mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Dickson v Gallagher (1985) ATPR 40-550
Outcome: cited
The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].
Case: Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215 
Outcome: applied
Proof of the losses has to be examined. I am satisfied as to the quantum claimed in each case as to the losses flowing from each relationship. There is a question as to parties. In some cases, the relevant agreement was entered into by a company associated with and funded by the individual(s) who were influenced by the misleading conduct. The calculation of damages thus raises the issues discussed in the authorities referred to in Harris v Milfull [2002] FCAFC 442 ; (2002) 43 ACSR 542, particularly Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215. There may be difficulties in sorting out losses suffered by the shareholders on the one hand and the company on the other. However, in the context of s 87(1B), there does not appear to be any barrier to claiming the overall losses jointly (and not severally) between the shareholder(s) and the company in such a case without dissection where each has consented to the proceeding as required. That is the case with the claims by Radcliffe and Tauto Investments Pty Limited; Bu and Tinson Far Eastern Group Pty Limited; Woldemichael and Red Sea International Pty Limited; Tony Savino and SAV Enterprises Pty Limited (all in relation to Vending Machines); Loncarie and Caslow Pty Limited; King and Flexprint Pty Limited; Vella and Global Mobile Solutions Pty Limited and Smith and Gelco Limited (all in relation to Swisscom). 70 There is an issue where the only claim is personal, but where the business was conducted in whole or in part by a company. That was the case in relation to each of Bartlett and Singh (re Vending Machines) and Bowen (re Swisscom). Bartlett entered into the agreement himself, and the company was collateral to that agreement. Singh initially signed the agreement himself, and the early expenses were paid personally but there was a later novation to Perfect Communications Pty Limited. A second agreement was signed by Singh in person. The Swisscom agreement was signed by the Bowens personally. There is no evidence to suggest that any of the companies involved in these cases included external shareholders or carried on any separate businesses that could not be segregated from the company or of the subject businesses. That being so, Gould v Vaggelas permits an analysis that can include loss to the individuals by reference to the effect upon them of the affairs of the company. On that basis the evidence is sufficient to establish the loss claimed, although not as detailed as it might be. 71 Interest should be included in the compensation orders pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) at the rate of 10.5 per cent per year on the whole of each award for the period between the date when the cause of action arose and the date as of which the judgment is entered. 72 The ACCC is entitled to a general order for costs including reserved costs except as against Global and In Touch. There should be a special order as sought in relation to the costs of 10, 25 and 26 May 2005 that were reserved.
Case: Guglielman v Trescowthick [2004] FCA 326
Outcome: cited
The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].
Case: Handley v Snoid (1981) ATPR 40-219
Outcome: cited
The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].
Case: Harris v Milfull [2002] FCAFC 442 ; (2002) 43 ACSR 542
Outcome: referred to
Proof of the losses has to be examined. I am satisfied as to the quantum claimed in each case as to the losses flowing from each relationship. There is a question as to parties. In some cases, the relevant agreement was entered into by a company associated with and funded by the individual(s) who were influenced by the misleading conduct. The calculation of damages thus raises the issues discussed in the authorities referred to in Harris v Milfull [2002] FCAFC 442 ; (2002) 43 ACSR 542, particularly Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215. There may be difficulties in sorting out losses suffered by the shareholders on the one hand and the company on the other. However, in the context of s 87(1B), there does not appear to be any barrier to claiming the overall losses jointly (and not severally) between the shareholder(s) and the company in such a case without dissection where each has consented to the proceeding as required. That is the case with the claims by Radcliffe and Tauto Investments Pty Limited; Bu and Tinson Far Eastern Group Pty Limited; Woldemichael and Red Sea International Pty Limited; Tony Savino and SAV Enterprises Pty Limited (all in relation to Vending Machines); Loncarie and Caslow Pty Limited; King and Flexprint Pty Limited; Vella and Global Mobile Solutions Pty Limited and Smith and Gelco Limited (all in relation to Swisscom).
Case: Haydon v Jackson (1988) ATPR 40-845
Outcome: cited
The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].
Case: Hospital Provident Fund Pty Ltd v Victoria [1953] HCA 8 ; (1953) 87 CLR 1
Outcome: cited
However, there is a good deal of authority as to the meaning of trade or commerce in other constitutional contexts, particularly in relation to s 92 as it was previously construed (eg, W &amp; A McArthur Ltd v Queensland [1920] HCA 77 ; (1920) 28 CLR 530; Mikasa (NSW) Pty Ltd v Festival Industries Pty Ltd [1972] HCA 69 ; (1972) 127 CLR 617; Hospital Provident Fund Pty Ltd v Victoria [1953] HCA 8 ; (1953) 87 CLR 1; and APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44 per Gleeson CJ and Heydon J at [37] and Gummow J at [168] [170]), and as to the phrase 'in trade or commerce' in s 52 of the Act (eg Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330).
Case: I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: applied
The orders sought to compensate third parties require attention. There is no doubt as to the entitlement in principle to such an order in each case. I am satisfied, in particular, that each respondent was responsible for misleading conduct that contributed to the decision taken by the relevant party or parties respectively to enter into the arrangement leading to loss and damage. That is all that is required ( I &amp; L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109 per Gaudron, Gummow and Hayne JJ at [57]).
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 
Outcome: applied
The inference that the evidence of the individual respondents would not have assisted their respective cases is available Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 312 and 321 . There is now a plethora of cases explaining the context of that inference in various ways. It may be accepted that it does not provide positive evidence to fill a gap in the ACCC's case. However, it may strengthen an inference otherwise available on the evidence or, to put it another way, may make a court more comfortable in drawing such an inference. Of course, the inference has particular application where positive evidence is not challenged. I should add that I do not propose to act upon any inference arising out of the answers to, or the failure to answer, interrogatories in relation to Nicholas Yates or Nicholas Rhodin. 58 I do not accept the argument that there is any special standard of proof beyond the balance of probabilities applicable to this proceeding.
Case: Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2003) 135 FCR 1 
Outcome: followed
That does not alter the requirements for proof of accessorial liability (see Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661; Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] [160]; Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2003) 135 FCR 1 per Stone J at [66] [93]). Of course, proof of knowledge of the elements of the offence is proof to the civil standard based upon the whole of the evidence.
Case: Mikasa (NSW) Pty Ltd v Festival Industries Pty Ltd [1972] HCA 69 ; (1972) 127 CLR 617
Outcome: cited
However, there is a good deal of authority as to the meaning of trade or commerce in other constitutional contexts, particularly in relation to s 92 as it was previously construed (eg, W &amp; A McArthur Ltd v Queensland [1920] HCA 77 ; (1920) 28 CLR 530; Mikasa (NSW) Pty Ltd v Festival Industries Pty Ltd [1972] HCA 69 ; (1972) 127 CLR 617; Hospital Provident Fund Pty Ltd v Victoria [1953] HCA 8 ; (1953) 87 CLR 1; and APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44 per Gleeson CJ and Heydon J at [37] and Gummow J at [168] [170]), and as to the phrase 'in trade or commerce' in s 52 of the Act (eg Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240 ; (2004) 139 FCR 330).
Case: Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95
Outcome: cited
The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].
Case: Quinlivan v Australian Competition and Consumer Competition [2004] FCAFC 175 
Outcome: followed
Until the decision of the Full Court in Quinlivan v Australian Competition and Consumer Competition [2004] FCAFC 175 there were unsettled questions concerning the interrelationship between s 51A and s 75B of the Act. Despite submissions to the contrary by counsel for the ACCC, in my opinion that decision settled those questions for the purposes of a single judge, with one possible qualification. The reasoning of the Full Court appears as follows (at [10] [15]): 'From the interaction of these provisions three conclusions emerge. First, s 51A does not detract from the Yorke principle that actual knowledge of the essential elements of the contravention is required if s 75B or s 80 is to apply. Where the contravening conduct involves misrepresentation, whether as to a future matter or not, this principle requires actual knowledge by the accessorial respondent of the falsity of the representation. This is an essential matter which must be alleged and proved: Su v Direct Flights International Pty Ltd [1999] FCA 78 at [38] , Fernandez v Glev Pty Ltd [2000] FCA 1859 at [18] . Secondly, the reversal of onus in s 51A(2) does not apply where the accessorial liability of s 75B or s 80 is relied on. ... Thirdly, it is implicit in s 51A(1) that where a corporation does have reasonable grounds for making a representation with respect to a future matter then there will be no contravention of s 52. ... Accordingly, where s 75B or s 80 accessorial liability is in issue in relation to a representation with respect to a future matter, the existence or otherwise of reasonable grounds will be relevant. If reasonable grounds exist, there will have been no contravention and thus no question of accessorial liability will arise. However, as against the accessorial respondent, the onus will be on the applicant to show the respondent had actual knowledge that &#8226; the representation was made and &#8226; it was misleading or &#8226; the corporation had no reasonable grounds for making it (See Australian Competition and Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439 at [303] .)' 46 The qualification is that in a case such as the present, where the corporations are parties, there is an argument available that the liability of the corporation should be decided in accordance with s 51A for all purposes including assessment of accessorial liability.
Case: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236
Outcome: followed
That does not alter the requirements for proof of accessorial liability (see Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661; Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] [160]; Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2003) 135 FCR 1 per Stone J at [66] [93]). Of course, proof of knowledge of the elements of the offence is proof to the civil standard based upon the whole of the evidence.
Case: Snyman v Cooper (1989) 24 FCR 433
Outcome: cited
The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].
Case: Snyman v Cooper (No 2) (1990) 25 FCR 470
Outcome: cited
The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].
Case: Steinberg v Federal Commissioner of Taxation [1973] HCA 11 ; (1975) 134 CLR 640
Outcome: applied
The submissions for the ACCC in relation to each of Nicholas Yates and Nicholas Rhodin referred to the use that may be made of falsehoods referring to the well-known passage from the judgment of Gibbs J in Steinberg v Federal Commissioner of Taxation [1973] HCA 11 ; (1975) 134 CLR 640 at 694 in view of their participation in the setting up of false referees to corroborate the representations made to prospective distributors. I accept that the conduct did take place, and would infer that the false references were for the purpose of buttressing the representations made. That would assist in drawing the inference that those involved knew that the representations had been made and were false.
Case: Swan v Downes (1978) 34 FLR 36
Outcome: cited
There is surprisingly little authority upon the provision in question. There is discussion of it in the judgment of the Full Industrial Court in Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194 at 204 206 and in that of Franki J in Swan v Downes (1978) 34 FLR 36 particularly at 40 46. (See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at [67] , [76] [79]; and Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 at [32] .)
Case: Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194
Outcome: cited
There is surprisingly little authority upon the provision in question. There is discussion of it in the judgment of the Full Industrial Court in Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194 at 204 206 and in that of Franki J in Swan v Downes (1978) 34 FLR 36 particularly at 40 46. (See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at [67] , [76] [79]; and Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 at [32] .) 51 The other relevant extension to personal liability is effected by s 6(3) relating to conduct involving the use of postal, telegraphic or telephonic services. There are a number of examples of the operation of this extension commencing with Wells v John R Lewis (International) Pty Ltd at 203 204 and including Handley v Snoid (1981) ATPR 40-219 at 42,990; Dickson v Gallagher (1985) ATPR 40-550 at 46,459; Haydon v Jackson (1988) ATPR 40-845 at 49,097 per Fisher J (agreed in by Lockhart J). The decision of Von Doussa J in Snyman v Cooper (1989) 24 FCR 433 at 440 442 favours a wide interpretation of the provision. That point did not arise on the appeal ( Snyman v Cooper (No 2) (1990) 25 FCR 470). Some recent examples include Australian Competition and Consumer Commission v Hughes (2002) ATPR 41-863 at 44,792; Australian Competition and Consumer Commission v Chen at [32]; Quality Corp (Aust) Pty Ltd v Millford Builders (Vic) Pty Ltd [2003] QSC 95 at [37] [41]; and Guglielman v Trescowthick [2004] FCA 326 at [85] [88].
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: applied
That does not alter the requirements for proof of accessorial liability (see Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661; Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] [160]; Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2003) 135 FCR 1 per Stone J at [66] [93]). Of course, proof of knowledge of the elements of the offence is proof to the civil standard based upon the whole of the evidence.
Case: Abebe v Commonwealth [1999] HCA 14 , 197 CLR 510
Outcome: considered
The conclusions reached by the Tribunal were all based upon findings of fact open to be made by the Tribunal. The Ground is but an invitation for this Court to conclude that the Tribunal would have reached a different factual conclusion had it " fully " considered the material before it. But the task of making findings of fact is a task entrusted by the legislature to the Tribunal. The " weight " to be given to such evidence as is before the Tribunal is a matter entrusted to the Tribunal alone: cf Abebe v Commonwealth [1999] HCA 14 at [197] , [2004] HCA 32 ; 197 CLR 510 at 580 per Kirby J; Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552, 559. The Tribunal (in any event) did " fully " consider the claim. The learned Federal Magistrate concluded that the Tribunal had not committed any jurisdictional error in reaching the conclusion that it did. And no error is exposed in that decision of the Federal Magistrate.