mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Olivaylle Pty Limited v Flottweg GMBH &amp; Co KGAA (No 3) [2008] FCA 572 ; (2008) 76 IPR 152
Outcome: cited
Lorenz was not initially a witness whom Flottweg proposed to call. After the expiry of the time fixed by direction for the filing of evidence in chief and for that matter after Olivaylle had closed its case, Flottweg made application for leave to file an affidavit made by him upon which, as events transpired, he came to be cross-examined. For reasons which I gave in the course of the trial, I permitted Flottweg to adduce evidence from him: Olivaylle Pty Limited v Flottweg GMBH &amp; Co KGAA (No 3) [2008] FCA 572 ; (2008) 76 IPR 152. Mr Lorenz was at the time of his involvement with events of present relevance and remains by occupational title a sales engineer. From about 2003 he has had worldwide responsibility within Flottweg for that company's dealings in the field of edible oils, which includes olive oil production. He had the benefit of being trained for his current role by his predecessor, a Mr Langenbrink, whom he replaced on the latter's retirement and a Mr Ecker, the Group leader of Flottweg's Edible Fats Oil Division, who retired in 2006. Each of Messrs Ecker and Langenbrink had extensive experience in the provision and servicing of production line machinery for the olive oil industry internationally. Mr Lorenz also has what I regard as the benefit of having carried out technical repairs, servicing, start up testing and operator training in respect of Flottweg decanters, tricanters, belt presses and Veronesi separators (and the associated plant such as polymer stations and screw conveyors) over a period of some 15 years prior to assuming the role of sales engineer. He undertook this work on joining Flottweg after his completion of a trade apprenticeship with one of its competitors. His title "sales engineer" gives an accurate idea of his current role. He is not just an equipment salesman. He is able to and does bring to the task of equipment sales an ability to assess and advise upon the performance characteristics, limitations and other technical aspects of Flottweg's machinery and production lines into which such machinery will be integrated based on both formal trade qualifications and, especially, years of relevant, practical experience with the machinery.
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: applied
behalf of Olivaylle it was submitted that this document "is clearly an important part of the background to the Contract". It is certainly part of that background; but in this case too much can be made of that fact. The role of such a document relative to the Contract is as described by Lord Wilberforce in Reardon Smith Line Ltd v Hansen-Tangen ; Hansen-Tangen v Sanko Steamship Co (The Diana Prosperity) [1976] 1 WLR 989 at 995-996, in a passage which commended itself to Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 350 and to Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462, [22] : In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating. I have already made reference to Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451. Later, in their joint judgement in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] , Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ remarked of that case: This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. 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.
Case: Reardon Smith Line Ltd v Hansen-Tangen ; Hansen-Tangen v Sanko Steamship Co (The Diana Prosperity) [1976] 1 WLR 989
Outcome: applied
behalf of Olivaylle it was submitted that this document "is clearly an important part of the background to the Contract". It is certainly part of that background; but in this case too much can be made of that fact. The role of such a document relative to the Contract is as described by Lord Wilberforce in Reardon Smith Line Ltd v Hansen-Tangen ; Hansen-Tangen v Sanko Steamship Co (The Diana Prosperity) [1976] 1 WLR 989 at 995-996, in a passage which commended itself to Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 350 and to Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462, [22] : In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.
Case: Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11 ,106
Outcome: applied
acceptance was communicated by email to Olivaylle at its olive grove in Victoria. Experience suggests that email is often, but not invariably, a form of near instantaneous communication. The parties seemed content to assume that the place of contract was either Victoria or New South Wales, content because the common law of Australia was the same in either place and so, too, was the only statute law considered material. There was no suggestion in submissions that the place of contract was, for example, Germany. As a result, the ramifications of the adoption by the parties of email for their written pre-contractual communications, particularly the acceptance, were not explored. As it happens, the subject of formation of contracts by email has been explored in depth in an article by a local academic, Christensen S, "Formation of Contracts by Email Is it Just the Same as the Post?" (2001) 1(1) Queensland University of Technology Law and Justice Journal 22. Ms Christensen details there arguments for and against the assimilation of email communications with "the postal rule" or with what one might term "the instantaneous communication rule" and also the local adoption of international convention which touches on the subject. Having regard to the position taken by the parties in this case, it is not necessary to give detailed consideration to the point. It is enough to observe that I consider that there are analogies to be drawn with the way the law developed in relation to telex communications in an earlier era where what I have termed "the instantaneous communication rule" came to be adopted, perhaps at the expense of scientific precision but not so in relation to common commercial understanding. Thus, by analogy with cases concerning the position with what were, or were treated as, other forms of instantaneous communication, I consider that the contract was made where the acceptance was received, ie in Victoria: Entores Ltd v Miles Far East Corporation [1955] 2 QB 327; W A Dewhurst &amp; Co Pty Ltd v Cawrse [1960] VR 278 ; Express Airways v Port Augusta Air Services [1980] Qd R 543; Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11 ,106.
Case: Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592
Outcome: applied
Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592 at 605, in a passage cited with approval by the Judicial Committee of the Privy Council in an Australian appeal, BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283, Scrutton LJ said: A term can only be implied if it is necessary in the business sense to give efficacy to the contract i.e., if it is such a term that it can confidently be said that if at the time the contract was being negotiated some one had said to the parties, 'What will happen in such a case?', they would both have replied: 'Of course, so and so will happen; we did not trouble to say that; it is too clear. Lord Justice Mackinnon made observations to like effect in relation to the implication of a contractual term in Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227 in a passage which also commended itself to the Judicial Committee in BP Westernport Case (ibid).
Case: Roder Zelt-Und Hallenkonstruktionen GMBH v Rosedown Park Pty Ltd &amp; Eustace (1995) 57 FCR 216
Outcome: cited
is an agency of the United Nations established by the General Assembly in 1966. It has as its mandate from the General Assembly the progressive harmonisation and unification of the law of international trade. It has fostered the development of a number of international conventions and model laws which range in subject from the international sale of goods through to cross-border insolvency and, as Ms Christensen's article (supra) reminds, electronic commerce. When this fact and that the Vienna Convention "governs only the formation of the contract of sale and the rights and obligations of the seller and buyer arising from such contract; in particular [the Vienna Convention] is not concerned with the effect that the contract may have on the property to the goods sold" ( Roder Zelt-Und Hallenkonstruktionen GMBH v Rosedown Park Pty Ltd &amp; Eustace (1995) 57 FCR 216 at 222) are taken into account, it is an unlikely construction of the Contract that the sentence referring to "UNCITRAL law" is to take its meaning from the sentence which precedes it. Given the nature of the Contract, the fact that a party to it, Flottweg, was and was known by Olivaylle to be a company which sold its wares internationally and the reference to the exclusion of "UNCITRAL law" appearing at its conclusion under the heading "Other dispositions", the more likely construction of "UNCITRAL law" is that it was intended to be a reference to the particular UNCITRAL convention that governed the international sale of goods, ie the Vienna Convention. "Other dispositions" looks to me to be a heading which describes miscellaneous, unrelated terms of general application to the goods sold. The positioning of the sentence at the end of the Contract further supports a construction that it was meant to govern all of its terms. The Contract provided for the supply by Flottweg to Olivaylle of an olive oil production line more particularly described as a "Continuous Flottweg Special 5 TPH in sealed N&#178; Version Olive Oil Line". "TPH" refers to tonnes per hour. N&#178; is a reference to nitrogen. In this production line nitrogen gas was used as a means of displacing oxygen from the line. It was thought by Mr De Moya that this would yield qualitative benefits in the production of olive oil. In its initial form, the production line was delivered to Olivaylle's olive grove at Telopea Downs in April 2005.
Case: Shevill v Builders Licensing Board [1982] HCA 47 ; (1982) 149 CLR 620
Outcome: cited
right of "withdrawal" in the Contract seems to me to be of a quite different character to what in Meagher RP, Gummow WMC and Lehane JRF, Equity Doctrines &amp; Remedies (4 th ed Butterworths, 1992) at [24-005], describe as the "first sense" of five senses in which the term "rescission" is used in law. The learned authors there state, by reference to observations made by Gibbs CJ in Shevill v Builders Licensing Board [1982] HCA 47 ; (1982) 149 CLR 620 at 625-626 that, so used, it describes "the situation where a party to a contract, upon a breach by the other party of a condition, elects to treat the contract as no longer binding upon him". In that situation, "both parties are discharged from further performance of the contract. But rights already acquired are not divested or discharged and causes of action which have accrued from the breach continue unaffected": Equity Doctrines &amp; Remedies , 4 th ed, ibid. That in the Contract "withdrawal" is offered as an alternative to reduction in price persuades me that restoration of the original position is intended rather than a release from further performance. The intent is to offer a choice between returning the goods and getting one's money back or keeping the goods but with the benefit of a reduced price. Though that conclusion follows as a matter ordinary English read in context, it also seems to me to be in accord with civil law notions of what is meant by such alternatives. "Withdrawal" would thus enable orders for the return of the goods supplied and for the refund of the amount paid under the Contract. It is truly a quite exceptional right. That it is available only after the allowance of a "reasonable period of grace", which can apply in the case of the repair or replacement obligation, persuades me that the right continues to be available even if the result is that used and thereby devalued goods are returned. That substantial restitution of the goods sold was not possible would otherwise disentitle a party to a contract to an entitlement to "rescission" but not, as I conceive it, to exercise the right of "withdrawal" conferred by the Contract.
Case: Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206
Outcome: applied
Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592 at 605, in a passage cited with approval by the Judicial Committee of the Privy Council in an Australian appeal, BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283, Scrutton LJ said: A term can only be implied if it is necessary in the business sense to give efficacy to the contract i.e., if it is such a term that it can confidently be said that if at the time the contract was being negotiated some one had said to the parties, 'What will happen in such a case?', they would both have replied: 'Of course, so and so will happen; we did not trouble to say that; it is too clear. Lord Justice Mackinnon made observations to like effect in relation to the implication of a contractual term in Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227 in a passage which also commended itself to the Judicial Committee in BP Westernport Case (ibid).
Case: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: applied
have already made reference to Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451. Later, in their joint judgement in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 179, [40] , Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ remarked of that case: This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. 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.
Case: W A Dewhurst &amp; Co Pty Ltd v Cawrse [1960] VR 278
Outcome: applied
acceptance was communicated by email to Olivaylle at its olive grove in Victoria. Experience suggests that email is often, but not invariably, a form of near instantaneous communication. The parties seemed content to assume that the place of contract was either Victoria or New South Wales, content because the common law of Australia was the same in either place and so, too, was the only statute law considered material. There was no suggestion in submissions that the place of contract was, for example, Germany. As a result, the ramifications of the adoption by the parties of email for their written pre-contractual communications, particularly the acceptance, were not explored. As it happens, the subject of formation of contracts by email has been explored in depth in an article by a local academic, Christensen S, "Formation of Contracts by Email Is it Just the Same as the Post?" (2001) 1(1) Queensland University of Technology Law and Justice Journal 22. Ms Christensen details there arguments for and against the assimilation of email communications with "the postal rule" or with what one might term "the instantaneous communication rule" and also the local adoption of international convention which touches on the subject. Having regard to the position taken by the parties in this case, it is not necessary to give detailed consideration to the point. It is enough to observe that I consider that there are analogies to be drawn with the way the law developed in relation to telex communications in an earlier era where what I have termed "the instantaneous communication rule" came to be adopted, perhaps at the expense of scientific precision but not so in relation to common commercial understanding. Thus, by analogy with cases concerning the position with what were, or were treated as, other forms of instantaneous communication, I consider that the contract was made where the acceptance was received, ie in Victoria: Entores Ltd v Miles Far East Corporation [1955] 2 QB 327; W A Dewhurst &amp; Co Pty Ltd v Cawrse [1960] VR 278 ; Express Airways v Port Augusta Air Services [1980] Qd R 543; Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11 ,106.
Case: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: applied
The Tribunal's conclusion that the appellant's experiences, as he recounted them, did not amount to persecution would, if correct, be a sufficient reason for rejecting the appellant's application. No challenge has been made to the Tribunal's characterisation of the conduct as non-persecutory nor, in my view, would any such challenge have been successful. The conclusion that the One Child Policy does not, of itself, constitute persecution is in accord with the High Court's decision in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 . Similarly there is no evidence to suggest that the Tribunal made any jurisdictional error in failing to be satisfied that the appellant was targeted because of his membership of any particular social group.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: considered
In VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 , North J considered a decision of the Tribunal for which, in his Honour's view, there were four independent bases, only three of which were challenged on appeal. His Honour rejected the challenges to two of the three. The appellant in VBAP challenged the third basis of the decision on the ground of an alleged breach of s 424A. It was submitted that if such a breach was made out then, following the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, the Tribunal's decision must be set aside. Responding to this submission his Honour said: " SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported." 11 I agree with his Honour that SAAP does not stand for the proposition asserted. Provided that the other ground or grounds of decision are truly independent of the ground that is tainted by error and are themselves free of jurisdictional error then, in my view, it follows that the Tribunal had jurisdiction to make the decision it made. In this case the Tribunal put aside its doubts about the appellant's credibility and for the purpose of considering if he had suffered persecution in the past, accepted his account. Putting the appellant's claims at their highest however, the Tribunal did not accept that he had suffered persecution in the past or that he had a well-founded fear of persecution in the future. In my view this decision was within the jurisdiction of the Tribunal. 12 For these reasons the appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 22 March 2007 The appellant appeared in person, assisted by an interpreter. Counsel for the Respondent: Ms R Pepper Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 20 February 2007 Date of Judgment: 22 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/398.html
Case: VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Outcome: followed
In VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 , North J considered a decision of the Tribunal for which, in his Honour's view, there were four independent bases, only three of which were challenged on appeal. His Honour rejected the challenges to two of the three. The appellant in VBAP challenged the third basis of the decision on the ground of an alleged breach of s 424A. It was submitted that if such a breach was made out then, following the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, the Tribunal's decision must be set aside. Responding to this submission his Honour said: " SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported."
Case: Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: applied
In Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 293, Dawson J observed that pleadings are but a means to an end, not an end in themselves. His Honour referred to an early authority of the High Court in which it was said that the function of pleadings is to state with sufficient clarity the case which the other party to the proceeding is required to meet: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517.