mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Priestley v Godwin (No 4) [2009] FCA 560
Outcome: referred to
follows from my conclusions above that it is unnecessary to consider whether or not Mr Priestley is a person aggrieved or whether or not s 23 of the Federal Court Act is a source of additional jurisdiction. In any event, I considered these grounds in Priestley v Godwin (No 4) [2009] FCA 560 which was heard concurrently with this application and the same conclusions apply. Section 23 of the Federal Court Act is not a source of additional jurisdiction ( Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 161). Mr Priestley may not have established that he is a person aggrieved but that does not fall to be determined on this application under s 31A of the Federal Court Act. I am prepared to assume for the purposes of this notice of motion that, had the claimed decision been made, Mr Priestley would have been a person aggrieved.
Case: Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150
Outcome: cited
follows from my conclusions above that it is unnecessary to consider whether or not Mr Priestley is a person aggrieved or whether or not s 23 of the Federal Court Act is a source of additional jurisdiction. In any event, I considered these grounds in Priestley v Godwin (No 4) [2009] FCA 560 which was heard concurrently with this application and the same conclusions apply. Section 23 of the Federal Court Act is not a source of additional jurisdiction ( Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 161). Mr Priestley may not have established that he is a person aggrieved but that does not fall to be determined on this application under s 31A of the Federal Court Act. I am prepared to assume for the purposes of this notice of motion that, had the claimed decision been made, Mr Priestley would have been a person aggrieved.
Case: Commonwealth v Amman Aviation [1991] HCA 54 ; (1991) 174 CLR 64
Outcome: referred to
In McRae , the plaintiffs recovered damages for the agreed purchase price together with the expenditure wasted in reliance on the promise that there was oil tanker in the locality of the reef. The wasted expenditure fell within the second rule in Hadley v Baxendale (1854) 9 Ex 341: see McRae at 413-415; see also The Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54 ; (1991) 174 CLR 64 at 88-89. 120 There may be some differences from McRae in the present case; in particular, a question arises as to whether it was impossible for Cairnsmore to establish what its profits would have been under the SBA: see Amman at 89. However, I am inclined to the view that the difficulties which arose from the move to Paragem tend in favour of the application of the wasted expenditure principle to the facts of this case.
Case: Hadley v Baxendale (1854) 9 Ex 341
Outcome: referred to
In McRae , the plaintiffs recovered damages for the agreed purchase price together with the expenditure wasted in reliance on the promise that there was oil tanker in the locality of the reef. The wasted expenditure fell within the second rule in Hadley v Baxendale (1854) 9 Ex 341: see McRae at 413-415; see also The Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54 ; (1991) 174 CLR 64 at 88-89.
Case: I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: referred to
The same amount is recoverable under s 82 of the Trade Practices Act : see I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109 at [50] . Those damages are recoverable by Cairnsmore and Mr Howland against Bearsden. It is clear that the representations were made in trade or commerce and that reliance was established. 126 I will deal below with the question of the personal claim against Mr Hodge. 127 The representations made by Bearsden and Mr Hodge as to Bearsden's title to sell the business were eventually admitted. The admission was that oral and written submissions were made by Mr Hodge as second respondent, including on behalf of Bearsden, in terms of recitals A and B, cll 5.4, 6, 7, 8.1, 8.2, 8.3, 9.1, 9.2, 15.2, 19.1, 20, 24 and 25 of the SBA.
Case: McDonald v Dennys Lascelles Limited [1933] HCA 25 ; (1933) 48 CLR 457
Outcome: applied
The following issues are raised in the proceedings: (i) Whether upon the proper construction of the SBA, Bearsden contracted to sell the assets of the business in which it had no legal or beneficial interest. (ii) If so, whether Cairnsmore is entitled to damages for breach of contract in accordance with the principles stated by Dixon J and Fullagar J in McRae v Commonwealth Disposals Commission [1950] HCA 12 ; (1951) 84 CLR 377 at 409 415. (iii) Whether the move from GPL to Paragem constituted the exercise of a "right of title" by Bearsden under cl 5.4 of the SBA, thereby entitling Cairnsmore to a refund of the first instalment and damages for breach of contract. See McDonald v Dennys Lascelles Limited [1933] HCA 25 ; (1933) 48 CLR 457. (iv) Whether the move from GPL to Paragem was to the disadvantage of Cairnsmore within the meaning of cl 9.1 of the SBA. (v) Whether Cairnsmore is entitled to recover damages either in contract or under the Trade Practices Act 1974 (Cth) for expenditure incurred by it in reliance upon representations made by Bearsden in the SBA that it owned and carried on the business and had the right to sell it. (vi) Whether Cairnsmore and Mr Howland are entitled to recover against Mr Hodge by virtue of ss 6(3) or 75B of the Trade Practices Act . (vii) Whether, if Cairnsmore's contentions are not correct, Bearsden is entitled to recover payment of the second and third instalments of the purchase price as claimed by it in its cross claim. 107 This was a contract for the payment of the purchase price by instalments. It is well established that a purchaser is entitled to recover the instalments other than the deposit where the contract is not completed: McDonald v Dennys Lascelles at 477 to 478. 108 Furthermore, a termination for breach is not a rescission ab initio . Both parties are discharged from further performance but rights which have been unconditionally acquired are not divested: McDonald v Dennys Lascelles at 476 to 477. It follows in my view that the fees paid to Cairnsmore were irrecoverable under this principle. 109 The meaning of cl 9.1 is not entirely clear, however at very least the clause provides a "warranty" that Cairnsmore will not suffer an economic disadvantage by reason of any change of the identity of the AFS licensee from GPL to another entity. 110 Counsel for Cairnsmore devoted a great deal of attention to this issue. A large number of reasons were put forward to support a finding that Cairnsmore did suffer a disadvantage by reason of the move to Paragem.
Case: Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2003) 135 FCR 1
Outcome: referred to
There has been some debate in the cases as to whether liability under s 75B requires the accessory to know that the conduct of the principal is misleading or deceptive: see for example Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2003) 135 FCR 1 at [83] . 135 The question in the present case turns on Mr Hodge's knowledge. 136 Mr Hodge was an unsatisfactory witness. I cannot accept him as a witness of truth. He either could not or would not answer questions directly. He denied propositions that were put to him that were clearly supported by contemporaneous documents. His denials were in the teeth of the contemporaneous documentary record. 137 By contrast, I though that Mr Howland was a truthful witness. He did not have a good recollection of the detail but he did his best to answer honestly and directly. I prefer his evidence where it conflicts with that of Mr Hodge. 138 It is clear that Mr Hodge was aware of all the necessary elements. He made the representations and he was aware of the structure under which the business was established. In addition, the documents given to clients showed quite plainly that Mr Hodge informed them that HBN was the corporate representative of GPL and that Mr Hodge was the personal authorised representative of GPL.
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: referred to
This requires the court when construing a commercial contract to have regard to the commercial purpose of the contract, the context and the market in which the parties were operating: Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 at 995-996; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] .
Case: Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 at 995-996
Outcome: referred to
This requires the court when construing a commercial contract to have regard to the commercial purpose of the contract, the context and the market in which the parties were operating: Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 at 995-996; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] .
Case: Shepherd v Felt &amp; Textiles of Australia Limited [1931] HCA 21 ; (1931) 45 CLR 359
Outcome: applied
Whether or not Cairnsmore relied on that breach when it gave notice of the termination of the SBA, it is open to Cairnsmore to rely on that breach in these proceedings: see Shepherd v Felt &amp; Textiles of Australia Limited [1931] HCA 21 ; (1931) 45 CLR 359. 99 I will deal later with the question of damages. 100 Clause 5.4 is to be construed in the light of the provisions of cll 6 and 7 of the SBA.
Case: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: applied
The SBA is to be construed in accordance with the objective theory of contractual construction reaffirmed by the High Court in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at [40] .
Case: Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 39 SR (NSW) 632
Outcome: applied
It seems to me that although cl 9.1 speaks of a "warranty," it was in truth a condition of the SBA that Cairnsmore would not suffer a disadvantage: see Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 39 SR (NSW) 632 at 641-642. 117 This view is supported by the object and purpose of the SBA and the surrounding circumstances, including GPL's standing as a premium dealer and Mr Howland's concerns that he be protected against a move from GPL. 118 Accordingly, in my view Cairnsmore is entitled to terminate for breach of cl 9.1.
Case: Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582
Outcome: cited
Respondents then pointed to the now accepted position that there is no constitutional prohibition against the appointment of more than one Minister of State to administer a department: Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [17] ; 415-416; [66], 460, [211]; 498, [320] and 519, [380]; Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 165; Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 at 594; Tervonen v Minister for Justice and Customs [No 2] [2007] FCA 1684 at [128] to [130]. That being so, it was submitted that the Minister was entitled to administer the Judiciary Act , which included the administration of s 672A of the Queensland Criminal Code , to the extent that it was rendered applicable by s 68 of the Judiciary Act to the pardon application made by the Applicant. As already noted, s 68 of the Judiciary Act must be read subject to the Constitution : s 15A Acts Interpretation Act . While that provision of the Acts Interpretation Act has a purpose in preserving statutory provisions from invalidity by promoting their construction so as to accord with the limits of constitutional legislative competence, it also serves as a reminder that Commonwealth legislation ought not be construed in a way which ignores constitutionally permissible practices in the discharge of the business of the Executive Government. R v Judd [1919] HCA 9 ; (1919) 26 CLR 168 , O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 , Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 , Carltona Ltd v Commissioners of Works [1943] 2 All E R 560 and R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 each offer an example of ways in which such practices have been taken into account by the courts in the construction of legislation and with regard to the validity of the exercise of powers by public officials. It is useful also to recall the following observations made by Gleeson CJ in Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [15] [16] with respect to the provisions in the Constitution concerning the Executive Government of the Commonwealth: For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our system of democratic government as the office of Prime Minister, or the Cabinet. The concept of administration of departments of State, appearing in s 64 , is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1989-1990) 170 CLR 1
Outcome: cited
case was cited as authority for the existence of a power to make such orders and none of any worth could be. For such orders are quite beyond the powers granted to the Court under s 16 of the ADJR Act. They are most certainly not, contrary to the Applicant's submission, authorised by s 16(1)(d) of that Act. To make such an order would be fundamentally to violate the role of a reviewing court on judicial review, qv Attorney-General (NSW) v Quin [1990] HCA 21 ; (1989-1990) 170 CLR 1 at 35-36. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 6 March 2009 Counsel for the Applicant: Mr P Sumner-Potts Solicitor for the Applicant: Cameron Price Lawyers Counsel for the Respondents: Mr S McLeod Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 26-27 February 2009 Date of Judgment: 6 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/207.html
Case: Carltona Ltd v Commissioners of Works [1943] 2 All E R 560
Outcome: cited
already noted, s 68 of the Judiciary Act must be read subject to the Constitution : s 15A Acts Interpretation Act . While that provision of the Acts Interpretation Act has a purpose in preserving statutory provisions from invalidity by promoting their construction so as to accord with the limits of constitutional legislative competence, it also serves as a reminder that Commonwealth legislation ought not be construed in a way which ignores constitutionally permissible practices in the discharge of the business of the Executive Government. R v Judd [1919] HCA 9 ; (1919) 26 CLR 168 , O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 , Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 , Carltona Ltd v Commissioners of Works [1943] 2 All E R 560 and R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 each offer an example of ways in which such practices have been taken into account by the courts in the construction of legislation and with regard to the validity of the exercise of powers by public officials. It is useful also to recall the following observations made by Gleeson CJ in Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [15] [16] with respect to the provisions in the Constitution concerning the Executive Government of the Commonwealth: For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our system of democratic government as the office of Prime Minister, or the Cabinet. The concept of administration of departments of State, appearing in s 64 , is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory.
Case: Condren; Ex parte Attorney-General (Qld) v R [1991] 1 Qd R 574
Outcome: considered
insight into the subject matter, scope and purpose of s 672A(a) is offered by another Queensland Court of Appeal decision, R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162 , and by earlier Queensland authorities concerning that section referred to by Keane JA, who delivered the principal judgment in that case (Williams and Muir JJA agreeing). His Honour observed: It may be said that this new evidence might have been obtained with reasonable diligence prior to trial so that it would not satisfy the test for the admission of "fresh evidence" enunciated in Ratten v. The Queen [1974] HCA 35 ; (1974) 131 CLR 510 at 516, 517. However that may be, it seems that on a reference under Section 672A, the Court has a broader discretion to ensure that justice is done and is seen to be done. See The Queen v. Young (No 2) [1969] Qd R 566 ; The Queen v. Condren Ex Parte Attorney-General [1991] 1 Qd R 574 at 578, 579. ... [The] issue was not whether Mr Daley's legal representation was incompetent. The issue is whether a miscarriage of justice has occurred. See TKWJ v. The Queen (2002) 202 CLR 124; Ali v. The Queen [2005] HCA 8 ; (2005) 214 ALR 1. It is one thing to set aside a conviction upon such a reference applying this test but, having done so, quite another to order the entry of a verdict of acquittal, as opposed to ordering a new trial. To order the former is to usurp a function ordinarily consigned to a jury under our system of criminal justice in respect of offences prosecuted on indictment. A discretion exists, but ordinarily an appellate court would exercise it against the entry of a verdict of acquittal unless it had held that the case considered as a whole required a jury to acquit the appellant because it must entertain a reasonable doubt or that a conviction would necessarily be unsafe: Dyers v The Queen [2002] HCA 45 ; (2002) 210 CLR 285 at 297, [23] per Gaudron and Hayne J and at 331, [134] per Callinan J, cf at 316-317, [86]-[90] per Kirby J; see also Condren; Ex parte Attorney-General (Qld) v R [1991] 1 Qd R 574 at 577 per Kelly SPJ and at 591 per Dowsett J, cf at 585-588 per Thomas J.
Case: Dyers v The Queen [2002] HCA 45 ; (2002) 210 CLR 285
Outcome: considered
is one thing to set aside a conviction upon such a reference applying this test but, having done so, quite another to order the entry of a verdict of acquittal, as opposed to ordering a new trial. To order the former is to usurp a function ordinarily consigned to a jury under our system of criminal justice in respect of offences prosecuted on indictment. A discretion exists, but ordinarily an appellate court would exercise it against the entry of a verdict of acquittal unless it had held that the case considered as a whole required a jury to acquit the appellant because it must entertain a reasonable doubt or that a conviction would necessarily be unsafe: Dyers v The Queen [2002] HCA 45 ; (2002) 210 CLR 285 at 297, [23] per Gaudron and Hayne J and at 331, [134] per Callinan J, cf at 316-317, [86]-[90] per Kirby J; see also Condren; Ex parte Attorney-General (Qld) v R [1991] 1 Qd R 574 at 577 per Kelly SPJ and at 591 per Dowsett J, cf at 585-588 per Thomas J.
Case: Eastman v Attorney-General (ACT) (2007) 210 FLR 440
Outcome: considered
Eastman v Attorney-General (ACT) (2007) 210 FLR 440 ( Eastman v A-G (ACT) ), Lander J, sitting as an additional judge of the ACT Supreme Court, after a comprehensive review of authority touching upon the extent, if at all, to which a decision to refuse a pardon was judicially reviewable, expressed the opinion that, while the exercise of the discretion in respect of the prerogative of mercy was not amenable to judicial review, he was "[not] prevented however from concluding that the processes which must be observed either by the statute which empowers the exercise of the prerogative (or statutory) power or by the law generally are subject to judicial review" (at 458-459, [78]). On appeal, it proved unnecessary for the Court of Appeal to explore the correctness of this aspect of his Honour's reasons: Eastman v Australian Capital Territory (2008) 163 ACTR 29 at 41, [41].
Case: Eastman v Australian Capital Territory (2008) 163 ACTR 29
Outcome: considered
Eastman v Attorney-General (ACT) (2007) 210 FLR 440 ( Eastman v A-G (ACT) ), Lander J, sitting as an additional judge of the ACT Supreme Court, after a comprehensive review of authority touching upon the extent, if at all, to which a decision to refuse a pardon was judicially reviewable, expressed the opinion that, while the exercise of the discretion in respect of the prerogative of mercy was not amenable to judicial review, he was "[not] prevented however from concluding that the processes which must be observed either by the statute which empowers the exercise of the prerogative (or statutory) power or by the law generally are subject to judicial review" (at 458-459, [78]). On appeal, it proved unnecessary for the Court of Appeal to explore the correctness of this aspect of his Honour's reasons: Eastman v Australian Capital Territory (2008) 163 ACTR 29 at 41, [41].