mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 226
Outcome: cited
On the first occasion such relief was sought, Kiefel J on 10 March 2005 declined to make orders of the Mareva kind but did make Anton Pillar orders by which the Respondents were ordered to permit the Applicant's solicitor, Mr Peter Mills, and other nominated persons together with independent supervising solicitors to enter the premises of the Respondents and search for, inspect and remove into the custody of the nominated individuals, documents listed in Schedule A of that order. The Respondents were also ordered to deliver up to the Applicant all originals and copies of the documents and classes of documents identified in Schedule A to the order. See: Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 226. 4 Kiefel J declined to make a Mareva order on the basis that the evidence did not establish a real risk that the Second Respondent might dispose of or deal with his assets. Her Honour observed that the evidence established that the First Respondent did not have any assets. Her Honour further observed that the Applicant must establish a sufficient likelihood of risk which, in the circumstances of the particular case, justified an asset preservation order.
Case: Jackson v Stirling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612
Outcome: applied
The Applicant now contends that since then, circumstances have changed and material is now available arising out of the execution of the Anton Pillar orders and other material which reveals facts from which, on an interlocutory basis, a conclusion can safely be reached that the Applicant has a demonstrated claim of real strength against both Respondents, inferences of dishonest conduct and the secretion of monies on the part of the Second Respondent are plainly open and there is a real risk that either the Second Respondent or third party entities controlled by the Second Respondent will dispose of "assets (including claims and expectancies) so as to frustrate the process of the Court by depriving the plaintiff of the fruits of any judgment obtained in the action": Jackson v Stirling Industries Ltd [1987] HCA 23 ; (1987) 162 CLR 612 per Deane J at 625. 6 The Applicant says this is the class of case where an analysis of the essential character of the conduct of the Second Respondent reveals duplicity and dishonesty and in such a case, the Court will readily draw an inference of real and serious risk to the Applicant of dissipation of assets, particularly movable assets. Accordingly, it will be necessary to examine the foundation of the Applicant's claims in a little more detail than usual for interlocutory purposes. 7 Accordingly, the Applicant seeks orders appropriately framed to serve the purpose of preventing the Second Respondent from effecting such a deprivation: Jackson v Stirling Industries Ltd (supra) at 625. 8 Orders are not sought against the First Respondent since, on 16 February 2006 a liquidator was appointed by the Supreme Court of Queensland to the First Respondent on the application of an unsecured creditor, Mr Roger de Saint Quentin. By operation of s471B of the Corporations Act 2001 (Cth), the Applicant cannot proceed with the present action against the First Respondent (which is being wound up in insolvency) or proceed with enforcement process in relation to property of the First Respondent except with leave of the Court and on such terms as the Court determines. No application has yet been made for leave to proceed against the First Respondent. The Applicant says, based upon searches and enquiries reflected in the affidavit material that the First Respondent has no identifiable assets. The Applicant says it is presently assessing its position in relation to the First Respondent. 9 On 19 April 2006, the liquidator wrote to Forbes Dowling, Lawyers, the agents for the solicitors for the Applicant advising that the liquidator would not appear at the hearing of the Notice of Motion and had no objection to the orders sought. Notwithstanding that letter, no interlocutory relief (and no leave) is sought against the First Respondent, in liquidation.
Case: Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622
Outcome: discussed
AIPA's case was that, by the time of the terms of settlement (dated 4 August 2005), or at the latest by the time of the Explanatory Note (dated 28 September 2005), there existed a binding agreement between AIPA and Qantas concerning non-pertaining provisions. The agreement was said to fall within the first class referred to in Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353 at 360, or into the "fourth class", said to be identified by McLelland J in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 at 628.
Case: Sinclair, Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310
Outcome: referred to
The "fourth class", identified by McLelland J in the Baulkham Hills case at 628 is there described using the words of Knox CJ, Rich and Dixon JJ in Sinclair, Scott &amp; Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 317: one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms. 75 There must be some doubt as to whether a case described in these terms falls within a fourth class, additional to those described in Masters v Cameron . Assuming the existence of a binding agreement, it is always open to the parties to that agreement to vary it by adding additional terms. Viewed in that light, the so-called fourth class appears not to differ from the first or second classes referred to in Masters v Cameron . Although the New South Wales Court of Appeal upheld McLelland J's judgment, there is no reference in the judgment of McHugh JA, with whom Kirby P and Glass JA agreed, to Masters v Cameron , or to a "fourth class". In G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 635-636, McHugh JA said: If the parties agreed on additional terms, they would be added to the formal contract. If they did not, the formal contract would give effect only to the agreed terms and conditions of the correspondence. The case, therefore, is one where the parties were bound by the informal agreement but expected to make a further contract which by consent might contain additional terms: Sinclair, Scott &amp; Co Ltd v Naughton.
Case: G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Outcome: discussed
There must be some doubt as to whether a case described in these terms falls within a fourth class, additional to those described in Masters v Cameron . Assuming the existence of a binding agreement, it is always open to the parties to that agreement to vary it by adding additional terms. Viewed in that light, the so-called fourth class appears not to differ from the first or second classes referred to in Masters v Cameron . Although the New South Wales Court of Appeal upheld McLelland J's judgment, there is no reference in the judgment of McHugh JA, with whom Kirby P and Glass JA agreed, to Masters v Cameron , or to a "fourth class". In G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 635-636, McHugh JA said: If the parties agreed on additional terms, they would be added to the formal contract. If they did not, the formal contract would give effect only to the agreed terms and conditions of the correspondence. The case, therefore, is one where the parties were bound by the informal agreement but expected to make a further contract which by consent might contain additional terms: Sinclair, Scott &amp; Co Ltd v Naughton.
Case: Australian and New Zealand Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695
Outcome: discussed
Before considering whether the suggested implied term meets these criteria, it is necessary to deal with one argument. That argument is based on the proposition found in the judgment of Kaye J, with whom Marks and Teague JJ agreed, in Australian and New Zealand Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695 at 702, that "the law does not permit a court to imply a term into a bargain between parties for the purposes of making their bargain an enforceable contract." If this proposition is to be taken at face value, it is hard to see how most of the cases in which it has been held that there are implied terms in contracts could have been so decided. There have been numerous cases in which courts have held that implied terms that the performance of agreed obligations take place within a reasonable time, or that a party may bring about the termination of agreed obligations by giving reasonable notice, are available to ensure the binding nature of those agreed obligations. In the words of the Privy Council in the B.P. case, such implied terms are "necessary to give business efficacy" to the contracts of which they are found to be part. The danger of taking the proposition expressed by Kaye J at face value is obvious. Such a proposition could lead to arguments akin to those about whether the chicken came before the egg, or the egg before the chicken. Was there already an agreement, so that it can be supplemented by an implied term to give it efficacy, or was there no binding agreement because there was no express agreement about the subject matter of the implied term? In my view, Kaye J intended to mean no more than that the parties must have agreed to be bound by the obligations they have expressed in their negotiations, before the question whether a term can be implied to give that agreement efficacy can be addressed. It is on that basis that I approach the present case.
Case: Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540
Outcome: cited
Counsel for AIPA objected to evidence about negotiations between the parties after 28 September 2005, except to the extent that their content might cast light on the meaning of terms already expressed between the parties, as was suggested in Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550 per Gleeson CJ, with whom Hope JA and Mahoney JA agreed. In my view, what took place between AIPA and Qantas after 28 September 2005 is relevant in determining whether there remained matters unresolved between the parties. If one of those unresolved matters was the question of duration, then there was no concluded agreement, because an essential term was never agreed.
Case: Gibson Motor Sport Merchandise Pty Ltd v Forbes [2005] FCA 749
Outcome: cited
Counsel for AIPA relied on authorities in which it was held that agreements were subject to implied terms that their duration would match the duration of other agreements to which they were related. The specific cases are Gibson Motor Sport Merchandise Pty Ltd v Forbes [2005] FCA 749 and Caltex Properties Ltd (in liq) v Love and Ors (unreported, Supreme Court of Western Australia, Parker J, 14 May 1995). These cases turn on their own facts. They do not establish the existence of any principle that, because two agreements can be said to be related, a term must be implied into the one lacking any express term about duration that its duration will match that of the other, the duration of which has been agreed expressly.
Case: Caltex Properties Ltd (in liq) v Love and Ors (unreported, Supreme Court of Western Australia, Parker J, 14 May 1995)
Outcome: cited
Counsel for AIPA relied on authorities in which it was held that agreements were subject to implied terms that their duration would match the duration of other agreements to which they were related. The specific cases are Gibson Motor Sport Merchandise Pty Ltd v Forbes [2005] FCA 749 and Caltex Properties Ltd (in liq) v Love and Ors (unreported, Supreme Court of Western Australia, Parker J, 14 May 1995). These cases turn on their own facts. They do not establish the existence of any principle that, because two agreements can be said to be related, a term must be implied into the one lacking any express term about duration that its duration will match that of the other, the duration of which has been agreed expressly.
Case: R v Portus; Ex parte ANZ Banking Group Ltd [1972] HCA 57 ; (1972) 127 CLR 353
Outcome: distinguished
In Electrolux , the High Court affirmed the line of authority consisting of R v Portus; Ex parte ANZ Banking Group Ltd [1972] HCA 57 ; (1972) 127 CLR 353 and Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34 ; (1994) 181 CLR 96. Each of those cases involved claims made by unions which, if acceded to by employers, would have obliged the employers to deduct from wages earned by their employees amounts by way of union dues, and to pay those amounts to the relevant union. In each case, it was held that such claims did not pertain to the relationship between employers and employees in their capacity as such. In Alcan , the High Court was invited to overturn Portus , but declined to do so. The claims in question in Portus and Alcan had both the first and second characteristics of the provisions in question in Electrolux . 116 Clauses 45 and 46 and the related provisions of EBA6 are of a very different character from the provisions that were the subject of Electrolux . They involve none of the three significant characteristics of the provisions the subject of Electrolux . There is no obligation on Qantas to deduct money from wages or salary that would otherwise be paid to any of its employees, or to pay any amount so deducted to any party other than Qantas. AIPA is not the intended recipient of any money from Qantas. The provisions in question in this case bind Qantas in relation to its existing employees, particularly those who are already members of AIPA. The provisions bear no resemblance to those that were the subject of Portus or Alcan . Any debts created by cll 45 and 46 and the related provisions of EBA6 are debts due from Qantas to its own existing employees, and relate to the relationship between Qantas and its own employees. The provisions do more than simply strengthen the position of AIPA, although they are certainly intended to accomplish that. They accomplish it by regulating the hours of work of Qantas's employees and the amounts of money to be paid to those employees. No question of deduction of any money from anything that would otherwise be paid to an employee arises. No agency relationship between AIPA and Qantas could possibly be created. There is no question of payment by any non-member to AIPA.
Case: Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34 ; (1994) 181 CLR 96
Outcome: distinguished
In Electrolux , the High Court affirmed the line of authority consisting of R v Portus; Ex parte ANZ Banking Group Ltd [1972] HCA 57 ; (1972) 127 CLR 353 and Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34 ; (1994) 181 CLR 96. Each of those cases involved claims made by unions which, if acceded to by employers, would have obliged the employers to deduct from wages earned by their employees amounts by way of union dues, and to pay those amounts to the relevant union. In each case, it was held that such claims did not pertain to the relationship between employers and employees in their capacity as such. In Alcan , the High Court was invited to overturn Portus , but declined to do so. The claims in question in Portus and Alcan had both the first and second characteristics of the provisions in question in Electrolux . 116 Clauses 45 and 46 and the related provisions of EBA6 are of a very different character from the provisions that were the subject of Electrolux . They involve none of the three significant characteristics of the provisions the subject of Electrolux . There is no obligation on Qantas to deduct money from wages or salary that would otherwise be paid to any of its employees, or to pay any amount so deducted to any party other than Qantas. AIPA is not the intended recipient of any money from Qantas. The provisions in question in this case bind Qantas in relation to its existing employees, particularly those who are already members of AIPA. The provisions bear no resemblance to those that were the subject of Portus or Alcan . Any debts created by cll 45 and 46 and the related provisions of EBA6 are debts due from Qantas to its own existing employees, and relate to the relationship between Qantas and its own employees. The provisions do more than simply strengthen the position of AIPA, although they are certainly intended to accomplish that. They accomplish it by regulating the hours of work of Qantas's employees and the amounts of money to be paid to those employees. No question of deduction of any money from anything that would otherwise be paid to an employee arises. No agency relationship between AIPA and Qantas could possibly be created. There is no question of payment by any non-member to AIPA.
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: followed
The other ground which was argued was that the Tribunal had erred by failing to consider whether the appellant had been persecuted by reason of her membership of a particular social group. This ground was not raised expressly before the Tribunal nor was material presented by the appellant which made it necessary for the Tribunal to consider and determine the issue. Even if it be assumed, in the appellant's favour, that a particular social group of the kind identified by counsel existed, the Tribunal's findings that the appellant had not been subject to conduct which amounted to persecution means that she does not satisfy the Convention definition of a "refugee". If she was not persecuted the question of the reason for any alleged persecution does not arise. It cannot, therefore, be said that the Tribunal's failure to deal with the issue meant that a claim which might have been dispositive of the application had been ignored: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [63] . In any event this was not a ground that was argued before the Federal Magistrate. I note also that, when asked by the Tribunal whether she knew of any other women who had a similar problem to her in Thailand, she answered that she did not. 22 The appeal should be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 3 March 2008 Counsel for the Appellant: Mr J A Patel Counsel for the Respondent: Ms E Latif Solicitor for the Respondent: Clayton Utz Date of Hearing: 3 March 2008 Date of Judgment: 3 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/207.html
Case: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Outcome: discussed
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the majority of the High Court (McHugh, Gummow, Kirby and Hayne JJ) said at [93]: In our opinion the Court of Appeal of New South Wales was correct ... in criticising the continued use of the "elusive distinction between directory and mandatory requirements" ... and the division of directory acts into those which have substantially complied with the statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. ... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. To my mind, s 601FJ(2) offers only limited assistance in considering that question. The Shorter Oxford Dictionary (4th ed, Oxford University Press, 1993) defines the word "accordance" as: "Agreement; conformity; harmony." The word "conformity" is defined as: "Correspondence in form or manner ( to, with ); agreement in character; likeness; congruity. ... Action in accordance with some standard; compliance ( with, to ); acquiescence ... ". The BT defendants submit that the words do not generally prescribe strict compliance. In MTM Funds Management Ltd v Cavalane Holdings Pty Ltd (2000) 158 FLR 121, Austin J helpfully summarized a number of the cases. However his Honour was concerned with a slightly different question. For present purposes, it is necessary that I go to those cases. If I am wrong both in my construction of s 601FM(1) and s 601FJ(2) , so that the resolution is void, the BT defendants submit that it may be validated pursuant to s 1322. Further, as was pointed out in Project Blue Sky (1998) 194 CLR 355 at [100] invalidity may not be the only basis for restraining action in reliance upon a non-compliant resolution. Even an irregularity not leading to invalidity may be a basis for such relief.
Case: MTM Funds Management Ltd v Cavalane Holdings Pty Ltd (2000) 158 FLR 121
Outcome: considered
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the majority of the High Court (McHugh, Gummow, Kirby and Hayne JJ) said at [93]: In our opinion the Court of Appeal of New South Wales was correct ... in criticising the continued use of the "elusive distinction between directory and mandatory requirements" ... and the division of directory acts into those which have substantially complied with the statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. ... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. To my mind, s 601FJ(2) offers only limited assistance in considering that question. The Shorter Oxford Dictionary (4th ed, Oxford University Press, 1993) defines the word "accordance" as: "Agreement; conformity; harmony." The word "conformity" is defined as: "Correspondence in form or manner ( to, with ); agreement in character; likeness; congruity. ... Action in accordance with some standard; compliance ( with, to ); acquiescence ... ". The BT defendants submit that the words do not generally prescribe strict compliance. In MTM Funds Management Ltd v Cavalane Holdings Pty Ltd (2000) 158 FLR 121, Austin J helpfully summarized a number of the cases. However his Honour was concerned with a slightly different question. For present purposes, it is necessary that I go to those cases.