mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: cited
Finally, in the circumstances, even if the Middleton Nominees Guarantee had expired on 31 December 2005 (which I do not accept), I am not satisfied that an essential term of a security document (the Nepalle Guarantee) should be implied from a second security contract (the Middleton Nominees Guarantee) relating to the same financing transaction but provided by a different entity. It is well established that what was said and done by parties to an agreement is part of the relevant context in which the agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botantic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27 th ed, Sweet &amp; Maxwell, London, 1994 at [12057]; and McVeigh v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ).
Case: Estoril Investments Pty Ltd v Westpac Banking Corporation (1993) 6 BPR 13,146
Outcome: discussed
However, the Applicants contend that despite the unequivocal words of the 1995 Kirszbaum Guarantee, the proper construction of the guarantee is not to be determined solely by reference to its express terms but by reference to what they describe as "general rules of construction" to be applied in determining the intention of the parties in respect of the "all moneys" or "dragnet clause". These general rules of construction were said to be found in the decision of Young J in Estoril Investments Pty Ltd v Westpac Banking Corporation (1993) 6 BPR 13,146, 13,151. Those reasons for decision and the subsequent authorities do not support the Applicants' submission. 93 In fact, what Young J summarised were not rules of construction but " guidelines which illustrate how court often approach dragnet clauses provided that the language permits them to do so" : Estoril Investments , 6 BPR 13,146 at 13,151; see also Smith v Australian and New Zealand Banking Group Ltd [1996] NSW ConvR 55-774. Nine "guidelines" were set out. They are no more than guidelines. What Young J did was to take a number of the guidelines and analyse whether the guidelines represented the position in Australia. The conclusion his Honour reached is best illustrated by looking at the second guideline that " only debts of the same type or character as the original debt are secured by the mortgage" . After analysing the authorities in the United States, England, New Zealand and Australia, Young J concluded as follows: I also believe that it is fair to say that in many cases the Court will come to the view as stated in proposition (2) above. However, that is a very different thing from saying that there is some general rule that mortgages must be construed as if they were limited to debts of the same type as those for which the mortgage was originally taken out.
Case: Manks v Whiteley [1912] 1 Ch 735
Outcome: cited
Finally, in the circumstances, even if the Middleton Nominees Guarantee had expired on 31 December 2005 (which I do not accept), I am not satisfied that an essential term of a security document (the Nepalle Guarantee) should be implied from a second security contract (the Middleton Nominees Guarantee) relating to the same financing transaction but provided by a different entity. It is well established that what was said and done by parties to an agreement is part of the relevant context in which the agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botantic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27 th ed, Sweet &amp; Maxwell, London, 1994 at [12057]; and McVeigh v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ).
Case: McVeigh v National Bank of Australia [2000] FCA 187
Outcome: cited
Finally, in the circumstances, even if the Middleton Nominees Guarantee had expired on 31 December 2005 (which I do not accept), I am not satisfied that an essential term of a security document (the Nepalle Guarantee) should be implied from a second security contract (the Middleton Nominees Guarantee) relating to the same financing transaction but provided by a different entity. It is well established that what was said and done by parties to an agreement is part of the relevant context in which the agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botantic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27 th ed, Sweet &amp; Maxwell, London, 1994 at [12057]; and McVeigh v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ). 94 It is therefore unsurprising that subsequent decisions have considered the guidelines to be of limited utility: Smith v Australian and New Zealand Banking Group Ltd [1996] NSW ConvR 55-774 ; Murphy; re Bankrupt Estate of; Donnelly v Commonwealth Bank of Australia (1996) 140 ALR 46 , 54 and McVeigh v The National Australia Bank Ltd [2000] FCA 187.
Case: Murphy; re Bankrupt Estate of; Donnelly v Commonwealth Bank of Australia (1996) 140 ALR 46
Outcome: cited
It is therefore unsurprising that subsequent decisions have considered the guidelines to be of limited utility: Smith v Australian and New Zealand Banking Group Ltd [1996] NSW ConvR 55-774 ; Murphy; re Bankrupt Estate of; Donnelly v Commonwealth Bank of Australia (1996) 140 ALR 46 , 54 and McVeigh v The National Australia Bank Ltd [2000] FCA 187.
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: cited
The Form of Acknowledgment attached to that document on which the critical handwritten annotation was made did not form part of the agreement of guarantee and indemnity between Westpac and Middleton Nominees. The Form of Acknowledgment referred to, but did not contain or constitute, an agreement between the parties. It was a document sought by Westpac as a record of statements made by Mrs Kirszbaum which Westpac could use if Mrs Kirszbaum were to later claim that she should not be held to be bound by the agreement because she did not understand it. As the High Court pointed out in Wilson v Anderson [2002] HCA 29 ; (2002) 213 CLR 401. 418 [8] and Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 , 461-62 [22], it is the written terms of an agreement which speak to third parties. This is particularly so in commercial contexts where the agreement is recorded in a deed or other similar document. In the present case, it is the Guarantee and not the Form of Acknowledgment that records the terms of the bargain the parties made.
Case: Royal Botantic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436
Outcome: cited
Finally, in the circumstances, even if the Middleton Nominees Guarantee had expired on 31 December 2005 (which I do not accept), I am not satisfied that an essential term of a security document (the Nepalle Guarantee) should be implied from a second security contract (the Middleton Nominees Guarantee) relating to the same financing transaction but provided by a different entity. It is well established that what was said and done by parties to an agreement is part of the relevant context in which the agreement is construed: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 , 348-53 (per Mason J) and Royal Botantic Gardens and Domain Trust v South Sydney City Council [2001] FCA 760 ; (2002) 76 ALJR 436 ; see also Chacmol Holdings Pty Ltd v Handberg [2005] FCAFC 40 ; (2005) 215 ALR 748 at [32] (per Tamberlin J) and [68]-[77]; Chitty on Contracts, 27 th ed, Sweet &amp; Maxwell, London, 1994 at [12057]; and McVeigh v National Bank of Australia [2000] FCA 187 at [30] (per Finkelstein J) and at [68] (per Kenny J) and Manks v Whiteley [1912] 1 Ch 735, 754 (per Fletcher-Moulton LJ).
Case: Smith v Australian and New Zealand Banking Group Ltd [1996] NSW ConvR 55-774
Outcome: discussed
In fact, what Young J summarised were not rules of construction but " guidelines which illustrate how court often approach dragnet clauses provided that the language permits them to do so" : Estoril Investments , 6 BPR 13,146 at 13,151; see also Smith v Australian and New Zealand Banking Group Ltd [1996] NSW ConvR 55-774. Nine "guidelines" were set out. They are no more than guidelines. What Young J did was to take a number of the guidelines and analyse whether the guidelines represented the position in Australia. The conclusion his Honour reached is best illustrated by looking at the second guideline that " only debts of the same type or character as the original debt are secured by the mortgage" . After analysing the authorities in the United States, England, New Zealand and Australia, Young J concluded as follows: I also believe that it is fair to say that in many cases the Court will come to the view as stated in proposition (2) above. However, that is a very different thing from saying that there is some general rule that mortgages must be construed as if they were limited to debts of the same type as those for which the mortgage was originally taken out. 94 It is therefore unsurprising that subsequent decisions have considered the guidelines to be of limited utility: Smith v Australian and New Zealand Banking Group Ltd [1996] NSW ConvR 55-774 ; Murphy; re Bankrupt Estate of; Donnelly v Commonwealth Bank of Australia (1996) 140 ALR 46 , 54 and McVeigh v The National Australia Bank Ltd [2000] FCA 187.
Case: Star City Pty Limited v Commissioner of Taxation [2007] FCA 1701
Outcome: cited
I accept that these authorities support the proposition that contemporaneously executed contracts forming part of the same transaction should, as a general rule, be read as a whole and construed by reference to each other: Star City Pty Limited v Commissioner of Taxation [2007] FCA 1701 at [52] . However, it would go well beyond any concept of contractual context to alter the terms of one contemporaneously executed contract by reference to another where, as here: (1) the parties to each contract are not the same; (2) the term in the contract in question is not ambiguous; and (3) the term in the other contract is directly conflicting. This is especially so where the result is to require an essential term, such as the duration of the contract, to be amended from the written terms of one contract to obtain consistency between the two contracts. To do so would disrupt the longstanding rule that parties are bound by the unambiguous terms of their written agreement unless it is affected by fraud, mistake or misrepresentation: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 , 483-84 [33] and [35]. The terms of the Nepalle Guarantee, including its duration, are not ambiguous. In the absence of such ambiguity, the written document stands on its own as a record of the agreement between the parties to it.
Case: Wilson v Anderson [2002] HCA 29 ; (2002) 213 CLR 401
Outcome: cited
The Form of Acknowledgment attached to that document on which the critical handwritten annotation was made did not form part of the agreement of guarantee and indemnity between Westpac and Middleton Nominees. The Form of Acknowledgment referred to, but did not contain or constitute, an agreement between the parties. It was a document sought by Westpac as a record of statements made by Mrs Kirszbaum which Westpac could use if Mrs Kirszbaum were to later claim that she should not be held to be bound by the agreement because she did not understand it. As the High Court pointed out in Wilson v Anderson [2002] HCA 29 ; (2002) 213 CLR 401. 418 [8] and Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 , 461-62 [22], it is the written terms of an agreement which speak to third parties. This is particularly so in commercial contexts where the agreement is recorded in a deed or other similar document. In the present case, it is the Guarantee and not the Form of Acknowledgment that records the terms of the bargain the parties made.
Case: Cruse v Construction, Forestry, Mining &amp; Energy Union [2008] FCA 1267
Outcome: followed
As was said in Cruse v Construction, Forestry, Mining and Energy Union [2008] FCA 1267 at [18] : Intention to coerce requires intent to exert pressure that would in a practical sense negate choice: see National Tertiary Education Industry Union at 143. Negation of choice can be contrasted with a desire to influence, persuade or induce. The question will be, as Weinberg J said in National Tertiary Education Industry Union at 143, whether "a person is left with a realistic choice as to whether or not to comply". The objective of the organisers in their 24 October 2005 discussion with Mr Noble was to "influence, persuade or induce". Vaughan was left with a realistic choice not to comply and did not comply.
Case: Cahill v Construction, Forestry, Mining and Energy Union (No 2) [2008] FCA 1292
Outcome: followed
The workers did not take industrial action as such. They were called off the job by Mr Fahnle. However, the organisers, on behalf of the Union, imposed a ban on the performance of work on the site after the meeting between the organisers and some of the workers on the morning of 20 October 2005. The bans on the concreting works lasted until 8.00 am the next day. The bans on earthworks lasted until the afternoon of the next day. Bans of that sort constitute "building industrial action" under s 36(1) of the Act : see Cahill v Construction, Forestry, Mining and Energy Union (No 2) [2008] FCA 1292 at [58] , per Kenny J. 20 Counsel for the Union contended that the application was not pleaded so as to encompass any ban but only a ban which would constitute a restriction on the performance of work in accordance with the National Building and Construction Industry Award 2000 . Counsel referred to cl 12.1.2 of the Award which provides: Any direction issued by an employer shall be consistent with the employer's responsibilities to provide a safe and healthy working environment. 21 As the organiser's claims included the issue of the safety of working on the site in the absence of a site contamination report, counsel submitted that the bans did not involve a restriction on the performance of work in accordance with the Award. He observed that Mr Fahnle was, in effect, the agent of the employer of the workers in his capacity as site manager.
Case: Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 ; (2001) 109 FCR 378
Outcome: followed
Further, "intent to coerce" must carry with it the exertion of pressure which involves conduct that is "unlawful, illegitimate and unconscionable": see Seven Network (Op erations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 ; (2001) 109 FCR 378 at [41] per Merkel J. Mr Noble admitted in the concluding portion of his cross-examination that the conduct of the organisers was not of that sort. 37 Counsel for the applicant submitted that, at the 24 October 2005 meeting, the organisers told Mr Noble that, unless Vaughan employed a Union nominated shop steward, the bans on earthworks would remain in place. There are two problems with that submission. First, there were no operative bans on earthworks on the site on 24 October 2005. Second, the cross-examination of Mr Noble revealed that the " only threat" (emphasis added) was that if the Union did not have on site a safety representative/shop steward that it knew and trusted then organisers would need to visit the site to catch Vaughan if it did something wrong. Mr Noble also conceded that the organisers were not threatening to do anything "over and above their powers as union officials". Action "over and above" their powers would include the maintenance of unlawful bans. In any event there was no negation of choice for Vaughan if it did not accede to the demand for a Union nominated safety officer/steward as earthworks and concreting works had been completed by 24 October 2005. No operative or relative bans could have been maintained as a matter of practical reality. This aspect of the application is also without merit. 38 During the course of the evidence, the applicant applied for the admission of the evidence of a previous representation made by a person. The Court admitted the evidence under s 63 of the Evidence Act 1995 (Cth). The evidence consisted of a recording and transcript of an ABCC inspector's interview of Mr Dougas. Mr Dougas was not available to give evidence "about an asserted fact", that is, the events of 20 October 2005, because he had relied on his privilege against liability to a civil penalty under s 128(1)(b) of the Evidence Act and the Court, under s 128(5) , did not require him to give that evidence.
Case: Applicants M16 of 2004 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1641 (2005) 148 FCR 46
Outcome: followed
In Applicants M16 of 2004 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1641 (2005) 148 FCR 46 at [72] - [73] , I held that the view expressed by Dowsett and Lander JJ in Applicant S422 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 89 (2004) 138 FCR 151 at [11] - [34] , that the time limit provisions of the High Court Rules have no role to play once a proceeding is remitted, was the preferable view. On this basis, the Federal Magistrate was wrong to hold that she had to consider whether to exercise the High Court's power to grant an enlargement of time. For the reasons that I gave in Applicants M16 , I am still of the view that Dowsett and Lander JJ were correct. The Federal Magistrate was therefore in error to the extent to which she dismissed the appellant's proceeding on the basis that it was out of time, and that her Honour would not grant an enlargement of the time.
Case: Applicant S422 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 89 (2004) 138 FCR 151
Outcome: followed
In Applicants M16 of 2004 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1641 (2005) 148 FCR 46 at [72] - [73] , I held that the view expressed by Dowsett and Lander JJ in Applicant S422 of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 89 (2004) 138 FCR 151 at [11] - [34] , that the time limit provisions of the High Court Rules have no role to play once a proceeding is remitted, was the preferable view. On this basis, the Federal Magistrate was wrong to hold that she had to consider whether to exercise the High Court's power to grant an enlargement of time. For the reasons that I gave in Applicants M16 , I am still of the view that Dowsett and Lander JJ were correct. The Federal Magistrate was therefore in error to the extent to which she dismissed the appellant's proceeding on the basis that it was out of time, and that her Honour would not grant an enlargement of the time.
Case: Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464
Outcome: cited
It will be recalled that the Federal Magistrate dismissed the appellant's application on the basis that another Federal Magistrate had dismissed an earlier application concerned with the same Tribunal decision. Her Honour's reason for dismissing the application on this basis was that the earlier dismissal gave rise to a res judicata estoppel. The doctrine of res judicata bars a right or cause of action, raised in an earlier proceeding on which judgment has been given, so that the right or cause of action merges into the judgment and cannot be litigated again. See Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 532 per Dixon J. Related defences are issue estoppel, a defence to an attempt to litigate again an issue already actually decided, and Anshun estoppel, based on Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589, applicable where there is neither strict identity of cause of action, so that res judicata is not available, nor the actual determination of an issue, so that issue estoppel is not available, but a party seeks to litigate an issue that could and should have been raised in a previous proceeding.
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553
Outcome: applied
In all of these ways, the interpreter's errors were of significance, or at least of potential significance, to the outcome of the case. The errors deprived the appellant of a fair opportunity to succeed. They therefore amounted to a denial of procedural fairness. To the extent to which the appellant was not able to put before the Tribunal the evidence that he wanted to, because elements of his answers were omitted from the interpreter's translation of them, he was deprived of the opportunity to give evidence to the Tribunal. Section 425(1) of the Migration Act obliged the Tribunal to invite the appellant to appear before it to give evidence relating to the issues arising in relation to the decision of the Minister's delegate. It is now well-established that this obligation is much more than a formality. Even though the invitation be issued, if an applicant is not afforded a real opportunity to give evidence, so that the promise of the invitation has not been fulfilled, then the Tribunal will have failed to comply with its obligation under s 425(1). See Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] - [41] . See also SZBEL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 (2006) 231 ALR 592 at [33] .
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: cited
It will be recalled that the Federal Magistrate dismissed the appellant's application on the basis that another Federal Magistrate had dismissed an earlier application concerned with the same Tribunal decision. Her Honour's reason for dismissing the application on this basis was that the earlier dismissal gave rise to a res judicata estoppel. The doctrine of res judicata bars a right or cause of action, raised in an earlier proceeding on which judgment has been given, so that the right or cause of action merges into the judgment and cannot be litigated again. See Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464 at 532 per Dixon J. Related defences are issue estoppel, a defence to an attempt to litigate again an issue already actually decided, and Anshun estoppel, based on Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589, applicable where there is neither strict identity of cause of action, so that res judicata is not available, nor the actual determination of an issue, so that issue estoppel is not available, but a party seeks to litigate an issue that could and should have been raised in a previous proceeding.