mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ansett Transport Industries (Operations) Pty Limited v Commonwealth [1977] HCA 71 ; (1977) 139 CLR 54
Outcome: cited
The notes then referred to discussion at the meeting about the implications and the possibility of the AR terminal being designated as rail corridor or commercial corridor land under s 215 of the Transport Infrastructure Act . The notes record the following:- "QT apparently consider they have the power to designate such a facility as of strategic importance to the State and effectively take control of it. This was clearly not the intent of this section of the Transport Infrastructure Act . QR would argue that the terminal was not of strategic importance to the State as part of a transport corridor. This is because it is non corridor. QR is also unaware of it being in a transport infrastructure strategy. If QT pursued this avenue they would also end up with ownership of a terminal and potential responsibility for reimbursing NRC for their $17m improvements. If this avenue is not pursued by QT, Government (via Treasury) have the power to declare the terminal under the QCA Regulations. As such, QR is vulnerable to QT taking direct action contrary to QR's commercial interests." 453 The notes went on to record that it was decided the best way forward would be to maintain QR's stance that the terminal was non-corridor and:- " Resolutely refuse to have the terminal declared or made a common user facility and therefore no appeal processes if capacity not available to a third party using reciprocity and our need to have easy access to our own terminal as a rationale." (emphasis added) 454 The notes concluded by stating that QR may not need to brief the Minister if an agreement could not be reached because Queensland Transport was "giving precedence to their regulatory role over their shareholding role". 712 Even if Recital B(a)(ii) has the meaning suggested by Mr Graham's evidence, it would be wrong to construe the recital as over-riding the operative provisions of cl 5(6)(a): Ansett Transport Industries (Operations) Pty Limited v Commonwealth [1977] HCA 71 ; (1977) 139 CLR 54 at 73. 713 Mr Graham's evidence of his understanding of the EA, to the extent that it was inconsistent with the proper construction, was not reasonable and could not found an estoppel. 714 Clause 5(6)(a) makes it plain that it was for NRC to identify particular assets, as it did in relation to the AR terminal, and that the State of Queensland had a discretion as to the form of property rights to be granted. It could choose between ownership, lease or access. It was then for the parties to negotiate commercial terms and conditions for the grant of those rights. The grant of rights could not be complete until the negotiations were completed.
Case: Australian Broadcasting Corporation v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540
Outcome: cited
Negotiations commenced with the delivery by Mrs Fontaine of a draft lease to Mr Jenner on 20 May 1996. The correspondence between the parties shows that they were proceeding on the ordinary assumption that the parties were not bound until a formal contract had been drawn up and executed, the subject matter of the proposed agreement being a substantial lease of land: Australian Broadcasting Corporation v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540 (" Commonwealth Games Case ") at 548, Long v Piper [2001] NSWCA 342 at [48] [55], Landsmiths Pty Limited v Hall (1999) 9 BPR 17,057 at [9]; see also Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424 at [365] and the authorities there cited.
Case: Australian Competition and Consumer Commission v Oceana Commercial Pty Limited [2003] FCA 1516
Outcome: referred to
The categories of unconscionable conduct may not be closed but the authorities give some guidance as to the type of conduct which must be demonstrated so as to fall within the "unconscionable" label. What is required is "serious misconduct or something clearly unfair or unreasonable". The term "unconscionable" imports "a pejorative moral judgment": Hurley v McDonald's Australia Limited (2000) ATPR 41-741 (" Hurley ") at [22] per Heerey, Drummond and Emmett JJ, and Australian Competition and Consumer Commission v Oceana Commercial Pty Limited [2003] FCA 1516 at [336] per Kiefel J.
Case: Australian Competition and Consumer Commission v 4WD Systems Pty Limited (2003) 200 ALR 491
Outcome: applied
Although there was some difference of opinion between the justices of the High Court in Berbatis as to the reach or breadth of s 51AA, it clearly involves taking improper advantage of a person at a disadvantage in circumstances where equity would intervene: Australian Competition and Consumer Commission v 4WD Systems Pty Limited (2003) 200 ALR 491 (" 4WD Systems ") at [180] per Selway J. 918 The ambit of s 51AC is wider than that of s 51AA; it is not limited to equitable doctrines or common law principles of unconscionability: see Berbatis at first instance, [2000] FCA 2 ; (2000) 96 FCR 491 per French J at [24], and 4WD Systems at [183]. 920 In order to establish that conduct is unconscionable under s 51AC, it is necessary to do more than show that the conduct contravenes s 52 of the Act or is otherwise in breach of the provisions of that legislation: 4WD Systems at [185]. 931 Even if QR misrepresented the true position to Queensland Transport, as Selway J said in 4WD Systems at [185], this is not sufficient to constitute unconscionable conduct. 932 The other matters complained of go to what was said to be QR's attempt to subvert the effect of the EA or to the claim of abuse of market power.
Case: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Limited [2003] HCA 18 ; (2003) 214 CLR 51
Outcome: referred to
The proposition that there might have been encouragement of the type mentioned by Mr George was not put to Mr O'Rourke. There is nothing in the document which gives rise to a Jones v Dunkel inference by reason of QR's failure to call Mr George. The present case is in no way analogous to the position in Bond Brewing (NSW) Pty Limited v Reffell Party Ice Supplies Pty Limited (unreported, Supreme Court of NSW, Waddell CJ in Eq, 17 August 1987), where the tenant of a hotel acted upon an assumption that the landlord would not terminate a lease without paying to the tenant a reasonable sum for the value of the goodwill. His Honour found that the landlord knew this to be so, and that detriment was clearly established. None of these elements are demonstrated in these proceedings: see also Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Limited [2003] HCA 18 ; (2003) 214 CLR 51 (" Berbatis ") at [57] per Gummow and Hayne JJ. 914 Although there was some difference of opinion between the justices of the High Court in Berbatis as to the reach or breadth of s 51AA, it clearly involves taking improper advantage of a person at a disadvantage in circumstances where equity would intervene: Australian Competition and Consumer Commission v 4WD Systems Pty Limited (2003) 200 ALR 491 (" 4WD Systems ") at [180] per Selway J. 915 In my opinion the effect of what was said in Berbatis by Gleeson CJ at [7] [14], and by Gummow and Hayne JJ at [55] [58], is that two criteria must be established. The first is that the plaintiff was in a position of special disadvantage, whether by reason of illness, ignorance, inexperience, impaired facilities, financial need or other circumstances affecting its ability to conserve its own interests. 916 The second criterion is that the defendant took advantage of the plaintiff's disability or special disadvantage. 918 The ambit of s 51AC is wider than that of s 51AA; it is not limited to equitable doctrines or common law principles of unconscionability: see Berbatis at first instance, [2000] FCA 2 ; (2000) 96 FCR 491 per French J at [24], and 4WD Systems at [183].
Case: Australian Competition and Consumer Commission v Safeway Stores Pty Limited (2003) 129 FCR 329
Outcome: referred to
As Heerey and Sackville JJ pointed out in Australian Competition and Consumer Commission v Safeway Stores Pty Limited (2003) 129 FCR 329 (" Safeway ") at [339], in answering the question of whether a firm has taken advantage of market power it is necessary to look not only at what the firm did but why the firm did it. That is why a business rationale for the conduct, to which I referred in the second principle above, independent of the question of market power, is relevant to determining the sufficiency of the connection. That is what lies at the heart of the assessment of whether the firm has taken advantage. 1026 In the present case it is necessary to consider QR's rationale for refusing to grant a long term lease to NRC in 1997 and 1998 and for its service of the notice to quit on PN in May 2003. 1027 QR's business rationale for its conduct in 1997 and 1998 was not as fully developed as that which more clearly emerged in documents recording its objectives in giving the notice to quit. Nevertheless, documents exist which, when read in the light of oral testimony, explain why QR changed its position with respect to the grant of a long term lease to NRC in 1997 and why it maintained that stance in 1998. The documents were not admitted as proof of the facts but, insofar as they state QR's objectives, they must be accepted as containing such statements, unless challenged by PN. 1028 PN accepted that Mr O'Rourke and Mr Hearsch were the witnesses whose evidence was relevant to QR's purposes in its 1997/1998 conduct. 1029 It is to be noted that at the outset, Mr O'Rourke stated in his letter of 27 March 1997 that the AR terminal was of strategic importance and that there was a need for it to be operated as a common user facility. 1112 In making a finding of purpose the Court is not so much concerned with the search for the "directing mind and will" of the corporation; it is concerned with inferences from the conduct of the corporation and of any other relevant person as well as other relevant circumstances: Safeway at [342] [343]. 1113 An inference of proscribed purposes is to be drawn on the balance of probabilities, after giving due weight to the rule in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336: see Safeway at [341].
Case: Australian Competition and Consumer Commission v Samton Holdings Pty Limited [2002] FCA 62 ; (2002) 117 FCR 301
Outcome: referred to
Their Honours made it clear in the passages to which I have referred that a person is not in a position of special disadvantage simply by reason of inequality of bargaining power: see also Australian Competition and Consumer Commission v Samton Holdings Pty Limited [2002] FCA 62 ; (2002) 117 FCR 301 (" Samton" ) at [50] per Gray, French and Stone JJ.
Case: Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Limited [2000] FCA 1365 ; (2000) 104 FCR 253
Outcome: cited
Morally unacceptable conduct in the form of unreasonable, unfair, bullying and thuggish behaviour amounts to unconscionable conduct within s 51AC: Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Limited [2000] FCA 1365 ; (2000) 104 FCR 253 (" No-Knead ") at [51] per Sundberg J. His Honour said that a refusal to supply or to negotiate constituted unconscionable conduct where the refusal amounted to intimidation or the application of illegitimate pressure on the other party to do something which the party applying the pressure had no entitlement to have done. 922 Neither of the elements of unconscionable conduct within the meaning of the unwritten law has been proved. First, the proposition that NRC was in a position of special disadvantage needs only to be stated to be rejected. NRC was, and remains, a large corporation with a very substantial business. It was, and is, well and capably managed and it had the support of Commonwealth and State Governments. It had access to and relied upon legal advice from prominent and very competent firms of solicitors. Any suggestion that it was incapable of looking after its own interests must be firmly rejected. 923 Similarly, any suggestion that QR unconscientiously took advantage of a disability or special disadvantage of NRC in 1997 and 1998 or in giving the notice to quit to PN in May 2003 cannot be accepted. 930 There is nothing to suggest serious misconduct of the type described by the Full Court in Hurley . There is no suggestion of unreasonable or bullying behaviour or any attempt to apply illegitimate pressure of the kind referred to by Sundberg J in No-Knead . This is hardly surprising given the identity of the parties. 933 But unmeritorious negotiating positions could not, without more, amount to unconscionable conduct. At very least, it was necessary for PN to demonstrate that QR's behaviour was unreasonable in the sense stated in No-Knead and that the conduct was in fact carried out. Mr Scheuber disavowed any suggestion that unmeritorious behaviour took place. I accept his denial. 934 I have rejected the claim of abuse of market power in dealing with PN's claim under s 46 of the Act. The same matters relied upon to support a claim of unconscionable conduct must suffer the same fate. 935 PN contends that QR's conduct, firstly in its refusal to grant PN a long term lease of the AR terminal and, secondly, in issuing PN with the notice to quit on 26 May 2003, amounts to a taking advantage by QR of its market power in two rail infrastructure markets for the purpose of deterring or preventing PN from engaging in competitive conduct in two downstream linehaul markets.
Case: Baird Textiles Holdings Limited v Marks &amp; Spencer Plc [2001] All ER (D) 352 (Feb)
Outcome: cited
The position is effectively captured in the following passage from the judgment of Mance LJ in Baird Textiles Holdings Limited v Marks &amp; Spencer Plc [2001] All ER (D) 352 (Feb) at [94]:- "As I have already said, the fact that there was never any agreement to reach or even to set out the essential principles which might govern any legally binding long-term relationship indicates that neither party can here objectively be taken to have intended to make any legally binding commitment of a long-term nature, and the law should not be ready to seek to fetter business relationships with its own view of what might represent appropriate business conduct, when parties have not chosen, or have not been willing or able, to do so in any identifiable legal terms themselves. These considerations, in my judgment, also make it wrong to afford relief based on estoppel, including relief limited to reliance loss, in the present context." As Mance LJ observed at [95] [96], even if the recognised principles of estoppel are "fertilised" by a broader approach exemplified in cases such as Holiday Inns , those cases are explained on the basis that the parties envisaged that rights already existed or they intended them to be created by contract.
Case: Bond Brewing (NSW) Pty Limited v Reffell Party Ice Supplies Pty Limited (unreported, Supreme Court of NSW, Waddell CJ in Eq, 17 August 1987)
Outcome: distinguished
The proposition that there might have been encouragement of the type mentioned by Mr George was not put to Mr O'Rourke. There is nothing in the document which gives rise to a Jones v Dunkel inference by reason of QR's failure to call Mr George. The present case is in no way analogous to the position in Bond Brewing (NSW) Pty Limited v Reffell Party Ice Supplies Pty Limited (unreported, Supreme Court of NSW, Waddell CJ in Eq, 17 August 1987), where the tenant of a hotel acted upon an assumption that the landlord would not terminate a lease without paying to the tenant a reasonable sum for the value of the goodwill. His Honour found that the landlord knew this to be so, and that detriment was clearly established. None of these elements are demonstrated in these proceedings: see also Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Limited [2003] HCA 18 ; (2003) 214 CLR 51 (" Berbatis ") at [57] per Gummow and Hayne JJ.
Case: Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424
Outcome: cited
Negotiations commenced with the delivery by Mrs Fontaine of a draft lease to Mr Jenner on 20 May 1996. The correspondence between the parties shows that they were proceeding on the ordinary assumption that the parties were not bound until a formal contract had been drawn up and executed, the subject matter of the proposed agreement being a substantial lease of land: Australian Broadcasting Corporation v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540 (" Commonwealth Games Case ") at 548, Long v Piper [2001] NSWCA 342 at [48] [55], Landsmiths Pty Limited v Hall (1999) 9 BPR 17,057 at [9]; see also Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424 at [365] and the authorities there cited.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: referred to
An inference of proscribed purposes is to be drawn on the balance of probabilities, after giving due weight to the rule in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336: see Safeway at [341].
Case: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: referred to
Whether conduct amounts to a representation is a question of fact to be determined against the background of all the surrounding circumstances: Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177 at 202; Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [100] . The conduct must be considered as a whole: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [39] .
Case: Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: referred to
Whether conduct amounts to a representation is a question of fact to be determined against the background of all the surrounding circumstances: Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177 at 202; Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [100] . The conduct must be considered as a whole: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [39] .
Case: Crabb v Arun District Council [1976] 1 Ch 179
Outcome: referred to
The last mentioned words appear to be a reference to the form of estoppel stated in Ramsden v Dyson [1866] 1 LRHL 129 (" Ramsden v Dyson ") at 170. That is to say, it refers to an equitable estoppel arising from an expectation created or encouraged by the words or conduct of the party against whom the estoppel is raised. This form of estoppel includes failure to disabuse a party where the person estopped has knowledge of the other party's intention to act upon the expectation: see Crabb v Arun District Council [1976] 1 Ch 179 (" Crabb") per Lord Denning MR at 189. 747 Failure to disabuse may, in some circumstances, create or encourage an expectation: Crabb at 188 189. But this head of equity usually depends upon proof that the owner of the property seeks to take unconscionable advantage of another by allowing the other to spend money on the property in the belief, known to the owner, that the person expending the money will enjoy a benefit over the property: Holiday Inns Inc v Broadhead [1974] 232 EG 951 (" Holiday Inns ") discussed by Priestley JA in Austotel at 607 608 and 610.
Case: Equuscorp Pty Limited v Glengallan Investments Pty Limited (2004) 218 CLR 472
Outcome: referred to
Where the parties have entered into a written agreement, the Court will ordinarily hold them to the rights and obligations they have assumed under it. The law allows for exceptions but they must be proved according to established legal categories: Equuscorp Pty Limited v Glengallan Investments Pty Limited (2004) 218 CLR 472 at [35]. 758 Mr Graham's evidence that there was no "sunset" provision on the transfer of control is at odds with the written agreements. Substantially greater and more precise evidence would have been required to establish any reasonable argument to the effect that the transfer of control was assumed to be for a longer period than the term of the lease. 759 Even if Mr Graham had an assumption that NRC would continue in possession and control of the AR terminal for a period beyond the expiration of the three year lease, that was not an assumption of existing fact.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: referred to
This immediately exposes the difficulty of the different and contradictory assumptions entertained by those directors who gave evidence. There were other directors who did not testify. It must be inferred that their evidence would not have assisted: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 (" Jones v Dunkel "). 675 What emerges is that Mr Graham's assumptions were quite different from those of the other directors and there were differences between the beliefs and assumptions of Messrs Butcher, Moore-Wilton and Stanko and Mrs Yeoh. 676 Mr Graham and Mr Stanko (and perhaps Mrs Yeoh) were the only directors who were aware that one of the options available to the State of Queensland was the grant of access rights. But Mr Graham and Mr Stanko differed in their beliefs. Mr Graham accepted that the State's minimum obligation was to provide access rights, although he believed in effect that the rights would be perpetual, and on terms that ensured NRC's commercial viability. 774 The proposition that there might have been encouragement of the type mentioned by Mr George was not put to Mr O'Rourke. There is nothing in the document which gives rise to a Jones v Dunkel inference by reason of QR's failure to call Mr George. The present case is in no way analogous to the position in Bond Brewing (NSW) Pty Limited v Reffell Party Ice Supplies Pty Limited (unreported, Supreme Court of NSW, Waddell CJ in Eq, 17 August 1987), where the tenant of a hotel acted upon an assumption that the landlord would not terminate a lease without paying to the tenant a reasonable sum for the value of the goodwill. His Honour found that the landlord knew this to be so, and that detriment was clearly established. None of these elements are demonstrated in these proceedings: see also Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Limited [2003] HCA 18 ; (2003) 214 CLR 51 (" Berbatis ") at [57] per Gummow and Hayne JJ. 1190 It follows that I am not satisfied that the statements made in the relevant letters were incorrect. Moreover, I am not satisfied that the statements were made otherwise than honestly in good faith. It is true that Mr Smith was not called to give evidence, although a belated attempt was made to re-open to rely on his affidavit. But it is unnecessary for me to make a finding that his evidence would not have assisted; cf Sebben v Partridge (unreported Supreme of South Australia, Lander J, 20 December 1994). In that case, Lander J was of the view that a Jones v Dunkel inference was available where a defendant was not called, an unsuccessful attempt having been made to reopen after close of the defendant's case.
Case: Generation Pty Limited v Power and Water Authority [2004] HCA 48 ; (2004) 210 ALR 312
Outcome: referred to
It would be a false dichotomy to suggest that there is a distinction between taking advantage of market power and taking advantage of property rights: see NT Power Generation Pty Limited v Power and Water Authority [2004] HCA 48 ; (2004) 219 CLR 90 (" NT Power ") at [125]. Property rights can be a source of market power attracting liability under s 46 of the Act .