mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2007) 63 ACSR 300
Outcome: applied
There is a substantial body of authority in the Federal Court and other Australian Courts that the Court has no power to extend the time for compliance after it has expired: Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2007) 63 ACSR 300 and G&amp;J Gears Australia Pty Ltd v Brobo Group Pty Ltd (2006) 229 ALR 638 at [46] to [52] and the authorities referred to therein. 5 In Aussie Vic Plant Hire , the Court of Appeal of the Supreme Court of Victoria considered that body of authority. Chernov JA considered that the policy of Pt 5.4 of the Act and the mischief which s 459F(2)(a)(i) seeks to abrogate makes it implicit that the Court is not empowered to extend the time for compliance with a statutory demand after the period has expired. His Honour considered that Pt 5.4 of the Act is a code which provides a strict and self executing regime: [84]-[97]. Maxwell P and Neave JA disagreed: [28] to [77]. Nettle and Ashley JJA, the remaining members of the Court of Appeal, concluded that as a matter of statutory construction of the Act and, in particular s 459F(2)(a)(i) of the Act , read with s 70 , an application to extend time for compliance with a statutory demand may be made under s 459F(2)(a)(i) after the time for compliance has expired: [118]-[124] and [183]-[187]. However, their Honours did not the permit the time for compliance with the statutory demand to be extended after the period had expired on the basis that the view, that the Court has no power to extend the time for compliance after it has expired, had existed for more than 10 years and one could not say "positively that it was wrong and productive of inconvenience": [123]. The High Court granted special leave to appeal. The appeal was heard on 6 February 2008 and the decision reserved. 6 Consistent with the approach adopted by Nettle and Ashley JJA, I would not permit the time for Ox Operations to comply with the statutory demand to be extended. The period has expired. On that basis, the application for review has no utility and should be dismissed. 7 However, in order to deal with all issues and to avoid unnecessary costs, in the event that the High Court considers that s 459F(2)(a)(i) of the Act (whether read alone or in conjunction with other provision of the Act ) enables a Court to extend the time for compliance with a statutory demand after it has expired, I propose to deal with the merits of Ox Operations application to set aside LMPD's statutory demand pursuant to ss 459G and 459H of the Act .
Case: Crown Joinery Pty Ltd v Lyleho Pty Ltd [2007] VSC 214
Outcome: cited
As has been said many times, a notice under O 33 r 12 has the same coercive effect as a subpoena for production. Compliance is mandatory unless the Court otherwise orders: Potts v Dennis Jones &amp; Co Pty Ltd (No. 2) (1995) 58 FCR 61 at 70. Similarly, the considerations which apply to the setting aside of a subpoena are equally applicable to a notice to produce: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2007] VSC 450 and Crown Joinery Pty Ltd v Lyleho Pty Ltd [2007] VSC 214. The grounds on which a notice to produce may be set include that it is too wide, oppressive or fishing. The issues in the case and the possible relevance of the document or documents to those issues are obviously relevant in deciding whether the notice is fishing: Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6] .
Case: G&amp;J Gears Australia Pty Ltd v Brobo Group Pty Ltd (2006) 229 ALR 638
Outcome: referred to
There is a substantial body of authority in the Federal Court and other Australian Courts that the Court has no power to extend the time for compliance after it has expired: Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2007) 63 ACSR 300 and G&amp;J Gears Australia Pty Ltd v Brobo Group Pty Ltd (2006) 229 ALR 638 at [46] to [52] and the authorities referred to therein.
Case: Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 70 FCR 452
Outcome: applied
LMPD submitted that the Second Ground of Challenge was not available to Ox Operations by reason of the principles in Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 70 FCR 452 at 459-460 as explained in Hansmar Investments Pty Ltd v Perpetual Trustee Co Ltd (2007) 61 ACSR 321 at 326. LMPD submitted that the second ground of challenge was not " raised expressly, by necessary inference, or by a reasonably available inference " in the affidavit of Mr Grezos sworn on 16 June 2007 ("the First Grezos Affidavit") and filed in support of the application to set aside the statutory demand: Hansmar at [28].
Case: Hansmar Investments Pty Ltd v Perpetual Trustee Co Ltd (2007) 61 ACSR 321
Outcome: applied
LMPD submitted that the Second Ground of Challenge was not available to Ox Operations by reason of the principles in Graywinter Properties Pty Ltd v Gas &amp; Fuel Corporation Superannuation Fund (1996) 70 FCR 452 at 459-460 as explained in Hansmar Investments Pty Ltd v Perpetual Trustee Co Ltd (2007) 61 ACSR 321 at 326. LMPD submitted that the second ground of challenge was not " raised expressly, by necessary inference, or by a reasonably available inference " in the affidavit of Mr Grezos sworn on 16 June 2007 ("the First Grezos Affidavit") and filed in support of the application to set aside the statutory demand: Hansmar at [28].
Case: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2007] VSC 450
Outcome: cited
Finally, in response to a notice to produce " [t]he documents evidencing payments to [LMPD] between 1 February 2004 to 13 September 2006 ", Ox Operations produced to LMPD an incomplete ledger for LMPD. That general ledger recorded the various payments to LMPD as loans rather than payments received as trustee or subject to some other arrangement. 42 As has been said many times, a notice under O 33 r 12 has the same coercive effect as a subpoena for production. Compliance is mandatory unless the Court otherwise orders: Potts v Dennis Jones &amp; Co Pty Ltd (No. 2) (1995) 58 FCR 61 at 70. Similarly, the considerations which apply to the setting aside of a subpoena are equally applicable to a notice to produce: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2007] VSC 450 and Crown Joinery Pty Ltd v Lyleho Pty Ltd [2007] VSC 214. The grounds on which a notice to produce may be set include that it is too wide, oppressive or fishing. The issues in the case and the possible relevance of the document or documents to those issues are obviously relevant in deciding whether the notice is fishing: Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6] .
Case: John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250
Outcome: applied
The Court's role is to determine whether a genuine dispute exists. That issue is determined at the time the Court hears the application: Andi-Co Australia Pty Ltd v Meyers [2004] FCA 1358 at [16] . The manner in which the Court approaches the task is also not in dispute. The Court does not resolve contested questions of fact. The Court does not determine where the merits lie in any contest: Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722 ; (2006) 155 FCR 556 at [40] . The Court determines whether the supporting affidavits filed and served by Ox Operations depose to facts from which the Court is able to conclude that a genuine dispute exists. As Young J said in John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253, something between mere assertion and the proof of the existence of the disputed debt is required.
Case: Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722 ; (2006) 155 FCR 556
Outcome: cited
The Court's role is to determine whether a genuine dispute exists. That issue is determined at the time the Court hears the application: Andi-Co Australia Pty Ltd v Meyers [2004] FCA 1358 at [16] . The manner in which the Court approaches the task is also not in dispute. The Court does not resolve contested questions of fact. The Court does not determine where the merits lie in any contest: Kortz Ltd v Data Acquisition Pty Ltd [2006] FCA 1722 ; (2006) 155 FCR 556 at [40] . The Court determines whether the supporting affidavits filed and served by Ox Operations depose to facts from which the Court is able to conclude that a genuine dispute exists. As Young J said in John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253, something between mere assertion and the proof of the existence of the disputed debt is required.
Case: Martin v Commonwealth Bank of Australia (2001) 217 ALR 634
Outcome: cited
The function of the Court, on review of such a decision, is to rehear the case and decide the facts for itself. It is a hearing de novo: s 35A(6) of the Federal Court of Australia Act 1976 (Cth); Mazukov v University of Tasmania [2004] FCAFC 159 at [22] to [27] and Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 at [6] and [12].
Case: Mazukov v University of Tasmania [2004] FCAFC 159
Outcome: cited
The function of the Court, on review of such a decision, is to rehear the case and decide the facts for itself. It is a hearing de novo: s 35A(6) of the Federal Court of Australia Act 1976 (Cth); Mazukov v University of Tasmania [2004] FCAFC 159 at [22] to [27] and Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 at [6] and [12].
Case: Potts v Dennis Jones &amp; Co Pty Ltd (No. 2) (1995) 58 FCR 61
Outcome: cited
As has been said many times, a notice under O 33 r 12 has the same coercive effect as a subpoena for production. Compliance is mandatory unless the Court otherwise orders: Potts v Dennis Jones &amp; Co Pty Ltd (No. 2) (1995) 58 FCR 61 at 70. Similarly, the considerations which apply to the setting aside of a subpoena are equally applicable to a notice to produce: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2007] VSC 450 and Crown Joinery Pty Ltd v Lyleho Pty Ltd [2007] VSC 214. The grounds on which a notice to produce may be set include that it is too wide, oppressive or fishing. The issues in the case and the possible relevance of the document or documents to those issues are obviously relevant in deciding whether the notice is fishing: Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6] .
Case: Spencer Constructions Pty Ltd v G&amp;M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452
Outcome: cited
The principles to be applied by the Court in determining an application to set aside a statutory demand are not in dispute. In the present case, the Court must be satisfied that there is a genuine dispute between Ox Operations and LMPD about the existence or amount of the debt to which the demand relates: s 459H(1)(a) of the Act . For a genuine dispute to exist, the dispute must "be bona fide and truly exist in fact". The grounds for alleging the existence of a dispute must be "real and not spurious, hypothetical, illusory or misconceived": Spencer Constructions Pty Ltd v G&amp;M Aldridge Pty Ltd [1997] FCA 681 ; (1997) 76 FCR 452 at 464.
Case: Valoutin Pty Ltd v Furst (1998) 154 ALR 119
Outcome: cited
As the liquidator of LMPD submitted, the starting point is s 1305 of the Act . Section 1305(1) is a facilitative provision which has been given a broad interpretation: Valoutin Pty Ltd v Furst (1998) 154 ALR 119 at 128. 16 It provides that: (1) A book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book. (2) A document purporting to be a book kept by a body corporate is, unless the contrary is proved, taken to be a book kept as mentioned in subsection (1). 17 "Books" is defined in s 9 of the Act to include: (a) a register; and (b) any other record of information; and (c) financial reports or financial records, however compiled, recorded or stored; and (d) a document; but does not include an index or recording made under Subdivision D of Division 5 of Part 6.5.
Case: Walsh v Salzer Constructions Pty Ltd [2000] VSCA 228
Outcome: referred to
Ox Operations' written submissions referred to Walsh v Salzer Constructions Pty Ltd [2000] VSCA 228 as support for the proposition that the fact that a company acts as a treasurer for other entities within the same group does not by itself give rise to a debtor creditor relationship. So much may be accepted. But that is not the only relevant fact in this application. The more significant fact is the existence of the prima facie position reflected in the general ledger of LMPD a loan to Ox Operations. The decision may be put to one side. 29 For those reasons, I do not accept that the first ground of challenge raises a genuine dispute. 30 On review, Ox Operations also sought to set aside the statutory demand on a second basis: that Ox Operations was not indebted to LMPD and that the general ledger did not and could not reflect the true position.
Case: Adam v Ward [1917] AC 309
Outcome: cited
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 ; (2004) 218 CLR 366 ( Bashford ), Gleeson CJ, Hayne and Heydon JJ said in a joint judgment that the principles to be applied in determining whether an occasion of publication was one of qualified privilege are well known. Their Honours referred to Toogood v Spyring (1834) 1 Cr M &amp; R 181 (149 ER 1044) and Adam v Ward [1917] AC 309. They quoted (at [9]) the following oft cited statement made by Parke B in Toogood v Spyring (at 193) (ER 1049-1050): In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society ; and the law has not restricted the right to make them within any narrow limits. [my emphasis] Their Honours said (at [9]) that "[r]eciprocity of duty or interest is essential", citing Adam v Ward at 334 where the following statement appears: It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.
Case: Baldry v Jackson [1976] 2 NSWLR 415
Outcome: cited
response to Veda's Limitation Act defence submission, the applicants argue that all of the amendments to their respective pleadings take effect as from the filing of the original statement of claim (on 25 January 2006 in Mr McGary's proceeding and on 16 December 2005 in the other eight proceedings). The applicants refer to Baldry v Jackson [1976] 2 NSWLR 415 at 419 per Samuels JA, O 13 r 3A of the Federal Court Rules , and Vintage Developments Pty Ltd v GHD Pty Limited (No 2) [2006] FCA 1437 ( Vintage ). The applicants submit: Where the limitation period of one year applies any pleaded imputation after 16 December 2005 is within time, and in the case of Mr McGary, any publication after 25 January 2006 . If there is a publication prior to 16 February 2003 then any subsequent publication will be within time by virtue of the savings provisions under s 14B(2) of the Limitation Act when amended with effect from 17 February 2003. All publications are of substantially the same matter. All causes of action pleaded in defamation are publications within the twelve month period prior to the commencement of the proceedings or they come within the savings provision under s 14B(2) of the Limitation Act .
Case: Bunt v Tilley [2006] EWHC 407 ; [2006] 3 All ER 336
Outcome: referred to
relies on a series of authorities that were concerned with internet service providers: Bunt v Tilley [2006] EWHC 407 ; [2006] 3 All ER 336 ; Godfrey v Demon Internet Ltd [2001] QB 201; Cubby, Inc v CompuServe Inc 776 F. Supp. 135 (1991); Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports p81-127.
Case: Cubby, Inc v CompuServe Inc 776 F.Supp. 135 (1991)
Outcome: cited
relies on a series of authorities that were concerned with internet service providers: Bunt v Tilley [2006] EWHC 407 ; [2006] 3 All ER 336 ; Godfrey v Demon Internet Ltd [2001] QB 201; Cubby, Inc v CompuServe Inc 776 F. Supp. 135 (1991); Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports p81-127.
Case: Godfrey v Demon Internet Ltd [2001] QB 201
Outcome: cited
relies on a series of authorities that were concerned with internet service providers: Bunt v Tilley [2006] EWHC 407 ; [2006] 3 All ER 336 ; Godfrey v Demon Internet Ltd [2001] QB 201; Cubby, Inc v CompuServe Inc 776 F. Supp. 135 (1991); Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports p81-127.
Case: Gillett v Nissen Volkswagen [1975] 3 WWR 520; 58 DLR (3d) 104
Outcome: cited
v Dun does not represent, even at a minimum,the predominant view of the law in the United States: see 15A Am Jur 2d, Collections and Credit Agencies , &#167; 28 and Petition of Retailers Commercial Agency Inc , 174 NE 2d 376 (Mass., 1961). The United States position is summarised in American Jurisprudence 2d in the paragraph cited (footnotes omitted): Though there is authority to the contrary, reports of mercantile or other credit-reporting agencies, furnished in good faith to one having a legitimate interest in the information, are privileged. On the other hand, the decision in Macintosh v Dun was applied in Canada in Gillett v Nissen Volkswagen [1975] 3 WWR 520; 58 DLR (3d) 104, and see Informa Confidential Reports (Pty) Ltd v Abro , [1975] (2) S.A. 760.
Case: Howe and McColough v Lees [1910] HCA 67 ; (1910) 11 CLR 361
Outcome: followed
Australia, Macintosh v Dun was distinguished in Howe and McColough v Lees [1910] HCA 67 ; (1910) 11 CLR 361. That was a case of an association of stock salesmen who carried on business in the Bendigo sale-yards, and who, by the rules of the association, had contracted to inform the association's secretary of any person's failure to settle for stock purchased within a stipulated period. It seems clear that if Veda had remained a mutual association it would have been indistinguishable for present purposes from the Association in Greenlands or from the association of stock salesmen in Howe and McColough v Lees . Senior counsel for Veda informed the Court that Veda "demutualised and became a public company in the late 1990s". He submits that it would be "incongruous" and would be "the sort of thing that brings the common law into disrepute" if such a change in formal status could cause Veda to lose the defence of qualified privilege.
Case: Informa Confidential Reports (Pty) Ltd v Abro [1975] (2) S.A. 760
Outcome: cited
v Dun does not represent, even at a minimum,the predominant view of the law in the United States: see 15A Am Jur 2d, Collections and Credit Agencies , &#167; 28 and Petition of Retailers Commercial Agency Inc , 174 NE 2d 376 (Mass., 1961). The United States position is summarised in American Jurisprudence 2d in the paragraph cited (footnotes omitted): Though there is authority to the contrary, reports of mercantile or other credit-reporting agencies, furnished in good faith to one having a legitimate interest in the information, are privileged. On the other hand, the decision in Macintosh v Dun was applied in Canada in Gillett v Nissen Volkswagen [1975] 3 WWR 520; 58 DLR (3d) 104, and see Informa Confidential Reports (Pty) Ltd v Abro , [1975] (2) S.A. 760.
Case: Jain v Trent Strategic Health Authority [2009] 2 WLR 248
Outcome: cited
Sullivan v Moody , Tame v New South Wales is unlike the present cases in that it was concerned with duties imposed by statute on persons who perform certain functions in the interests of the public or of a cross-section of it (for a recent illustration from the United Kingdom see Jain v Trent Strategic Health Authority [2009] 2 WLR 248). However, I think that the approach taken in Tame v New South Wales is applicable. The defence of qualified privilege is made available because it is seen to be required in the public interest. It would introduce an incoherence in the law to impose a duty of care on Veda directed to the accuracy of its credit reports to enquiring credit providers. 2. Did Veda commit a breach of any duty of care it owed to the applicants in relation to the accuracy of the credit reports concerning them that caused those credit reports to be inaccurate?
Case: London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15
Outcome: discussed
Privy Council's decision has been criticised. In Watt v Longsdon [1930] 1 KB 130 at 148, Scrutton LJ said that the decision "must not be relied on too strongly" in the light of the decision of the House of Lords in London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 ( Greenlands ). In Greenlands the House distinguished Macintosh v Dun . The case concerned the London Association for the Protection of Trade (Association) which had over 6,000 members who paid an annual subscription. A member (Kydd) applied to the Association on a form provided by it for information on the commercial standing of a trading company (Greenlands) with which Kydd proposed to deal. The secretary to the Association (Hadwen) applied to a commercial agent and debt collector (Wilmshurst) at Hereford where Greenlands carried on business for such information. Having obtained the information from Wilmshurst, Hadwen passed it onto Kydd. Greenlands sued Wilmshurst, the Association and Hadwen for libel. A jury returned verdicts against all three defendants, finding express malice against Wilmshurst. The Association and Hadwen appealed. The Court of Appeal ordered a new trial as against them. On the further appeal to the House of Lords, Greenlands consented to have the judgment against the Association set aside because it transpired that it was an unincorporated association. The point of distinction that seems to be common to their Lordships' speeches is that in Greenlands the Association was an unincorporated not-for-profit association who business was carried on by a committee, which did not operate solely from motives of pecuniary gain, and Hadwen did not act as agent of the Association but as agent of Kydd. Their Lordships emphasised that whether qualified privilege was attracted depended on a close scrutiny of all the circumstances of the individual case. The present cases share some features with both Macintosh v Dun and Greenlands . Like the defendants in Macintosh v Dun : Veda is motivated by the desire for pecuniary gain; Veda is not itself in the business of providing credit but is in the different business of collecting and providing, for reward to itself, creditworthiness information sought by credit providers. On the other hand, as in Greenlands : It seems clear that if Veda had remained a mutual association it would have been indistinguishable for present purposes from the Association in Greenlands or from the association of stock salesmen in Howe and McColough v Lees . Senior counsel for Veda informed the Court that Veda "demutualised and became a public company in the late 1990s". He submits that it would be "incongruous" and would be "the sort of thing that brings the common law into disrepute" if such a change in formal status could cause Veda to lose the defence of qualified privilege.