mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574
Outcome: approved
First, the writ is to be directed to those who have custody or control of the person detained: Hicks v Ruddock [2007] FCA 299 at [36] [50], [2007] FCA 299 ; 156 FCR 574 at 588 91. Justice Tamberlin there held that " control or custody is an essential element to the issue of the writ ": at [36]. In the present proceedings, neither the Republic of Finland nor the magistrates are such persons. 11 This difficulty could be overcome by the Applicant seeking a writ or an order in the nature of a writ directed to the appropriate Respondent. And this may be the reason why counsel for the First Respondent did not today rely upon this difficulty as the basis upon which she sought an order for the dismissal of the Application.
Case: R v Carter; Ex parte Kisch (1934) 52 CLR
Outcome: approved
The writ of habeas corpus is an important safeguard of liberty: Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478. And, when an application is made, it is the detaining party who bears the onus of showing the lawfulness of the detention: R v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227. Every person is presumed entitled to his freedom unless some reason is made to appear to the satisfaction of a court why he is lawfully deprived of that freedom: R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62 per Sholl J, (1962) 3 FLR 271. See also Clark and McCoy, Habeas Corpus: Australia, New Zealand, the South Pacific (2000) 227 8.
Case: R v Governor of Metropolitan Gaol; Ex parte Di Nardo (1962) 3 FLR 271
Outcome: approved
The writ of habeas corpus is an important safeguard of liberty: Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478. And, when an application is made, it is the detaining party who bears the onus of showing the lawfulness of the detention: R v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227. Every person is presumed entitled to his freedom unless some reason is made to appear to the satisfaction of a court why he is lawfully deprived of that freedom: R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62 per Sholl J, (1962) 3 FLR 271. See also Clark and McCoy, Habeas Corpus: Australia, New Zealand, the South Pacific (2000) 227 8.
Case: Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478
Outcome: approved
The writ of habeas corpus is an important safeguard of liberty: Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478. And, when an application is made, it is the detaining party who bears the onus of showing the lawfulness of the detention: R v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227. Every person is presumed entitled to his freedom unless some reason is made to appear to the satisfaction of a court why he is lawfully deprived of that freedom: R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62 per Sholl J, (1962) 3 FLR 271. See also Clark and McCoy, Habeas Corpus: Australia, New Zealand, the South Pacific (2000) 227 8. 12 The second reason why it is considered that the Application should be dismissed, and the basis now relied upon by the First Respondent, is the lawfulness of the Applicant's detention. The Applicant has the benefit of a presumption in favour of liberty. Albeit not the person who has the custody or control of the Applicant, the Republic of Finland has tendered a copy of the O rder For Arrest as made on 21 December 2007; a copy of the order made by Rares J on 24 December 2007; and a copy of the order made by the Full Court on 15 February 2008. The lawfulness of the detention of the Applicant is thereby established. In Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478 at 480, Deane J addressed the importance of the writ of habeas corpus and continued: It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity. There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void. Similarly, in the present proceedings, there is no reason to challenge the validity of the orders made on 21 and 24 December 2007 and the order made by the Full Court on 15 February 2008.
Case: Republic of Finland v Tervonen [2007] FCA 2107
Outcome: cited
On 21 December 2007 an Application was then made by the Republic of Finland to the Duty Judge of this Court for the arrest of the Applicant. That order was made pursuant to s 21(6)(e) of the 1988 Act and an Order For Arrest has since been executed. An Application for bail was refused by Rares J on 24 December 2007. The order then made by his Honour was that the Applicant was to be kept in custody up to and including 15 February 2007: Republic of Finland v Tervonen [2007] FCA 2107.
Case: Tervonen v Finland [2007] FCA 2067
Outcome: cited
It is unnecessary for present purposes to detail the sequence of those various challenges. It is sufficient to note that on 20 December 2007 Gyles J ordered that the Applicant be released from custody: Tervonen v Finland [2007] FCA 2067.
Case: Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684
Outcome: cited
On 15 February 2008 the Full Court of the Federal Court heard an appeal from the decision of Gyles J and an appeal from a further decision concluding that notices issued under s 16 of the 1988 Act were invalid ( Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589). On that date the Full Court extended the orders as previously made by Rares J for a period " up to and including the determination of the appeal from Gyles J ." 5 Now before the Court is an Application seeking a writ of habeas corpus . The Respondents to that Application are identified as " Finland " and two magistrates. 6 The Application, together with two further proceedings commenced by the Applicant, were first before the Court on 4 February 2008. On that occasion counsel for the Republic of Finland, Ms Morgan, sought an order that the Application be dismissed. That order was opposed by the Applicant and the proceedings were stood over to today. 12 The second reason why it is considered that the Application should be dismissed, and the basis now relied upon by the First Respondent, is the lawfulness of the Applicant's detention. The Applicant has the benefit of a presumption in favour of liberty. Albeit not the person who has the custody or control of the Applicant, the Republic of Finland has tendered a copy of the O rder For Arrest as made on 21 December 2007; a copy of the order made by Rares J on 24 December 2007; and a copy of the order made by the Full Court on 15 February 2008. The lawfulness of the detention of the Applicant is thereby established. In Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478 at 480, Deane J addressed the importance of the writ of habeas corpus and continued: It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity. There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void. Similarly, in the present proceedings, there is no reason to challenge the validity of the orders made on 21 and 24 December 2007 and the order made by the Full Court on 15 February 2008.
Case: D&eacute;cor Corp v Dart Industries Inc (1991) 3 FCR 397
Outcome: cited
The test for whether leave to appeal is granted or refused is well established: D&eacute;cor Corp v Dart Industries Inc (1991) 3 FCR 397 at [9]. 12 The applicant's grounds contained in his notice of appeal do not identify any error in the Federal Magistrate's decision. Rather, the grounds are directed to the decision of the Tribunal. 13 The applicant alleges that the Tribunal failed to comply with sections 424A and 441A of the Act . This ground is unparticularised. The Tribunal as first constituted wrote to the applicant inviting his comment on two occasions. The Tribunal was not required to write to the applicant, as reconstituted, in respect of any information upon which it relied as its findings relied on the applicant's evidence given to the Tribunal, both as originally constituted and as reconstituted and the documents provided by the applicant to the Tribunal. Accordingly, there is no merit to this ground.
Case: Minister for Immigration &amp; Multicultural Affairs v Jia Le Geng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: referred to
The fourth ground alleges that the Tribunal failed to consider evidence in favour of the applicant and that it only considered evidence which was not in favour of the applicant. To the extent that this is an allegation of bias the applicant has not met the requirement that such an allegation be firmly and distinctly made and clearly proved: Minister for Immigration &amp; Multicultural Affairs v Jia Le Geng [2001] HCA 17 ; (2001) 205 CLR 507 at [530] . 20 To the extent that the Tribunal, upon considering the evidence as a whole (which it expressly stated it had done) gave no weight to evidence on its face favourable to the applicant it did so because it found the applicant not to be a credible witness. No error and in particular no jurisdictional error arises by reason of that approach which was clearly open to it. 21 Accordingly I am of the opinion that the Federal Magistrate's decision is not attended by sufficient doubt to warrant it being reconsidered by the Federal Court. Whilst the applicant disagrees with the decision below he has been unable to point to any relevant error. It is evident that no substantial injustice would result from my refusal of leave.
Case: Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996 ; (1999) 153 FLR 236 
Outcome: considered
Traditionally, agreements to negotiate in ' good faith ' were viewed as unenforceable due to want of certainty or lack of consideration, eg Carr v Brisbane City Council [1956] St R Qd 402; Mallozzi v Carapelli SpA [1976] 1 Lloyd's Rep 407 and Walford v Miles [1992] 2 AC 128 at 138 cited by Einstein J in Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996 ; (1999) 153 FLR 236 at [80] . 119 However, since the early 1990's courts have, in certain circumstances, held that an explicit promise to negotiate in good faith is sufficiently certain to be contractually binding: eg Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1; Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104; Aiton Australia at [80]; and see Carter JW, Peden E, Tolhurst GJ, Contract Law in Australia (5 th ed, 2007) at 94-95. 123 Furthermore, in Aiton Australia, Einstein J at [98] said that: "It appears to be common sense that as an obligation to act in "good faith" may, in principle, be legally recognised as an implied or imputed obligation, there is no reason why it should be struck down as uncertain in cases where there is an express contractual term...". 138 First, what is 'good faith' or the content of a good faith obligation will inevitably turn on the facts of each case. It has been described as a contextual standard. In Australia, this has been the starting point for an assessment of good faith in a number of cases. The contextual standard has been variously described. In Aiton Australia , Einstein J said at [129]: "The good faith concept acquires substance from the particular events that take place and to which it is applied. As such, the standard must be fact-intensive and is best determined on a case-by-case basis using the broad discretion of the trial court." 149 Although as noted above, the boundaries of good faith evade precise definition, there appears to be at least some consensus on the limits of any such duty. In particular, a duty of good faith: (1) is not fiduciary in nature; (2) does not require a party to subordinate its own interests, let alone act selflessly; and (3) does not require a party to restrict decisions and actions, reasonably taken, which are designed to promote the legitimate interests of a party and which are not otherwise in breach of an express contractual term. See Justice Finn "Good Faith and Fair Dealing: Australia" Commercial Good Faith Conference (Auckland, New Zealand, 2 September 2005); South Sydney District Rugby League at [394] in the context of an implied duty and, finally, in the context of a duty to negotiate in good faith arising out of an alternative dispute resolution clause see Aiton Australia at [83]. (vi)
Case: Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 
Outcome: referred to
Although no implied duty to negotiate in good faith was pleaded or relied on, it is convenient to consider the issue for such light that it sheds upon the express duty that was both pleaded and relied on. There has been a recent willingness of Australia Courts to find that a duty of ' good faith ' in negotiations is an implied or incidental term of every commercial contract unless the duty is either excluded expressly or by necessary implication: Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] ; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 ; Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 ; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) 21 ATPR 41-703; Alcatel Australia Pty Ltd v Scarcella (1998) 44 NSWLR 349; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 and Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 .
Case: Australian Competition and Consumer Commission v Oceania Commercial Pty Ltd [2003] FCA 1516 
Outcome: referred to
In the circumstances, I am not persuaded that Latitude was misled by BreakFree. Though private contractual negotiations involving a corporation in trade or commerce may support a claim for a breach of s 52 of the TPA, it is important to distinguish infringing conduct from representations that are apposite to "sharp commercial practice" or made in the course of parties bargaining at arm's length: Rhone Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 490; Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 475; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32 (per Black CJ); at 40-41 (per Gummow J); Poseidon Ltd v Adelaide Petroleum NL Ltd (1992) 105 ALR 25 at 26 and Australian Competition and Consumer Commission v Oceania Commercial Pty Ltd [2003] FCA 1516 at [196] - [201] . The relationship between Latitude and BreakFree was that of vendor and purchaser, bargaining at arm's length. In these circumstances, there cannot be said to have been any expectation on either side that BreakFree would not reserve its rights to undertake development, either in relation to the Erskine on the Beach Project or other projects. This is reinforced by the evidence outlined above. Similarly, any non-disclosure by BreakFree about its commercial intentions should a long form contract not be struck with Latitude cannot be construed as misleading or to have misled Latitude.
Case: Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104
Outcome: referred to
However, since the early 1990's courts have, in certain circumstances, held that an explicit promise to negotiate in good faith is sufficiently certain to be contractually binding: eg Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1; Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104; Aiton Australia at [80]; and see Carter JW, Peden E, Tolhurst GJ, Contract Law in Australia (5 th ed, 2007) at 94-95.
Case: Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 
Outcome: referred to
Although no implied duty to negotiate in good faith was pleaded or relied on, it is convenient to consider the issue for such light that it sheds upon the express duty that was both pleaded and relied on. There has been a recent willingness of Australia Courts to find that a duty of ' good faith ' in negotiations is an implied or incidental term of every commercial contract unless the duty is either excluded expressly or by necessary implication: Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] ; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 ; Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 ; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) 21 ATPR 41-703; Alcatel Australia Pty Ltd v Scarcella (1998) 44 NSWLR 349; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 and Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 . 143 As a result, some academics and judges have resorted to ascertaining the scope of ' good faith ' by focusing on the negative or the exclusions - what constitutes ' bad faith '. This has been described as the ' excluder ' definition on the basis that the good faith requirement cannot actually be satisfied in positive terms: See Summers RS, "'Good Faith' in General Contract Law and the Sales Provisions of the Uniform Commercial Code" (1968) 54 Va L Rev 195; Renard Constructions at 266; Burger King at [150]; and Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] - [65] . 184 In Australia, part of the impetus for the recognition of a implied duty to act in good faith has been the desirability and practice of courts in controlling reliance on general rescission clauses so as to prevent their use " for improper and extraneous purposes ": see Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36 ; (1972) 128 CLR 529 at 548; Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 at 587 (per Barwick CJ); and Burger King at [151]. In light of these matters and of the foregoing analysis, the issue is whether the conduct of BreakFree, in the course of negotiations and ultimately relying on its power to terminate the HofA under cl 2.2.2, judged objectively, demonstrated a lack of good faith.
Case: Carr v Brisbane City Council [1956] St R Qd 402 
Outcome: referred to
Traditionally, agreements to negotiate in ' good faith ' were viewed as unenforceable due to want of certainty or lack of consideration, eg Carr v Brisbane City Council [1956] St R Qd 402; Mallozzi v Carapelli SpA [1976] 1 Lloyd's Rep 407 and Walford v Miles [1992] 2 AC 128 at 138 cited by Einstein J in Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996 ; (1999) 153 FLR 236 at [80] .
Case: Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 
Outcome: considered
As will be apparent, I have characterised the events of and from 12 August 2004 as the mutual giving up of the capacity to terminate for the failure to satisfy the Deposits Condition Precedent. The parties variously described the events as 'waiver', 'new contract' and variation. BreakFree submitted that there was no waiver in fact or at law. I have dealt with the facts. The legal submission does not assist BreakFree. It is true that in Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 at 423, Brennan J defined waiver as " a unilateral release or abandonment of a right" where the right is abandoned once and for all. However, his honour went on to note (at 425) that " it is a characteristic of a right susceptible of waiver that it is introduced solely for the benefit of one party" . In the present case and notwithstanding the fact that BreakFree was contractually bound to proceed with the development in the absence of the HofA, the express terms of cl 2.1.5 make it abundantly clear that it was not a right susceptible of waiver it was not introduced solely for the benefit of one party. To suggest otherwise is to ignore the express words not only of cl 2.1.5 but also cl 2.3 of the HofA. 113 There is also arguably a further difficulty with BreakFree's contention that it was entitled to rely upon the Deposits Condition Precedent. It is by no means clear that BreakFree would have been entitled to resile from any contract, whether it be a 'new contract', the HofA or the long form contract, for non-fulfilment by it of its contractual obligations in circumstances where the innocent party had no recourse against it. The termination letter on 31 August 2004 demonstrated an intention by BreakFree to use its own contractual breach to avoid completion of the HofA or any 'new' or long-form contract in existence at that time. 114 BreakFree sought to rely on other conduct of Latitude as a basis for termination. That conduct was variously described as a breach of duty by Latitude to negotiate in good faith to give full effect to the HofA, the alleged failure by Latitude to provide the Second Bank Guarantee, the Third Bank Guarantee and the Fixed and Floating Charge and the conduct of Latitude after 31 August 2004. I will deal with each purported basis in turn.
Case: Con Kallergis Pty Ltd (trading as Sunlighting Australasia) v Calshonie Pty Ltd (formerly CW Norris Pty Ltd) (1998) 14 BCL 201 
Outcome: considered
Conversely, in Con Kallergis Pty Ltd (trading as Sunlighting Australasia) v Calshonie Pty Ltd (formerly CW Norris Pty Ltd) (1998) 14 BCL 201, in an unanimous decision of the Victorian Court of Appeal, Hayne J at 212 said: "Some of the writing in this area seeks to suggest that there can be only one answer to the general question whether an agreement to negotiate is enforceable. The discussion by the members of the courts who decided Coal Cliff and Trawl Industries , as well as the discussion by Giles, J. of the problems he had to consider in Hooper Bailie and in Elizabeth Bay show that the question may be more complex than the simple statement of it may suggest and that the answer to the problem may vary according to the precise terms of the agreement. They suggest that it is only when all of the circumstances are known that it can be seen whether the obligations of the parties (described as "to negotiate") can be identified with certainty." 128 The Court then went on to conclude that the agreement in question, expressed in the following terms, was certain: "an arrangement between A and B that B would pay A a price for work done by A which was a price "to be negotiated" by B with C ...The argument before [the Court] assumed that [B] was obliged by its agreement with [A] to conduct the negotiations with [C] in good faith (or honestly and reasonably)." 129 The agreement was considered 'certain' because " B and C must negotiate (B because it is bound to A to do so and C because it is bound to B to do so) and there is a process for resolving any disagreement between B &amp; C" : at 212. Hayne J distinguished the agreement in Con Kallergis from that considered by the House of Lords in Walford. The latter was found to be uncertain because either party could break off negotiations at any time and for any reason.