mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 227
Outcome: discussed
It is convenient to consider immediately whether either of those authorities do exemplify or otherwise lend support to that contention of the Authority. WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 227 was concerned with the operation of s 427(1)(d) of the Migration Act , which provided that the Refugee Review Tribunal ('RRT') '... may require the Secretary to arrange for the making of any investigation ... that the Tribunal thinks necessary with respect to the review .' The Full Court in WAGJ (Heerey, RD Nicholson and Mansfield JJ) held that s 427(1)(d) did not impose a duty upon the RRT to consider whether to exercise that power to order an investigation, their Honours placing emphasis upon such statutory words may and Tribunal thinks necessary . I would observe that the Court in WAGJ did not purport to lay down any general principle or rule, their Honours' decision apparently being predicated on the above emphasised words in s 427(1)(d) , and the prevailing legislative context. The issue arising relevantly in the second of those decisions relied upon by the Authority, being WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 79 , was not concerned with any particular provision of the Migration Act at all, the appellant in that litigation contending that the Tribunal had erred by failing to enquire into the veracity of certain documents and correspondence provided by the appellant in support of his application for a protection visa. It is not apparent that the appellant in WAJQ formulated his case by reference to the operation of s 427(1)(d) of that legislation. The Full Court cited WAGJ as authority for the wider proposition that there is no duty on the RRT to make inquiries, the failure to carry out whereof would give rise to judicial review. 41 I am unable to obtain sufficient assistance from resort to authorities arising in the context of the Migration Act , which has its own terms and conditions for administrative review far removed from those contained in the ADJR Act. Leaving aside contextual statutory differences, WAGJ and WAJQ do not purport to lay down any principle of general application to the effect that the existence of a discretionary power does not impute a duty to consider whether or not to exercise it. Nor was either of WAGJ or WAJQ concerned with the meaning of ' decision ... made ... under an enactment ', as that expression appears in the ADJR Act, or otherwise.
Case: WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 79
Outcome: discussed
It is convenient to consider immediately whether either of those authorities do exemplify or otherwise lend support to that contention of the Authority. WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 227 was concerned with the operation of s 427(1)(d) of the Migration Act , which provided that the Refugee Review Tribunal ('RRT') '... may require the Secretary to arrange for the making of any investigation ... that the Tribunal thinks necessary with respect to the review .' The Full Court in WAGJ (Heerey, RD Nicholson and Mansfield JJ) held that s 427(1)(d) did not impose a duty upon the RRT to consider whether to exercise that power to order an investigation, their Honours placing emphasis upon such statutory words may and Tribunal thinks necessary . I would observe that the Court in WAGJ did not purport to lay down any general principle or rule, their Honours' decision apparently being predicated on the above emphasised words in s 427(1)(d) , and the prevailing legislative context. The issue arising relevantly in the second of those decisions relied upon by the Authority, being WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 79 , was not concerned with any particular provision of the Migration Act at all, the appellant in that litigation contending that the Tribunal had erred by failing to enquire into the veracity of certain documents and correspondence provided by the appellant in support of his application for a protection visa. It is not apparent that the appellant in WAJQ formulated his case by reference to the operation of s 427(1)(d) of that legislation. The Full Court cited WAGJ as authority for the wider proposition that there is no duty on the RRT to make inquiries, the failure to carry out whereof would give rise to judicial review. 41 I am unable to obtain sufficient assistance from resort to authorities arising in the context of the Migration Act , which has its own terms and conditions for administrative review far removed from those contained in the ADJR Act. Leaving aside contextual statutory differences, WAGJ and WAJQ do not purport to lay down any principle of general application to the effect that the existence of a discretionary power does not impute a duty to consider whether or not to exercise it. Nor was either of WAGJ or WAJQ concerned with the meaning of ' decision ... made ... under an enactment ', as that expression appears in the ADJR Act, or otherwise.
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1
Outcome: cited
Mr Hannaford's routine acceptance of reductions (at least those said to be made for quality reasons) in the purchase price owing to him was, in my view, a reasonable and sensible business response to a recurrent phenomenon in an ongoing business relationship in a market for perishables. As I observed in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at [230] : ... notwithstanding their contract, parties in an ongoing business relationship ... commonly "regulate their relationships in accordance with what they consider is fair and reasonable or commercially necessary at particular points in time rather than by reference to a priori rights and duties arising under a contract": Integrated Computer Services Pty Ltd [v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11, 110] at 11,117. Such "mutual accommodation" may, or may not, over time evidence a contract variation. In the present case as pleaded it did not. Mr Hannaford was not obliged to accept whatever price reduction Farmlink had accepted from, or perhaps even agreed with, Freshmart and Mak. He retained his right to renegotiate his contract with Farmlink and was entitled to insist that price reductions ascribed to quality defects were reasonable and legitimate, ie were in fact made for reasons of quality and were ones for which he bore the responsibility. 9 (i) Anthony Hannaford. Mr Hannaford is, apparently, the biggest cherry grower in South Australia. He commenced his own business in 1985 and registered the business name Torrens Valley Orchards several years later. During the 2003/2004 cherry season he owned and he still owns three orchards in the Adelaide Hills. After an early dealing with Mr Plummer in the late 1980s, he recommenced dealings with Mr Plummer and Ms Churchill in the mid-nineties about which time, or perhaps a little later, he commenced supplying them with cherries. 10 (ii) Heather Churchill. Ms Churchill has been involved in the export industry since the mid to late 1980s. She moved to South Australia in 1993 and took up a position as export coordinator with an apple exporter, South Australian Horticultural Export Co. While working in that position she met Mr Plummer who, in 1999, offered her a position with Australian Farmlink Pty Ltd, a new business which he was involved in starting up. As export manager, her responsibilities were to find market sales for produce, to arrange for its export and delivery and to discharge all the associated accounting and administrative functions. She was responsible to the directors of Farmlink. The overseas markets with which she had dealings included Singapore, Malaysia, Thailand, Taiwan, Hong Kong, the UK and some Pacific islands. Her evidence was that although Farmlink dealt with a variety of products for export, during the cherry season she concentrated 100 per cent on cherries. Ms Churchill remained the export manager of Farmlink until 2006.
Case: Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539
Outcome: cited
I am quite conscious of the foundation that both a prior course of dealing between parties and practices and usages thereby established between them can provide (a) for the drawing of inferences as to the actual terms on which the parties have contracted and (b) for the imputation of implied terms in their contract: for the difference between inference and imputation, see Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539 at 570-571 and 573. This is evidenced both in the provisions of international instruments such as the CISG Art 9: see Schlechtriem and Schwenzer at 141 ff; see also Unidroit Principles of International Commercial Contracts 2004 , Arts 1.9 and 5.1.2; and in the domestic laws of common law countries: see eg Uniform Commercial Code , SS1-303; Restatement of Contracts , Second , SS223; Farnsworth on Contracts , SS7.13 (3 rd ed, 2004); Furmston (ed), The Law of Contract at [3.18] (2 nd ed, 2003); Cheshire and Fifoot, Law of Contract at [10.18] and [10.29] (9 th Aust ed, 2008). I equally accept that it may well have been the case, as I will later suggest, that some at least of the terms upon which TVO and Farmlink actually intended to contract in the 2003/2004 season were to be inferred from their prior course of dealings. But that is not the question on which I must rule. 44 The amendment sought to be made at such a late stage is not one which I consider should be permitted. It is yet another variant on the term initially proposed the variation seemingly being a response to accommodate questioning during final submissions. It is of such a character that it ought to have been the subject of evidence both of Ms Churchill and of Mr Hannaford. It raises quite a spectrum of different issues to those raised by what had been pleaded by the respondents. And it embodies an exception the provenance of which relates only to evidence in the 2003/2004 season and not to "past dealings". It is simply far too late in the day to permit this amendment to be made, the more so because I consider the proposal itself to be uncertain in scope and ambiguous in content. 45 I will in any event later suggest both that the term itself attributes a character and a consequence to past dealings which I do not consider is reasonably suggested by them and that important aspects of Ms Churchill's decisions in 2003/2004 in relation to purchase discounts had no reflection at all in the prior course of dealing.
Case: Fraser-Ramsay (New Zealand) Ltd v De Renzy (1912) 32 NZLR 553
Outcome: cited
Notwithstanding that the relationships of principal and agent and seller and buyer are mutually exclusive, the one being a fiduciary relationship, the other a "commercially adverse relationship": Bowstead &amp; Reynolds on Agency at [1-032] (18 th ed, 2006); the distinction between them in cases where sales or purchases have been effectuated by an intermediary can be a fine one not easy to draw: see Atiyah, The Sale of Goods at 28 (10 th ed, 2001). Unsurprisingly, courts have emphasised that decided cases are for the most part of limited assistance given the quite fact (and agreement) specific nature of the inquiry to be made: see eg Fraser-Ramsay (New Zealand) Ltd v De Renzy (1912) 32 NZLR 553 at 575; see generally, Dal Pont, Law of Agency at [2.3] (2 nd ed, 2008); the more so when, as in the present matter, the contract in question (whether of agency or sale) is an oral one: cf Mercantile International Group plc v Chuan Soon Huat Industrial Group Ltd [2002] EWCA Civ 288 at [30] - [31] .
Case: Bailey &amp; Co Ltd v Balholm Securities Ltd [1973] 2 Lloyd's Rep 404
Outcome: cited
(i) As an agent for sale ordinarily acts on behalf of its principal: but cf in relation to a broker selling in its own name: Bailey &amp; Co Ltd v Balholm Securities Ltd [1973] 2 Lloyd's Rep 404 at 408; Jackson Securities Ltd v Cheesman (1986) 4 NSWLR 484 at 489-490; is it apparent from the facts that the seller has actually conferred on the intermediary an authority to negotiate and/or to sell on the seller's behalf thus bringing into existence direct contracts between the seller and the third party buyer: Mercantile International Group plc at [30]-[34]?
Case: Jackson Securities Ltd v Cheesman (1986) 4 NSWLR 484
Outcome: cited
(i) As an agent for sale ordinarily acts on behalf of its principal: but cf in relation to a broker selling in its own name: Bailey &amp; Co Ltd v Balholm Securities Ltd [1973] 2 Lloyd's Rep 404 at 408; Jackson Securities Ltd v Cheesman (1986) 4 NSWLR 484 at 489-490; is it apparent from the facts that the seller has actually conferred on the intermediary an authority to negotiate and/or to sell on the seller's behalf thus bringing into existence direct contracts between the seller and the third party buyer: Mercantile International Group plc at [30]-[34]?
Case: Weiner v Harris [1910] 1 KB 285
Outcome: cited
(ii) Often interlocking factors of some significance are (a) by whom is the sale price to the third party set? and (b) how is the intermediary remunerated/rewarded for the sale to the third party? If the intermediary is remunerated by commission pre-arranged with the seller this will ordinarily indicate an agency relationship: eg Weiner v Harris [1910] 1 KB 285; although in exceptional circumstances a buyer for resale may be paid what is described, or is misdescribed, as a commission: eg Gannow Engineering Co Ltd v Richardson [1930] NZLR 361 ; Jackson v Royal Bank of Scotland [2000] EWCA Civ 203 at [17] - [18] . In the absence of fully informed consent, it would be a breach of fiduciary duty for an agent to profit on the sale of its principal's property by, for example, marking up the principal's stipulated sale price and retaining the difference. That an intermediary so acts may itself be indicative that the parties relationship was that of seller and buyer for resale and not agency for sale: Ex parte White; In re Nevill (1870) LR 6 Ch App 397. Nonetheless, a principal may agree to an agent deriving its remuneration from a mark-up on the price the principal stipulates it is to receive from the sale: eg Ex parte Bright; In re Smith (1879) 10 Ch D 566. In Mercantile International Group plc in circumstances in which the agreements between the parties pointed unambiguously to an agency relationship, it was held that that conclusion was unaffected by the circumstances that the principal knew that the intermediary charged more to purchasers than it confirmed to the principal; the principal did not mind nor care to know the detail of the matter, but was satisfied to get the price it stipulated; and the principal was content that the intermediary should keep for itself an undefined margin, it obtaining no remuneration by way of commission or otherwise from the principal: at [5] and [36].
Case: Gannow Engineering Co Ltd v Richardson [1930] NZLR 361
Outcome: cited
(ii) Often interlocking factors of some significance are (a) by whom is the sale price to the third party set? and (b) how is the intermediary remunerated/rewarded for the sale to the third party? If the intermediary is remunerated by commission pre-arranged with the seller this will ordinarily indicate an agency relationship: eg Weiner v Harris [1910] 1 KB 285; although in exceptional circumstances a buyer for resale may be paid what is described, or is misdescribed, as a commission: eg Gannow Engineering Co Ltd v Richardson [1930] NZLR 361 ; Jackson v Royal Bank of Scotland [2000] EWCA Civ 203 at [17] - [18] . In the absence of fully informed consent, it would be a breach of fiduciary duty for an agent to profit on the sale of its principal's property by, for example, marking up the principal's stipulated sale price and retaining the difference. That an intermediary so acts may itself be indicative that the parties relationship was that of seller and buyer for resale and not agency for sale: Ex parte White; In re Nevill (1870) LR 6 Ch App 397. Nonetheless, a principal may agree to an agent deriving its remuneration from a mark-up on the price the principal stipulates it is to receive from the sale: eg Ex parte Bright; In re Smith (1879) 10 Ch D 566. In Mercantile International Group plc in circumstances in which the agreements between the parties pointed unambiguously to an agency relationship, it was held that that conclusion was unaffected by the circumstances that the principal knew that the intermediary charged more to purchasers than it confirmed to the principal; the principal did not mind nor care to know the detail of the matter, but was satisfied to get the price it stipulated; and the principal was content that the intermediary should keep for itself an undefined margin, it obtaining no remuneration by way of commission or otherwise from the principal: at [5] and [36].
Case: Jackson v Royal Bank of Scotland [2000] EWCA Civ 203
Outcome: cited
(ii) Often interlocking factors of some significance are (a) by whom is the sale price to the third party set? and (b) how is the intermediary remunerated/rewarded for the sale to the third party? If the intermediary is remunerated by commission pre-arranged with the seller this will ordinarily indicate an agency relationship: eg Weiner v Harris [1910] 1 KB 285; although in exceptional circumstances a buyer for resale may be paid what is described, or is misdescribed, as a commission: eg Gannow Engineering Co Ltd v Richardson [1930] NZLR 361 ; Jackson v Royal Bank of Scotland [2000] EWCA Civ 203 at [17] - [18] . In the absence of fully informed consent, it would be a breach of fiduciary duty for an agent to profit on the sale of its principal's property by, for example, marking up the principal's stipulated sale price and retaining the difference. That an intermediary so acts may itself be indicative that the parties relationship was that of seller and buyer for resale and not agency for sale: Ex parte White; In re Nevill (1870) LR 6 Ch App 397. Nonetheless, a principal may agree to an agent deriving its remuneration from a mark-up on the price the principal stipulates it is to receive from the sale: eg Ex parte Bright; In re Smith (1879) 10 Ch D 566. In Mercantile International Group plc in circumstances in which the agreements between the parties pointed unambiguously to an agency relationship, it was held that that conclusion was unaffected by the circumstances that the principal knew that the intermediary charged more to purchasers than it confirmed to the principal; the principal did not mind nor care to know the detail of the matter, but was satisfied to get the price it stipulated; and the principal was content that the intermediary should keep for itself an undefined margin, it obtaining no remuneration by way of commission or otherwise from the principal: at [5] and [36].
Case: Ex parte Bright; In re Smith (1879) 10 Ch D 566
Outcome: cited
(ii) Often interlocking factors of some significance are (a) by whom is the sale price to the third party set? and (b) how is the intermediary remunerated/rewarded for the sale to the third party? If the intermediary is remunerated by commission pre-arranged with the seller this will ordinarily indicate an agency relationship: eg Weiner v Harris [1910] 1 KB 285; although in exceptional circumstances a buyer for resale may be paid what is described, or is misdescribed, as a commission: eg Gannow Engineering Co Ltd v Richardson [1930] NZLR 361 ; Jackson v Royal Bank of Scotland [2000] EWCA Civ 203 at [17] - [18] . In the absence of fully informed consent, it would be a breach of fiduciary duty for an agent to profit on the sale of its principal's property by, for example, marking up the principal's stipulated sale price and retaining the difference. That an intermediary so acts may itself be indicative that the parties relationship was that of seller and buyer for resale and not agency for sale: Ex parte White; In re Nevill (1870) LR 6 Ch App 397. Nonetheless, a principal may agree to an agent deriving its remuneration from a mark-up on the price the principal stipulates it is to receive from the sale: eg Ex parte Bright; In re Smith (1879) 10 Ch D 566. In Mercantile International Group plc in circumstances in which the agreements between the parties pointed unambiguously to an agency relationship, it was held that that conclusion was unaffected by the circumstances that the principal knew that the intermediary charged more to purchasers than it confirmed to the principal; the principal did not mind nor care to know the detail of the matter, but was satisfied to get the price it stipulated; and the principal was content that the intermediary should keep for itself an undefined margin, it obtaining no remuneration by way of commission or otherwise from the principal: at [5] and [36].
Case: Bailey &amp; Co Ltd v Balholm Securities Ltd 
Outcome: cited
(i) As an agent for sale ordinarily acts on behalf of its principal: but cf in relation to a broker selling in its own name: Bailey &amp; Co Ltd v Balholm Securities Ltd [1973] 2 Lloyd's Rep 404 at 408; Jackson Securities Ltd v Cheesman (1986) 4 NSWLR 484 at 489-490; is it apparent from the facts that the seller has actually conferred on the intermediary an authority to negotiate and/or to sell on the seller's behalf thus bringing into existence direct contracts between the seller and the third party buyer: Mercantile International Group plc at [30]-[34]? 55 There are two final matters to which I should refer. First, while the relationships of agency and sale are mutually exclusive, it is not uncommon for an intermediary to be the agent of its seller-principal but to be a principal vis-&agrave;-vis a third party on the sale to it: see eg Bailey &amp; Co Ltd v Balholm Securities Ltd at 408; Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676. As was said by Roskill LJ in Romalpa (at 690): I see no difficulty in the contractual concept that, as between the defendants and their sub-purchasers, the defendants sold as principals, but that, as between themselves and the plaintiffs, those goods which they were selling as principals within their implied authority from the plaintiffs were the plaintiffs' goods which they were selling as agents for the plaintiffs to whom they remained fully accountable. As will be seen, the respondents seek to draw some comfort from this.