mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Traljesic v Attorney-General (Cth) [2006] FCA 125 ; (2006) 150 FCR 199
Outcome: cited
some of the cases considered above, reference is made to disclosure of confidential information to legal advisers subject to appropriate undertakings. Such undertakings were offered in the present case. There are many cases in which access has been denied to legal advisers who have offered undertakings on the ground that the risk to national security flowing from inadvertent disclosure is simply too high. There is an elaborate discussion of this risk in Regina v Khazaal [2006] NSWSC at [31]-[39]. See also Traljesic v Attorney-General (Cth) [2006] FCA 125 ; (2006) 150 FCR 199 at [22] - [23] .
Case: Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605
Outcome: cited
As senior counsel for both parties acknowledged, the resolution of their dispute depends upon the proper construction of s 705 - 70 of the ITAA 1997. In Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605 Kirby J at 632 referred to authorities indicating that taxation statutes should generally not be narrowly construed. His Honour said that each case must depend upon its own statutory language and apparent statutory purposes. Neither party on this appeal suggested any particular policy behind s 705 - 70 which helpfully informed its construction in the present circumstances. 30 It is not disputed by the Commissioner that Envestra, and ESL and EQL, could have elected on or before 1 July 2002 (or, indeed, at any time until the formal adoption of the financial accounts of ESL and EQL respectively for the financial year ended 30 June 2003) under s 334(5) of the Corporations Act to apply the 1999 AASB 1020 to the statement of the financial position of ESL and EQL or to the consolidated financial statements of Envestra and its group. Had they done so, it is also common ground that the deferred tax liabilities of ESL and EQL measured in accordance with the 1999 AASB 1020 would have been liabilities of ESL and EQL under s 705 - 70 (1) of the ITAA for the purpose of working out the allocable cost amount of each of ESL and EQL joining the Envestra consolidated group. There is no apparent policy behind Pt 3 - 90 of the ITAA 1997, or in particular s 705 - 70 , which suggests such an outcome would be inappropriate.
Case: Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1
Outcome: cited
But does the word "can" in s 705 - 70 (1) in its context mean that the possible adoption of the 1999 AASB 1020 by Envestra, ESL and EQL at 30 June 2002 (or until their financial accounts to 30 June 2003 were approved by their directors) enlivens s 705 - 70 (1)? Or does the word "can" in its context have some different meaning and function? It is a trite starting point, recognised by those rhetorical questions that it is desirable, where possible, to give meaning to every word used in a statute: Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 12-13; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 382.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: cited
But does the word "can" in s 705 - 70 (1) in its context mean that the possible adoption of the 1999 AASB 1020 by Envestra, ESL and EQL at 30 June 2002 (or until their financial accounts to 30 June 2003 were approved by their directors) enlivens s 705 - 70 (1)? Or does the word "can" in its context have some different meaning and function? It is a trite starting point, recognised by those rhetorical questions that it is desirable, where possible, to give meaning to every word used in a statute: Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 12-13; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 382.
Case: Price v Civil Service Commission [1978] 1 All ER 1228
Outcome: considered
Accounting standards of the AASB are not totally prescriptive. They may contain provisions which require or permit matters of judgment, and matters of choice. The use of the words "can or must" can therefore readily function as alternatives in relation to the AASB accounting standards which in fact apply in the determination of the accounting liabilities of a joining entity at the joining date. Some standards will direct the recognition of a particular accounting liability, and some will permit of a judgment or discretion as to whether a particular accounting liability is recognised. I do not think it is necessary to look to accounting standards which might have, but in fact did not, apply at the relevant time to give meaning and function to the word "can" in s 705 - 70 (1). Indeed, if that were contemplated by that provision, it would have been more appropriate to use words such as "could have been" or "may have been" as well as "can or must" in that provision. I think the use of the present tense points only to accounting standards which in fact apply in the determination of the accounting liabilities of the joining entity at the joining time. Although in a quite different context, I note that the expression "can comply" in s 1 of the Sex Discrimination Act 1975 (UK) and in s 1 of the Race Relations Act 1976 (UK) has been given a practical operative meaning rather than one which encompasses what is theoretically possible: Price v Civil Service Commission [1978] 1 All ER 1228; and Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548 per Lord Fraser at 565-566 respectively.
Case: Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548
Outcome: considered
Accounting standards of the AASB are not totally prescriptive. They may contain provisions which require or permit matters of judgment, and matters of choice. The use of the words "can or must" can therefore readily function as alternatives in relation to the AASB accounting standards which in fact apply in the determination of the accounting liabilities of a joining entity at the joining date. Some standards will direct the recognition of a particular accounting liability, and some will permit of a judgment or discretion as to whether a particular accounting liability is recognised. I do not think it is necessary to look to accounting standards which might have, but in fact did not, apply at the relevant time to give meaning and function to the word "can" in s 705 - 70 (1). Indeed, if that were contemplated by that provision, it would have been more appropriate to use words such as "could have been" or "may have been" as well as "can or must" in that provision. I think the use of the present tense points only to accounting standards which in fact apply in the determination of the accounting liabilities of the joining entity at the joining time. Although in a quite different context, I note that the expression "can comply" in s 1 of the Sex Discrimination Act 1975 (UK) and in s 1 of the Race Relations Act 1976 (UK) has been given a practical operative meaning rather than one which encompasses what is theoretically possible: Price v Civil Service Commission [1978] 1 All ER 1228; and Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548 per Lord Fraser at 565-566 respectively.
Case: Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (1990) 23 FCR 82
Outcome: considered
The significance of tense in the construction of s 23(g)(iii) of the ITAA 1936 was discussed by the Full Court of this Court in Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (1990) 23 FCR 82 , especially per Lockhart J at 89 and per Beaumont J at 116. Of course, that case addressed a quite different context, so it merely provides an indication that tense may be a significant indicator to the proper construction of a taxation statute. See also Brookton Co-op Society Ltd v Commissioner of Taxation (Cth) [1981] HCA 28 ; (1981) 147 CLR 441 per Mason J at 451 and per Aickin J at 461-469.
Case: Brookton Co-op Society Ltd v Commissioner of Taxation (Cth) [1981] HCA 28 ; (1981) 147 CLR 441
Outcome: cited
The significance of tense in the construction of s 23(g)(iii) of the ITAA 1936 was discussed by the Full Court of this Court in Cronulla Sutherland Leagues Club Ltd v Commissioner of Taxation (1990) 23 FCR 82 , especially per Lockhart J at 89 and per Beaumont J at 116. Of course, that case addressed a quite different context, so it merely provides an indication that tense may be a significant indicator to the proper construction of a taxation statute. See also Brookton Co-op Society Ltd v Commissioner of Taxation (Cth) [1981] HCA 28 ; (1981) 147 CLR 441 per Mason J at 451 and per Aickin J at 461-469.
Case: Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) [1984] HCA 73 ; (1984) 156 CLR 414 
Outcome: referred to
the learned authors of Meagher, Gummow and Lehane's Equity, Doctrine and Remedies , 4 th ed., observe at 41-025 it may be accepted that, since Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) [1984] HCA 73 ; (1984) 156 CLR 414 , there exists a general equitable jurisdiction to grant relief against actual or threatened abuse of confidential information not involving any tort or breach of contract (at 438 per Deane J in delivering the judgment of the High Court). But where there exists a contract, the position is not as clear. The learned authors had earlier said (at 41-020): Where there is a contract then it is to the contract that the court should look to see from express words or necessary implication what the obligations of the parties are and the introduction of equitable concepts should be resisted. On the other hand, as the learned authors go on to acknowledge, there have been a number of cases involving a contractual nexus where judges have nevertheless treated equitable principles at length as if they overlapped or were concurrent with the common law. Nevertheless, where, as here, there is not only a contract between the parties, but a contract which, in its terms, defines 'Confidential Information' on an exhaustive basis (cl 1.1 of the Access Agreement) and regulates the obligations of each party in relation to the Confidential Information of the other party on a comprehensive basis (cl 15 of the Access Agreement), there is, in my view, no reason for the intervention of equity for the simple reason that there is no need for its intervention to achieve justice between the parties for conduct which is common to both the finding of breach of contract and the ground relied on for equitable intervention. Moreover, the conclusion expressed in [4] above is reinforced where, as here, the contract contains a provision such as cl 16.1 which provides: Save to the extent that another provision of this agreement expressly provides for (or expressly excludes or limits) a remedy, a liability or a form of compensation in relation to an act, omission or event, this clause 16 shall regulate the liability (whether arising in contract, in tort, under statute or in any other way and whether due to negligence, wilful or deliberate breach or any other cause) of a party to each other party under and in relation to this agreement and in relation to any act, omission or event relating to or arising out of this agreement.
Case: Comcare v Post Logistics Australasia Pty Ltd (2008) 178 IR 200 ; [2008] FCA 1987
Outcome: cited
to the overriding caution expressed by Flick J in Comcare v Post Logistics Australasia Pty Ltd (2008) 178 IR 200 ; [2008] FCA 1987 at [38] in the passage which follows, these statements reflect the proper approach to assessing penalty: Care must be taken to ensure that any listing of potentially relevant considerations do not themselves become an impermissible substitute for considering the terms of the legislation in issue or an unnecessary constraint upon a discretion conferred in otherwise unconfined terms. The Submissions of Comcare Mr Rozen, who appeared as counsel for Comcare, submitted that the contraventions in this case were in the worst category. He argued that the risk of a cadet suffering an allergic reaction to peanuts contained in a ration pack was both foreseeable and foreseen. This was, he argued, a significant aggravating factor. The Australian National Audit Office report in 1996 drew attention to the risk of ADF personnel suffering allergic reactions as a result of lack of awareness of the ingredients in the ration packs. The report recommended: ... that Army needs to provide greater assurance that personnel are aware of the contents of ration packs prior to issue so that individuals can make alternative arrangements where medical circumstances warrant. Army could also investigate the development of alternative components to allow use by personnel with medical conditions that preclude consumption of current components. It seems from an affidavit sworn on 5 June 2009 by Alfred John Purvis, Director, Health System Program Office, Defence Material Organisation, that the ADF responded to this report by including the ingredients list in ration packs from 1997. However, there was no warning of the dangers of food allergy on the ration packs, and no indication of the ingredients on the beef satay pouch in the ration packs provided to Nathan and Nivae Anandaganeshan and Gene van den Broek. Then, Mr Rozen contended that the grave consequences, particularly Nathan's death, but also the exposure of Nivae Anandaganeshan and Gene van den Broek to the danger of death, pointed to the seriousness of the risk to safety that arose from the contravention of s 16(1). Next, it was contended that the threat to safety in this case arose from a systemic failure rather than from the inadvertence of the victim or a momentary lapse of supervision. Here, parents were required to advise the camp organisers of any medical conditions of the cadets. The cadets were not permitted to bring their own food on the camp. The medical details were collated but the list was not given to those responsible for distributing food to the cadets. There was thus a failure to have a system whereby the medical details relating to food allergies were available to those distributing the ration packs, and no sufficient attention was given to the potential risk to cadets with food allergies.
Case: Director of Public Prosecutions v Yarra Valley Water Limited (2006) 159 IR 395 ; [2006] VSCA 279
Outcome: discussed
Mr Livermore referred to two Victorian Court of Appeal cases in addition to reference to the guidance provided by Madgwick J in Trooper Lawrence [2007] FCA 662 ; 163 FCR 207. These references were designed to throw some light on the analysis of the facts in the present case. However, the width of the factual enquiry in each particular case makes comparison with the facts of other cases of rather limited assistance. Each case must be assessed on its own facts. With that reservation in mind, I deal first with Director of Public Prosecutions v Yarra Valley Water Limited (2006) 159 IR 395 ; [2006] VSCA 279. In that case an employee was killed when the endplate blew off a stretch of pipe and struck him. The pipe was being pressure tested by a contractor. The contract required the testing to be done with water which was the recognised method. Instead, the test was conducted with air, thereby causing the accident. Nettle JA said at [3], [4] and [6]: 3. First, this case results from a tragedy. The victim of the offence lost his life in the course of his work through no fault of his own. That could have been avoided if the respondents had known more about the techniques employed in their operations. It is because of their failure to know and to take appropriate action that they fall to be punished. Secondly, this case is a long way from Amcor , to which King, A.J.A. refers in her reasons; for there was here no attempt to cut corners for the sake of supposed economies or any calculated disregard of the safety of men. To the contrary, and despite the fact of the offending, the evidence bespeaks two organisations committed to the safety of their workforce and whose modus operandi was to do and pay for what they understood to be necessary to achieve it. The tragedy here came about because of a lack of knowledge and ultimately human error. ... 6. No one denies that the nature and gravity of these offences was serious and therefore that they warranted substantial penalties. General deterrence is the pre-eminent sentencing consideration in matters of this kind and therefore any contravention of s 21 of the Occupation Health and Safety Act 1985 which results in death or serious injury is liable to be visited with heavy penalties. But for the reasons essayed by King, A.J.A. in her judgment, the level of culpability in this case was not high and it is apparent from the improvements made to the respondents' systems since the offences were committed that there is no need for specific deterrence. It should also be understood that both respondents were without any prior convictions and according to the evidence each had a well deserved reputation for safety in the workplace. [original emphasis, footnotes omitted]
Case: Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464
Outcome: applied
also relied on the following passage from Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 714 (quoting with approval from Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464): [T]he primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH &amp; S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in determination of penalty to the gravity of the offence itself. See also Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 ; [2005] VSCA 219 ( Amcor ) at [35] where this passage was cited.
Case: R v Propsting [2009] VSCA 45
Outcome: applied
the criminal law it is established that a maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed. In Veen v R (No 2) [1988] HCA 14 ; (1988) 164 CLR 465 at 478; [1988] HCA 14 , Mason CJ, Brennan, Dawson and Toohey JJ said: That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. In R v Propsting [2009] VSCA 45 , Vincent JA said at [15]: There is a stage at which conduct becomes so egregious that it must be regarded as being of a kind attracting the imposition of a very substantial, if not the maximum, penalty for the commission of the offence involved regardless of whether a more serious example could be imagined.
Case: Veen v R (No 2) (1988) 164 CLR 465 ; [1988] HCA 14
Outcome: applied
the criminal law it is established that a maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed. In Veen v R (No 2) [1988] HCA 14 ; (1988) 164 CLR 465 at 478; [1988] HCA 14 , Mason CJ, Brennan, Dawson and Toohey JJ said: That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. In R v Propsting [2009] VSCA 45 , Vincent JA said at [15]: There is a stage at which conduct becomes so egregious that it must be regarded as being of a kind attracting the imposition of a very substantial, if not the maximum, penalty for the commission of the offence involved regardless of whether a more serious example could be imagined.
Case: Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700
Outcome: applied
also relied on the following passage from Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 714 (quoting with approval from Lawrenson Diecasting Pty Ltd v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464): [T]he primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH &amp; S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in determination of penalty to the gravity of the offence itself. See also Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557 ; [2005] VSCA 219 ( Amcor ) at [35] where this passage was cited.
Case: Allstate Life Insurance Co v ANZ (No 6) (1996) 64 FCR 79
Outcome: cited
non-indigenous respondents reminded me of the criteria for the admissibility and role of expert opinion evidence. They referred, in particular, to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [59] [86] (Heydon JA), and to my own judgments in Allstate Life Insurance Co v ANZ (No 6) (1996) 64 FCR 79 at 83 84 and Harrington-Smith v Western Australia (No 7) at [20]. I need not embark upon a general discussion of the rules governing the admissibility of expert opinion evidence. Anthropologists' notes as evidence of facts
Case: Bennell v Western Australia [2006] FCA 1243 ; (2006) 153 FCR 120
Outcome: cited
circumstances pose a particular difficulty for the Claim groups. They bear the onus of proving that the group rights and interests they claim derive from laws and customs as they existed at sovereignty, that is, at 1829. Lack of evidence in this respect tells against them, and in favour of those who oppose their Claims. Yet substantial written records relating to Aboriginal people in the Goldfields do not begin until the 1890s. Contrast the recent case of Bennell v Western Australia [2006] FCA 1243 ; (2006) 153 FCR 120 in which European settlement and accompanying written records occurred soon after sovereignty. Of course, it should not be assumed that if the Goldfields had been settled in 1829, a record of the local position at that time would necessarily have supported the present Claims: it may have defeated them. The point is simply that contemporaneous records do not exist, and any evidentiary vacuum works against the Claim groups. Since the evidence does not establish any important and relevant event between 1829 and the earliest European records relating to the Goldfields, I infer that the situation that existed immediately when the written record began was like that at sovereignty. As discussed at 3.1 below, however, there are constraints on the 'retrospective inferences' that can properly be drawn. It is, for example, one thing to infer from European observation of the presence of semi-nomadic Aboriginal people in the Wongatha Claim area in and after 1869 that semi-nomadic Aboriginal people were to be found in the Wongatha Claim area in 1829. It is another thing to infer that the latter were the ancestors of the people observed and would have 'occupied' the area where the former were observed. (b) The difficulty of proving claims to land by various groupings of semi-nomadic people The indigenous people of the Western Desert led semi-nomadic lives. They roamed over large areas, determined primarily by the availability of water and food. Since animals also needed water, the location of water in pools, rockholes and 'soaks' was all important. Indeed, the Aboriginal word for water, ' kapi ' (there are different spellings, such as ' gabi '), was also used to refer to one's 'country' in the sense of the main watering place to which one returned, particularly in time of drought. It is for this reason, that a preference has been expressed for 'semi-nomadic' rather than 'nomadic' (but I will often use 'nomadic' without the qualifier).