mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378
Outcome: cited
Alternatively, so the respondent submitted, as a matter of discretion, the applicant should not be permitted to dispute the validity of the notice initiating the bargaining period because that issue has already been decided twice, even if, on a strict application of the doctrine of issue estoppel, it does not apply. It cited in support Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 , at [66]-[67], per French J; Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393; Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 per French J.
Case: Woodside Petroleum (WA Oil) Pty Ltd v AIMPE [2005] FCA 403
Outcome: referred to
The applicant relied upon Woodside Petroleum (WA Oil) Pty Ltd v AIMPE [2005] FCA 403 where a similar issue arose. The notice of intended industrial action served by the union in that case did not make clear whether employees would perform critical safety functions including monitoring of the power supply. The seriousness of the safety issues raised weighed heavily in the balance of convenience: [2005] FCA 403 at [16] - [17] . The applicant also referred the Court to Burswood Resort (Management) Ltd v ALHMWU [1999] FCA 1443 (Carr J) at [13]-[14] (serious question to be tried as to whether "stoppages of work" refers to some or all employees); Burswood Resort (Management) Ltd v CEPU [2004] FCA 909 (Nicholson J) at [12]-[14]. 93 The appropriate defensive action referred to by von Doussa J in Davids Distribution Pty Ltd included, by way of example, the shutting down of a sophisticated item of equipment, although in the context of potential damage to the equipment if precipitately shut down. In this case, whatever be the consideration concerning damage to the plant, there are very substantial safety issues concerned both with the shutting down of the plant safely but also in monitoring the plant whilst it is shut down: see the Woodside Petroleum and Burswood Resort cases referred to above. Arguably the Protected Action Notice should have specified the Process Technicians, if any, who would be available for safety duties during the proposed period of the industrial action. Whilst, at the hearing, this safety issue was resolved, by agreement, that fact does not assist the respondent in relation to the question of the efficacy of the Protected Action Notice: a question which falls to be considered in light of the content of the Notice, unaffected by the agreement reached at the hearing before me.
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 , 208 CLR 199
Outcome: applied
principles governing the grant or refusal of interlocutory injunctions in both private and public law litigation are well known. They have been summarised by Mason A-CJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153 as follows: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. An applicant seeking an interlocutory injunction must be able to show sufficient " colour of right " to the final relief, in aid of which the interlocutory injunction is sought: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 at [11] , [2001] HCA 63 ; 208 CLR 199 at 217 per Gleeson CJ. Kirby J there further observed that " no narrow view has been adopted as to the meaning of the expression 'a serious question to be tried' ": [2001] HCA 63 at [167] , 208 CLR at 270.
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 , 227 CLR 57
Outcome: applied
use of the phrase " a prima facie case " does not require that an applicant must show that it is more probable than not that at a final hearing he will succeed; it is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending a final hearing: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 at [65] , [2006] HCA 46 ; 227 CLR 57 at 82. As Gummow and Hayne JJ there observed, " ... the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought ": [2006] HCA 46 at [71] , 227 CLR at 84. Notwithstanding the fact that the termination of the Agreement was said to take effect as from 14 April 2009, on 9 April 2009 an undertaking was given by the Respondent not to act upon its decision until the hearing of the interlocutory application on 27 April 2009. That undertaking was then continued until 4.00 pm today. At the forefront of the application for interlocutory relief is the Applicant's contention that the contractual power conferred by clause 16.7 is constrained. The unqualified contractual right to terminate the Agreement " without cause " upon giving 60 days notice in writing, the Applicant contends, was not a right available to be exercised by the Respondent. On a proper construction of the Agreement, the Applicant contends that the Respondent was confined to the exercise of the power conferred by clause 16.4. Alternatively, the Applicant contends that the otherwise unqualified power conferred by clause 16.7 was constrained by either: implied terms; or representations as to the manner in which the rights conferred by the Agreement were to be exercised. To this extent, the implied terms and the representations relied upon in support of the claim under s 52 of the 1974 Act coalesce.
Case: Australian Competition and Consumer Commission v Internic Technology Pty Ltd (1998) 42 IPR 225
Outcome: cited
may in some cases be inferred: Gould v Vaggelas (1984) 157 CLR 215 at 250 per Brennan J. And " [i]t may well be appropriate to infer reliance where the representation in question is of a kind obviously calculated to induce action ": Australian Competition and Consumer Commission v Internic Technology Pty Ltd (1998) 42 IPR 225 at 241 per Lindgren J. A representation of good faith, if made, may provide a case where it is appropriate at an interlocutory hearing to draw such an inference. In the present case such an inference is presently drawn. What further evidence as to reliance may ultimately be adduced by the Applicant at the final hearing remains a matter for it to determine. That further evidence may have to address clause 12 of the Agreement which provides in relevant part as follows: 12 Warranties 12.1 You warrant that: ... (g) You have not relied on any representation made by Telstra which has not been stated expressly in this Agreement. That provision may be more directed to such representations as may have been made prior to the Agreement being executed.
Case: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148
Outcome: applied
principles governing the grant or refusal of interlocutory injunctions in both private and public law litigation are well known. They have been summarised by Mason A-CJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153 as follows: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. An applicant seeking an interlocutory injunction must be able to show sufficient " colour of right " to the final relief, in aid of which the interlocutory injunction is sought: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 at [11] , [2001] HCA 63 ; 208 CLR 199 at 217 per Gleeson CJ. Kirby J there further observed that " no narrow view has been adopted as to the meaning of the expression 'a serious question to be tried' ": [2001] HCA 63 at [167] , 208 CLR at 270.
Case: Dickson Property Management Services Pty Ltd v Centro Property Management (Vic) Pty Ltd [2000] FCA 1742 , 180 ALR 485
Outcome: cited
relief may be refused where damages are an adequate remedy: e.g. Dickson Property Management Services Pty Ltd v Centro Property Management (Vic) Pty Ltd [2000] FCA 1742 , 180 ALR 485. Ryan J there concluded on the facts of that case that " a related consideration " was that the grant of interlocutory relief would " involve the court, to an unacceptable extent, in supervising the performance of a detailed contract equivalent to a contract for personal services by a party, in whom the other asserts, not totally unbelievably, that it has lost confidence ": [2000] FCA 1742 at [15] , 180 ALR at 487 to 488. Clearly enough, Telstra no longer wishes to have any contractual relationship with the Applicant. Its position is that it has brought what it perceives to be the Applicant's short-comings to its attention and that the Applicant has taken insufficient or inadequate steps to address or resolve the continuing flow of complaints being made. If the Respondent has contravened s 52 or breached a term of the Agreement (express or implied), the position of the Applicant &#8212; so Telstra contends &#8212; could be addressed by an award of damages. The measure of those damages would be susceptible of easy calculation. If there be an entitlement to damages, those damages would most likely be the remuneration which the Applicant would have received under the Agreement had it not been terminated. No question arises as to the ability of the Respondent to meet any award of damages.
Case: Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Outcome: cited
the outset it should be recognised that s 31A has been said to be a provision which " lowers the bar for obtaining summary judgment ": Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [5] per Gilmour J. A " reasonable prospect of success " for the purposes of the section is one which is real and not fanciful or merely arguable: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 at [59] , [2007] FCA 511 ; 160 FCR 298 at 312 per Lindgren J; Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305 at [41] , [2008] FCA 1305 ; 250 ALR 82 at 92. And, unlike an application pursuant to O 11 r 16 of the Federal Court Rules 1979 (Cth) that a matter be struck out, where it is the adequacy of the pleadings which is in issue, an action pursuant to s 31A " not only permits, but requires, a consideration of matters outside the pleadings ": Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (in liq) [2008] FCA 1920 at [3] to [8] [2008] FCA 1920 ; , 252 ALR 41 at 43 to 45 per Finkelstein J.
Case: Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] FCA 903
Outcome: cited
a question as to jurisdiction arises, a " court is not obliged immediately to refrain from proceeding further ": The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League Incorporated [1979] HCA 6 ; (1979) 143 CLR 190 at 215 per Gibbs J. For present purposes, it is not considered appropriate to resolve any such question in the present proceeding on an interlocutory basis. Whether or not the claims founded upon s 52 may ultimately prevail will be resolved at a final hearing. One of the issues to be then resolved may well include submissions as to jurisdiction. Each case must obviously depend upon its own facts and circumstances. And cases unquestionably arise where this Court entertains applications, including interlocutory applications, to restrain what is otherwise a contractual relationship between the parties: eg, Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] FCA 903 ; Luce Optical v Budget Specs (Franchising) Pty Ltd [2005] FCA 1486. The prospect of such cases arising is not in issue; the question is whether the present proceeding is a case in which the jurisdiction has been properly invoked.
Case: Gould v Vaggelas (1984) 157 CLR 215
Outcome: cited
may in some cases be inferred: Gould v Vaggelas (1984) 157 CLR 215 at 250 per Brennan J. And " [i]t may well be appropriate to infer reliance where the representation in question is of a kind obviously calculated to induce action ": Australian Competition and Consumer Commission v Internic Technology Pty Ltd (1998) 42 IPR 225 at 241 per Lindgren J. A representation of good faith, if made, may provide a case where it is appropriate at an interlocutory hearing to draw such an inference. In the present case such an inference is presently drawn. What further evidence as to reliance may ultimately be adduced by the Applicant at the final hearing remains a matter for it to determine. That further evidence may have to address clause 12 of the Agreement which provides in relevant part as follows: 12 Warranties 12.1 You warrant that: ... (g) You have not relied on any representation made by Telstra which has not been stated expressly in this Agreement. That provision may be more directed to such representations as may have been made prior to the Agreement being executed.
Case: Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151
Outcome: cited
from that question is whether the commercial arrangement between the Applicant and the Respondent is susceptible to a term being implied, summarised in oral submissions as a term of " good faith ". For the purposes of the present interlocutory application, it is accepted that such a term may arguably be implied: cf Renard Constructions (ME) Pty Ltd v Minister for Pubic Works [1992] 26 NSWLR 234 ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151; Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] to [65] per Finkelstein J. It is not at all self-evident, as is presently contended by the Respondent, that the implication of a term as to " good faith " would be inconsistent with the express terms of the Agreement.
Case: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (in liq) [2008] FCA 1920 , 252 ALR 41
Outcome: cited
the outset it should be recognised that s 31A has been said to be a provision which " lowers the bar for obtaining summary judgment ": Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [5] per Gilmour J. A " reasonable prospect of success " for the purposes of the section is one which is real and not fanciful or merely arguable: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 at [59] , [2007] FCA 511 ; 160 FCR 298 at 312 per Lindgren J; Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305 at [41] , [2008] FCA 1305 ; 250 ALR 82 at 92. And, unlike an application pursuant to O 11 r 16 of the Federal Court Rules 1979 (Cth) that a matter be struck out, where it is the adequacy of the pleadings which is in issue, an action pursuant to s 31A " not only permits, but requires, a consideration of matters outside the pleadings ": Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (in liq) [2008] FCA 1920 at [3] to [8] [2008] FCA 1920 ; , 252 ALR 41 at 43 to 45 per Finkelstein J.
Case: Luce Optical v Budget Specs (Franchising) Pty Ltd [2005] FCA 1486
Outcome: cited
a question as to jurisdiction arises, a " court is not obliged immediately to refrain from proceeding further ": The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League Incorporated [1979] HCA 6 ; (1979) 143 CLR 190 at 215 per Gibbs J. For present purposes, it is not considered appropriate to resolve any such question in the present proceeding on an interlocutory basis. Whether or not the claims founded upon s 52 may ultimately prevail will be resolved at a final hearing. One of the issues to be then resolved may well include submissions as to jurisdiction. Each case must obviously depend upon its own facts and circumstances. And cases unquestionably arise where this Court entertains applications, including interlocutory applications, to restrain what is otherwise a contractual relationship between the parties: eg, Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] FCA 903 ; Luce Optical v Budget Specs (Franchising) Pty Ltd [2005] FCA 1486. The prospect of such cases arising is not in issue; the question is whether the present proceeding is a case in which the jurisdiction has been properly invoked.
Case: Overlook Management BV v Foxtel Management Pty Ltd [2002] NSWSC 17
Outcome: cited
the implication of such a term says little as to the content of any such obligation. This is a question which has helpfully been addressed by Barrett J in Overlook Management BV v Foxtel Management Pty Ltd [2002] NSWSC 17. His Honour there observed: [63] But what are the content and effect of such an implied term? This question was the subject of discussion by the Court of Appeal in [ Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187]. Sheller, Beazley and Stein JJA referred to the observation of Sir Anthony Mason in his 1993 Cambridge Lecture (see now (2000) 116 LQR 66 at 69) that the concept "embraced no less than three related notions", being: "(1) an obligation on the parties to co-operate in achieving the contractual objects (loyalty to the promise itself); (2) compliance with honest standards of conduct; and (3) compliance with standards of conduct which are reasonable having regard to the interests of the parties." ... [68] In many ways, the implied obligation of good faith is best regarded as an obligation to eschew bad faith. This is borne out by the following succinct statement by Lord Scott of Foscote in Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd [2001] 2 WLR 170, a case concerning the duty of good faith in the insurance context: "Unless the assured has acted in bad faith, he cannot, in my opinion, be in breach of a duty of good faith, utmost or otherwise." ... [73] A prohibitory or negative spirit precluding capriciousness will readily be accepted as attending the parties' contracts. The exclusion of capriciousness as an acceptable form of behaviour in the performance of the contract will prohibit conduct which has no rational basis or objective explanation. A prohibitory or negative spirit precluding purely selfish behaviour calculated to destroy the position of the other party will also readily be accepted. It is more difficult to identify the point at which the prohibitory or negative spirit intervenes to preclude conduct which reduces immediate enjoyment (or the quantum thereof) which is undertaken with a view also to enhanced future enjoyment. Whether any term is to be implied, and the content of such terms as may be implied, remain matters to be resolved at a final hearing. Upon the Applicant giving the usual undertaking as to damages, it is considered that interlocutory relief should be granted. But such relief should only be granted for as short a period of time as is consistent with properly preparing the proceeding for an early final hearing. It follows that the Respondent's Notice of Motion seeking judgment pursuant to s 31A of the 1976 Act is dismissed.
Case: Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288
Outcome: cited
from that question is whether the commercial arrangement between the Applicant and the Respondent is susceptible to a term being implied, summarised in oral submissions as a term of " good faith ". For the purposes of the present interlocutory application, it is accepted that such a term may arguably be implied: cf Renard Constructions (ME) Pty Ltd v Minister for Pubic Works [1992] 26 NSWLR 234 ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151; Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] to [65] per Finkelstein J. It is not at all self-evident, as is presently contended by the Respondent, that the implication of a term as to " good faith " would be inconsistent with the express terms of the Agreement.
Case: The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League Incorporated [1979] HCA 6 ; (1979) 143 CLR 190
Outcome: cited
a question as to jurisdiction arises, a " court is not obliged immediately to refrain from proceeding further ": The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League Incorporated [1979] HCA 6 ; (1979) 143 CLR 190 at 215 per Gibbs J. For present purposes, it is not considered appropriate to resolve any such question in the present proceeding on an interlocutory basis. Whether or not the claims founded upon s 52 may ultimately prevail will be resolved at a final hearing. One of the issues to be then resolved may well include submissions as to jurisdiction. Each case must obviously depend upon its own facts and circumstances. And cases unquestionably arise where this Court entertains applications, including interlocutory applications, to restrain what is otherwise a contractual relationship between the parties: eg, Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] FCA 903 ; Luce Optical v Budget Specs (Franchising) Pty Ltd [2005] FCA 1486. The prospect of such cases arising is not in issue; the question is whether the present proceeding is a case in which the jurisdiction has been properly invoked.
Case: Renard Constructions (ME) Pty Ltd v Minister for Pubic Works [1992] 26 NSWLR 234
Outcome: cited
from that question is whether the commercial arrangement between the Applicant and the Respondent is susceptible to a term being implied, summarised in oral submissions as a term of " good faith ". For the purposes of the present interlocutory application, it is accepted that such a term may arguably be implied: cf Renard Constructions (ME) Pty Ltd v Minister for Pubic Works [1992] 26 NSWLR 234 ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151; Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] to [65] per Finkelstein J. It is not at all self-evident, as is presently contended by the Respondent, that the implication of a term as to " good faith " would be inconsistent with the express terms of the Agreement.
Case: Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305 , 250 ALR 82
Outcome: cited
the outset it should be recognised that s 31A has been said to be a provision which " lowers the bar for obtaining summary judgment ": Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [5] per Gilmour J. A " reasonable prospect of success " for the purposes of the section is one which is real and not fanciful or merely arguable: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 at [59] , [2007] FCA 511 ; 160 FCR 298 at 312 per Lindgren J; Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305 at [41] , [2008] FCA 1305 ; 250 ALR 82 at 92. And, unlike an application pursuant to O 11 r 16 of the Federal Court Rules 1979 (Cth) that a matter be struck out, where it is the adequacy of the pleadings which is in issue, an action pursuant to s 31A " not only permits, but requires, a consideration of matters outside the pleadings ": Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (in liq) [2008] FCA 1920 at [3] to [8] [2008] FCA 1920 ; , 252 ALR 41 at 43 to 45 per Finkelstein J.