mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tudor Marine Ltd v Tradax Export S.A. (The Virgo) [1976] 2 Lloyd's Rep 135
Outcome: cited
Generally speaking, where a party signs a contract without qualification as to the capacity in which they are signing, they are taken to be contracting personally. This may be otherwise where disclosure of the agency is made, but it needs to be clear that the party is acting as agent in the legal sense: Treitel , Law of Contract at p 727. In Universal Steam Navigation Co v James McKelvie and Co [1923] AC 492 an agent was not held personally liable where they had signed ' as agent '. The question was what that meant. Lord Sumner (at 501-502) considered that, in the circumstances of the case, the words could only mean: ' I am not liable but someone else is and he only '. On the other hand the words ' This vessel was chartered on behalf of ...... for account of ... ' was not held to mean that the parties intended the agent not to be liable as charterer: Tudor Marine Ltd v Tradax Export S.A. (The Virgo) [1976] 2 Lloyd's Rep 135.
Case: Universal Steam, Navigation Co v James McKelvie and Co [1923] AC 492
Outcome: considered
Generally speaking, where a party signs a contract without qualification as to the capacity in which they are signing, they are taken to be contracting personally. This may be otherwise where disclosure of the agency is made, but it needs to be clear that the party is acting as agent in the legal sense: Treitel , Law of Contract at p 727. In Universal Steam Navigation Co v James McKelvie and Co [1923] AC 492 an agent was not held personally liable where they had signed ' as agent '. The question was what that meant. Lord Sumner (at 501-502) considered that, in the circumstances of the case, the words could only mean: ' I am not liable but someone else is and he only '. On the other hand the words ' This vessel was chartered on behalf of ...... for account of ... ' was not held to mean that the parties intended the agent not to be liable as charterer: Tudor Marine Ltd v Tradax Export S.A. (The Virgo) [1976] 2 Lloyd's Rep 135.
Case: Wallems Rederij A/S v Muller [1927] 2 KB 99
Outcome: cited
McGregor (from par 27-063) traces the development of the rule. The general rule as to the measure of damage is taken to have been stated and applied in Smith v M'Guire (1858) 3 H&amp;N 554; 157 E.R. 589, and as ascertained by the calculation of: ' ... the freight to be earned, and the deduction of the expenses which the shipowner would be put to in earning it; and what the ship earned (if anything) during the period which would have been occupied in performing the voyage, ought also to be deducted.' In that case Martin B expressed some doubt as to whether the shipowner was obliged to look for employment for his ship, but McGregor regards this as being wrong ' now that the rules as to mitigation have been worked out, and the contrary view is stated in later cases ' (at 27-065). Scrutton is of a similar opinion (at Art 192, p 389 footnote 31). McGregor refers to statements in Aitken Lilburn v Ernsthausen [1894] 1 QB 773 and Wallems Rederij A/S v Muller [1927] 2 KB 99, to the effect that the shipowner is bound to search out other cargo or otherwise he would not be able to recover full damages.
Case: Griffiths v Lands and Mining Tribunal and Minister for Lands Planning and the Environment (2003) 179 FLR 241
Outcome: discussed
That same issue occurred in relation to proposals to acquire native title rights and interests, or certain of them, in the Town of Timber Creek. On 31 July 2003, a judge of the Supreme Court of the Northern Territory decided that such notices were invalid as being beyond power in the circumstances: Griffiths v Lands and Mining Tribunal and Minister for Lands Planning and the Environment (2003) 179 FLR 241. That decision was reversed by the Full Court of the Supreme Court of the Northern Territory: Minister for Lands, Planning &amp; Environment (2004) 14 NTLR 188. The High Court subsequently granted leave to appeal from that decision. On 15 November 2007, judgment on the appeal was reserved. It addresses questions as to whether s 43 of the Lands Acquisition Act permits the compulsory acquisition of native title rights and interests in land for the purpose of extinguishing native title in order to alienate land for the private benefit of another citizen; whether s 24MD of the NT Act permits the acquisition of native title rights and interests in land for the purpose of vesting the affected land in the Northern Territory freed and discharged of the native title rights and interests; and whether s 46 of the Lands Acquisition Act is repugnant to s 238 of the NT Act.
Case: Minister for Lands, Planning &amp; Environment (2004) 14 NTLR 188
Outcome: discussed
That same issue occurred in relation to proposals to acquire native title rights and interests, or certain of them, in the Town of Timber Creek. On 31 July 2003, a judge of the Supreme Court of the Northern Territory decided that such notices were invalid as being beyond power in the circumstances: Griffiths v Lands and Mining Tribunal and Minister for Lands Planning and the Environment (2003) 179 FLR 241. That decision was reversed by the Full Court of the Supreme Court of the Northern Territory: Minister for Lands, Planning &amp; Environment (2004) 14 NTLR 188. The High Court subsequently granted leave to appeal from that decision. On 15 November 2007, judgment on the appeal was reserved. It addresses questions as to whether s 43 of the Lands Acquisition Act permits the compulsory acquisition of native title rights and interests in land for the purpose of extinguishing native title in order to alienate land for the private benefit of another citizen; whether s 24MD of the NT Act permits the acquisition of native title rights and interests in land for the purpose of vesting the affected land in the Northern Territory freed and discharged of the native title rights and interests; and whether s 46 of the Lands Acquisition Act is repugnant to s 238 of the NT Act.
Case: Griffiths v Northern Territory of Australia [2006] FCA 903
Outcome: discussed
In the meantime, an application for the determination of native title in respect of the Timber Creek township area has been heard and determined: Griffiths v Northern Territory of Australia [2006] FCA 903 on 17 July 2006. That decision was upheld by the Full Court: Griffiths v Northern Territory of Australia [2007] FCAFC 178 delivered on 22 November 2007.
Case: Griffiths v Northern Territory of Australia [2007] FCAFC 178
Outcome: discussed
In the meantime, an application for the determination of native title in respect of the Timber Creek township area has been heard and determined: Griffiths v Northern Territory of Australia [2006] FCA 903 on 17 July 2006. That decision was upheld by the Full Court: Griffiths v Northern Territory of Australia [2007] FCAFC 178 delivered on 22 November 2007.
Case: Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27
Outcome: referred to
They contend that their interests are adversely affected by the Registrar's decision, so that success in this application for review will result in a benefit to them, or relieve them of a detriment, to an extent greater than ordinary members of the public: see Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 at 75-76; Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 60-65. That must be because the procedural rights which they obtain by registration of the Town of Batchelor No 1 application, as discussed above (see Fejo v Northern Territory (1998) 196 CLR 96 at 121-125; Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242 at 244-246), or the enjoyment of those rights and the extent to which they can be exercised, are restricted by the decision of the Registrar which gives the Town of Batchelor No 2 applicants equivalent procedural rights. 21 Upon that basis, in my view, the Town of Batchelor No 1 applicants have demonstrated that their interests are adversely affected by the decision of the Registrar to accept for registration the Town of Batchelor No 2 application. The potential benefits or advantages which they enjoyed before that decision, by reason of the Town of Batchelor No 1 application having been accepted for registration, would be diminished so they would have suffered a disadvantage or detriment to an extent greater than the ordinary members of the public: Onus v Alcoa of Australia Ltd at 75. In Strickland and Nudding (on behalf of the Maduwongga People) v Native Title Registrar [1999] FCA 1089 , at [23] French J remarked upon the extent to which overlapping native title claims had impacted upon the imposition of those claims, and upon the administration of the right to negotiate the process. I think his Honour's remarks are consistent with the conclusion to which I have come.
Case: Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health (1995) 56 FCR 50
Outcome: referred to
They contend that their interests are adversely affected by the Registrar's decision, so that success in this application for review will result in a benefit to them, or relieve them of a detriment, to an extent greater than ordinary members of the public: see Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 at 75-76; Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 60-65. That must be because the procedural rights which they obtain by registration of the Town of Batchelor No 1 application, as discussed above (see Fejo v Northern Territory (1998) 196 CLR 96 at 121-125; Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242 at 244-246), or the enjoyment of those rights and the extent to which they can be exercised, are restricted by the decision of the Registrar which gives the Town of Batchelor No 2 applicants equivalent procedural rights.
Case: Fejo v Northern Territory (1998) 196 CLR 96
Outcome: referred to
They contend that their interests are adversely affected by the Registrar's decision, so that success in this application for review will result in a benefit to them, or relieve them of a detriment, to an extent greater than ordinary members of the public: see Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 at 75-76; Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 60-65. That must be because the procedural rights which they obtain by registration of the Town of Batchelor No 1 application, as discussed above (see Fejo v Northern Territory (1998) 196 CLR 96 at 121-125; Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242 at 244-246), or the enjoyment of those rights and the extent to which they can be exercised, are restricted by the decision of the Registrar which gives the Town of Batchelor No 2 applicants equivalent procedural rights.
Case: Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242
Outcome: referred to
They contend that their interests are adversely affected by the Registrar's decision, so that success in this application for review will result in a benefit to them, or relieve them of a detriment, to an extent greater than ordinary members of the public: see Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 at 75-76; Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 60-65. That must be because the procedural rights which they obtain by registration of the Town of Batchelor No 1 application, as discussed above (see Fejo v Northern Territory (1998) 196 CLR 96 at 121-125; Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242 at 244-246), or the enjoyment of those rights and the extent to which they can be exercised, are restricted by the decision of the Registrar which gives the Town of Batchelor No 2 applicants equivalent procedural rights.
Case: Strickland and Nudding (on behalf of the Maduwongga People) v Native Title Registrar [1999] FCA 1089
Outcome: discussed
Upon that basis, in my view, the Town of Batchelor No 1 applicants have demonstrated that their interests are adversely affected by the decision of the Registrar to accept for registration the Town of Batchelor No 2 application. The potential benefits or advantages which they enjoyed before that decision, by reason of the Town of Batchelor No 1 application having been accepted for registration, would be diminished so they would have suffered a disadvantage or detriment to an extent greater than the ordinary members of the public: Onus v Alcoa of Australia Ltd at 75. In Strickland and Nudding (on behalf of the Maduwongga People) v Native Title Registrar [1999] FCA 1089 , at [23] French J remarked upon the extent to which overlapping native title claims had impacted upon the imposition of those claims, and upon the administration of the right to negotiate the process. I think his Honour's remarks are consistent with the conclusion to which I have come.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
Certain principles are clear. When a statute confers a power on a public officer, the exercise of which may affect a third person's rights or interests, that person is entitled to procedural fairness until that entitlement is excluded by express terms or by any necessary implication: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 ; Minister for Agricultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57. The way in which procedural fairness should be provided in any particular circumstance depends upon the nature of the decision of the statutory framework in which it is made: SZBEL v Minister for Immigration [2006] HCA 63 ; (2006) 81 ALJR 515. In this matter, if the Town of Batchelor No 1 applicants were entitled to procedural fairness (as they claim), the opportunity to make written submissions and to present material to the Registrar would have been an appropriate step for the Registrar to have taken. They seek no more than that.
Case: Minister for Agricultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: cited
Certain principles are clear. When a statute confers a power on a public officer, the exercise of which may affect a third person's rights or interests, that person is entitled to procedural fairness until that entitlement is excluded by express terms or by any necessary implication: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 ; Minister for Agricultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57. The way in which procedural fairness should be provided in any particular circumstance depends upon the nature of the decision of the statutory framework in which it is made: SZBEL v Minister for Immigration [2006] HCA 63 ; (2006) 81 ALJR 515. In this matter, if the Town of Batchelor No 1 applicants were entitled to procedural fairness (as they claim), the opportunity to make written submissions and to present material to the Registrar would have been an appropriate step for the Registrar to have taken. They seek no more than that.
Case: SZBEL v Minister for Immigration [2006] HCA 63 ; (2006) 81 ALJR 515
Outcome: cited
Certain principles are clear. When a statute confers a power on a public officer, the exercise of which may affect a third person's rights or interests, that person is entitled to procedural fairness until that entitlement is excluded by express terms or by any necessary implication: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 ; Minister for Agricultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57. The way in which procedural fairness should be provided in any particular circumstance depends upon the nature of the decision of the statutory framework in which it is made: SZBEL v Minister for Immigration [2006] HCA 63 ; (2006) 81 ALJR 515. In this matter, if the Town of Batchelor No 1 applicants were entitled to procedural fairness (as they claim), the opportunity to make written submissions and to present material to the Registrar would have been an appropriate step for the Registrar to have taken. They seek no more than that.
Case: Martin v Native Title Registrar [2001] FCA 16
Outcome: referred to
The Town of Batchelor No 2 applicants are entitled to provide additional material to the Registrar, in addition to that in the native title determination itself, to support the Registrar's satisfaction of the requirements of s 190B(5): see Martin v Native Title Registrar [2001] FCA 16. 38 Section 53A does not prevent a party producing in evidence the same material as that presented at a mediation, provided of course it is relevant. That is really self-evident. If it were not so, no party could (for example) at a mediation refer to a statement of a proposed witness without the risk that that witness statement could not be adduced at a later hearing. Of course, the fact that that witness statement was referred to at the mediation could not be adduced at evidence at the hearing. Nor, generally, would it be relevant. What was improperly before the Registrar (if any error was made) was the fact that what he called "the FRBG Submissions" were presented at the mediation. But subject to their relevance, the FRBG Submissions could have been (and were) presented to the Registrar as material relevant to his satisfaction under s 190B(5). And the Registrar simply recorded that he understood that material "to have been prepared for the purposes of mediation" in the Court. He did not receive material as to what was said at the mediation, or of anything there said. Had he actually received material that the FRBG Submissions were presented at the mediation, then s 53A may have been infringed. But there was no apparent reliance by the Registrar upon the fact of their presentation to the mediation, so it would have been an error without consequence. The material apparently is of a factual and conclusory nature, and was equally eligible to be presented to the Registrar as to a mediator. 39 It is not necessary to consider, therefore, whether the role of the Registrar in considering whether to accept for registration the Town of Batchelor No 2 application is a proceeding attracted by the scope of s 53A(b) of the Federal Court of Australia Act .
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163
Outcome: cited
The third principal contention of counsel for the Batchelor No 1 applicants is that the Registrar fell into error by identifying the wrong issue and asking himself the wrong question in addressing the procedural requirements in s 190C(2) and (4). If that were made out, it would amount to reviewable error on the part of the Registrar: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179.
Case: Quall v Risk [2001] FCA 378
Outcome: referred to
The Registrar noted the definition of authorisation in s 251B of the NT Act. He correctly identified that he was required to be satisfied of the matters set out in s 190C(4)(b). He also identified the nature of that task as described in Doepel at [78]. As he said, the NT Act places fundamental importance upon ensuring that claimant applications are properly authorised: see e.g. Quall v Risk [2001] FCA 378. The Registrar said that the necessary statements for s 190C(5)(a) are made in the s 62 affidavits. There are affidavits pursuant to s 62 of the NT Act of May Stevens, Thomas Edward Petherick and Captain Wodidj adopting or using the words of s 62 of the NT Act, and therefore apparently providing a foundation for the Registrar's satisfaction that the requirement of s 190D(5)(a) of the NT Act had been met. He then said that he was satisfied that there was material at Schedule R and in Attachments R1, R2 and R3 to the Town of Batchelor No 2 application which met the requirements of s 190C(5)(b) as that material briefly set out the grounds on which he should consider that the requirements of s 190C(4)(b) had been met.
Case: MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466
Outcome: distinguished
In MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 , Kenny J was concerned with a notice of appeal and an application for leave to appeal filed in the same matter against an order of a Federal Magistrate dismissing an application for judicial review on the ground that it raised the same cause of action considered in previous proceedings for reason of res judicata or issue estoppel. 41 Kenny J said: '6 The distinction between an interlocutory and final judgment is not always a clear one. In this case, however, the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41 ; (1980) 147 CLR 35 (" Anshun (No 1) ") provides an authoritative answer. In Anshun (No 1) , the High Court unanimously held that an order that a proceeding be stayed as an abuse of process on the grounds of estoppel and res judicata was a final judgment, for the purposes of appeal. The approach of the High Court in Anshun (No 1) is equally applicable in relation to applications for leave to appeal in this Court: see, e.g., The Lardil Peoples v State of Queensland [2001] FCA 414 ; (2001) 108 FCR 453 at 480 [85] - [86] per Dowsett J. Anshun (No 1) applies with even stronger force in this case than in case of The Lardil Peoples , because the proceeding from which the current appeal is brought was dismissed on the same bases as in Anshun (No 1) .'
Case: SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546
Outcome: distinguished
That decision was followed by Tamberlin J in SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 and Graham J in NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975.
Case: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975
Outcome: distinguished
That decision was followed by Tamberlin J in SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 and Graham J in NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975.
Case: S1000 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 285
Outcome: followed
The disagreement amongst judges was adverted to by Selway J in S1000 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 285 where he said: '2 The original application made by the applicant was by Notice of Appeal. There may be some disagreement in the cases as to whether an order dismissing an action on the basis that it is vexatious and or an abuse of process is an interlocutory order, contrast Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 4, [9] , and Port of Melbourne Authority v Anshun [1980] HCA 41 ; (1980) 147 CLR 35. As the decision of the High Court in Re Luck is the most recent, I should follow it. This is consistent with other recent practice in this court. I refer, for example, to the decisions of the Full Court of this Court in Wride v Schulze [2004] FCAFC 216 , Lindsey v Philip Morris Limited [2004] FCAFC 40 , and in Johnson Tiles Pty Limited v Esso Australia Pty Limited [2000] FCA 1572 ; (2000) 104 FCR 564, [43].'