mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia [1977] HCA 71 ; (1977) 139 CLR 54
Outcome: considered
Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia [1977] HCA 71 ; (1977) 139 CLR 54 at 72.7, Mason J said: No doubt it is correct to say that, where in the recitals to a deed or an agreement it is acknowledged that the parties have agreed to do, or will do, certain acts, a promise to do those acts will be read into the agreement in the absence of an express promise to that effect. Then, there being no indication of a contrary intention, it may safely be inferred that the absence of a contractual provision was due to oversight or inadvertence. It can be seen from the recitals that FMG accepted CREC's offer to "execute the Works", namely the "Build and Transfer" of the railway. Applying Mason J's proposition in Ansett Transport Industries [1977] HCA 71 ; 139 CLR 54 , CREC's promise to build and transfer the railway may, arguably, be read into the operational part of the agreement, there being no indication of a contrary intention. Accordingly, in my view, it is arguable and reasonably so that the Recitals of the agreement record the parameters of the intended agreement, that is, the offer and acceptance of the obligation to build and transfer the railway. Clause 1.1 arguably does not derogate from this obligation. This clause lists the matters which would be the subject of further development and agreement including definitive engineering design to Australian standards. Arguably this is a reference to the definitive feasibility study process which the parties knew had to be completed in order for details of their agreement to be worked out and in particular would define the scope of the Works, the scheduling of the Works and the cost of the Works. Clause 7 provides that: This document represents an agreement in itself and it is recognised a fuller and more detailed agreement not different in intent from this agreement will be developed later.
Case: Aspdin v Austin (1844) 5 QB 671
Outcome: cited
supports an argument that the agreement recorded in the recitals for CREC to build or "execute" the railway should be given effect and should be treated as an agreement between FMG and CREC even where the operative provisions of the framework agreement do not contain such a provision and there is nothing inconsistent with such a construction in the operative provisions: Buckland v Buckland [1900] 2 Ch 534 at 540.3; MacKenzie v Childers (1889) 43 Ch D 265 at 274.7, 275.4-276.1; Ex parte Dawes; in re Moon (1886) 17 QBD 275 , 286.8, 288.2, 289.7; Aspdin v Austin (1844) 5 QB 671 at 683. This is even more so where, as here, the framework agreements were not drawn by lawyers. They were drafted by Heyting, an engineer, who also holds a Masters of Business Administration and who had some training in contract management. In those circumstances, arguably, a distinction between recitals and operational clauses should not be rigorously applied in an attempt to determine the parties' intention, determined objectively. Expressly, the recitals proceed on the basis that there is an agreement for the relevant Chinese contractor to build the infrastructure which is sought to be recorded in the framework agreements. The recitals do not say or imply that what follows is merely an informal arrangement, or a mere agreement to negotiate.
Case: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99
Outcome: cited
makes the following submission which I accept as a correct statement of the law. The proper construction of an agreement should be determined by what reasonable people in the position of the parties would have understood by the relevant clauses by considering not only their text, but also the surrounding circumstances and the purpose and object of the transaction: e.g. Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] ; International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 234 CLR 151 at [8] and [53]. The whole of the document should be considered and its provisions given harmonious effect: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 at 109 (Gibbs J, in dissent, but not on the applicable principle).
Case: Australian Competition &amp; Consumer Commission v Leahy Petroleum [2004] FCA 1678 ; (2004) 141 FCR 183
Outcome: considered
Australian Competition and Consumer Commission v Leahy Petroleum [2004] FCA 1678 ; (2004) 141 FCR 183 , Merkel J, who was dealing with admissions in the context of proceedings against a company under the TPA, stated at [118]: "(c) Admissions in the s 155 examinations [118] Although s 84(2) of the (Trade Practices) Act does not extend to admissions (see TNT Management at 19 and Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 26 ALR 609 at 633 (" Nicholas Enterprises ")), there are a number of circumstances in which the admissions of a servant or agent in relation to past events may be admissible against the principal. A servant or agent may have authority to make admissions about past events by virtue of the servant's or agent's general or specifically delegated authority to answer inquires of a particular nature: see TNT Management at 18. The inquiries may include dealing with investigating authorities in any matter concerning the business: see Nicholas Enterprises at 632. Senior counsel for ASIC submits that s 87 of the Evidence Act may be applied to admissions in a s 19 transcript in the same way as it was applied in ACCC v Leahy [2004] FCA 1678 ; 141 FCR 183 to admissions made in examinations under s 155 of the TPA. I accept that submission. Senior counsel for FMG did not take issue with the authenticity of the signatures of Rowley and Watling on the transcripts. He also indicated that FMG had no objection to my reading those transcripts and deriving from them whatever assistance I could. However, he said the representations in the transcripts could not be viewed as admissions because they were not adverse to FMG's case. In Part 1 of the Dictionary of the Evidence Act , "admission" is defined as follows. admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the proceeding.
Case: Australian Competition &amp; Consumer Commission v Mayo International Pty Ltd (1998) ATPR 41-653
Outcome: cited
J noted at [120] that s 87(1)(b) of the Evidence Act has been applied in the context of cases brought pursuant to the TPA such as Australian Competition and Consumer Commission v Mayo International Pty Ltd (1998) ATPR 41-653.
Case: Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442
Outcome: referred to
authority for the availability of the rule in Jones v Dunkel in civil penalty proceedings is found in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442 , where Hill J stated at [33]: Where the proceedings are criminal (and the present proceedings are not; they are proceedings, inter alia, for the recovery of a civil penalty) it might be thought that the failure of the accused to go into evidence should not lead to the drawing of Jones v Dunkel inferences. After all it is clear that a witness can not be compelled to give evidence which is likely to incriminate the witness or expose the witness to a penalty. However, even in criminal cases it has been held that the failure of the accused, who is in a position to deny, explain or answer the evidence adduced by the prosecution, to give evidence will permit the jury to draw inferences adverse to the accused more readily: see Azzopardi v R [2001] HCA 25 ; (2001) 179 ALR 349 , affirming Weissensteiner v R [1993] HCA 65 ; (1993) 178 CLR 217. A fortiori, therefore, the failure of a respondent to proceedings for recovery of a pecuniary penalty to give evidence on a matter relevant to an issue in the proceeding and deny, explain or answer the evidence adduced against the respondent will permit the Court more readily to draw the inferences to which the decision in Jones v Dunkel refers. In Council of the New South Wales Bar Association v Power [2008] NSWCA 135 ; (2008) 71 NSWLR 451 at [21] , a proceeding seeking removal of a legal practitioner from the Roll, Hodgson JA, with whom Beazley and McColl JJA agreed, referred to the High Court's conclusion in Azzopardi [2001] HCA 25 ; 205 CLR 50 that it was open to a trial judge in a criminal case to make a comment relating to the absence of evidence of additional facts peculiarly within the knowledge of the accused. Hodgson JA went on to say at [22] concerning the case before him that: If this had been a criminal trial, then in my opinion what the High Court said in Azzopardi would have meant that a jury could have been told that inferences from proved facts could more safely be drawn because the opponent elected not to give any explanation in terms of additional facts peculiarly within his knowledge or any evidence of such facts. In my opinion, if such Jones v Dunkel reasoning is available to a jury in a criminal trial, it must a fortiori be available to a court in civil proceedings such as the present. That would be so, even if these civil proceedings are regarded as proceedings for a civil penalty. I note that a similar view was expressed by Hill J in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd [2001] FCA 1800 ; (2001) 201 ALR 502 at [33] .
Case: Australian Securities &amp; Investments Commission v Cycclone Magnetic Engines Inc [2009] QSC 58
Outcome: referred to
Australian Securities and Investments Commission v Cycclone Magnetic Engines Inc [2009] QSC 58 , Martin J was asked to consider whether publications including television news film made on Cycclone's website was in relation to a financial product (at [124]). Evidence was adduced that the defendant had referred prospective shareholders to its website (at [125]). Martin J stated at [146] and [147]: [146] The web site was, no doubt, intended to fulfil a number of functions. One would have been to publicise CME in a general way. Another was to allow interested persons to contact CME - the web site contained a feedback page. Another was, as the home page made clear, "to obtain... direct investment and to complete the development program". [147] The conduct of CME in placing the film on the web site and then describing it as showing the engine working is relevantly indistinguishable from writing an ASX release to the same effect, especially in the context of the introductory words on the home page about "obtaining direct investment", that is, shares in CME. That conduct, therefore, comes within s 1041H. Forrest submits that these observations suggest that publicising FMG in a general way is not conduct in relation to a financial product. I do not agree. Martin J's comments at [147] demonstrate that he viewed the conduct in placing the film on the web site and then describing it as showing the engine working is relevantly indistinguishable from writing an ASX release to the same effect. His Honour's use of the word 'especially' in that paragraph indicates that that conclusion was reinforced by, and not dependent upon, the introductory words on the home page about obtaining direct investment. FMG sent the 23 August Letter, 2004 Annual Financial Report, 2004 Annual Report, September Quarterly Report, 5 November Letter, 8 November Letter, November Presentation, December Quarterly Report, February Presentation and Bag of Rusty Nails Presentation to the ASX. The letters were re-published to the market in the ordinary course by the ASX. It does not dispute that those publications were in relation to a financial product. Further FMG published the 23 August Media Release, 5 November Media Release and February Presentation on its website. The 23 August Letter and the 5 November Letter referred readers to FMGs website. It does not dispute that those publications were in relation to a financial product.
Case: Australian Securities &amp; Investments Commission v Fortescue Metals Group Ltd [No 2] (2009) 176 FCR 529
Outcome: cited
tendered signed transcripts of examinations conducted pursuant to s 19 of the ASIC Act of Rowley and Watling. The transcripts were sought to be tendered under ss 81 and 87 of the Evidence Act as evidence of admissions made on behalf of FMG. On 29 April 2009, during the trial, I ruled that, upon proof of the authenticity of the examinees' signatures and my satisfaction that the transcripts contain relevant admissions, the transcripts were admissible: Australian Securities and Investments Commission v Fortescue Metals Group Ltd [No 2] (2009) 176 FCR 529 at [44]. Rowley's alleged admissions in his s 19 examination and proffered by ASIC as admissions by FMG pursuant to s 87 are: At all material times Rowley was a director of FMG. The knowledge he acquired in his capacity as such was therefore FMG's knowledge. [p 5 lines 15-36] Rowley, and therefore FMG, knew, from at least 14 October 2004, that the Chinese Government had decided that the equity issue was to be resolved before there was to be further progress. [p 58 lines 8-9 39-45; p 59 lines 1-4 ] ] Rowley, and therefore FMG, knew, from around 14 October 2004, that: NDRC had directed the Chinese Steel Mills not to deal directly with FMG any further, but rather to deal through (C)MCC; the process of trying to get off take agreements signed with specific steel mills had started to slow down; this had been orchestrated by the NDRC; and there was not going to be progress until there was an agreement about equity. [p 59 lines 6-17] Rowley knew or believed that negotiations in relation to the equity participation were probably first raised when FMG started negotiations post CREC and started to involve (C)MCC and the wider China. At around that time NDRC became very much a party. [p 66 lines 27-34] As at 22 January 2005, Rowley, and therefore FMG, knew or believed that CREC, CHEC and (C)MCC were not acting on their obligations because: the issue of equity had not been resolved; and as far as China was concerned, until that issue was resolved, the agreements as they stood would not be actioned. [p 67 lines 5-7; p 69 lines 8-17]
Case: Australian Securities &amp; Investments Commission v Maxwell (No 2) [2006] NSWSC 1052 ; (2006) 59 ACSR 373
Outcome: referred to
meaning and effect of s 180(1) was recently analysed by Brereton J in Australian Securities and Investments Commission v Maxwell (No 2) [2006] NSWSC 1052 ; (2006) 59 ACSR 373 at [99] - [102] and in turn adopted by Gzell J in Australian Securities and Investments Commission v Macdonald at [236], and by Hamilton J in Australian Securities and Investments Commission v Sydney Investment House Equities Pty Ltd [2008] NSWSC 1224 ; (2008) 69 ACSR 1 at [27] . Significantly, for this case, a director or other officer may breach his duties by allowing the company to contravene a provision of the Act if that contravention is likely to result in jeopardy to the interests of the company. Brereton J in ASIC v Maxwell (No 2) [2006] NSWSC 1052 ; 59 ACSR 373 said: if a contravention of s 180(1) is to be established, it must be founded on jeopardy to the interests of the corporation, and not to protection of the interests of potential investors: [105] relevant jeopardy to the interests of the company may be found in the actual or potential exposure of the company to civil penalties or other liability under the act, and it may no doubt be a breach of the relevant duty for a director to embark on or authorise a course which attracts the risk of that exposure, at least if the risk is clear and the countervailing potential benefits insignificant: [104]
Case: Australian Securities &amp; Investments Commission v Rich [2009] NSWSC 1229
Outcome: referred to
are civil penalty proceedings, not criminal proceedings, and it would be contrary to the legislative intention underlying the civil penalty provisions to apply a de facto criminal standard of proof in such proceedings: Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 at [408]. Finally, in Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, Austin J concluded at [458] that, having considered the reasoning in Dyers and Adler , the principle in Jones v Dunkel is applicable against either party to civil penalty proceedings. Unique amongst other corporate officers, the chief executive officer stands at the apex of the operational and managerial structures of the company, and his or her authority is qualified only by any residual power left in the board: Randall v Aristocrat Leisure Ltd [2004] NSWSC 411. A chairperson of a listed public company may have special responsibilities beyond those of other non-executive directors. These responsibilities include such things as the public announcement of information: ASIC v Rich [2009] NSWSC 1229 at 463.
Case: Australian Securities &amp; Investments Commission v Rich (No 3) [2003] NSWSC 328 ; (2003) 21 ACLC 920
Outcome: referred to
to the civil penalty authorities, in Rich , the High Court reversed a decision of the New South Wales Court of Appeal ( Rich v Australian Securities &amp; Investments Commission [2003] NSWCA 342 ; (2003) 203 ALR 671) that the defendants in civil penalty proceedings brought by ASIC were not permitted to resist an order for discovery made by the trial judge by claiming the privilege against self-exposure to penalty. The orders sought by ASIC included disqualification orders but not pecuniary penalties. The trial judge, Austin J, did not classify the proceedings as proceedings for the imposition of a penalty: Australian Securities and Investments Commission v Rich (No 3) [2003] NSWSC 328 ; (2003) 21 ACLC 920 , at [53]. the Court of Appeal (Spigelman CJ, with whom Ipp JA agreed; McColl JA dissenting) upheld Austin J's ruling, identifying a disqualification order as having an exclusively protective purpose and stating that it should not be characterized as a penalty for the purposes of the penalty privilege. However, the High Court (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ, Kirby J dissenting) decided that the disqualification order was a penalty and accordingly the proper course was to refuse any order for discovery: per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [37]-[40]. The ruling was made in the joint judgment in consideration of s 1317L of the Act which requires the application of the rules of evidence and procedure for civil matters when hearing proceedings for a declaration of contravention or a pecuniary penalty order. Their honours concluded at [19] that that the statute itself requires the application of the body of law which has developed in relation to the privileges against penalties and forfeitures when deciding whether an order for discovery should be made. The Rich cases therefore turned on the issue of whether a disqualification order was a penalty. It was not in dispute that the privilege against exposure to penalty protected a defendant in civil proceedings not only from being obliged to give discovery, but also from being subject to any direction that affidavits or witness statements be provided to the plaintiff prior to the hearing or at any time prior to the conclusion of the plaintiff's case: see e.g. Austin J at first instance: [2003] NSWSC 328 ; (2003) 21 ACLC 920 , at [19]-[30]. In their judgments, neither the High Court nor the Court of Appeal considered the application of the rule in Jones v Dunkel ; Austin J mentioned it briefly in passing at [58].
Case: Australian Securities &amp; Investments Commission v Sydney Investment House Equities Pty Ltd [2008] NSWSC 1224 ; (2008) 69 ACSR 1
Outcome: cited
meaning and effect of s 180(1) was recently analysed by Brereton J in Australian Securities and Investments Commission v Maxwell (No 2) [2006] NSWSC 1052 ; (2006) 59 ACSR 373 at [99] - [102] and in turn adopted by Gzell J in Australian Securities and Investments Commission v Macdonald at [236], and by Hamilton J in Australian Securities and Investments Commission v Sydney Investment House Equities Pty Ltd [2008] NSWSC 1224 ; (2008) 69 ACSR 1 at [27] .
Case: AWA Ltd v Daniels t/as Deloitte Haskins &amp; Sells (1992) 7 ACSR 759
Outcome: referred to
accept ASIC's submission that a chief executive officer or managing director may reasonably be expected to have more information available to him or her and to be more diligent than other board members. The title, Managing Director, is synonymous with Chief Executive Officer. This matter of principle may be discerned from a number of authorities. A managing director has a particular responsibility to make sure the other directors understand the potential harm in a proposed transaction: Permanent Building Society v Wheeler (1994) 11 WAR 187, at 241. A chief executive officer will be employed under a contract containing an express or implied term that he or she exercise the care and skill expected of a person in that position: AWA Ltd v Daniels t/as Deloitte Haskins &amp; Sells (1992) 7 ACSR 759 at 1014. At p 867 the Court explained that a chairman is: ...responsible to a greater extent than any other director for the performance of the board as a whole and each member of it. The chairman has the primary responsibility of selecting matters and documents to be brought to the board's attention, in formulating the policy of the Board and in promoting the position of the company.
Case: Bateman v Slayter (1987) 71 ALR 553
Outcome: cited
reasonable reader of the disclosures made by FMG and Forrest on FMG's behalf would have expected FMG to have a genuine and reasonable basis for making those statements: Global Sportsman v Mirror Newspapers [1984] FCA 180 ; 2 FCR 82 at 88; James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 372 per Toohey J; Wright v Wheeler Grace &amp; Pierucci Pty Ltd (1988) ATPR 40-865 at 49,375-49,376 per French J (affirmed in Wheeler Grace &amp; Pierucci Pty Ltd v Wright (1989) 16 IPR 189) ; Bateman v Slayter (1987) 71 ALR 553 at 559 per Burchett J.