is made. The fact that a decision is preliminary (in the sense that it does not in itself affect rights without some further action being taken) does not obviate the duty to observe natural justice. Such decisions often affect ' important interests, including reputation, or legitimate expectations ' (at [115]). It is not necessary that the decision have direct or indirect legal effect ( Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564). The rules of natural justice apply where a statute confers a power to prejudice a person's rights, interests or legitimate expectations unless they are excluded by plain words ( Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598).
Case: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277
Outcome: cited
Optus accepts that there must be a relevant connection between the notices. It submits that the instance of anti-competitive conduct in the Competition Notice must, ' in broad terms ', be an instance of the same kind as that described in summary form in the Consultation Notice. The Commission cannot ' significantly alter ' the kind of conduct. Whether the relevant connection is maintained requires an evaluative judgment ( Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [54]). A narrowing or specification of the kind of conduct with greater precision is permitted but the description must, Optus submits, in substance be of the same kind of conduct. 145 The parties provided detailed schedules of all of the differences between the Consultation Notice and the Competition Notice. The Competition Notice is not meant to mirror the Consultation Notice. It is expected to be responsive to the submissions consequent on the Consultation Notice. To the extent that further definitions are included and further particulars and explanations of terms used in the Consultation Notice are given, the subject matter of the notices cannot be said to be substantively different. 146 I now turn to consider some of the differences in the Consultation Notice: &#8226; Local Services is in terms of line rental " and / or " local call services supplied to Retail Customers (para 1(a)) (my emphasis). &#8226; Retail Customers include the whole class of residential end-user customers (para 1(d)). &#8226; The Relevant Conduct is described with reference to the Home Access increase in circumstances where there was no commensurate increase in the pricing of the range of Telstra's retail Local Services products when assessed as a weighted average (para 5). &#8226; The Other Conduct refers to one of the retail Local Services products, the HomeLine Part. The reference is to the HomeLine Part increase, which was for local call services but not for fixed-to-mobile, long distance and international call services (para 6). &#8226; The Retail Fixed Services Market is the market for the supply of fixed services including Local Services products " as well as" fixed-to-mobile, long distance and international call services (para 8(b)) (my emphasis). &#8226; The conduct said to have the effect or likely effect on competition is the Relevant Conduct alone or together with the Other Conduct (para 12). &#8226; The "price squeeze" that is said to result from the taking advantage of market power in the Wholesale Local Services Market is the effect on "Telstra's rivals" who are Telstra's wholesale customers in the Retail Fixed Services Market and their ability to compete effectively with Telstra in that market (para 12).