mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Uranium Equities Ltd v Fewster [2008] WASCA 33
Outcome: applied
As the Western Australian Court of Appeal recently noted, it is trite to say that a contract can fail for uncertainty if it is missing an essential term (a typical example being price): Uranium Equities Ltd v Fewster [2008] WASCA 33 at [257] . More useful is what the Court in Uranium Equities went on to say about essential terms in the uncertainty context (at [257]): We have said what is meant by the word "essential" in this context. When dealing with the question of contractual intention, we have expressed opinions on the question whether or not terms left over for future negotiation were essential. We have concluded that, although some of the matters left over were indicative of a lack of intention to be bound, they were not such as to lead to a finding that, if the requisite intention was present, the contract failed for lack of certainty. As Lloyd LJ said in Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd's Rep 601, 619 there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. He went on to say that it "happens every day where parties enter into so-called 'heads of agreement'". While many of the matters left over in this case were important, none seems to us to have been essential to the efficacy of the alleged agreement, in the sense that the agreement could not be enforced without it. 95 I consider this case to be of the kind referred to by Lloyd LJ. Here we have a heads of agreement in which many matters of import, including the precise nature of the development, were left to be agreed later. In my view, however, the lack of a project definition is not essential to the efficacy of the agreement in the sense of its enforceability. Regardless of the precise nature of the development project, it is clear that the agreements contemplate at least some effort or work toward development however defined. That is to say, the development work contemplated in the agreements, at least initially, is the work required to put together a proper development proposal, including financing, whether for the building of a golf course, a residential development, or otherwise. That AVS or its nominee was to undertake such work (with the aid of WRVM's representative) is evident from the project management and project representative provisions in cl 3, including the retainer provision requiring a payment of $10,000 per month to AVS or its nominee.
Case: L J Hooker Ltd v W J Adams Estates Pty Ltd [1977] HCA 13 ; (1977) 138 CLR 52
Outcome: cited
This leads to the second of the issues on which the TP Act claim is premised. As the right of an agent to receive commission from a principal rests on contract express or implied: cf L J Hooker Ltd v W J Adams Estates Pty Ltd [1977] HCA 13 ; (1977) 138 CLR 52 at 66; it is necessary both to ascertain the terms of the agency contract and to construe them in their setting. 41 Irrespective of whether the agency was exclusive or non-exclusive (it was each of these at different times), there can in my view be little doubt that on the material before me (i) it authorised the applicants to act as Rapid's agents in the sale of Rapid plants in India; (ii) it required the applicants, as soon as they had identified an interested party, to register that name with Rapid "and that company will then automatically become exclusive for [the applicants]" as long as Rapid had not been dealing with that company or person before; (iii) Rapid was to pay commission of 5% of the total value of the plant plus 10% of the yearly royalty stream; (iv) the commission was payable "as soon as a contract has been fulfilled". 42 I am satisfied and I do not think that counsel for the respondents strongly suggests to the contrary that the term "registration" of itself, or in light of the course of dealing between the parties as revealed in the material before me, can reasonably be argued in this context to mean no more than that the applicants would make known to Rapid the name of interested parties they have identified.
Case: BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523
Outcome: referred to
It is not in issue that there is a connection with Western Australia in this proceeding. However, the fact that an applicant has selected a registry in which to commence the proceeding that is not wholly inappropriate will not give rise to any presumption against transfer of the proceeding. (cf: BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523 per Gleeson CJ, McHugh, Heydon JJ at [25], Gummow J at [72], Kirby J at [167]). 19 Counsel for the applicant conceded, properly, that the case really relates to the manufacture of products in South Australia and that if the question of where the proceeding should be commenced had been decided by weighing all issues, the balance would have fallen in favour of conducting the proceeding in South Australia. However, counsel submitted, transactions of wider geographic import arose out of the events in South Australia and, therefore, this registry was as well placed as any to deal with the litigation. 20 The applicant also contended that a provision in the Heads of Agreement added weight to that submission. In the Heads of Agreement it was provided that in the event of a dispute between the parties under that agreement "the law governing these Heads of Agreement shall be the law of the State of Western Australia and the parties submit to the exclusive jurisdiction of the Courts of that state". The Collaboration Agreement on the other hand provided that that agreement was to "be interpreted in accordance with the law of South Australia".
Case: BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd (No 6) [2002] FCA 807
Outcome: referred to
Furthermore, the applicant has recently changed its solicitors and is no longer represented by a small firm that carries on practise only in this State. The applicant has now instructed a firm which holds itself out as having a national presence. In affidavits filed in opposition to the respondents' application it was deposed on behalf of the applicant that "Gadens" represents "a joint venture of independent firms carrying on business under the same name, 'Gadens'". Whatever that may mean it may be concluded that any disadvantage that may have been inflicted upon the applicant if an order had been made for the proceeding to be transferred whilst it continued to be represented by Solomon Brothers is no longer a relevant consideration. (See: BWK Elders (Australia) Pty Ltd v Westgate Wool Company Pty Ltd (No 6) [2002] FCA 807). Circumstances have forced the applicant to change its solicitors and it may be assumed that being able to instruct solicitors who carry on business under the name Gadens in South Australia will be as convenient for the applicant as instructing practitioners who carry on business under that name in Western Australia given that the instructions are to be provided by persons resident in South Australia. 26 In addition to the foregoing another important change in circumstances is the need for another docket judge to be assigned the matter and to take over management of the proceeding. Obviously that may as easily be a judge in the South Australia District Registry of the Court as a judge in this registry. 27 Another recent event in the matter is the resurrection of the respondents' motion for the provision of security for costs by the applicant. As alluded to earlier in these reasons, on the current material provided the applicant offers personal guarantees and indemnities from the directors of the applicant by way of security. The worth of these offers depends upon the net worth of the property of the directors situated in South Australia. If further security is provided by the applicant in that form there will be a continuing prospect that interlocutory proceedings may occur related to the sufficiency of the security. The appropriate place for consideration of that issue would be in the South Australia District Registry of the Court.
Case: Moltoni Corporation Pty Ltd v Adelaide Brighton Cement Ltd [2004] FCA 482
Outcome: referred to
In their respective submissions both parties place some emphasis on the domicile of prospective witnesses likely to be called at trial. That, of course, is of some relevance in an application for transfer but it is unlikely to carry great weight when a determination is made as to which is the appropriate registry of the Court to have control of the management of preparation of the matter for trial, particularly if the matter is not advanced and interlocutory applications and mediation proceedings are yet to be considered. (See: Moltoni Corporation Pty Ltd v Adelaide Brighton Cement Ltd [2004] FCA 482).
Case: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
Outcome: referred to
In an application for transfer of a proceeding to another registry the principal consideration for the Court is what will best serve the interests of justice and fairness to the parties and meet the public interest in the efficient and timeous despatch of litigation. (See: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155). The application is not resolved by reference to the rules of common law that govern whether a chosen forum is the appropriate forum. This is a national court exercising a single jurisdiction and an application to transfer a proceeding to another registry is an internal matter for the Court for which provision has been made in the Rules. The considerations that are relevant to determining whether such an order should be made are not confined by the Rules and obviously they are broader in scope than those to be applied to decide a "forum non conveniens" application concerning competing jurisdictions. (See: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538).
Case: Shin Chin Distributors Pte Ltd v Parmalat Australia Ltd [2003] FCA 1629
Outcome: referred to
It may be accepted that in usual circumstances such a belated application for transfer of a proceeding would be unlikely to succeed. In this case, however, events that have occurred justify consideration of the motion. (See: Shin Chin Distributors Pte Ltd v Parmalat Australia Ltd [2003] FCA 1629). 4 After filing the statement of claim the applicant was granted leave on four occasions to amend the pleading. The most recently amended statement of claim was filed on 20 May 2005. An amended defence and cross-claim by the respondents was filed on 23 January 2006. 5 It can be seen that since the commencement of the proceeding the time elapsed has been spent on the pleadings, in particular the statement of claim, and preparation of the matter for trial has not reached an advanced stage.
Case: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538
Outcome: referred to
In an application for transfer of a proceeding to another registry the principal consideration for the Court is what will best serve the interests of justice and fairness to the parties and meet the public interest in the efficient and timeous despatch of litigation. (See: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155). The application is not resolved by reference to the rules of common law that govern whether a chosen forum is the appropriate forum. This is a national court exercising a single jurisdiction and an application to transfer a proceeding to another registry is an internal matter for the Court for which provision has been made in the Rules. The considerations that are relevant to determining whether such an order should be made are not confined by the Rules and obviously they are broader in scope than those to be applied to decide a "forum non conveniens" application concerning competing jurisdictions. (See: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538).
Case: Australian Competition &amp; Consumer Commission v Dataline.net.au Pty Ltd [2004] FCA 1361
Outcome: cited
Honour also referred to the fact that the director was to be a witness for the company and that there were difficulties in his position as a witness and in presenting evidence and making submissions (her Honour referred to Australian Competition &amp; Consumer Commission v Dataline.net.au Pty Ltd [2004] FCA 1361 at [3] ). That difficulty does not exist in the present case because counsel will lead the evidence to be given by Mr Young. There is, however, some residual difficulty in the preparation and filing of affidavits to which I referred earlier. The case is also distinguishable on the same or a similar basis. In summary, I do not find any reason in the authorities to which I was referred and have discussed above to dissuade me from the view that leave should be granted.
Case: Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002
Outcome: distinguished
4 r 14(2) of the Federal Court Rules provides: Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor. Counsel for the parties referred me to the following authorities in relation to the approach to be taken on an application for leave under the rule: Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 131 ( Tobacco Control ); Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002 ( Checked-Out ); Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949 ( Silkearl ) and Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985 ( Cytel ). I will return to these authorities below. In Checked-Out , Emmett J granted leave to the applicant to carry on the proceeding without a solicitor for the purpose of resisting certain motions for summary dismissal, and to be represented on the hearing of those motions by a named individual who was not a solicitor. However, his Honour declined to grant general leave for the company to carry on the proceeding without a solicitor, noting the complexity of the legal and factual issues involved as one reason militating against the grant of leave. The case is distinguishable on the same or a similar basis.
Case: Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985
Outcome: distinguished
4 r 14(2) of the Federal Court Rules provides: Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor. Counsel for the parties referred me to the following authorities in relation to the approach to be taken on an application for leave under the rule: Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 131 ( Tobacco Control ); Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002 ( Checked-Out ); Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949 ( Silkearl ) and Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985 ( Cytel ). I will return to these authorities below. Finally, in Cytel Bennett J refused an application for leave under O 4 r 14(2). The applicant company sought leave to be represented by its sole director. Her Honour said that it was clear from the matters put by the director in submissions and the material that he had sent to her Honour's chambers, that he had no understanding of court procedure or of evidence. Her Honour was firmly of the view that if the director were to represent the applicant, the time taken to deal with evidence and submissions would be greatly extended.
Case: Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949
Outcome: distinguished
4 r 14(2) of the Federal Court Rules provides: Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor. Counsel for the parties referred me to the following authorities in relation to the approach to be taken on an application for leave under the rule: Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 131 ( Tobacco Control ); Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002 ( Checked-Out ); Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949 ( Silkearl ) and Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985 ( Cytel ). I will return to these authorities below. In Silkearl , Allsop J (when a judge of this Court) refused an application for leave under O 4 r 14(2). The individual who wished to represent the applicant company was, with his wife, a director of the company. The case involved complex factual and legal issues. His Honour referred to the emotive language used by the individual concerned and the making of sweeping allegations of impropriety by him in correspondence with the respondent and its solicitors. I note in passing that this characteristic, which one often encounters in self-represented litigants, has been noticeably absent, so far as I am aware, in the dealings that Mr Young has had with ICM and its solicitors. In his case, the problem has not been one of lack of courtesy, but has been one of lack of knowledge of rules and procedures. The case is distinguishable on the same or a similar basis.
Case: Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 131
Outcome: distinguished
4 r 14(2) of the Federal Court Rules provides: Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor. Counsel for the parties referred me to the following authorities in relation to the approach to be taken on an application for leave under the rule: Tobacco Control Coalition Inc v Philip Morris (Australia) Ltd [2000] FCA 131 ( Tobacco Control ); Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002 ( Checked-Out ); Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949 ( Silkearl ) and Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2006] FCA 985 ( Cytel ). I will return to these authorities below. In Tobacco Control , Wilcox J granted Tobacco Control Coalition Inc leave under O 4 r 14(2) to carry on the proceeding without a solicitor but limited to preparation for, and attendance at, the hearing of certain motions which were fixed for hearing 12 days after the making of the order. The order was limited in point of time to the conclusion of the hearing of those motions. His Honour observed (at [7]) that if the matter went to a hearing on the merits it would involve extensive evidence and complex questions of law, and that it would be "most inappropriate for such an action to be litigated without the services of a solicitor". The present case will involve complex questions of law. Most of the evidence will be documentary, although apparently there will be some evidence as to one or two contested conversations. Tobacco Control is, nonetheless, distinguishable by reason of the factors listed in [27] above. In particular, there was in that case only one applicant the company. In the present case the proceeding will continue in so far as it is brought by Mr Young.
Case: Boyes v Minister for Immigration and Citizenship [2007] FCA 505
Outcome: cited
A decision or purported decision to cancel a visa under the Migration Act is a privative clause decision or purported privative clause decision within the meaning of s 474(3)(b) Migration Act . In this case, it is clear that the decision of the Tribunal, which reviewed and affirmed the decision of the Minister's delegate to cancel the applicant's visa under the Migration Act , was also a privative clause decision or purported privative clause decision. Accordingly, an appeal to the Federal Court from a decision of the Tribunal concerning such a decision does not lie within s 44 AAT Act , and is not competent (cf Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 and Boyes v Minister for Immigration and Citizenship [2007] FCA 505).
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: applied
I propose to consider in turn each of the five grounds raised by the applicant in his draft notice of appeal as well as the further ground raised at the hearing. In doing so, however, I note that the grounds of review raised by the applicant, while broad ranging, are only relevant in these proceedings in so far as they present the possibility of jurisdictional error on the part of the Tribunal in reaching its decision. A review of the factual findings of the Tribunal, or the weighing of facts by the Tribunal, has no place in such a review. As explained by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351. It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia [1995] HCA 58 ; [(1995) 184 CLR 163] , if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig , is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. (footnotes omitted)
Case: EG &amp; H Nominees Pty Ltd v General Mutual Insurance Co Ltd (in liq) (1976) 50 ALJR 460
Outcome: cited
In my view, the Tribunal hearing was fairly conducted, and on the basis of information both favourable and unfavourable to the applicant. From the applicant's description of the information in the prison reports he was unable to access (TS p 11 ll 12-38), it appears unlikely that it would have added to the case he put to the Tribunal. In such circumstances, it is not procedurally unfair for the Tribunal to make a decision in the absence of such material, without an adjournment to allow the applicant an opportunity to obtain it: EG &amp; H Nominees Pty Ltd v General Mutual Insurance Co Ltd (in liq) (1976) 50 ALJR 460. 52 As no ground of review raised by the applicant demonstrates jurisdictional error in the Tribunal's decision, the appropriate order is that the application be dismissed with costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 6 March 2008 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: A Wheatley Solicitor for the Respondent: Clayton Utz Date of Hearing: 26 February 2008 Date of Judgment: 6 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/251.html