mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: International Air Transport Association v Ansett Australia Holdings Limited [2008] HCA 3 ; (2008) 242 ALR 47
Outcome: cited
The process of construction of a contract is undertaken objectively. In Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] , Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said: 'It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.' (citations omitted) And in CEPU 162 FCR at 510 [164]-[165] Weinberg, Bennett and I said: ' In the construction of a contract, the court places itself in the commercial matrix in which the parties were at the time that the contract was made. This is so that the court can construe correctly both the express terms used by the parties and those which are included by implication in order to give effect to their presumed intention. In Royal Botanic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; 186 ALR 289 at [10] , Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said that it was appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question in a contract were used and, from those circumstances, to discern the objective which the parties had in view. They applied what Lord Wilberforce had said, namely that an appreciation of the commercial purpose of the contract "... presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating" ( Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 at 995-996). And, in Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 ; (2001) 210 CLR 181 at [11] approving Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society (No 1) [1998] 1 WLR 896 at 912, Gleeson CJ, Gummow and Hayne JJ said that interpretation of a written contract involved ... the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.' See also International Air Transport Association v Ansett Australia Holdings Limited [2008] HCA 3 ; (2008) 242 ALR 47 at 51-52 [8] per Gleeson CJ, at 63 [53] per Gummow, Hayne, Heydon, Crennan and Kiefel JJ.
Case: Loxton v Moir (1914) 18 CLR 360
Outcome: cited
As a matter of ordinary English, the assignment by North East Equity of 'all of its rights in relation to' the new line was plenary. The expression 'in relation to' is of wide and general import (cp its width when used in a statute: Fountain v Alexander (1982) 150 CLR 615 at 629 per Mason J). And, in Loxton v Moir (1914) 18 CLR 360 at 379 Rich J said: 'The phrase "chose in action" is used in different senses, but its primary sense is that of a right enforceable by an action. It may also be used to describe the right of action itself, when considered as part of the property of the person entitled to sue. A right to sue for a sum of money is a chose in action, and it is a proprietary right.'
Case: Poulton v The Commonwealth (1953) 89 CLR 540 
Outcome: cited
Rights to sue for the tort of negligent misrepresentation ( Poulton v The Commonwealth (1953) 89 CLR 540 at 602 per Williams, Webb and Kitto JJ) and for loss or damage under s 82 of the Trade Practices Act in respect of a contravention of s 52 are not assignable: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 at 732-734 [51] - [57] per myself; BHP Coal Pty Ltd v O &amp; K Orenstein &amp; Koppel AG [2008] QSC 141 at [76] per McMurdo J. Those rights remained with North East Equity.
Case: TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57 ; (1963) 180 CLR 130
Outcome: cited
North East Equity relied on TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57 ; (1963) 180 CLR 130 where a purchaser under a hire purchase agreement was held to be entitled to recover damages for breach of contract against both the vendor of the equipment and the financier who let it on hire purchase. However, the reason for this was that such a right was expressly created by s 7A(1) of the Hire-purchase Agreement Acts 1933-1946 (Qld): see TC Industrial 180 CLR at 136 where the relevant section is set out.
Case: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: cited
The process of construction of a contract is undertaken objectively. In Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] , Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said: 'It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.' (citations omitted) And in CEPU 162 FCR at 510 [164]-[165] Weinberg, Bennett and I said: ' In the construction of a contract, the court places itself in the commercial matrix in which the parties were at the time that the contract was made. This is so that the court can construe correctly both the express terms used by the parties and those which are included by implication in order to give effect to their presumed intention. In Royal Botanic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; 186 ALR 289 at [10] , Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said that it was appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question in a contract were used and, from those circumstances, to discern the objective which the parties had in view. They applied what Lord Wilberforce had said, namely that an appreciation of the commercial purpose of the contract "... presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating" ( Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 at 995-996). And, in Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 ; (2001) 210 CLR 181 at [11] approving Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society (No 1) [1998] 1 WLR 896 at 912, Gleeson CJ, Gummow and Hayne JJ said that interpretation of a written contract involved ... the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.' See also International Air Transport Association v Ansett Australia Holdings Limited [2008] HCA 3 ; (2008) 242 ALR 47 at 51-52 [8] per Gleeson CJ, at 63 [53] per Gummow, Hayne, Heydon, Crennan and Kiefel JJ.
Case: Torkington v Magee [1902] 2 KB 427
Outcome: followed
That section is derived from s 25(6) of the Judicature Act 1873 (UK): see Meagher Gummow and Lehane's Equity: Doctrines &amp; Remedies (4 th ed, Butterworths, 2002) [6-030], where at [6-480] the learned authors referred to the decision of Lord Alverstone CJ, Darling and Channell JJ in Torkington v Magee [1902] 2 KB 427 as an instance of a valid assignment of a chose in action. In Torkington [1902] 2 KB at 431-432 the Divisional Court held that an assignment of the benefit of an executory contract, of which there was no breach at the time, was validly made under the analogue of s 20. Their Lordships held that the right to sue for damages for a later breach by the obligor could be exercised directly by the assignee without suing in the assignor's name: Torkington [1902] 2 KB at 432.
Case: Young &amp; Marten Ltd v McManus Childs Ltd [1969] 1 AC 454
Outcome: cited
I am of opinion that nothing turns on whether the contract for the supply of the new line was, on its true characterisation, a contract for the sale of goods or a contract for work and materials. In the former case, s 14(i) of the Sale of Goods Act ordinarily would operate to imply a condition that the goods be reasonably fit for the purpose for which they were required, as made known by the purchaser. In the absence of special circumstances, a contract to do work and supply materials will carry with it two implied warranties: first, that the materials are of good quality and free from latent defects; and secondly, that the materials are reasonably fit for their intended purpose: Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Limited [1974] HCA 32 ; (1974) 132 CLR 1 at 6 per Menzies J, at 8 per Stephen J, Barwick CJ agreeing with their Honours at 4 and Mason J agreed with Stephen J at 15; Young &amp; Marten Ltd v McManus Childs Ltd [1969] 1 AC 454. I am of opinion that because, not only was Proud Machinery to supply the goods, it was also to erect and install them, the contract was not merely a contract for the sale of goods, but was in substance a contract for the provision of work and materials: cf Hewett v Court [1983] HCA 7 ; (1983) 149 CLR 639 at 646-647 per Gibbs CJ, 650 per Murphy J, 655 per Wilson and Dawson JJ, 662 per Deane J. As Gibbs CJ noted, the distinction between a contract for the sale of goods and one for the provision of work and materials is frequently a fine one and the tests for distinguishing them are unsatisfactory and imprecise: Hewett 149 CLR at 646; see too Sutton KCT, Sales and Consumer Law (4 th ed, Lawbook Co, 1995) at [2.42]-[2.43]; Benjamin's Sale of Goods (7 th ed, Sweet &amp; Maxwell, 2006) at [1-041]-[1-043].
Case: Zhu v Treasurer of NSW [2004] HCA 56 ; (2004) 218 CLR 530
Outcome: cited
Secondly, in any event cl 1.15(g) was consistent with the plenary construction of the earlier assignment. It provided for North East Equity, as assignor, to make its name available, were that necessary, to enforce performance of the contract. That would only be where rights had not been passed to the bank by the earlier assignment. Since the bank was paying for the purchase and installation of the new line, it is not apparent, as a matter of commercial commonsense why it would leave causes of action for breach of contract by the vendor in the hands of the bank's customer. The bank would be conscious of the risk to it of its customer (North East Equity) becoming insolvent. If that occurred, the bank would have purchased, and would own the new line, but could only prove in its customer's insolvency for the damages needed to bring the new line into conformity with the contract. That would work commercial inconvenience and is not a commercially sensible construction in absence of clear words: Zhu v Treasurer of NSW [2004] HCA 56 ; (2004) 218 CLR 530 at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ. 360 Thirdly, cl 1.15(g) protected the interests of the bank where, for some legal or other reason, it could not sue (e.g. in respect of a claim for unliquidated damages which accrued before the assignment). Fourthly, the protection of the bank's interest in the goods referred to in cl 1.15(g) is not a right of North East Equity 'in relation to' the new line as contemplated in the notice; it is a distinct right of the bank. 361 North East Equity also argued that the assignment was of a bare right to damages. It was not; the assignment was of a legal chose in action for the reasons I have given.
Case: George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104
Outcome: referred to
The phrase "reasonable grounds to believe" (or variants of it) has a well understood and well settled meaning. In George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 112 the High Court said that: "When a statute prescribes that there must be "reasonable grounds" for a state of mind including suspicion and belief it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person." Later in its joint judgment the Court continued (at 116): "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of mind may, depending on the circumstances, leave something to surmise or conjecture."
Case: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Outcome: referred to
There are, in addition, other obstacles in the path of the applicants' argument. The first is that the Treaty does not form part of Australian domestic law and, therefore, save in an immaterial respect, does not impose binding obligations on the Attorney-General: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-7, 304 and 315.
Case: Bollag v Attorney-General (Cth) (1997) 79 FCR 198
Outcome: referred to
Relevantly, s 7(2) of the Mutual Assistance Act provides that regulations may provide that the Act applies to a foreign country subject to any mutual assistance Treaty between that country and Australia. By s 7(3) of the Act it is provided that, if regulations have been made in accordance with s 7(2), then "this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country." Regulation 4(1) of the Regulations provides that the Act applies to Switzerland "subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty...." These provisions do not have the effect of incorporating the Treaty into Australian domestic law: see Bollag v Attorney-General (Cth) (1997) 79 FCR 198 at 214-6. As the respondents submit, in the absence of inconsistency between the Mutual Assistance Act and the Treaty, the Act applies and the Treaty does not.
Case: Lego Australia Pty Ltd v Paraggio [1994] FCA 1286 ; (1994) 52 FCR 542
Outcome: referred to
It may also be the case, as the respondents argued, that the fact that scope exists for the Requested State to seek elaboration of a request for assistance before making a decision as to whether or not comply, renders the request immune from successful attack unless it be established that the pleaded omissions had occurred by reason of fraud or bad faith: cf Lego Australia Pty Ltd v Paraggio [1994] FCA 1286 ; (1994) 52 FCR 542 at 555-556; Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 400. It is not, however necessary to determine whether this line of authority has application to requests for assistance made under the Mutual Assistance Act.
Case: Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393
Outcome: referred to
It may also be the case, as the respondents argued, that the fact that scope exists for the Requested State to seek elaboration of a request for assistance before making a decision as to whether or not comply, renders the request immune from successful attack unless it be established that the pleaded omissions had occurred by reason of fraud or bad faith: cf Lego Australia Pty Ltd v Paraggio [1994] FCA 1286 ; (1994) 52 FCR 542 at 555-556; Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 400. It is not, however necessary to determine whether this line of authority has application to requests for assistance made under the Mutual Assistance Act.
Case: Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588
Outcome: referred to
Although s 6(1)(n) of the DPP Act , in terms, identifies a 'function' of the DPP, it has been construed as being an empowering provision. In Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 the NSW Court of Appeal held that s 6(1)(n) of the DPP Act conferred a special power on the DPP: see at 597. A similar approach to the construction of s 6(1)(n) of the DPP Act was adopted by a Full Court of this Court in Health Insurance Commission v Freeman (1998) 88 FCR 544 (" Freeman "). Whilst rejecting the notion that s 6(1)(n) empowered the DPP to give legal advice on request to Commonwealth authorities merely because they happened to be investigating the commission of offences under Commonwealth law, it held that such advice might be given in certain circumstances. Merkel J (with whom von Doussa and Carr JJ agreed) held (at 564-5) that: "... in any particular case, the function to which the legal advice is incidental or conducive must be identified. Contrary to the view held within the DPP's office, the DPP is not empowered under the DPP Act to give legal advice, if and when sought, to any Commonwealth authority merely because it is investigating the possible commission of offences under Commonwealth law. Before the precondition in s 6(1)(n) is met there must be some nexus between the investigation being conducted by the authority and a statutory function of the DPP. The nexus must be something more than a mere theoretical possibility that the DPP might institute, carry on or take over a prosecution at some future date. The facts of the particular case or the nature of the alleged offence must, at the very least, establish that the possibility of the DPP becoming involved in a prosecutorial function is a real one. A course of conduct of past referrals of similar matters to the DPP or evidence of an intention to refer the particular matter to the DPP for prosecution may suffice. Ultimately, each case will depend on its own facts." His Honour had earlier (at 561) expressed the view that: " ... it would seem to be incidental or conducive to the DPP's function of prosecuting, carrying on or taking over proceedings, including considering prosecuting, carrying on or taking over proceedings, to give legal advice to any Commonwealth authorities or agencies involved in the investigation of matters which are likely to be the subject of such proceedings, irrespective of whether the proceedings are prospective, imminent or actual. ... For example, it would clearly be "conducive" for the better fulfilment of the prosecutorial functions of the DPP, for advice to be given to an investigative agency to ensure evidential material being gathered by it for the purpose of a prosecution which it is intended to be carried on by the DPP, is being gathered lawfully."
Case: AA Pty Ltd v Australian Crime Commission [2005] FCA 1178
Outcome: referred to
The DPP was a "law enforcement agency" for the purposes of s 59(7) of the Act. In AA Pty Ltd v Australian Crime Commission [2005] FCA 1178 at [19] Finkelstein J held that a Director of Public Prosecutions or an Attorney-General were persons who had general responsibility for the enforcement of the laws of the Commonwealth and were, therefore, law enforcement agencies for the purposes of s 59(7) of the ACC Act . Although his decision was overturned on other grounds by a Full Court (see Australian Crime Commission v AA Pty Ltd [2006] FCAFC 30 ; (2006) 149 FCR 540) , this aspect of his Honour's reasons remained undisturbed. Indeed, the Full Court took a wider view of the term "law enforcement agency" than Finkelstein J had done.
Case: Australian Crime Commission v AA Pty Ltd [2006] FCAFC 30 ; (2006) 149 FCR 540
Outcome: referred to
The DPP was a "law enforcement agency" for the purposes of s 59(7) of the Act. In AA Pty Ltd v Australian Crime Commission [2005] FCA 1178 at [19] Finkelstein J held that a Director of Public Prosecutions or an Attorney-General were persons who had general responsibility for the enforcement of the laws of the Commonwealth and were, therefore, law enforcement agencies for the purposes of s 59(7) of the ACC Act . Although his decision was overturned on other grounds by a Full Court (see Australian Crime Commission v AA Pty Ltd [2006] FCAFC 30 ; (2006) 149 FCR 540) , this aspect of his Honour's reasons remained undisturbed. Indeed, the Full Court took a wider view of the term "law enforcement agency" than Finkelstein J had done.
Case: Bankstown Municipal Council v Fripp [1919] HCA 41 ; (1919) 26 CLR 385
Outcome: cited
is a feature of reg 87(4) of the Defence (Personnel) Regulations , noted by the Full Court in Martincevic [2007] FCAFC 164 ; (2007) 164 FCR 45 at 54, [44] , that, once the Chief of Army (or a delegate) forms the opinion described in that sub-regulation, the service of the member concerned must be terminated. One aspect of that opinion is whether the decision-maker is "satisfied" in terms of reg 87(1)(e) that the member is not suited to be an enlisted member. These features of reg 87 mean that it is one of those provisions where "some fact or event [is] condition upon the existence of which the jurisdiction of a court or tribunal shall depend": R v Federal Court of Australia; ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60 ; (1978) 142 CLR 113 at 125. In this instance, the "fact or event" upon which the jurisdiction of the Chief of Army to terminate the service of a member depends is a state of subjective satisfaction, an opinion. In Bankstown Municipal Council v Fripp [1919] HCA 41 ; (1919) 26 CLR 385 at 403, Isaacs and Rich JJ observed of provisions of this type that they are employed with the object of preventing litigation on matters of jurisdictional fact.
Case: Attorney-General (NSW) v. Perpetual Trustee Company [1952] HCA 2 ; (1951-1952) 85 CLR 237
Outcome: cited
relationship between the Crown and a soldier is not that of employer and employee: Attorney-General (NSW) v Perpetual Trustee Company [1955] AC 457, at 489-490; Attorney-General (NSW) v Perpetual Trustee Company [1952] HCA 2 ; (1951-1952) 85 CLR 237 , at 301-302 per Kitto J. At common law, the relationship between the Crown and a soldier may be terminated without notice and for any reason, no reason or a mistaken reason: The Commonwealth v Welsh [1947] HCA 14 ; (1947) 74 CLR 245 , at 257-258 per Latham CJ, McTiernan J agreeing; at 262 per Rich J, at 274 per Williams J; Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 105 per Brennan J.
Case: Attorney-General (NSW) v. Perpetual Trustee Company [1955] AC 457
Outcome: cited
relationship between the Crown and a soldier is not that of employer and employee: Attorney-General (NSW) v Perpetual Trustee Company [1955] AC 457, at 489-490; Attorney-General (NSW) v Perpetual Trustee Company [1952] HCA 2 ; (1951-1952) 85 CLR 237 , at 301-302 per Kitto J. At common law, the relationship between the Crown and a soldier may be terminated without notice and for any reason, no reason or a mistaken reason: The Commonwealth v Welsh [1947] HCA 14 ; (1947) 74 CLR 245 , at 257-258 per Latham CJ, McTiernan J agreeing; at 262 per Rich J, at 274 per Williams J; Coutts v The Commonwealth [1985] HCA 40 ; (1984-1985) 157 CLR 91 , at 105 per Brennan J.