mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Michael ; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511
Outcome: considered
The general rule of statutory interpretation is that words used in a statute are given their most natural and ordinary meaning which is appropriate in the circumstances. Consistent with a purposive approach to the interpretation of the expression 'use of a production process', the court would be entitled to receive expert economic evidence to assist in the interpretation of that phrase if it had a technical or specialised meaning: see, e.g. Agfa at 401; Pepsi Seven-Up Bottlers Perth Pty Limited v Commissioner of Taxation (1995) 62 FCR 289 at 297-8; Re Michael ; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 (' Re Michael ') at 543-544, [107]. Whether the words of a statute are to be given their ordinary meaning or a technical or specialised meaning is a question of law for the court: see Agfa at 396-398. 173 In Re Michael, Parker J (with whom Malcolm CJ and Anderson J agreed) discussed the relevance of economic expert evidence in informing the court of the specialised usage of particular words or phrases. Importantly, his Honour continued (at 544, [107]): Further, the expert evidence provides an appreciation of the nature and objectives of competition policy in the field of economics and, in particular, of the regulation of essential infrastructure, so that the policy and objectives of the Act can be discerned with a greater and more reliable appreciation of the possibilities. In addition, the potential relevance of some concepts and provisions in the Act and Code can be more readily understood. 174 In Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300, Tamberlin J made the following observation in relation to Re Michael and other cases involving admissibility of expert economic evidence (at 439, [665]): The emphasis in these cases is on informing and assisting the court with a view to illuminating an understanding of the terms used in relation to the issues raised.
Case: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49 ; (2001) 207 CLR 72
Outcome: cited
It is important that the courts look at the relevant statutory provisions (in their context), and not give priority to judicial exposition of legislation over the meaning to be derived from the actual legislation itself (see Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49 ; (2001) 207 CLR 72 at 89, [46] per Kirby J). The Court has an obligation and duty to give effect to relevant provisions of any legislative provision upon determining the correct interpretation to be placed upon them.
Case: Royal Insurance Australia Ltd v Government Insurance Office (NSW) [1994] 1 VR 123
Outcome: considered
No party asserted that the term 'production process' has a technical or specialised meaning in economics. On that basis, it is not possible for the Court to construe those words other than in accordance with their most ordinary and natural meaning. It is therefore not permissible to receive the views of witnesses, expert or lay, as to their preferred interpretation or to explain how the words of a statute would be expected to be applied to the circumstances of the case: Royal Insurance Australia Ltd v Government Insurance Office (NSW) [1994] 1 VR 123 at 133-4. Such evidence is nothing more than submission and argument and indeed an attempt to usurp the judicial function. 170 Accordingly, each of the tests proposed by the experts, and the application of the facts of this case, is irrelevant. I therefore accept BHPBIO's submission and reject the expert evidence to the extent that it is directed to the meaning to be given by the Court to the term 'production process'. 171 However, BHPBIO also submitted that the economic evidence is not relevant to any other issue in the proceeding. BHPBIO submitted that the evidence cannot assist the court in understanding the purposes of the legislation or the 'production process' exclusion. It was contended that to the extent that Professor Rey gave evidence about the purpose of Part IIIA generally, his observations are derived from extrinsic materials available to the Court, which do not require expert explanation.
Case: Upperedge v Bailey (1994) 13 ACSR 541
Outcome: cited
I accept that I should not depart from the ratio decidendi of the Hamersley decision unless I am satisfied it is 'clearly wrong' or 'plainly wrong': see Nezovic v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (No 2) [2003] FCA 1263 ; (2003) 133 FCR 190 (' Nezovic ') at 206, [52]; Marr v Australian Telecommunications Corp (1991) 34 FCR 82; Upperedge v Bailey (1994) 13 ACSR 541 at 543; Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. It would not be sufficient for a judge to merely reach one view, which he or she may prefer over that of an earlier decision, and upon that basis not follow the strong persuasive authority that has already pronounced on the same legislative provision. Before a judge refuses to follow an earlier decision regarding the construction of the same legislative provision he or she must come to the view the earlier decision is 'clearly wrong' or 'plainly wrong'.
Case: Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300
Outcome: considered
In Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300, Tamberlin J made the following observation in relation to Re Michael and other cases involving admissibility of expert economic evidence (at 439, [665]): The emphasis in these cases is on informing and assisting the court with a view to illuminating an understanding of the terms used in relation to the issues raised.
Case: Woodside Energy Ltd v Commissioner of Taxation for the Commonwealth of Australia [2006] FCA 1303
Outcome: considered
A similar approach, with which I agree was taken at an interlocutory level in Woodside Energy Ltd v Commissioner of Taxation for the Commonwealth of Australia [2006] FCA 1303 at [52] - [55] per French J (affirmed in [2006] FCA 1375 per Nicholson J). 176 Accordingly, I rule that the economic evidence is admissible.
Case: Ling v Enrobook Pty Limited (1997) 74 FCR 19
Outcome: applied
The prejudice to the bank of not my making a sequestration order today is that it may be affected by a dissipation of assets by the debtor after today including a dissipation in the pursuit of the litigation against Mr Cleary. I have been referred to the decision of the Full Court of this court in Ling v Enrobook Pty Limited (1997) 74 FCR 19 and in particular the court's statement of the test to be applied for the purposes of determining whether, pursuant to s 52(2) of the Bankruptcy Act 1966 (Cth), I could be satisfied by the debtor that 'for other sufficient cause a sequestration order ought not to be made' and that therefore I might in my discretion dismiss the petition. The court said (74 FCR at 26D-E): 'The authorities also show that satisfaction that the debtor is well advanced with litigation likely to result in the debtor being in a position to pay his or her debts may well provide a basis for a finding that there is a " sufficient cause " for a sequestration order not to be made (see, for example, Maddestra v Penfolds Wines Pty Ltd (1993) 44 FCR 303 ). But the authorities do not suggest that it is in the public interest to allow insolvent debtors to prosecute litigation generally. They only recognise that it is not in the public interest for a debtor to be forced into bankruptcy by reason of a state of insolvency likely to be of only short duration' 12 Mr Ireland QC, who appears for the debtor, has asked for an adjournment to permit, if it is at all possible, that the consideration of whether sufficient cause has been made out occur once the outcome of the Supreme Court proceedings is known. Mr Bell points out that if the petition remains undetermined prior to its expiry on 9 July 2006 the bank will lose the benefit of any relation back period based on the occurrence of the act of bankruptcy which founds the petition. If I were to grant an adjournment there would be a very tight time frame within which, ultimately, a Supreme Court judge would have to give a reasoned final judgment, if that were to happen prior to the expiry date of the petition. 13 On the other hand if I were to refuse to grant an adjournment of the petition, a case which clearly has a triable issue as found by the Court of Appeal, and which has a number of very difficult factual and legal issues may never be able to be determined since the overwhelming quantum of the debtor's creditors consist of the bank by reason of the size of the judgment debt.
Case: Rose and Frank Company v J. R. Crompton and Brothers, Limited [1923] 2 KB 261
Outcome: applied
It is quite possible for parties to come to an agreement by accepting a proposal with the result that the agreement concluded does not give rise to legal relations. The reason for this is that the parties do not intend that their agreement should give rise to legal relations. This intention may be implied from the subject matter of the agreement, but it may also be expressed by the parties. In social and family relations such an intention is readily implied, while in business matters the opposite result would ordinarily follow. However, even in business matters, there can be no reason why the parties should not intend to simply rely on each other's good faith and honour. If they clearly express such an intention, there can be no reason in public policy why effect should not be given to it (per Scrutton LJ in Rose and Frank Company v J. R. Crompton and Brothers, Limited ('Rose and Frank') [1923] 2 KB 261 at 288). 39 In Rose and Frank the English Court of Appeal was considering a signed memorandum purporting to set out the understanding between two English firms supplying carbon paper of various kinds and the American firm which was importing such carbon paper. The document included the following: 'This arrangement is not entered into, nor is this memorandum written, as a formal or legal agreement, and shall not be subject to legal jurisdiction in the Law Courts either of the United States or England, but it is only a definite expression and record of the purpose and intention of the three parties concerned to which they each honourably pledge themselves with the fullest confidence, based on past business with each other, that it will be carried through by each of the three parties with mutual loyalty and friendly co-operation.' The American firm sued the English firms for breach of the contract said to have arisen from the relevant memorandum. It was held that the document did not constitute a binding agreement.
Case: Eccles v Bryant (1947) 2 All ER 865
Outcome: applied
An executed document becomes an agreement when and in the manner the parties intend that it should do so (see per Lord Greene, MR in Eccles v Bryant (1947) 2 All ER 865 at 869.3). At 866.9 Lord Greene said: 'When parties are proposing to enter into a contract, the manner in which the contract is to be created so as to bind them must be gathered from the intentions of the parties, express or implied.' (See also Sindel v Georgiou [1984] HCA 58 ; (1984) 154 CLR 661 at 667-8).
Case: Sindel v Georgiou [1984] HCA 58 ; (1984) 154 CLR 661
Outcome: referred to
An executed document becomes an agreement when and in the manner the parties intend that it should do so (see per Lord Greene, MR in Eccles v Bryant (1947) 2 All ER 865 at 869.3). At 866.9 Lord Greene said: 'When parties are proposing to enter into a contract, the manner in which the contract is to be created so as to bind them must be gathered from the intentions of the parties, express or implied.' (See also Sindel v Georgiou [1984] HCA 58 ; (1984) 154 CLR 661 at 667-8).
Case: Powell and Berry v Jones and Jones (1968) SASR 394
Outcome: cited
It is also useful to have regard to the statement of principle contained in the judgment of Bray CJ in Powell and Berry v Jones and Jones (1968) SASR 394 at 397 as follows: 'It seems to me that there are four relevant categories of case where what at first sight looks like an enforceable contract subsequently turns out not to be one. No doubt these categories may and frequently do overlap and many cases fall within more than one of them. 1. The parties may have only agreed to agree. They may have left terms to be fixed by subsequent negotiation between them, their intention being that the provisions already agreed and those yet to be agreed shall operate together as one contract. Thorby v. Goldberg . 2. The parties may have made their agreement subject not only to the preparation but also to the execution of a formal document. In such a case, then, even though everything has in fact been agreed, either party may withdraw before the execution of such a document; e.g. Coope v. Ridout . Their intention must be taken to be that until such execution each of them has a locus poenitentiae . Many cases falling under this head also fall under the first. 3. The agreement may have left to the option of one party not only the mode of performance but whether there shall be any performance at all; e.g. Taylor v. Brewer . 4. There remains a residual class of case outside the first three categories where the agreement reached is so vague and uncertain that the court cannot give it any definite meaning at all. Cf. per Lord Wright in Scammell (G.) &amp; Nephew Ltd. v. Ouston (H. C. &amp; J. G.). ' (footnotes omitted)
Case: Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130
Outcome: cited
In Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 at 150-151, McHugh JA, as his Honour then was, said under the heading 'Was the consideration illusory?': 'A contract made for a consideration which is illusory is unenforceable: Placer Development Ltd v The Commonwealth [1969] HCA 29 ; (1969) 121 CLR 353 at 356, 360-361 and Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571 at 581. A consideration is illusory if its payment or fulfilment depends upon an unfettered discretion vested in the promisor.' To like effect Mr Justice Hope said at 143: 'All these decisions show how far courts are prepared to go in order to find that there is an enforceable contractual promise where that is what the parties have intended. There are of course limitations. I have already referred to the case where the promisor has a discretion, not only as to what he shall do, but also as to whether he shall do anything. Such a promise is illusory. Furthermore it appears that the promise will not be enforceable if the manner of performance, including the amount of money to be paid or, if relevant, the number of shares to be offered, is a matter entirely in the discretion of the promisor and no criteria by which the performance required of the promisor can be measured, or the minimum of that performance can be measured, is expressed or can be found to be implied.'
Case: Whitlock v Brew [1968] HCA 71 ; (1968) 118 CLR 445
Outcome: referred to
In Whitlock v Brew [1968] HCA 71 ; (1968) 118 CLR 445 the High Court held that a clause concerning the grant of a lease was uncertain for it did not prescribe either the term of the lease or the rent; and further that the provision for arbitration "as to the interpretation and operation" of the clause did not authorise an arbitrator to fix either the rent or the term. It was further held that since the uncertain term was a material and inseverable part of the contract, there was no concluded agreement between the parties. Kitto J at 456 said: '... the document does not record a consensus ad idem as to the duration of the term, the rent, or anything else except the commencing date and the premises intended to be let.' Taylor, Menzies and Owen JJ said at 460-1: 'We are firmly of opinion that the expression "upon such reasonable terms as govern such a lease" is not, in the context in which it appears, apt to refer to either the period for which the contemplated lease is to subsist or to the rent to be payable thereunder. Nor do we think that the further expression "as to the interpretation or operation" of this clause covers a dispute as to either of those matters. We, therefore, are of opinion that the clause is uncertain in that it neither specifies nor provides a means for the determination as between the parties of the period for which the contemplated lease shall be granted or the rent which shall be payable thereunder.' Their Honours proceeded to deal with the question of severability referring to the judgment of Knox CJ in Life Insurance Co. of Australia Ltd. v. Phillips [1925] HCA 18 ; (1925) 36 CLR 60 at 72 where his Honour said: 'When a contract contains a number of stipulations one of which is void for uncertainty, the question whether the whole contract is void depends on the intention of the parties to be gathered from the instrument as a whole. If the contract be divisible, the part which is void may be separated from the rest and does not affect its validity.' 54 In seeking to ascertain the intention of the parties to a written contract extrinsic evidence may not be resorted to except where such evidence may be called in aid in the interpretation of the written instrument. Clearly enough, it is not to the point to make an independent examination of extrinsic facts, even if they were within the knowledge of both parties, and upon such evidence to conclude that a particular provision was or was not of importance to the parties or to either of them. The question for determination is the intention of the parties as disclosed by the contract into which they have entered (per Taylor, Menzies and Owen JJ in Whitlock v Brew at 461).
Case: Life Insurance Co of Australia Ltd. v. Phillips [1925] HCA 18 ; (1925) 36 CLR 60
Outcome: referred to
In Whitlock v Brew [1968] HCA 71 ; (1968) 118 CLR 445 the High Court held that a clause concerning the grant of a lease was uncertain for it did not prescribe either the term of the lease or the rent; and further that the provision for arbitration "as to the interpretation and operation" of the clause did not authorise an arbitrator to fix either the rent or the term. It was further held that since the uncertain term was a material and inseverable part of the contract, there was no concluded agreement between the parties. Kitto J at 456 said: '... the document does not record a consensus ad idem as to the duration of the term, the rent, or anything else except the commencing date and the premises intended to be let.' Taylor, Menzies and Owen JJ said at 460-1: 'We are firmly of opinion that the expression "upon such reasonable terms as govern such a lease" is not, in the context in which it appears, apt to refer to either the period for which the contemplated lease is to subsist or to the rent to be payable thereunder. Nor do we think that the further expression "as to the interpretation or operation" of this clause covers a dispute as to either of those matters. We, therefore, are of opinion that the clause is uncertain in that it neither specifies nor provides a means for the determination as between the parties of the period for which the contemplated lease shall be granted or the rent which shall be payable thereunder.' Their Honours proceeded to deal with the question of severability referring to the judgment of Knox CJ in Life Insurance Co. of Australia Ltd. v. Phillips [1925] HCA 18 ; (1925) 36 CLR 60 at 72 where his Honour said: 'When a contract contains a number of stipulations one of which is void for uncertainty, the question whether the whole contract is void depends on the intention of the parties to be gathered from the instrument as a whole. If the contract be divisible, the part which is void may be separated from the rest and does not affect its validity.'
Case: Bishop v. Taylor [1968] HCA 68 ; (1968) 118 CLR 518
Outcome: referred to
Another illustration of a contract which was held to be void for uncertainty is to be found in Bishop v. Taylor [1968] HCA 68 ; (1968) 118 CLR 518 where a contract for the sale of land included a condition which provided, inter alia, for 'one-third share of crops ... until end of peanut crop in 1968 or end of harvesting period ...' to be paid. The Court held that the condition was void for uncertainty because, upon construing it, one was unable to determine the term of the relevant sub-lease, the type of crop, or what 'one-third share of crops' meant. McTiernan and Taylor JJ said at 523: '... if it was intended that the lease should continue to subsist after the first year it is impossible to say with any degree of certainty for what period it was to subsist. The condition did not specify the nature of the crop or crops which the respondent might plant although, no doubt, it was contemplated that they would be peanuts. But the condition does not restrict him in his choice of crops and it may well be that it was for this reason that the condition provided, in effect, that the lease should subsist "until the end of peanut crop in 1968 or end of harvesting period or as otherwise agreed upon". The duration of the lease, therefore, it seems to us, was to depend upon what sort of crops had been sown for harvesting in 1968 and any agreement to grant a lease with the term so defined, or undefined, is void.' Menzies J said at 525: '... the condition of the contract for a sub-lease from the purchaser to the vendor of some part of the land, the subject of the contract, is one to which it is not possible by a process of construction to give any particular meaning. I agree entirely with what has been said about this condition being void for uncertainty.'
Case: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: referred to
It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction (per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] ).
Case: Equuscorp Pty Ltd v HGT Investments Pty Ltd [2004] HCA 55 ; (2005) 218 CLR 471
Outcome: referred to
Actual beliefs and intentions are, generally speaking, irrelevant in the determination of the legal rights and obligations flowing from a written agreement (see per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ in Equuscorp Pty Ltd v HGT Investments Pty Ltd [2004] HCA 55 ; (2005) 218 CLR 471 at 483 [34] ).