mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 was a s 46 case where, amongst other issues, individuals were sought to be made liable as persons involved in the contraventions. It was argued that the individuals did not know that their principal's conduct was engaged in for the purpose, or had the likely effect, of substantially lessening competition in the market as defined. Gummow, Hayne and Heydon JJ at [48] firmly rejected this argument, saying: "It is wholly unrealistic to seek to characterise knowledge of circumstances in that way. Only a handful of lawyers think or speak in that fashion, and then only at a late stage of analysis of any particular problem. In order to know the essential facts, and thus satisfy s 75B(1) of the Act and like provisions, it is not necessary to know that those facts are capable of characterisation in the language of the statute." Their Honours did not specifically refer to the leading case on accessorial liability under the Act, Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661, although it was cited in argument (at 58). However, Yorke v Lucas , in applying criminal law principles to accessorial liability under the Act, proceeded on the basis that to form the requisite intent for aiding and abetting a crime, the defendant "must have knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime" (at 667). Since, as already noted, the assessment of conduct as unconscionable or not under s 51AC may involve the consideration and weighting of 13 statutory criteria, and an infinite number of other criteria which appear relevant to the judge, it would be quite unworkable to suppose that there could be no finding of accessorial liability unless the individual, at the time of the contravention, considered the same factors, and gave them the same weight, as did the judge at the subsequent trial. Apart from anything else, the morally obtuse would have an undeserved advantage.
Case: Wardley v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525 
Outcome: cited
The principal element is the value of the vessel as at the end of 1999, this being the time Mr Coggin lost control of her. There is no doubt that there was sufficient causal relationship between the unconscionable conduct and the loss in the "common law practical or common-law sense": Wardley v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525. 76 I do not think Telstar should be given credit for the monies it advanced. It has not filed a cross-claim. Telstar, through Mr Cunningham, was intimately involved in the way Mr Coggin was drawn into the whole transaction, including the Easy Drink dealership acquisition. Telstar's conduct was seriously unconscionable. It would not be fair to allow it to unpick the transaction and reconstruct something acceptable. Mr Coggin should be put back in the position he was before he encountered the respondents. 77 A claim was also made for loss of rental. This is not so clear, since the availability of solvent lessees at the time is problematic. A better measure is to allow interest on the value of the vessel to date. Counsel agreed that an appropriate rate was ten per cent per annum (not per month).
Case: Spencer v The Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418 at 431
Outcome: cited
On the other hand, a valuation for finance purposes, which contemplates the possibility of a fire sale environment, would be unfair to Mr Coggin. Rather I think the proper measure is market value or current price: Spencer v The Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418 at 431. 80 On behalf of the respondents Mr Nicholas Lockyer, another experienced marine surveyor, valued the vessel on a fair market value, as is where is basis, as at 24 December 1999 at $82,000. Mr Lockyer gave his opinion for the purposes of this case and had not inspected the vessel. His report includes two earlier valuations , both for insurance purposes: &#8226; 11 December 1997, C B Tanner, $106,000 &#8226; 23 April 1998, R W Beale, $135,000 81 I accept Mr Lockyer's definition of fair market value for these purposes, namely, the price achievable between a willing vendor and a willing purchaser where the vessel has been professionally presented and marketed by brokers in the local domestic market, taking into account recent prices obtained for similar vessels within that market. 82 That being so, I think the best evidence of value was the price in fact achieved, namely $95,000. Despite counsel's criticism, I conclude that Telstar took reasonable steps to sell the vessel by placing her with a number of brokers. There is nothing to suggest that the sale which in fact took place was other than at arms' length. The sale was effected after some negotiation and an increase of the buyers' offer. 83 There should be a deduction for repairs carried out on Telstar's instructions amounting to $1589.05, but not for a further sum of $500 which seems to have been a gratuity to Mr Cunningham's secretary.
Case: Harrington v Rich [2008] FCAFC 61
Outcome: followed
No question arises in the present Application as to whether it was filed within time; the question is whether leave should be granted or refused. Considerations relevant to the exercise of that discretion are: (i) whether in all the circumstances, the judgment of the primary judge is attended by sufficient doubt as to warrant it being reconsidered by the Full Court; and (ii) whether substantial injustice would result if leave were refused, supposing the decision were wrong. See: Harrington v Rich [2008] FCAFC 61 at [25] per Sackville, Emmett and Jacobson JJ. 10 In the present proceedings it is considered that leave to appeal should be refused. The judgment of the Federal Magistrates Court is not attendant with sufficient doubt to warrant it being reconsidered. Relevant to that conclusion is a review of the reasons for decision of both the Refugee Review Tribunal and the Federal Magistrates Court. 11 The reasons for decision of the Tribunal recount the claims being made, the findings of fact which were made and the reasons for decision. Those findings include findings made adversely to the now Applicant -- but findings which were open to the Tribunal. It thus concluded, for example: As is set out herein, the Tribunal is satisfied the applicant has sought to at least embellish if not entirely fabricate material parts of his case. Therefore, even though the Tribunal accepts the above claim (to have been abducted) is possible, the Tribunal does not intend to give the applicant the benefit of the doubt and thus does not accept this claim. ... ... the Tribunal is not satisfied the applicant is being pursued by the Indian authorities; for the reasons he claimed or at all. The Tribunal therefore does not accept the applicant had to hide in Bangalow. ... ... ... the Tribunal is satisfied the applicant could safely relocate in India and by doing avoid a well founded fear of persecution for a Convention reason.
Case: SZDGN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1543
Outcome: followed
The Application sought an order dispensing with compliance with Order 52, r 5(2) of the Federal Court Rules . However, in SZDGN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1543 at [9] Lindgren J correctly concluded that " there is no rule providing for a time limit for the seeking of leave to appeal from an interlocutory judgment of the FMCA ". His Honour further concluded that " there is an implied time limit of 21 days after the date of the interlocutory judgment ".
Case: SZLQZ v Minister for Immigration &amp; Citizenship [2008] FMCA 194
Outcome: cited
The Federal Magistrates Court dismissed an application to review the decision of the Tribunal on 20 February 2008: SZLQZ v Minister for Immigration &amp; Citizenship [2008] FMCA 194. The Federal Magistrate dismissed the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). 5 Rule 44 of the 2001 Rules provides as follows: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed -- adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. As rule 44.12(2) expressly provides, the dismissal of an application under rule 44.12(1)(a) is an interlocutory decision. 6 An appeal to this Court from an interlocutory decision of the Federal Magistrates Court requires leave: Federal Court of Australia Act 1976 (Cth), s 24(1A). The Applicant appeared before this Court this afternoon unrepresented, although he did have the assistance of an interpreter.
Case: Asioty v Canberra Abattoir Proprietary Limited [1989] HCA 40 ; (1989) 167 CLR 533
Outcome: referred to
fact that symptoms abate on each occasion that the worker ceases work does not preclude compensation where enhanced susceptibility to the onset of symptoms has been caused by the work. In those circumstances, the enhanced susceptibility constitutes an aggravation of the disease ( Asioty v Canberra Abattoir Proprietary Limited [1989] HCA 40 ; (1989) 167 CLR 533 at 540). Neither the absence of change in the underlying condition nor the temporary nature of the symptoms experienced preclude the existence of an aggravation of an ailment for the purposes of the SRC Act ( Federal Broom; Asioty; Beattie ). In Asioty, there had been an increased susceptibility to dermatitis caused by the employment of the worker in an abattoir. That constituted the aggravation or exacerbation of the disease. Here, the Tribunal did not find any increased susceptibility but rather that employment resulted in temporary pain from Mr Mellor's back without any permanent effect. At [259] the Tribunal stated that it accepted that increased symptoms in the form of pain constituted a temporary aggravation of the constitutional kyphoscoliosis of the thoracic spine. The Tribunal then turned to consider whether that temporary aggravation constituted an aggravation to a "material degree". It is at that stage of the reasoning that the Tribunal concluded that the thoracic pain did not fulfil the requirements of an injury under the SRC Act. In considering the lumbar spine, the Tribunal accepted that the pain constituted an aggravation of Mr Mellor's condition but found that it was a temporary aggravation that ceased when he stopped his work activities or shortly thereafter. The Tribunal found that this did not fulfil the requirement that Mr Mellor's employment contribute to his lower back conditions in a material degree.
Case: Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232
Outcome: cited
is, the Tribunal concluded that the employment was the cause of the aggravation represented by the pain but that the effect of that aggravation was not material because it was temporary and not severe. Is the requirement of materiality directed to the cause of the aggravation or its effect? "Disease" means an ailment or aggravation of an ailment ' that was contributed to in a material degree by the employee's employment '. "Injury" means, relevantly, a disease or an aggravation of an injury other than a disease. In Sahu-Khan , Finn J traced the legislative history of and judicial consideration of the requirement of materiality, including the decision of the Full Court in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232. In Canute at [67], French and Stone JJ said that the term "material" ' imposes an evaluative threshold below which a causal connection may be disregarded '. Justice Finn in Sahu-Khan adopted that analysis at [13]. It is the nature of the contribution that is necessarily material ( Sahu-Khan at [15]). Australia Post submits that the requirement of materiality qualifies the word "ailment" in the expression ' the aggravation of any such ailment; being ... an aggravation [of any such ailment] that was contributed to in a material degree by the employee's employment '. I do not accept this to be the case. It is also inconsistent with the discussion of materiality in Canute and Sahu-Khan , although neither of those cases directly considers the issue raised in the present case. Australia Post submits that Parliament would not have intended that the Commonwealth be liable for any aggravation of disease regardless of how insignificant that aggravation might be. However, s 4 does not give effect to such an intention.
Case: Federal Broom Company Pty Limited v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626
Outcome: considered
Mellor relies for that principle on Federal Broom Company Pty Limited v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626 , where the High Court held that there is a compensable exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensification of the symptoms. In that case, the plaintiff was already suffering from a disease but her employment resulted in a new manifestation of it. Justice McTiernan observed at 629 that, for the purposes of the Act then under consideration, the Workers' Compensation Act 1926-1960 (NSW), manifestations of a disease are relevant only so far as they cause incapacity and where the manifestations are causally related to employment. Justice Kitto, with whom Taylor and Owen JJ agreed, said at 632-633 that employment can be said to be a contributing factor to the aggravation of a disease where it provides an incident or state of affairs to which the worker is exposed in the performance of his (sic) duties and to which the worker would not otherwise have been exposed. There is no requirement that the underlying disease is made worse; it is sufficient if a new manifestation is suffered. Indeed, his Honour noted at 634, "exacerbation" applies to the effects of the disease rather than to the disease itself. Justice Windeyer said at 642 that it was not to the point that the plaintiff might have broken down because of her illness in any event; the precipitating event occurred at work. As was pointed out by the Full Court in Commonwealth of Australia v Beattie (1981) 35 ALR 369 , the definitions in issue in Federal Broom were different from those in Beattie (as they are from the definitions in s 4 of the SRC Act). The Full Court said at 377-378 that, notwithstanding differences, Federal Broom establishes that there may be an exacerbation or aggravation, which relevantly mean the same thing, notwithstanding that there is no change in the underlying pathology. Whether there is such an exacerbation or aggravation is a question of fact in each case.
Case: Tippett v Australian Postal Corporation (1998) 27 AAR 40
Outcome: considered
Australia Post points out that the Tribunal was referred to Tippett v Australian Postal Corporation (1998) 27 AAR 40 , which inaccurately summarised the joint judgment of Evatt and Sheppard JJ in Beattie as stating that an injury will be aggravated if the experience of the injury is increased or intensified. In fact, their Honours said that ' it is enough to say that pain brought on by work activity may constitute an aggravation ' (emphasis added). Australia Post submits that this may well have influenced the Tribunal to make findings that pain and discomfort in Mr Mellor's thoracic and lumbar regions constituted temporary aggravations, notwithstanding its reservations made apparent by the qualifications indicating that the Tribunal was not persuaded that the pain in each case actually amounted to aggravations of the underlying ailments.
Case: Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216
Outcome: considered
At the close of the applicant's case on the evening of 17 July 2008, the respondents stated that they wished to make a no-case submission in respect of parts of the applicant's claims against them. Whilst there has been judicial disagreement about the source of the Court's power to hear a no-case submission and the manner in which it should be dealt with, neither issue requires examination in this case. It is accepted that the Court has power to entertain such a submission: see Rasomen Pty Ltd v Shell Co of Australia Ltd (1997) 75 FCR 216 (" Rasomen ") at 223 per von Doussa, Drummond and Finn JJ referring to O 32, r 4(4) of the Federal Court Rules 1979 (Cth) ("the Rules") and s 79 of the Judiciary Act 1903 (Cth); and Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968 ; (1998) 157 ALR 1 (" Compaq Computer ") at 6 per Finkelstein J, Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (" Amcor ") at 356-60 per Sackville J and Australian Competition and Consumer Commission v Leahy [2004] FCA 1678 ; (2004) 141 FCR 183 (" Leahy ") at 210 per Merkel J referring to O 35, r 1 of the Rules. The approach is the same, whatever the source of the power: compare Compaq Computer at 6.
Case: Rasomen Pty Ltd v Shell Co of Australia Ltd (1996) 71 FCR 540
Outcome: cited
In the present case, for the reasons indicated at the hearing, I determined that I would not rule on whether the respondents should be required to make their election until after the parties had addressed argument on the no-case submission, and as to whether the respondents should be required to make an election. It seemed to me that it was appropriate to take this course in order to understand the nature of the argument the respondents sought to make in saying that they had no case to answer. This was the approach adopted by Fullagar J in Union Bank of Australia Ltd v Puddy [1949] VLR 242 (" Puddy "); by Finkelstein J in Compaq Computer ; by Branson J at first instance in Rasomen (see Rasomen Pty Ltd v Shell Co of Australia Ltd (1996) 71 FCR 540 at 543); by Sundberg J in Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 (" Tru Floor ") at 537; and approved by the Full Court of the Supreme Court of Victoria in Protean .
Case: William H Muller &amp; Co's Algemeene etc v EBBW Vale Steel, Iron &amp; Coal Co Ltd [1936] 2 All ER 1363
Outcome: cited
The remainder of the respondents' no-case submission attracts different considerations as to the application of the general rule: compare Residues Treatment at 68-9; William H Muller &amp; Co's Algemeene etc v EBBW Vale Steel, Iron &amp; Coal Co Ltd [1936] 2 All ER 1363 at 1365-6 per Branson J; and Tru Floor at 538-9 (and the cases there cited).
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: referred to
In the second part of the respondents' no-case submissions, the respondents have argued that, the evidence adduced by the applicant taken at its highest from the applicant's point of view, does not make out certain of the contraventions alleged against them. This part of their no-case submission therefore falls within the third category mentioned by Perry J in Residues Treatment at 68. Generally speaking (and allowing that the court retains a discretion in the matter) there must be some unusual circumstance to justify the respondents making a no-case submission without being required to elect to call no evidence. As already noted, the respondents rely on the fact that the applicant alleged contraventions of the BCII Act , which, if established, would expose the CFMEU to pecuniary penalties of up to $110,000 and Mr Mates to pecuniary penalties of up to $22,000. I accept that this factor militates against adherence to the general rule; and that, in considering the applicant's evidence, I should take account of the gravity of the matters alleged against the respondents: see Evidence Act 1995 (Cth), s 140 and Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361-2. I also accept that, ordinarily, it is not in the interests of justice for a party against whom civil penalties are sought for statutory breaches of this kind to be subject to cross-examination where there is no evidence to support the case against him or her.
Case: Prentice v Cummins (No 4) [2002] FCA 1215
Outcome: cited
As regards the second part of the respondents' no-case submission, I am not persuaded that justice and convenience justify departure from the general rule. Accordingly, I would not rule on this part of the respondents' no-case submission unless the respondents elect to call no further evidence. The respondents are put to their election, and in respect of all causes of action. This is notwithstanding that their no-case to answer submission did not relate to all that the applicant pleaded against them. Any other approach would undermine the basis upon which I have ruled that they should be put to their election: compare Residues Treatment at 74, Popovic at [124] per Olsson J and Prentice v Cummins (No 4) [2002] FCA 1215 at [25] per Sackville J. As already noted, the applicant's case is that the events on 15, 17, 21 and 22 February 2006 and following are related to one another and not susceptible to the dissection the respondents would make.
Case: Temple v Powell [2008] FCA 714
Outcome: discussed
I accept that, in relying on Laing , Dowsett J in Temple v Powell [2008] FCA 714 at [50] - [52] apparently adopted a broad view of the scope of paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act , which would extend the paragraph to unions. This case, however, proceeded by way of an agreed statement of facts, the parties agreeing that the union had contravened s 38 of the BCII Act , and his Honour's attention was not drawn to the relevant passages in Davids or Giudice . The same may be said of the earlier judgment of Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317 (" Leighton "), at [28]-[31] where once again reliance was placed on Laing without reference to Davids or Giudice .
Case: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317
Outcome: discussed
I accept that, in relying on Laing , Dowsett J in Temple v Powell [2008] FCA 714 at [50] - [52] apparently adopted a broad view of the scope of paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act , which would extend the paragraph to unions. This case, however, proceeded by way of an agreed statement of facts, the parties agreeing that the union had contravened s 38 of the BCII Act , and his Honour's attention was not drawn to the relevant passages in Davids or Giudice . The same may be said of the earlier judgment of Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317 (" Leighton "), at [28]-[31] where once again reliance was placed on Laing without reference to Davids or Giudice .