mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71
Outcome: cited
In the applicants' closing written submissions some generally uncontentious propositions about fiduciary duties were advanced. It was said that a fiduciary duty will arise where there has been an undertaking to act in the interests of another party together with the power to affect that interest in a practical sense and as a consequence of that power to affect the interests of the person to whom the duty is owed. Where the person is vulnerable and the power is abused breach of duty is established. Reliance was placed upon Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41 at 96-97 (Mason J). The critical feature of a fiduciary relationship was said to be the reposing of trust or confidence in the fiduciary who undertook to act for, and on behalf of, and in the interests of, vulnerable persons in the exercise of a power or discretion which would affect the interests: Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 at 82. The obligation of the party owing the fiduciary duty to act reasonably and in good faith was referred to. 585 In Breen v Williams [1995] HCA 63 ; 186 CLR 71, the High Court decided that a doctor owes a patient no general duty to provide access to the patient's medical records. The decision did involve a consideration of whether fiduciary obligations arose out of the doctor/patient relationship. Gummow J accepted that the mere presence of a contract does not exclude the coexistence of the concurrent fiduciary duties and that it may in particular circumstances provide the occasion for their existence. His Honour relied upon what was said by Mason J in Hospital Products Ltd [1984] HCA 64 ; 156 CLR 41. Gaudron and McHugh JJ cited Mason J and also, with approval, the statement of Sopinka JA in Norberg v Wynrib (1992) 92 DLR (4 th ) 449 at 481 (at 118): Fiduciary duties should not be superimposed on ... common law duties simply to improve the nature or extent of the remedy.
Case: Phipps v Boardman [1967] 1 AC 46
Outcome: cited
Mason J, while in dissent on the existence of a fiduciary relationship, essayed a helpful and frequently quoted discussion of the circumstances in which fiduciary relationships may arise. He cited Phipps v Boardman [1966] UKHL 2 ; (1967) 2 AC 46 for the proposition that relationships of trust and confidence or confidential relations such as those between trustee and beneficiary, agent and principal, solicitor and client, employer and employee, director and company and between members of a partnership are accepted fiduciary relationships. A mere subcontractor is not a fiduciary. Although the subcontractor's work could be described as work carried out in the interests of the head contract, the subcontractor "cannot in any meaningful sense be said to exercise a power or discretion which places the head contractor in a position of vulnerability". 584 In relation to the coexistence of contractual and fiduciary relationships, Mason J said (at 97): ... it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction.
Case: Norberg v Wynrib (1992) 92 DLR (4 th ) 449
Outcome: cited
In Breen v Williams [1995] HCA 63 ; 186 CLR 71, the High Court decided that a doctor owes a patient no general duty to provide access to the patient's medical records. The decision did involve a consideration of whether fiduciary obligations arose out of the doctor/patient relationship. Gummow J accepted that the mere presence of a contract does not exclude the coexistence of the concurrent fiduciary duties and that it may in particular circumstances provide the occasion for their existence. His Honour relied upon what was said by Mason J in Hospital Products Ltd [1984] HCA 64 ; 156 CLR 41. Gaudron and McHugh JJ cited Mason J and also, with approval, the statement of Sopinka JA in Norberg v Wynrib (1992) 92 DLR (4 th ) 449 at 481 (at 118): Fiduciary duties should not be superimposed on ... common law duties simply to improve the nature or extent of the remedy.
Case: Paul Dainty Corp Pty Ltd v National Tennis Centre Trust (1990) 22 FCR 495
Outcome: cited
In Paul Dainty Corp Pty Ltd v National Tennis Centre Trust (1990) 22 FCR 495 the Full Court said (at 515): The authorities make it clear that equity will not impose fiduciary obligations on parties who have entered into ordinary and arm's length commercial relationships, which fully prescribe the respective powers and duties of the parties. This is particularly so when the parties involved are substantial corporations, having equal bargaining power. And in Elders Trustee and Executor Co Ltd v EG Reed Pty Ltd (1987) 78 ALR 193, Gummow J referred to the circumstances in which parties are acting in commercial transaction, at arms length and with the assistance of independent professional advice and observed: Whilst these considerations are not of themselves decisive indicia of the absence of fiduciary obligations of disclosure ... they are of significance: Keith Henry &amp; Co Pty Ltd v Stuart Walker &amp; Co Pty Ltd [1958] HCA 33 ; (1985) 100 CLR 342 at 350-1; Hospital Products Ltd v United States Surgical Corp [1984] HCA 64 ; (1984) 156 CLR 41 at 70, 119 and 146.
Case: Elders Trustee and Executor Co Ltd v EG Reed Pty Ltd (1987) 78 ALR 193
Outcome: cited
In Paul Dainty Corp Pty Ltd v National Tennis Centre Trust (1990) 22 FCR 495 the Full Court said (at 515): The authorities make it clear that equity will not impose fiduciary obligations on parties who have entered into ordinary and arm's length commercial relationships, which fully prescribe the respective powers and duties of the parties. This is particularly so when the parties involved are substantial corporations, having equal bargaining power. And in Elders Trustee and Executor Co Ltd v EG Reed Pty Ltd (1987) 78 ALR 193, Gummow J referred to the circumstances in which parties are acting in commercial transaction, at arms length and with the assistance of independent professional advice and observed: Whilst these considerations are not of themselves decisive indicia of the absence of fiduciary obligations of disclosure ... they are of significance: Keith Henry &amp; Co Pty Ltd v Stuart Walker &amp; Co Pty Ltd [1958] HCA 33 ; (1985) 100 CLR 342 at 350-1; Hospital Products Ltd v United States Surgical Corp [1984] HCA 64 ; (1984) 156 CLR 41 at 70, 119 and 146.
Case: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451
Outcome: cited
The letter was countersigned by Mr Yalapan and witnessed by Mr Baitia. Counsel for the respondents pointed out that the reason for the exclusion of direct project related expenses from the management fee was that they were on-billed to OTML. The management fee was intended to cover costs not recoverable from OTML. The letter of 7 July 1999 forms part of the background to the formation of the Management Agreement against which that agreement may be better understood. The construction of the agreement is to be determined by what a reasonable person in the position of the parties would have understood it to mean. As the High Court said in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 (at 462): That requires consideration not only of the text of the document, but also the surrounding circumstances known to [the parties], and the purpose and object of the transaction. Their Honours quoted Lord Wilberforce in Reardon Smith Line Ltd v Hansen - Tangen [1976] 1 WLR 989 at 995-996, also quoted by Mason J in Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 at 350: In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.
Case: Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989
Outcome: cited
The letter was countersigned by Mr Yalapan and witnessed by Mr Baitia. Counsel for the respondents pointed out that the reason for the exclusion of direct project related expenses from the management fee was that they were on-billed to OTML. The management fee was intended to cover costs not recoverable from OTML. The letter of 7 July 1999 forms part of the background to the formation of the Management Agreement against which that agreement may be better understood. The construction of the agreement is to be determined by what a reasonable person in the position of the parties would have understood it to mean. As the High Court said in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 (at 462): That requires consideration not only of the text of the document, but also the surrounding circumstances known to [the parties], and the purpose and object of the transaction. Their Honours quoted Lord Wilberforce in Reardon Smith Line Ltd v Hansen - Tangen [1976] 1 WLR 989 at 995-996, also quoted by Mason J in Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 at 350: In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.
Case: Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: cited
The letter was countersigned by Mr Yalapan and witnessed by Mr Baitia. Counsel for the respondents pointed out that the reason for the exclusion of direct project related expenses from the management fee was that they were on-billed to OTML. The management fee was intended to cover costs not recoverable from OTML. The letter of 7 July 1999 forms part of the background to the formation of the Management Agreement against which that agreement may be better understood. The construction of the agreement is to be determined by what a reasonable person in the position of the parties would have understood it to mean. As the High Court said in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 (at 462): That requires consideration not only of the text of the document, but also the surrounding circumstances known to [the parties], and the purpose and object of the transaction. Their Honours quoted Lord Wilberforce in Reardon Smith Line Ltd v Hansen - Tangen [1976] 1 WLR 989 at 995-996, also quoted by Mason J in Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 at 350: In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.
Case: Lota Warria (on behalf of the Poruma and Masig Peoples) v State of Queensland (2005) 223 ALR 62
Outcome: cited
discretion conferred by s 87(1) must be exercised judicially, and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act: Lota Warria (on behalf of the Poruma and Masig Peoples) v State of Queensland (2005) 223 ALR 62 at [7] . One of the most important purposes of the Act is the resolution of disputes by negotiation and agreement rather than by litigation.
Case: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474
Outcome: cited
North J said in Lovett on behalf of the Gunditjmara People v State of Victoria (' Lovett ') [2007] FCA 474 at [61] (with whom I respectfully agree): "... when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis...". It follows that the central issue in an application for a consent determination under s 87 of the Act is whether there exists a free and informed agreement between the parties. Turning then to the involvement of the state respondent party, the Northern Territory. In my view, it is clear on the evidence before me that the Northern Territory has taken a real and significant interest in the proceedings. Before the proposed consent orders were signed, the Northern Territory had Emeritus Professor Sansom consider the anthropological reports prepared by Mr Elliott going to the existence of native title. Professor Sansom's queries in relation to the report initially provided were subsequently answered to his satisfaction in Mr Elliott's supplementary report. Furthermore, in March 2009, the Northern Territory Cabinet considered the proposed consent orders and instructed the Solicitor for the Northern Territory to agree to the proposed consent determination of native title. The joint submissions of the applicant and the Northern Territory indicate that the parties are in agreement that there is adequate evidence to support the consent determination. I understand the term adequate evidence to reflect the fact that there is a credible or arguable basis for the application, which in my view is the appropriate standard: see Lovett at [37]-[38]. I am therefore satisfied that the interests of the community generally have been properly considered by the Northern Territory. For these reasons, I am satisfied that it is appropriate that the Court make the consent determination sought. The applicant has nominated the Ilkewartn Ywel Aboriginal Corporation ('the Corporation') as the prescribed body corporate to hold in trust the native title of the claimant group following the determination of these proceedings pursuant to s 57(2) of the Act. The nomination is in writing and the Corporation has given its consent to the nomination. I am satisfied that the requirements of the Act have been met.
Case: Munn (for and on behalf of the Gungari People) v Queensland [2001] FCA 1229
Outcome: cited
assessing whether a free and informed agreement has been reached, the Court pays close regard to the process the state respondent party has followed in assessing the evidence establishing the existence of native title. On this aspect, Emmett J observed in Munn v Queensland (' Munn ')[2001] FCA 1229; [2001] FCA 1229 ; (2001) 115 FCR 109 that (at [29]): "... [This] would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely." I respectfully agree with his Honour's observations. Other important factors that various decisions of the Court have pointed to in assessing whether the agreement reached was free and informed, include: In this case, the parties have had the benefit of independent and competent legal representation in arriving at the agreement, the terms of the minute are unambiguous and clear and the agreement has been produced as a result of a process of negotiation.
Case: Wilson v Northern Territory [2009] FCA 800
Outcome: cited
is only the second consent determination in the southern part of the Northern Territory and the third in the whole of the Northern Territory I made a consent determination in Elliott last week: see Wilson v Northern Territory [2009] FCA 800. Nonetheless, given the co-operative approach of the legal practitioners and the parties I have mentioned above, I am confident that these two consent determinations will be the first of many that the Court will be making in the Northern Territory in coming months and years. I congratulate the parties on reaching this agreement. In so doing, I congratulate the native title holders whose rights will now be recognised. The order that the Court will now make determines, under the laws of Australia, that native title exists according to the traditional laws and customs of the Ilkewartn and Ywel People, and is held by those peoples. Of course, this order does not grant something new to the Ilkewartn and Ywel peoples, it merely recognises what they have long held. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate: Dated: 7 August 2009 Solicitor for the Applicant: Kirsten Ellerker Solicitor for the Northern Territory Stephen Herne Date of Hearing: 7 August 2009 Date of Judgment: 7 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/834.html
Case: Bromley London Borough Council v Greater London Council [1983] 1 AC 768
Outcome: cited
Having found that the Minister considered whether to inform other ministers of his proposed decision to approve the channel deepening project, the next question is whether the belief that other ministers did not have administrative responsibilities relating to the project was so unreasonable that a reasonable minister could not have formed that belief. The applicant must establish that the Minister's conclusion, when viewed objectively, was "so devoid of any plausible justification that no reasonable [person] could have reached [it]": Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821 per Lord Diplock. See also Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234 per Lord Greene MR; Fares Rural Meat &amp; Livestock Co Pty Limited v Australian Meat &amp; Livestock Corporation [1990] FCA 139 ; (1990) 96 ALR 153 at 166 per Gummow J; Peko-Wallsend at 41 per Mason J.
Case: Elias v Commissioner of Taxation [2002] FCA 845 ; (2002) 123 FCR 499
Outcome: applied
And in Elias v Commissioner of Taxation [2002] FCA 845 ; (2002) 123 FCR 499 at 511; [2002] FCA 845 at [57] , Hely J said: Where, as here, a discretion is conferred in very general terms, it is generally a matter for the decision-maker to decide what is relevant and what is not. It is largely for the decision-maker, in the light of the matters placed before him, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375. As long as the decision-maker considers those things that the legislation requires to be taken into account and ignores any prohibited consideration, the grounds of failing to take into account a relevant consideration, or taking into account an irrelevant consideration, will not be available. Nor are those grounds available where the essence of the compliant is that the decision-maker paid either too little or too much attention to a relevant factor: Aronson &amp; Dyer, Judicial Review of Administrative Action (2 nd ed, 2000), p 225. 113 The applicant sought to make a case that the Minister was bound to take into account the impact of maintenance dredging, the impact of oil or chemical spills, and the impact of the removal and disposal of toxic sediment in the north of Port Phillip by implication from the subject matter, scope and purpose of the Act. The subject matter, scope and purpose of the Act was approached in the following way. The Act employs an assessment process to inform the Minister's decision. The process requires an assessment of relevant impacts of the action contemplated (s 87(1)). Relevant impacts are impacts which the action has, will have, or is likely to have, on the protected matters (s 82(1)). An impact is defined as an event or circumstance which is a direct consequence of the action, or where the event or consequence is an indirect consequence of the action, the action is the substantial cause of the event or circumstance (s 527E(1)). Certain secondary actions are within the definition of impacts if they are the foreseeable consequence of a primary action, and within the contemplation of the person undertaking the primary action (s 527E(2)). The applicant's written supplementary submissions then contended at [39]: It can be discerned from the scope and purpose of the EPBC Act that: a) a subsequent action made necessary by the action and the impacts of the subsequent action; and b) a risk assessed as overall significant (or as not insignificant or negligible) by reference to both the terms of likelihood of occurrence and in terms of the magnitude of consequences ought to be taken into account. 114 In order to establish this ground, the applicant presumably intended that the words "ought to" be read as "must".
Case: State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102
Outcome: cited
is well established that the test of a prima facie case for the purposes of O 8 r 2 is whether there is material before the Court from which inferences are open that, if translated into findings of fact, would support the relief claimed State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102; Bannerton Holdings Pty Ltd v Sydbank Soenderjylland A/S (unreported, Fed Ct, 9 February 1996, RD Nicholson J) affirmed on appeal in Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. See also Bray v F Hoffmann-La Roche Ltd (2003) 130 CR 317.
Case: Bannerton Holdings Pty Ltd v Sydbank Soenderjylland A/S (unreported, Fed Ct, 9 February 1996, RD Nicholson J)
Outcome: cited
is well established that the test of a prima facie case for the purposes of O 8 r 2 is whether there is material before the Court from which inferences are open that, if translated into findings of fact, would support the relief claimed State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102; Bannerton Holdings Pty Ltd v Sydbank Soenderjylland A/S (unreported, Fed Ct, 9 February 1996, RD Nicholson J) affirmed on appeal in Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. See also Bray v F Hoffmann-La Roche Ltd (2003) 130 CR 317.
Case: Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539
Outcome: cited
is well established that the test of a prima facie case for the purposes of O 8 r 2 is whether there is material before the Court from which inferences are open that, if translated into findings of fact, would support the relief claimed State of Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102; Bannerton Holdings Pty Ltd v Sydbank Soenderjylland A/S (unreported, Fed Ct, 9 February 1996, RD Nicholson J) affirmed on appeal in Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539. See also Bray v F Hoffmann-La Roche Ltd (2003) 130 CR 317.