mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: O'Halloran v RT Thomas &amp; Family Pty Ltd (1998) 45 NSWLR 262
Outcome: followed
Arrive is entitled to compensation for Ms Manning's breach of duty. In equity, the object of compensation is to restore the person who has suffered loss to the position in which they would have been if there had been no breach of the equitable obligation: Nocton v Lord Ashburton [1914] AC 932; O'Halloran v RT Thomas &amp; Family Pty Ltd (1998) 45 NSWLR 262; Southern Real Estate Pty Ltd v Dellow and Arnold (2003) 87 SASR 1. The critical question to determine is in what position would Arrive have been had Ms Manning not breached her equitable obligation -- that is to say, what actual loss was suffered by Arrive due to the breach? 66 To accept Arrive's argument is to accept the notion that a fiduciary breach effectively "stops the clock" at the time of breach for the purpose of determining what actual loss was suffered by a party and what the party's ultimate "position" would have been. This line of reasoning was rejected by the House of Lords in Target Holdings Ltd v Redferns (a firm) [1996] 1 AC 421. There, Lord Browne-Wilkinson said (at 439): "Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach." See also Re Dawson [1966] 2 NSWR 211; Canson Enterprises Ltd v Boughton &amp; Co . (1991) 85 DLR (4th) 129; O'Halloran v RT Thomas &amp; Family Pty Ltd (1998) 45 NSWLR 262; Southern Real Estate Pty Ltd v Dellow &amp; Arnold (2003) 87 SASR 1. The cases make clear that the court must take advantage of the "full benefit of hindsight" to ensure that "the losses made good are only those which, on a common sense view of causation, were caused by the breach": Canson Enterprises Ltd v Boughton &amp; Co. (1991) 85 DLR (4th) 129, 163. 69 Though the actual quantification of the claim will take place at a later point, it is necessary to say one final word about the method of calculating that loss. When dealing with equitable compensation a court is often faced with the challenge of placing a monetary value on an elusive loss such as a "loss of opportunity", a loss that defies precise measurement: O'Halloran v RT Thomas &amp; Family Pty Ltd (1998) 45 NSWLR 262, 273, adopting Canson Enterprises Ltd v Boughton &amp; Co. (1991) 85 DLR (4th) 129, 163. To this end the court is permitted to use somewhat subjective "tools" in arriving at a valuation; tools such as common sense and general notions of justice and fairness.
Case: Payne v Parker [1976] 1 NSWLR 191
Outcome: cited
The conditions for the application of that rule are explained in Payne v Parker [1976] 1 NSWLR 191, 201-202. Opinions have differed as regards whether these conditions can be satisfied when a witness is equally available to both parties. Some judges have said that in such circumstances no inference is available: see eg Claremont Petroleum NL v Cummings (1992) 110 ALR 239. This is not a universally accepted view. For example, in Earle v Castlemaine District Community Hospital [1974] VR 722, 728, a decision of the Full Court of the Supreme Court of Victoria, Little J, cites with approval the following passage from 2 Wigmore on Evidence (3 rd ed, 1940) SS288, 0"> 169- 171 : "The more logical view is that the failure [by both parties] to adduce is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances. To prohibit the inference entirely is to reduce to an arbitrary rule of uniformity that which really depends on the varying significance of facts which cannot be so measured." The judge went on to say that it would be erroneous to lay down any "general rule" that if a witness was available to both parties no inference could be drawn against either and that it must depend on the facts and circumstances of a particular case. This, I think, is the correct view.
Case: Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21 ; (1931) 45 CLR 359
Outcome: followed
During the course of argument Ms Manning attempted to rely on two other incidents as a repudiation of the contract which justified her purported termination of it on 21 January. The first is steps taken around 23 January to revoke Ms Manning's status under the Corporations Act 2001 (Cth) as an Authorised Representative of Arrive and the second is the instruction on 4 February to terminate Ms Manning's fortnightly salary payments. This conduct is not repudiatory. Even if it were, it would not assist Ms Manning. It is a well established rule of contract law that if a party gives an incorrect reason for terminating a contract this does not prevent him from later asserting a good reason, whether or not he was aware of the reason when he brought the contract to an end: Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21 ; (1931) 45 CLR 359, 377-378. The rule is so well established it needs no elaboration. But the rule only applies if the unstated (and sometimes unknown) ground was available at the time the contract was brought to an end. If the repudiatory conduct occurs later it cannot be relied upon retrospectively but only as a trigger for a later acceptance, and there was none. Further, by the time the second of the events had occurred Ms Manning had begun to work for GSJBW although still an employee of AMP Services. For example, she attended GSJBW's office on most working days, she sat in on at least one interview with a client (and probably gave advice to the client during the course of the interview), she helped draft letters to clients of Arrive to assist them to transfer their business to GSJBW and she presented a paper at an in-house conference. This put her in breach of her employment contract (a breach not pleaded) and disentitled her from terminating the contract for repudiation: Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385.
Case: Southern Real Estate Pty Ltd v Dellow and Arnold (2003) 87 SASR 1
Outcome: followed
Arrive is entitled to compensation for Ms Manning's breach of duty. In equity, the object of compensation is to restore the person who has suffered loss to the position in which they would have been if there had been no breach of the equitable obligation: Nocton v Lord Ashburton [1914] AC 932; O'Halloran v RT Thomas &amp; Family Pty Ltd (1998) 45 NSWLR 262; Southern Real Estate Pty Ltd v Dellow and Arnold (2003) 87 SASR 1. The critical question to determine is in what position would Arrive have been had Ms Manning not breached her equitable obligation -- that is to say, what actual loss was suffered by Arrive due to the breach? 66 To accept Arrive's argument is to accept the notion that a fiduciary breach effectively "stops the clock" at the time of breach for the purpose of determining what actual loss was suffered by a party and what the party's ultimate "position" would have been. This line of reasoning was rejected by the House of Lords in Target Holdings Ltd v Redferns (a firm) [1996] 1 AC 421. There, Lord Browne-Wilkinson said (at 439): "Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach." See also Re Dawson [1966] 2 NSWR 211; Canson Enterprises Ltd v Boughton &amp; Co . (1991) 85 DLR (4th) 129; O'Halloran v RT Thomas &amp; Family Pty Ltd (1998) 45 NSWLR 262; Southern Real Estate Pty Ltd v Dellow &amp; Arnold (2003) 87 SASR 1. The cases make clear that the court must take advantage of the "full benefit of hindsight" to ensure that "the losses made good are only those which, on a common sense view of causation, were caused by the breach": Canson Enterprises Ltd v Boughton &amp; Co. (1991) 85 DLR (4th) 129, 163. 68 The actual loss that Arrive has suffered is not the broad "total loss of clients" as Arrive would have it but the loss of the "value" of keeping those clients between 20 January and 16 February (being the day Ms Manning's employment terminated) together with, perhaps, the loss of the opportunity to take steps in that period to retain the lost clients: Southern Real Estate Pty Ltd v Dellow and Arnold (2003) 87 SASR 1, 12-15; Charles Lo Presti Pty Ltd v Karabalios [2000] NSWSC 395 , [31], [49], and [56]. On this latter aspect, however, given the history and the close relationship between Ms Manning and her clients, I am not at this point persuaded that "but for" her breach of fiduciary duty the clients would have remained with Arrive. On the contrary, the evidence so far suggests that regardless of Ms Manning's breach of duty the clients would have remained with Arrive only until her move to GSJBW and they would then have followed her.
Case: Target Holdings Ltd v Redferns (a firm) [1996] 1 AC 421
Outcome: followed
To accept Arrive's argument is to accept the notion that a fiduciary breach effectively "stops the clock" at the time of breach for the purpose of determining what actual loss was suffered by a party and what the party's ultimate "position" would have been. This line of reasoning was rejected by the House of Lords in Target Holdings Ltd v Redferns (a firm) [1996] 1 AC 421. There, Lord Browne-Wilkinson said (at 439): "Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach." See also Re Dawson [1966] 2 NSWR 211; Canson Enterprises Ltd v Boughton &amp; Co . (1991) 85 DLR (4th) 129; O'Halloran v RT Thomas &amp; Family Pty Ltd (1998) 45 NSWLR 262; Southern Real Estate Pty Ltd v Dellow &amp; Arnold (2003) 87 SASR 1. The cases make clear that the court must take advantage of the "full benefit of hindsight" to ensure that "the losses made good are only those which, on a common sense view of causation, were caused by the breach": Canson Enterprises Ltd v Boughton &amp; Co. (1991) 85 DLR (4th) 129, 163.
Case: Walker v Winborne [1976] HCA 7 ; (1976) 137 CLR 1
Outcome: followed
I can also dispose of the statutory claims without much ado. The amended points of claim assert that the duties imposed by ss 182 and 183 are owed to AMP Services. This is correct. In Walker v Winborne [1976] HCA 7 ; (1976) 137 CLR 1, 6-7, Mason J (as he then was) pointed out that because each company in a group is a "separate and independent legal entity" the officer of a company owes his duties to that company alone. See also Industrial Equity Limited v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567. Here it is said that Ms Manning made "(1) improper use of her position to (a) gain an advantage for herself or someone else; or (b) cause detriment to [AMP Services]; (2) improper use of confidential information [vis name, contact details or financial position of clients] obtained in the course of her employment to (a) gain an advantage for herself or someone else; or (b) cause detriment to [AMP Services]." There is no evidence to support the first allegation and, if it matters, none of the conduct about which complaint is made (even if proven) is conduct engaged in by Ms Manning in her "position" with AMP Services. As to the second allegation, the evidence shows that the information (whether confidential or not) was not the property of Arrive but AMP Services. Sections 182 and 183 do not provide a cause of action for the misuse of confidential information which belongs to a related company and causes damage to the related company.
Case: William Hill Organisation Ltd v Tucker [1999] ICR 291
Outcome: cited
Ms Manning accepts (correctly in my opinion) that upon giving notice she could be instructed to stay away from work during the notice period if there was an express term to that effect. On the other hand she says (also correctly in my opinion) that if there was no such term then AMP Services was obliged to provide work for Ms Manning because part of her remuneration was based on performance: see eg William Hill Organisation Ltd v Tucker [1999] ICR 291. 44 In this case the employment contract permitted the employer, AMP Services, to require Ms Manning not to attend work for some or all of the notice period while continuing to pay her wages. I have already set out cl 7 of the employment contract. It is convenient to repeat para 3 of that clause which provides: "AMP may elect to pay you salary in lieu of notice or require you to work during part or all of your notice period." What Ms Manning was told at the meeting on 20 January amounted to the exercise of the option conferred by that clause. The instruction was repeated at the meeting on 21 January, as well as in AMP Service's letters of 23 and 27 January to Ms Manning's solicitors. The instruction was not a repudiation of the employment contract. It was the exercise of a right conferred by the contract.
Case: Comcare v Commonwealth of Australia [2009] FCA 700
Outcome: cited
these proceedings there is merit in permitting the immediate family members of Mr McCallum to table written material detailing the impact of the loss of Mr McCallum on their lives. The Court has discretion, as a superior court of record, to regulate its own affairs in a way which permits the Court to hear and assess such information as the Court determines to be of assistance to the Court in resolving the matters before it. I consider that in the context of these particular proceedings this material would be of some assistance in understanding the background to these proceedings: cf North J in Comcare v Commonwealth of Australia [2009] FCA 700. However I consider that the principles raised by the respondent in relation to the tabling of this material have force. In permitting this material to be admitted: In my view the appropriate orders are as follows: The Court will receive material from Mr Paul Everett, Mrs Ann Everett and Mr Andrew McCallum, being immediate family members of Mr Mark McCallum, which material will be confined to the impact of the demise of Mr Mark McCallum on their lives. The material referred to in paragraph 1 of these orders will be in the form of written statements. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 23 October 2009 Counsel for the Applicant: Mr AK Herbert Solicitor for the Applicant: Mr M Curran of Dibbs Barker Lawyers Counsel for the Respondent: Mr J Fernon SC Solicitor for the Respondent: Ms S Flores-Walsh of Australian Business Lawyers Date of Hearing: 12 October 2009 Date of Judgment: 23 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1196.html
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: cited
Procedural fairness required that the applicant should be advised of any "critical point on which the decision would turn": see Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529 at 540 [43]. He was also entitled to an opportunity to advance evidence and make submissions in relation to any prejudicial material before the Minister made her decision. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, in a passage subsequently quoted with approval by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600 [32] , a Full Court of this Court said (at 590-1) that: "It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material."
Case: Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875
Outcome: considered
This passage cannot be understood as supporting an unqualified proposition that an error in construing and applying a policy or an unincorporated treaty, which the decision-maker is not bound to apply, will amount to jurisdictional error. This will only be so if the misconstruction is "serious" such that "what is applied is not the policy but something else ...". Moreover their Honours' reasoning assumes that the Tribunal was bound to give consideration to the ministerial policy. Whether or not that be right in respect to a ministerial policy, it is now clear that this is not the case where unincorporated international treaty obligations are concerned. This was accepted by French J in Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875. His Honour said (at [59]) that: "There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder's children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration "in all cases concerning children". However the existence of that obligation of international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions. ... Such considerations do not thereby become mandatory. In the joint judgment in re Minister for Immigration and Multicultural Affairs; ex parte Lam ...McHugh and Gummow JJ referred to the "... established doctrine" that obligations under international treaties "... are not mandatory relevant considerations attracting judicial review for jurisdictional error." The best interests of the children do not, by virtue of Australia's commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law ... But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision makers."
Case: M238 of 2002 v Ruddock [2003] FCAFC 260
Outcome: referred to
In my opinion, the procedures adopted by the department satisfied the requirements of procedural fairness in the present case. The invitation identified with clarity one of the crucial or relevant points on which the Minister's decision might turn. The applicant was afforded the opportunity, on two occasions, to make detailed submissions on the construction and application of the two treaties. Conflicting assessments by the departmental officer and the applicant's solicitor as to the proper characterisation of the level of risk to be confronted, should the applicant return to the Lebanon, were placed before the Minister. So too were submissions relating to the correct formulation of the relevant treaty obligations. They were incorporated in the issues paper. There was no requirement that the department's issues paper should be provided to the applicant before it was considered by the Minister: see M238 of 2002 v Ruddock [2003] FCAFC 260 at [54] . Furthermore, there was no requirement that the Minister's views on these matters, after she had considered the submissions and the issues paper, should be exposed to the applicant for further comment prior to a decision being made: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 603 [48] .
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370
Outcome: referred to
The discretionary power, conferred on the Minister by s 501(1) of the Act, is unfettered in its terms. As Heydon and Crennan JJ (with whom Gleeson CJ agreed) said, in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370 at 401 [128] , speaking of the similarly wide discretion conferred on the Minister by s 501(2): "Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in the context in the Act. As ministerial direction No 21 makes clear, the minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community." The protection and expectations of the Australian community are not, however, binding considerations when the Minister him or herself makes a decision under s 501. The same must be true of international treaty obligations. As McHugh and Gummow JJ said in Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at 33 [101] ; " ...In the case law a line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision making under powers conferred by statute and without specification of those obligations. The judgments in Teoh accepted the established doctrine that such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error."
Case: Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65
Outcome: referred to
Australia's unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error. It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 at 77-78. Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error. 28 For these reasons I do not consider that the Minister made any jurisdictional error, even if she erred in construing and applying the ICCPR or the CAT.