mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ricochet Pty Ltd v Equity Trustees Executors and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229
Outcome: cited
It is clear that the contravening conduct need not be the sole inducement in sustaining the loss ( Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 ; National Australia Bank Ltd v Cunningham [1990] FCA 310 at [6] , Ricochet Pty Ltd v Equity Trustees Executors and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229 at 233, Elitegold Pty Limited v CM Holdings Pty Ltd , Australia Fair Shopping Centres Pty Limited and CM Developments (Qld) Pty Ltd [1995] FCA 1336 at [49] ) although it is necessary that the contravening conduct had a substantial rather than a negligible effect ( Como Investments Pty Ltd (in liq) v Yenald Nominees Pty Ltd (1997) 19 ATPR 41 550 at 43,619; McHugh J in Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 494).
Case: Rumpe v Camrol Pty Ltd [1985] FCA 5
Outcome: cited
However, where it appears that the applicant had knowledge of the true facts by the time it allegedly acted on the impugned conduct, it is clearly much more difficult for the applicant to demonstrate reliance on such conduct: cf Rumpe v Camrol Pty Ltd [1985] FCA 5 , McMahon v Pomeray Pty Ltd [1991] FCA 289. Similarly, where the applicant makes its own inquiries or retained its own advisers to ascertain the true position there is some authority that reliance on the impugned conduct is negated: cf The Australian William E Simon Graduate School of Business Administration Incorporated v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1994) 51 FCR 243.
Case: Scootmore Holdings Pty Ltd v Bidvest Australia Limited [2001] QSC 329
Outcome: cited
In Hill v Tooth &amp; Co Ltd (1998) ATPR 41-649 the court considered whether materiality in inaccuracy of trading figures supplied to a prospective purchaser of a hotel was a relevant consideration in deciding whether a representation as to the volume of trade was misleading or deceptive for the purposes of s 52. Einfeld J held that the discrepancy in that case of 2.7% was not sufficiently material so as to constitute misleading or deceptive conduct, and there were no exceptional circumstances in that case to render the discrepancy sufficiently material ( Hill v Tooth &amp; Co Ltd (1998) ATPR 41-649 at 41,221, cf Holmes J in Scootmore Holdings Pty Ltd v Bidvest Australia Limited [2001] QSC 329 at [120]).
Case: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
Outcome: cited
It is clear from cases decided under the Evidence Act that the "basis" rule does not feature in s 79. Strictly speaking, it is not necessary for an expert opinion to be admissible for the factual basis of the opinion to be itself proven by admissible evidence ( Neowarra v Western Australia [2003] FCA 1399 ; (2003) 134 FCR 208 at [22] and [37], Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374, Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [10] , Bodney v Bennell [2008] FCAFC 63 at [90] ). Instead, provided the expert evidence: &#8226; is opinion evidence which satisfies s 79 ; and &#8226; is relevant within the meaning of s 55(1). as a general rule it is admissible under s 56(1) , and the general discretion of the Court to refuse to admit evidence under s 135 is sufficient to deal with problems that might arise in respect of the opinion the basis of which is not disclosed ( Quick 87 FCR 371 per Branson J at 617, Emmett J agreeing; Bodney [2008] FCAFC 63 at [91] ). 338 If the Court were to admit Mr Frick's expert report, the next issue is the weight to be ascribed to it because of the absence of identification of sources on which Mr Frick based his opinion (cf Branson J in Quick 87 FCR 371 at 621, Sydneywide Distributors Pty Ltd [2002] FCAFC 157 at [16] and [87]).
Case: The Australian William E Simon Graduate School of Business Administration Incorporated v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1994) 51 FCR 243
Outcome: cited
However, where it appears that the applicant had knowledge of the true facts by the time it allegedly acted on the impugned conduct, it is clearly much more difficult for the applicant to demonstrate reliance on such conduct: cf Rumpe v Camrol Pty Ltd [1985] FCA 5 , McMahon v Pomeray Pty Ltd [1991] FCA 289. Similarly, where the applicant makes its own inquiries or retained its own advisers to ascertain the true position there is some authority that reliance on the impugned conduct is negated: cf The Australian William E Simon Graduate School of Business Administration Incorporated v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1994) 51 FCR 243.
Case: The Minister v Ryan (1963) 9 LGRA 112
Outcome: cited
Sixth, it is unfortunate that no other expert evidence in relation to the issue of yield and packout forecasts was produced to the Court to contradict or otherwise answer the opinion of Mr Frick. However this does not automatically mean that the Court is obliged to accept Mr Frick's expert opinion (cf Hardie J in The Minister v Ryan (1963) 9 LGRA 112 at 114). The fact that Mr Frick stated in his oral evidence that he would not have been able to obtain the information from his industry sources upon which he appeared to rely for his opinion, without maintaining confidentiality, does not diminish the prejudice to the applicants in these circumstances.
Case: Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543
Outcome: cited
The "future representations" are the subject of paras 12(a) and (b), 13, 14 (b) and (c), 15, 16 and 17 Further Amended Statement of Claim. For the respondents, s 51A is particularly significant because although s 51A does not provide an independent cause of action separate from ss 52 or 53A, and nor does it define a norm of conduct, if the facts demonstrate that the first respondent has made the representations alleged, the effect of s 51A is that the representation shall be taken to be misleading unless the first respondent had reasonable grounds for making the relevant representation . Conversely if the first respondent demonstrates that it had reasonable grounds for making the relevant future representations, it will not only be free from liability under s 51A but also from liability under s 52 of the Act. ( Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543 at 552, Quinlivan FCAFC 175 at [6].) 277 It has been suggested that, because the deeming within the meaning of s 51A(2) takes effect unless the corporation adduces some evidence to the contrary, this does not mean that the onus of proof (which otherwise lies with the applicant) is reversed, but merely requires the corporation to go into evidence ( ACCC v Universal Sports Challenge Ltd [2002] FCA 1276 at [46] ). The weight of authority however is that the person making the representation can only avoid the deeming in s 51A(2) by establishing on the usual balance of probabilities that there were reasonable grounds for making the representation: Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [82] , Ting [1993] FCA 524 ; 118 ALR 543 at 552, Bowler v Hilda Pty Ltd (1998) 153 ALR 95 at 108 and 117, Sykes 88 FCR 511 at 513-514, Adelaide Petroleum NL &amp; Ors v Poseidon Limited &amp; Ors (1988) 10 ATPR 40-901 at 49,700, Phoenix Court Pty Ltd (1997) ATPR 46-179 (and cf other cases in support of this proposition listed at Miller , 29th ed para 1.51A.37).
Case: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: applied
As Mason CJ observed in Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525, the statutory cause of action for which s 82(1) Trade Practices Act provides arises when the applicant suffers loss of damage "by" contravening conduct of another person. Section 82(1) clearly comprehends the common law concept of causation.
Case: Wenczel v Commonwealth Bank of Australia [2006] VSC 324
Outcome: cited
To paraphrase comments of Habersberger J in Wenczel v Commonwealth Bank of Australia [2006] VSC 324 at [90] , it is obvious to me that neither the applicants nor the respondents were prepared to run the risk of calling Mr Breed, helpful though his evidence would have been. 122 In circumstances where Mr Breed's affidavit is untested, little weight should be attributed to Mr Breed's affidavit in respect of any matter in dispute in these proceedings, including of course with respect to this particular claim. Further, given the circumstances I consider the more practical approach is for me to note that neither party was prepared to call Mr Breed as a witness in these proceedings. I draw no inferences against either party for their failure to call Mr Breed as a witness. 123 I now turn to the representations the subject of claims by the applicants in the Further Amended Statement of Claim.
Case: Wheeler Grace &amp; Pierucci Pty Ltd v Wright (1989) 16 IPR 189
Outcome: cited
In any event to the extent that the first respondent was required to qualify its representations to the applicants in order that representations as to future conduct could be said to be made on reasonable grounds. I consider that the respondents appropriately and effectively did so. This is not an issue which was raised by the applicants, and indeed as Allsop J observed in Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [627] it does not follow that any statement in any commercial context which can be characterised as a promise must be accompanied by any existing legal or factual qualification. I address the issue in the interests of completeness in light of comments in such cases as Wheeler Grace &amp; Pierucci Pty Ltd v Wright (1989) 16 IPR 189 at 201-2, Bowler 153 ALR 95 at 108, Famel Pty Ltd v Burswood Management Ltd (1989) ATPR 40-962 and Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [627] .
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: applied
Although the applicants do not specifically plead the relevant legislation, in prescribed circumstances s 75B of the Act imposes accessorial liability in relation to certain provision of the Act . In Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666-669 the High Court observed that: &#8226; the words "aided, abetted, counselled or procured" in s 75B are taken from the criminal law where they are used to designate participation in a crime as a principal in the second degree or as an accessory before the fact (at 666-667); &#8226; notwithstanding that s 75B deals with civil rather than criminal liability, the words in s 75B should be interpreted according to their meaning in criminal law (at 668, 669); &#8226; in the criminal law a person will be guilty of the offences of aiding and abetting or counselling and procuring the commission of an offence only if he intentionally participates in it (at 667); &#8226; to form the requisite intent he 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); &#8226; a person can only be brought within para 75B if he intentionally aided, abetted, counselled or procured a contravention by the representor of s 52 Trade Practices Act (at 667); &#8226; The fact that the representations may have been made by the person is not sufficient to bring the person within s 75B he or she must have had knowledge of their falsity (at 668) 611 In my view the applicants have not properly pleaded the required elements of a s 75B claim against either Mr Strahley or Mr Breed regarding any of the representations in the Further Amended Statement of Claim. Paragraph 20B does not allege actual knowledge by either Mr Strahley or Mr Breed of each alleged representation, that either respondent new each representation was misleading, or that either respondent knew that the first respondent had no reasonable grounds for making the alleged representation as to future matters. The written submissions of the applicants with respect to s 75B constitute an attempt to replead their claims after the hearing has concluded, but in any event continue to fail to address the elements of s 75B as articulated in Yorke v Lucas and Quinlivan . I consider that even if I have erred in my findings that the representations of the first respondent as pleaded in the Further Amended Statement of Claim did not breach ss 51A or 52, the claims of the applicants against Mr Strahley and Mr Breed in respect of accessorial liability failed at the threshold.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: considered
The often quoted observations of the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 to 8, loomed large in the respondent Minister's submissions. The Court there indicated that: "it is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so, the main arena for the settlement of disputes would move from the Court of first instance to the appellate Court, tending to reduce the proceedings in the former Court to little more than a preliminary skirmish." As I will indicate in a moment, that observation has particular salience in this matter.
Case: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424
Outcome: applied
I would refer as well to the observations of Allsop J, in the Full Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 ; (2001) 117 FCR 424 at [36] , where his Honour said: "The roles of the trial and the appeal need to be kept distinct. The appeal is not a reworking of the trial taking account of such impediments as are thrown up by the judge's finding which alter the landscape." 4 By way of background to the present application, I would note that it arises in proceedings under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of a delegate of the respondent Minister refusing an application for a class BN subclass (136), Skilled-Independent Permanent Resident's visa. That decision was at the time not one for which an appeal lay to the Migration Review Tribunal. It was, in consequence, made the direct subject of an application under s 39B of the Judiciary Act for relief by way of constitutional writs. The application was dismissed by the Federal Magistrate. The appellant now appeals to this Court impugning the decision of the Federal Magistrate. 21 To permit that evidence now to be called, in my view, is to do the very thing that Allsop J in Branir indicated ought not be done. It is to have a reworking of the trial taking account of such impediments as are thrown up by the judge's findings which alter the landscape. I am not, in the circumstances of this matter, prepared to grant the leave that is sought. It seems to me that what is sought is no more than an attempt to retrieve a point that had been raised and was lost. 22 Accordingly, I will refuse leave to adduce the affidavit evidence that is sought. The orders of the Court will be that leave not be granted in relation to ground 1 of the amended notice of appeal. Grounds 4 and 5 of that amended notice of appeal I am informed now, are not being prosecuted. I adjourn consideration of ground 6 to the hearing of the appeal. Secondly, leave will not be granted to adduce fresh evidence on the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 2 March 2007 Counsel for the Appellant: Mr A Silva Solicitor for the Appellant: Silva Solicitors Counsel for the Respondent: Mr A Markus Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 February 2007 Date of Judgment: 26 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/248.html
Case: MZWCL v MIMIA [2006] FCA 635
Outcome: cited
The two new grounds of appeal sought to be raised were not raised at the hearing before his Honour. The principles governing the grant of leave to argue new grounds are reasonably well settled. Leave should only be granted if it is expedient in the interests of justice to do so. In considering whether it is so in the interests of justice, it is necessary to give some consideration to the merits of the ground proposed, to determine whether they have reasonable prospects of success. Authorities in support of these well known propositions have been collected in a decision of my own, MZWCL v MIMIA [2006] FCA 635 at [35] and [36]. There is one matter which I would give particular attention to in considering the question of leave, and that is in some cases it is not only appropriate but necessary to have regard to the relation of what is now being sought to be done in the appeal to what was done at the trial.
Case: NAJT v MIMIA [2005] FCAFC 134
Outcome: cited
The applicant has placed particular reliance, in relation to the grant of leave, upon the majority decision of the Full Court of the Federal Court in NAJT v MIMIA [2005] FCAFC 134 , and particularly upon the factors referred to at [166]. Apart from referring to what are well accepted propositions relating to the prospects of success and whether there was an acceptable explanation of why the grounds were not raised below, those factors deal by and large with issues relating to the efficient conduct of an appeal, whether the issues themselves raised have an importance beyond the case at hand and to prejudice. 7 The one factor upon which particular reliance is placed by the applicant is: what is at stake in a case for the appellant? In the context of this particular visa application, it is said, that if the appellant is not permitted to raise the grounds he wishes to raise, and be given the opportunity to successfully prosecute them, he will not be able to come to Australia at all. Why this particular outcome is said to be inevitable is not the subject of evidence before me. 8 Turning now to the two grounds, the first is the proposed new ground 1 of the amended notice of appeal: "1. The learned Federal Magistrate erred by holding that under the combined effect of s 66(2)(c) &amp; s 66(3) of the Migration Act 1958 ( 'the Act' ) the Delegate was under no obligation to give written reasons for the decision. These subsections of the Act , s 66(3) in its entirety and a part of s66(2)(c) as relevant should be construed as invalid because they are inconsistent with the Federal Court's and Federal Magistrate Court's power under the Constitution both in its original jurisdiction and its appellate jurisdiction and the principle of the Rule of Law . These subsections protect decisions that are potentially affected by jurisdictional error by allowing reasons not to be disclosed and thus they impede or prevent an applicant from establishing jurisdictional error on the part of the Delegate."
Case: Public Service Board of New South Wales v Osmond [1986] HCA 7 ; (1986) 159 CLR 656 
Outcome: considered
One possible basis is that the duty to give reasons is so fundamental to the proper conduct of judicial review as to be, in effect, an implication into Ch 3 of the Constitution , and in particular to s 75(v) of the Constitution . The difficulty with that proposition is that it stands in sharp contrast with what has been accepted common law in this country in decisions of the High Court for some time. In Public Service Board of New South Wales v Osmond [1986] HCA 7 ; (1986) 159 CLR 656, the High Court, in the context of State legislation, indicated that at common law a governmental decision-maker had no duty to give reasons for decision. The same proposition was articulated by Stephen J in Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396 at 443 to 4. This time, however, it was stated in the setting of a court exercising federal jurisdiction in relation to a decision under the Migration Act .
Case: Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396
Outcome: considered
One possible basis is that the duty to give reasons is so fundamental to the proper conduct of judicial review as to be, in effect, an implication into Ch 3 of the Constitution , and in particular to s 75(v) of the Constitution . The difficulty with that proposition is that it stands in sharp contrast with what has been accepted common law in this country in decisions of the High Court for some time. In Public Service Board of New South Wales v Osmond [1986] HCA 7 ; (1986) 159 CLR 656, the High Court, in the context of State legislation, indicated that at common law a governmental decision-maker had no duty to give reasons for decision. The same proposition was articulated by Stephen J in Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396 at 443 to 4. This time, however, it was stated in the setting of a court exercising federal jurisdiction in relation to a decision under the Migration Act .
Case: Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170
Outcome: considered
In light of what I consider to be orthodox law in this country, I do not consider that, if the argument is as I have described it, it has any reasonable prospects of success. An alternative formulation of the argument would seem to be that unless reasons are given, you cannot have procedural fairness. How this is said to ensue is by no means clear, and in any event, it again is inconsistent with decided authority: see Salemi's case above, see also Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170 at [26] .
Case: Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1 ; [1968] AC 997
Outcome: distinguished
In a third alternative explanation of the ground, Mr Silva drew analogy with an approach sometimes evident in judicial decision and well accepted in jurisprudence in England. That is, if a decision-maker does not give reasons, a court can presume that the decision-maker had no good reason, see Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1 ; [1968] AC 997, at 1053 to 1054, 1061 to 1062. That bare proposition clearly is inapplicable even if it could be said to represent Australian law. Here there is an express statutory exemption from a general obligation to give written reasons. To apply the presumption to which I had referred would make a nonsense of that exemption. 14 Mr Silva sought to avoid that inconvenient result by saying that if the decision was infected on its face by jurisdictional error and if no reasons were given, it is assumed there were no good reasons. The absence of reasons in this setting seems to serve no operative purpose given that a jurisdictional error has first to be discerned. 15 In short, however one seeks to package this particular ground of appeal and the constitutional question it raises, I am satisfied that it has no reasonable prospects of success. For that reason, I would not give leave for it to be raised on the appeal.