mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Co-Operative Insurance Society Ltd v Argyll Stores Holdings Ltd [1998] AC 1
Outcome: applied
generation later, in Co-Operative Insurance Society Ltd v Argyll Stores Holdings Ltd [1998] AC 1 at 14, Lord Hoffman, with whom the other members of the House agreed, in the course of a speech which contains much detailed reflection on the subject of considerations relevant to the granting of mandatory injunctions, referred to that passage from Lord Upjohn's speech and stated: Precision is of course a question of degree and the courts have shown themselves willing to cope with a certain degree of imprecision in cases of orders requiring the achievement of a result in which the plaintiff's merits appeared strong; like all the reasons which I have been discussing, it is, taken alone, merely a discretionary matter to be taken into account: see Spry on Equitable Remedies (4th ed.) at p. 112. It is, however, a very important one. It is not at this interlocutory stage possible to determine whether the merits of the Conservation Council's case are strong and the extent to which, as a matter of discretion, that should influence the framing of any injunctive relief. In conferring the jurisdiction under s 475 to grant mandatory injunctive relief Parliament has envisaged an exercise of the judicial power of the Commonwealth by a court that is one of law and equity. Where a contravention is proved, the granting of a mandatory injunction requires the exercise of a judicial discretion. However, the jurisdiction is statutory, not an incident of the general law of equity.
Case: H 1976 Nominees v Galli [1979] FCA 74 ; (1979) 30 ALR 181
Outcome: cited
Burnett Water correctly notes in its submissions, there is ample authority to support the striking out of a pleading of this kind on a strict application of a pleading rule such as O 11 r 2(a) of the Federal Court Rules : H 1976 Nominees v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186-187; Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-115 and McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 418, [23] . Particulars are not a substitute for the allegation of material facts: H 1976 Nominees v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186-187. Equally though, as Burnett Water fairly concedes, there is a discernable tendency in modern times against striking out when a pleading even with such a technical fault can be seen fairly to convey when read as a whole, including its so-called particulars, the case which a respondent has to answer: Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 at 42,827-9.
Case: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 ; (2006) 154 FCR 425
Outcome: considered
are features of the jurisdiction so conferred which set aside considerations which might, under the general law of equity, dispose a court not to grant injunctive relief at all. Thus, s 479(2) provides: Mandatory injunctions (2) The Federal Court may grant an injunction requiring a person to do a particular act or thing: (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do the act or thing; and (b) whether or not the person has previously refused or failed to do the act or thing; and (c) whether or not there is a significant risk of injury or damage to human beings or the environment if the person refuses or fails, or continues to refuse or fail, to do the act or thing. In light of this provision Parliament must be taken to have considered that there were public interests arising from the objects of the EPBC Act in the case of, materially, a proved contravention of a condition of an approval for the taking of an "action" which, in particular cases, would transcend the considerations referred to in s 479(2) and, notwithstanding those considerations, warrant the granting of a mandatory injunction. As Black CJ and Finkelstein J reminded in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 ; (2006) 154 FCR 425 at 431, [18] , s 475 of the EPBC Act makes provision for a remedy of a kind that has come to be known as a public interest injunction.
Case: Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114
Outcome: considered
these allegations, allegation (a) would at least require particulars of the alleged unsuitability of the installed device. Particulars may also be required of the facts, matters and circumstances by reference to which it was alleged that Burnett Water was aware of the risk concerned. Were such particulars not to be furnished, a modern pleading rule such as O 12 r 5(2)(a) of the Federal Court Rules would enable them to be ordered, as Fitzgerald J (as his Honour then was) highlighted by reference to English authority in Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 47 ALR 114 at 124-126. As to allegation (b), this would at least require particulars of the circumstances said to be known to Burnett Water. Again, given the disposition of the application, it is unnecessary to decide whether the Conservation Council should be ordered to furnish particulars of the individuals by whose conduct Burnett Water is said to have been reckless. However, the foundation for the request does require comment. That foundation was based on what one might describe as "reverse engineering", grounded in ss 498B(1) and 498B(2) of the EPBC Act. These provide: 498B Conduct of directors, employees and agents Bodies corporate&#8212;conduct (1) Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent; is to be taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct. Bodies corporate&#8212;state of mind (2) If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by a person as mentioned in paragraph (1)(a) or (b); and (b) that the person had that state of mind.
Case: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409
Outcome: cited
Burnett Water correctly notes in its submissions, there is ample authority to support the striking out of a pleading of this kind on a strict application of a pleading rule such as O 11 r 2(a) of the Federal Court Rules : H 1976 Nominees v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186-187; Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-115 and McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 418, [23] . Particulars are not a substitute for the allegation of material facts: H 1976 Nominees v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186-187. Equally though, as Burnett Water fairly concedes, there is a discernable tendency in modern times against striking out when a pleading even with such a technical fault can be seen fairly to convey when read as a whole, including its so-called particulars, the case which a respondent has to answer: Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 at 42,827-9.
Case: Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691
Outcome: cited
Burnett Water correctly notes in its submissions, there is ample authority to support the striking out of a pleading of this kind on a strict application of a pleading rule such as O 11 r 2(a) of the Federal Court Rules : H 1976 Nominees v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186-187; Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-115 and McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 418, [23] . Particulars are not a substitute for the allegation of material facts: H 1976 Nominees v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186-187. Equally though, as Burnett Water fairly concedes, there is a discernable tendency in modern times against striking out when a pleading even with such a technical fault can be seen fairly to convey when read as a whole, including its so-called particulars, the case which a respondent has to answer: Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 at 42,827-9.
Case: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109
Outcome: cited
Burnett Water correctly notes in its submissions, there is ample authority to support the striking out of a pleading of this kind on a strict application of a pleading rule such as O 11 r 2(a) of the Federal Court Rules : H 1976 Nominees v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186-187; Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-115 and McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 418, [23] . Particulars are not a substitute for the allegation of material facts: H 1976 Nominees v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186-187. Equally though, as Burnett Water fairly concedes, there is a discernable tendency in modern times against striking out when a pleading even with such a technical fault can be seen fairly to convey when read as a whole, including its so-called particulars, the case which a respondent has to answer: Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 at 42,827-9.
Case: Wide Bay Burnett Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900
Outcome: cited
background to this case is described in an interlocutory judgement which I delivered on 12 December 2008 in respect of an application by Burnett Water for a stay of the proceedings: Wide Bay Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900. That application was unsuccessful. The case concerns a dam on the Burnett River known as the Paradise Dam the construction and operation of which, subject to conditions, was approved by a Commonwealth Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). Differences have emerged between the parties with respect to a number of issues of practice and procedure. Burnett Water has sought the following orders: 1. That by 10 April 2009 the Applicant file and serve: (a) the further and better particulars requested in the Respondent's solicitors' letter dated 24 February 2009; (b) a statement of the design of the fish transfer device which, by the grant of the injunction sought in paragraph 2 of the Application, the Respondent would be compelled to install and operate. 2. Alternatively to paragraph 1(b) above, that: (a) the claim for relief in paragraph 2 of the Application be struck out; and (b) the Applicant have leave to file and serve by 10 April 2009 an Amended Application including a claim for a mandatory injunction, such leave being conditional upon the Amended Application including, or incorporating by reference, a statement of the design of the fish transfer device which, by the grant of the injunction, the Respondent would be compelled to install and operate. 3. Such further or other order as the Court deems fit.
Case: Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 
Outcome: considered
In my opinion Monster's construction would lead to a result contrary to common sense (cf: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 400 citing Oliver LJ in Exxon Corporation v Exxon Insurance Ltd [1982] Ch 119 at 144 where recourse to commonsense in construing an expression in a statute was allowed). A similar approach is apposite in construing agreements: cp: Miramar Maritime Corporation v Holborn Oil Trading Ltd [1984] AC 676 at 682E-F per Lord Diplock). As Lord Diplock said in Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at 201E: '... if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense'.
Case: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 
Outcome: cited
In my opinion Monster's construction would lead to a result contrary to common sense (cf: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 400 citing Oliver LJ in Exxon Corporation v Exxon Insurance Ltd [1982] Ch 119 at 144 where recourse to commonsense in construing an expression in a statute was allowed). A similar approach is apposite in construing agreements: cp: Miramar Maritime Corporation v Holborn Oil Trading Ltd [1984] AC 676 at 682E-F per Lord Diplock). As Lord Diplock said in Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at 201E: '... if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense'.
Case: Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420
Outcome: considered
Monster submitted that this was not an available approach to construction and that I was bound to follow what it argued was the different approach in Fitzgerald v Masters [1956] HCA 53 ; (1956) 95 CLR 420. In that case, of course, there was an obvious mistake. The question was how should the Court construe the language used. McTiernan, Webb and Taylor JJ said (95 CLR at 437): 'It is trite law that an instrument must be construed as a whole. Indeed it is the only method by which inconsistencies of expression may be reconciled and it is in this natural and commonsense approach to problems of construction that justification is to be found for the rejection of repugnant words, the transposition of words and the supplying of omitted words (cf. Norton on Deeds 2 nd ed (1928) p 98)' (emphasis added)
Case: Homburg Houtimport BV v Agrosin Private Ltd [2003] UKHL 12 ; [2004] 1 AC 715 
Outcome: cited
The use of the concept of agency to overcome the need for privity is a technique which was described in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ adopting the words of Lord Bingham of Cornhill (in Homburg Houtimport BV v Agrosin Private Ltd [2003] UKHL 12 ; [2004] 1 AC 715 at 744) as 'a deft and commercially-inspired response to technical English rules of contract, particularly those governing privity and consideration'. As their Honours went on to note in the case of a stevedore seeking the benefit of a Himalaya clause against a consignee of damaged cargo, courts have been ready to conclude that the carrier was acting with the stevedore's authority. As Lord Wilberforce said in his classic opinion in New Zealand Shipping Co Ltd v AM Satterthwaite &amp; Co Ltd [1975] AC 154 at 167E, the law of contract takes a practical approach in commercial situations '... often at the cost of forcing the facts to fit uneasily into the slots of offer, acceptance and consideration'. Even if Monster be correct to say that at the end of the day it received a lesser sum than that which the customer paid for the download, that was a result of Monster entering into arrangements with the telecommunications networks, perhaps on behalf of the customer or perhaps on its own behalf, it matters not, for the purposes of ensuring that the customer bought the download at the overall price Monster advertised that it was charging.
Case: L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 
Outcome: followed
Lord Reid once said that in arriving at the proper construction of a contract: 'The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear: L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 251E.' 106 Their Honours' approach is not inconsistent with Lord Reid's or Lord Diplock's approaches. After all, the purpose of construction of contracts is to ascertain by reference to the words used in the factual matrix in which the parties dealt with one another what an objective person would reasonably understand the parties to have intended. And, as Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 76 ALJR 436 at 439 [10] ; [2002] HCA 5 ; 186 ALR 289 at 293: ' [10] In Codelfa , Mason J (with whose judgment Stephen J and Wilson J agreed) referred to authorities (In particular, speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 at 1381-1383-1385; [1971] 3 All ER 237 at 239-241; L Schuler AG v Wickman Machine Tool Sales Ltd [1973] UKHL 2 ; [1974] AC 235 at 261; and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-997; [1976] 3 All ER 570 at 574-576) which indicated that, even in respect of agreements under seal, it is appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question were used and, from those circumstances, to discern the objective which the parties had in view. In particular, an appreciation of the commercial purpose of a contract: ( Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574) "... presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating." Such statements exemplify the point made by Brennan J in his judgment in Codelfa: ((1982) [1982] HCA 24 ; 149 CLR 337 at 401) "The meaning of a written contract may be illuminated by evidence of facts to which the writing refers, for the symbols of language convey meaning according to the circumstances in which they are used."'
Case: Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70 ; (2001) 210 CLR 181 
Outcome: applied
Gleeson CJ, Gummow and Hayne JJ said in Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70 ; (2001) 210 CLR 181 at 188: 'Interpretation of a written contract involves, as Lord Hoffmann has put it ( Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28 ; [1998] 1 WLR 896 at 912; [1997] UKHL 28 ; [1998] 1 All ER 98 at 114. See also the remarks of Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 350-352, and of Lord Bingham of Cornhill in Bank of Credit and Commerce International SA v Ali [2001] UKHL 8 ; [2002] 1 AC 251 at 259): "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." That knowledge may include matters of law, as in this case where the obtaining of intellectual property protection was of central importance to the commercial development of Mr Allen's ironing board (cf Bank of Credit and Commerce International SA v Ali [2001] UKHL 8 ; [2002] 1 AC 251 at 282, per Lord Clyde).'
Case: New Zealand Shipping Co Ltd v AM Satterthwaite &amp; Co Ltd [1975] AC 154 
Outcome: cited
The use of the concept of agency to overcome the need for privity is a technique which was described in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ adopting the words of Lord Bingham of Cornhill (in Homburg Houtimport BV v Agrosin Private Ltd [2003] UKHL 12 ; [2004] 1 AC 715 at 744) as 'a deft and commercially-inspired response to technical English rules of contract, particularly those governing privity and consideration'. As their Honours went on to note in the case of a stevedore seeking the benefit of a Himalaya clause against a consignee of damaged cargo, courts have been ready to conclude that the carrier was acting with the stevedore's authority. As Lord Wilberforce said in his classic opinion in New Zealand Shipping Co Ltd v AM Satterthwaite &amp; Co Ltd [1975] AC 154 at 167E, the law of contract takes a practical approach in commercial situations '... often at the cost of forcing the facts to fit uneasily into the slots of offer, acceptance and consideration'. Even if Monster be correct to say that at the end of the day it received a lesser sum than that which the customer paid for the download, that was a result of Monster entering into arrangements with the telecommunications networks, perhaps on behalf of the customer or perhaps on its own behalf, it matters not, for the purposes of ensuring that the customer bought the download at the overall price Monster advertised that it was charging.
Case: Perri v Coolangatta Investments Pty Limited [1982] HCA 29 ; (1982) 149 CLR 537 
Outcome: followed
Monster argued that the offer of 28 October 2005 was open to be accepted over three months later on 7 February 2006. In general, the law implies that when no time limit for the exercise of a right is stipulated, the right may be exercised within a reasonable time unless there are indications to the contrary: Reid v Moreland Timber Co Pty Limited [1946] HCA 48 ; (1946) 73 CLR 1 at 13 per Dixon J. I am of opinion that this statement of the rule, coming from a case in contract, is just as applicable to a case where an offer to enter into a contract is made. Ordinarily in contract, absent an express provision to the contrary, where no time is fixed for performance, the parties are, or the party upon whom the obligation is cast is, obliged to perform within a reasonable time: see e.g. Perri v Coolangatta Investments Pty Limited [1982] HCA 29 ; (1982) 149 CLR 537 at 545-546 per Gibbs CJ, 567 per Brennan J (with whom Stephen J agreed). And, in Ballas v Theophilos [No 2] [1957] HCA 90 ; (1957) 98 CLR 193 at 197 Dixon CJ (with whom McTiernan J agreed) said that the implication of law, where a partnership deed limited no time for the exercise of an option, is that the option had to be exercised within a reasonable time. Dixon J observed that the stipulations contained in the relevant clause itself affected what a reasonable time was. Williams J, came to a like conclusion (at 98 CLR at 199).