mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: D&eacute;cor Corporation v Dart Industries [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: applied
Leave to appeal is required because the judgment below is interlocutory. The applicant's application was rejected as disclosing no arguable case pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Leave to appeal will only be granted where two criteria are satisfied. The first is that, in all the circumstances, the judgment below is attended with sufficient doubt to warrant it being reconsidered on appeal. The second is whether substantial injustice would result if leave were refused, supposing the first instance decision was wrong: see D&eacute;cor Corporation v Dart Industries [1991] FCA 655 ; (1991) 33 FCR 397. 3 The applicant is a citizen of India. He said that his father financed his travel to Australia by borrowing a large amount of money on the security of his father's house. He said he could be in some danger if he returned to India without having earned money to repay his father and that his family may abandon him. 4 The Tribunal found no connection between the applicant's concerns and persecution of a kind referred to in the Refugees Convention. It also considered that the applicant would not face a real chance of persecution as a result of his involvement in a single protest against the government.
Case: SZKDY v Minister for Immigration and Citizenship [2007] FMCA 1038
Outcome: affirmed
This is an appeal from a decision of Emmett FM of 4 July 2007 in which her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) ( SZKDY v Minister for Immigration and Citizenship [2007] FMCA 1038). The Tribunal affirmed a decision of the Minister's delegate to refuse the appellants a protection visa. The appellants' notice of appeal was drafted prior to them seeing the reasons of the learned Federal Magistrate and does not include any appropriate ground of appeal. That remains the position, there having been no amendment to it. 2 The substantial point at issue in the case is the so-called "relocation" principle. The appellants are citizens of Bulgaria and live together in a de-facto relationship. The female appellant sought a protection visa on the basis that she held a well-founded fear of persecution by her former husband and her membership of a social group defined as "Bulgarian women suffering domestic violence." The male appellant's claim is made on the basis of his association with the female appellant. The Tribunal accepted that she was a member of such a social group and that she would have a well-founded fear of persecution by her former husband if it were not for her ability to relocate within Bulgaria.
Case: NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 37
Outcome: cited
The Tribunal, in considering that question, applied the law as it was understood at that time which was prior to the decisions of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 and S ZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660. The learned Federal Magistrate considered the appeal on the basis of the existing decisions of the Full Court of this Court, namely, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 37 , and found that there was no error in the Tribunal's conclusion based upon those principles. The Federal Magistrate set out a summary of the Tribunal's findings on that issue.
Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: cited
The Tribunal, in considering that question, applied the law as it was understood at that time which was prior to the decisions of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 and S ZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660. The learned Federal Magistrate considered the appeal on the basis of the existing decisions of the Full Court of this Court, namely, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 37 , and found that there was no error in the Tribunal's conclusion based upon those principles. The Federal Magistrate set out a summary of the Tribunal's findings on that issue. 4 The appellants, although not having framed any ground of appeal, referred me to some writings on relocation which, again, are based upon Randhawa 52 FCR 437. They submit that Bulgaria is a small country and that, effectively, relocation could not be effective because, as it was put, "Everybody knows everybody else," and presumably, that they could easily travel to where the other person is. That basis for attacking the judgment of the Federal Magistrate cannot succeed because it raises what is, essentially, a question of fact. It is not the task of the Federal Magistrates Court to make findings of fact. That is the province of the Tribunal. On judicial review, the Federal Magistrates Court is limited to assessing whether or not there was jurisdictional error. 5 Although the appellants point to no error in principle or law by the learned Federal Magistrate which would support an appeal, I have looked carefully at the matter because of the fact that, subsequent to the decisions by the Tribunal and Emmett FM, the High Court considered the issue. I have had assistance from counsel for the Minister in analysing the approach of the High Court in the relevant decisions as to whether or not that amounts to any revision of the principles laid down in Randhawa 52 FCR 437. It is not necessary, for the purposes of this case, to consider that in a general way. I should focus upon the facts of this particular case.
Case: S ZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660
Outcome: applied
The Tribunal, in considering that question, applied the law as it was understood at that time which was prior to the decisions of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 and S ZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660. The learned Federal Magistrate considered the appeal on the basis of the existing decisions of the Full Court of this Court, namely, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 37 , and found that there was no error in the Tribunal's conclusion based upon those principles. The Federal Magistrate set out a summary of the Tribunal's findings on that issue.
Case: Australian Securities and Investment Commission v GDK Financial Solutions Pty Ltd (in liq) (No 4) [2008] FCA 1071
Outcome: followed
There is no general rule that parties having knowledge of a prior contract between different parties may not subsequently enter into a contract with fundamentally inconsistent terms. As I explained in Australian Securities and Investment Commission v GDK Financial Solutions Pty Ltd (in liq) (No 4) [2008] FCA 1071 at [98] - [100] , the lack of any such rule is the inevitable consequence of the efficient breach theory of contract, which, although it has occasionally been criticised, remains the controlling theory of contract damages under Australian law: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [159] .
Case: CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680
Outcome: cited
The respondents admit they breached an implied term of the Offer Letter, namely that the respondents would not seek to prevent performance of the Offer Letter or withhold its benefits: Butt v M'Donald (1896) 7 QLJ 68, 70-71 cited and referred to in Secured Income Real Estate (Australia) Ltd v St Martins Investment Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 , 607; Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 and CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680. The event which the respondents said gave rise to the breach was the execution of the Woolworths' Letter of Offer on 18 March 2008. However, despite the generous admission of the respondents, I cannot accept that execution of the 18 March 2008 letter constituted a breach of the Butt v M'Donald term. 54 The respondents disputed that they had breached cl 26 on the basis that unless and until Coles proffered an AFL that they wanted to execute, there could be no breach and that no such AFL was proffered by Coles until 23 June 2008. The respondents also disputed that they breached the implied obligation to act in good faith on the basis that no such term exists: Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 and CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680 at [131]-[143].
Case: Concrete Constructions Group v Litevale Pty Ltd (2002) 170 FLR 290
Outcome: followed
The interaction between the TPA and the law of contract is interesting and has been the subject of previous consideration: see by way of example Concrete Constructions Group v Litevale Pty Ltd (2002) 170 FLR 290; Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217; Mander Forklift Pty Ltd v Dairy Farmers Co-operative (1990) ATPR (Digest) 46-061.
Case: Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 ; (2007) 73 IPR 326
Outcome: cited
The question of the equitable breach of confidentiality alleged by Coles is in a different category. The conduct relied upon by Coles to make out this claim is the same conduct that I have found constitutes a breach of the confidentiality term in the Offer Letter. Coles argues that equitable and legal obligations of confidence can co-exist. I disagree. In my view, no equitable duty of confidence arises where there is a contractual duty: see Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 ; (2007) 73 IPR 326 at [118] . The fundamental rule is that equity will not intervene where there is an adequate remedy at law. This was recognised by Fullagar J in Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 , 195, where his Honour considered that equity would withhold further remedies for breach of confidence where adequate remedies were available at law.
Case: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167
Outcome: cited
The question of the equitable breach of confidentiality alleged by Coles is in a different category. The conduct relied upon by Coles to make out this claim is the same conduct that I have found constitutes a breach of the confidentiality term in the Offer Letter. Coles argues that equitable and legal obligations of confidence can co-exist. I disagree. In my view, no equitable duty of confidence arises where there is a contractual duty: see Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 ; (2007) 73 IPR 326 at [118] . The fundamental rule is that equity will not intervene where there is an adequate remedy at law. This was recognised by Fullagar J in Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 , 195, where his Honour considered that equity would withhold further remedies for breach of confidence where adequate remedies were available at law.
Case: DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423
Outcome: cited
Finally, I am of the view that when the respondents informed Coles on 27 March 2008 (see [37 (17)] above) that they were ceasing negotiations with it, that conduct constituted anticipatory breach of the Offer Letter which, in the circumstances which followed, was also a repudiation of that contract: DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423. The relevant circumstances include the fact that the respondents refused to sign the eleventh draft of the AFL sent by Coles to FKP on 23 June 2008 which by then included the resolution of the three outstanding issues in the manner proposed by FKP on 31 January 2008 (see [21 (15)] above) which had initially been rejected by Coles. If that were not enough, by the time these proceedings were commenced in July 2008, it was clear from the manner in which the respondents have defended these proceedings that they have not and do not intend to further perform the Offer Letter, however construed: see DTR Nominees 138 CLR at 434. 60 I should note that my review of the Offer Letter in light of the evidence suggests that the respondents probably committed additional breaches of it. For example, cl 21 of the Offer Letter required the respondents to retain ownership of the premises at least until the Lease was executed. The clause also stated that the Lessor would be liable for "loss, expense or damage" caused by disposal of all or part of its interest in the Centre prior to execution of the Lease. If the respondents conveyed a leasehold interest over the Tarneit Property to Woolworths (there was no evidence of an executed or registered Lease between Woolworths and the respondents, only a letter of offer and an admission of an executed AFL), it would appear to be a breach of cl 21. However, as this and other potential additional breaches were neither pleaded nor squarely raised by the evidence or submissions, I will not address them further.
Case: Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228
Outcome: cited
The respondents admit they breached an implied term of the Offer Letter, namely that the respondents would not seek to prevent performance of the Offer Letter or withhold its benefits: Butt v M'Donald (1896) 7 QLJ 68, 70-71 cited and referred to in Secured Income Real Estate (Australia) Ltd v St Martins Investment Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 , 607; Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 and CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680. The event which the respondents said gave rise to the breach was the execution of the Woolworths' Letter of Offer on 18 March 2008. However, despite the generous admission of the respondents, I cannot accept that execution of the 18 March 2008 letter constituted a breach of the Butt v M'Donald term. 54 The respondents disputed that they had breached cl 26 on the basis that unless and until Coles proffered an AFL that they wanted to execute, there could be no breach and that no such AFL was proffered by Coles until 23 June 2008. The respondents also disputed that they breached the implied obligation to act in good faith on the basis that no such term exists: Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 and CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680 at [131]-[143].
Case: Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385
Outcome: cited
The relief to which Coles is entitled as a consequence of these breaches is a matter to be addressed in subsequent proceedings. With respect to the third breach (the anticipatory breach), for example, there is a question as to whether a plaintiff's election to hold the party to the agreement rather than rescind means that it cannot claim damages. It is sufficient for present purposes to note that some authorities suggest that anticipatory breach entitles Coles to damages only if it terminates the Offer Letter: see Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17 , 48 and Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 , 416-417, 441-442). Of course any issue in that regard may be moot in light of the actual breaches: see Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21 ; (1976) 136 CLR 444 , 450; Huppert v Stock Options of Australia Pty Ltd [1965] HCA 30 ; (1965) 112 CLR 414 , 422-423, 426 and 431.
Case: Golden Sands Pty Ltd v Excel Quarries Pty Ltd [2008] VSC 276
Outcome: cited
This view has been consistently followed over the years, most recently in Golden Sands Pty Ltd v Excel Quarries Pty Ltd [2008] VSC 276 at [302] n 41. Again, however, even if it were not a matter of settled authority, I would apply such a rule as a matter of logic and basic principle. As a matter of basic contract law, a term will not be implied except in very limited circumstances (primarily where it is obvious, reasonable and necessary to make the contract work): Golden Sands at [223] and authorities there cited. In this case, Coles' alleged representation by silence and implication effectively amounts to a claim that there was an implied term of exclusivity - that is, that the respondents would negotiate exclusively with Coles - in circumstances where such a term could not be implied under contract law because it is not necessary to make the contract work. Thus not only would the rule that s 52 imposes a duty to advise as to the subjective interpretation of the contract destroy objective contract theory, it would also provide a means around the limitations on the implication of terms under the law of contract. 74 So radical a position cannot be accepted. In my view, the failure of the respondents to disclose their subjective view that the Offer Letter (or a particular clause therein) was not binding, that they would not adhere to a particular interpretation of a clause, or that they considered themselves free to take on or pursue agreements containing obligations inconsistent with those arising under the Offer Letter is not actionable under s 52 of the TPA. 75 Further, I should note that even if, contrary to the view I have formed, the representations alleged by Coles were actionable under s 52 , there would be a real question as to whether Coles is entitled to any relief over and above what it might get in contract, given that Coles seeks only damages under s 82 of the TPA.
Case: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157
Outcome: cited
There is no general rule that parties having knowledge of a prior contract between different parties may not subsequently enter into a contract with fundamentally inconsistent terms. As I explained in Australian Securities and Investment Commission v GDK Financial Solutions Pty Ltd (in liq) (No 4) [2008] FCA 1071 at [98] - [100] , the lack of any such rule is the inevitable consequence of the efficient breach theory of contract, which, although it has occasionally been criticised, remains the controlling theory of contract damages under Australian law: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [159] .
Case: Huppert v Stock Options of Australia Pty Ltd [1965] HCA 30 ; (1965) 112 CLR 414
Outcome: cited
The relief to which Coles is entitled as a consequence of these breaches is a matter to be addressed in subsequent proceedings. With respect to the third breach (the anticipatory breach), for example, there is a question as to whether a plaintiff's election to hold the party to the agreement rather than rescind means that it cannot claim damages. It is sufficient for present purposes to note that some authorities suggest that anticipatory breach entitles Coles to damages only if it terminates the Offer Letter: see Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17 , 48 and Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 , 416-417, 441-442). Of course any issue in that regard may be moot in light of the actual breaches: see Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21 ; (1976) 136 CLR 444 , 450; Huppert v Stock Options of Australia Pty Ltd [1965] HCA 30 ; (1965) 112 CLR 414 , 422-423, 426 and 431.
Case: Mander Forklift Pty Ltd v Dairy Farmers Co-operative (1990) ATPR (Digest) 46-061
Outcome: followed
The interaction between the TPA and the law of contract is interesting and has been the subject of previous consideration: see by way of example Concrete Constructions Group v Litevale Pty Ltd (2002) 170 FLR 290; Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217; Mander Forklift Pty Ltd v Dairy Farmers Co-operative (1990) ATPR (Digest) 46-061. 72 In Mander Forklift , Cole J stated the rule regarding representations by silence or implication as bearing on the interpretation or performance of a contract: Silence concerning a view of the proper interpretation of a contract, or that a mutually known term of a contract will be enforced can rarely, if ever, constitute conduct within s 4(2) of the Trade Practices Act 197[4] (generally see Rhone-Poulenc Agrochimie SA v IUM Chemical Services Pty Ltd (1986) 12 FCR 477 ; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 40 ; (1988) 79 ALR 83. To construe s 52 as imposing an obligation upon a party to a contract to advise the other party both of its interpretation of clauses in the contract, and that the clauses in the contract will be enforced or adhered to destroys the very basis of objective interpretation of contracts to which Mason J referred in Codelfa [ Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337] , 352).
Case: Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353
Outcome: cited
I reject those contentions. As the history of the negotiations records, it was just that, negotiations. No concluded AFL or Lease was ever prepared or executed. Moreover, there was also no informal agreement (whether by 8 January 2008 or otherwise) evidenced by the chain of drafts in respect of major points objectively demonstrating a present intent of the parties to be bound so as to fall within the so-called fourth category of Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353: see Carminco Gold (2007) 243 ALR 472 and Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 at [25] - [29] . 55 Whether an implied obligation of good faith independently exists and to what extent it might differ from the Butt v M'Donald term are complicated and hotly debated issues in contract law. Moreover, it would not be a simple matter to determine the extent of the respondents' obligation under cl 26 to negotiate and accept an AFL and Lease. (Indeed, that is always a problem in Masters v Cameron heads-of-agreement type cases where later negotiations break down.) For example, at what point could Coles throw its hands up and say that the respondents were unreasonably refusing to negotiate or accept an AFL or Lease such that the default terms ought to apply?
Case: Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21 ; (1976) 136 CLR 444
Outcome: cited
The relief to which Coles is entitled as a consequence of these breaches is a matter to be addressed in subsequent proceedings. With respect to the third breach (the anticipatory breach), for example, there is a question as to whether a plaintiff's election to hold the party to the agreement rather than rescind means that it cannot claim damages. It is sufficient for present purposes to note that some authorities suggest that anticipatory breach entitles Coles to damages only if it terminates the Offer Letter: see Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17 , 48 and Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 , 416-417, 441-442). Of course any issue in that regard may be moot in light of the actual breaches: see Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21 ; (1976) 136 CLR 444 , 450; Huppert v Stock Options of Australia Pty Ltd [1965] HCA 30 ; (1965) 112 CLR 414 , 422-423, 426 and 431.