mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cardile v LED Builders Pty Limited [1999] HCA 18 ; (1999) 198 CLR 380
Outcome: referred to
Capital Steel submits that the Court did not have the power to make orders against the Commonwealth Bank and it referred to Australian Broadcasting Authority v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199, Cardile v LED Builders Pty Limited [1999] HCA 18 ; (1999) 198 CLR 380, s 23 Federal Court of Australia Act 1976 (Cth) and O 25A r 5(5) of the Federal Court Rules . I do not need to consider that question. On any view, the reformulated orders involve a substantial interference in the commercial relationship between Capital Steel and the Commonwealth Bank. Even if the orders cover all contingencies in terms of possible loss to the Commonwealth Bank, and I am not completely satisfied that is the case, there will be time and expense involved in establishing any loss which may be suffered. Although the reformulated orders go some way towards addressing the prejudice to Capital Steel and the Commonwealth Bank if interlocutory injunctions are granted, the balance of convenience still favours the refusal of relief.
Case: Ciavarella v Balmer [1983] HCA 26 ; (1983) 153 CLR 438
Outcome: referred to
In order to fall within the terms of s 51AA of the TPA the conduct must be unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories. In Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315 the High Court considered the meaning of the terms "unconscientious" and "unconscionable". In the joint reasons of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ their Honours made the point (at 324 [20]) that the terms are used across a broad range of the equity jurisdiction. It is wrong to suggest that "sufficient foundation for the existence of the necessary 'equity' to interfere in relationships established by, for example, the law of contract, is supplied by an element of hardship or unfairness in the terms of the transaction in question, or in the manner of its performance" (at 325 at [26]). Their Honours discuss the Court's previous decisions in Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 and Stern v McArthur [1988] HCA 51 ; (1988) 165 CLR 489. Their Honours endorse (at 328 [37]) the approach taken by Mason CJ in Stern (at 503) that Legione and Ciavarella v Balmer [1983] HCA 26 ; (1983) 153 CLR 438 established that the Court will not readily relieve against loss of a contract for sale validly rescinded by the vendor for breach of an essential condition "and, in particular, equity was not authorised 'to reshape contractual relations into a form the Court thinks more reasonable or fair where subsequent events have rendered one side's situation more favourable'".
Case: Clough Engineering Limited v Oil and Natural Gas Corporation Ltd [2007] FCA 881
Outcome: referred to
In Clough Engineering Limited v Oil and Natural Gas Corporation Ltd [2007] FCA 881 , Gilmour J was concerned with an application for leave pursuant to O 8 of the Federal Court Rules to serve an application out of the jurisdiction and for orders to restrain Oil and Natural Gas Corporation Ltd ("ONGC") from taking further steps to demand or obtain payment or renewing or claiming to renew such demand in respect of certain performance guarantees granted by the three respondent banks to ONGC. The applicant, Clough Engineering Limited, sought a declaration that ONGC by demanding and threatening to make a demand on the performance guarantees granted by the banks had engaged in, or proposed to engage in, unconscionable conduct in contravention of s 51AA of the TPA. Gilmour J granted leave to serve and he made an order restraining ONGC from taking any further step to demand or obtain payment or renewing or claiming to renew a demand for payment from the banks under the performance guarantees. Gilmour J said that there was authority which clearly supported the proposition that an inappropriate threat to call or a call on performance guarantees can be unconscionable conduct within s 51AA of the TPA and he referred to the decision in Samton . His Honour considered that it was appropriate to grant an injunction restraining ONGC from making a call on the performance guarantees and he appears to have relied on the fact that there was a serious question to be tried as to whether ONGC's conduct was unconscionable within s 51AA of the TPA. He also relied on another exception to the autonomy principle, namely, breach of a negative stipulation.
Case: Clough Engineering Limited v Oil and Natural Gas Corporation Limited (No 2) [2007] FCA 927
Outcome: referred to
Shortly after his Honour made these orders, the banks applied to have them set aside. Gilmour J refused to set aside the orders: Clough Engineering Ltd v Oil and Natural Gas Corporation Limited (No 2) [2007] FCA 927. His Honour said (at [43]): "I remain satisfied that there is a serious question to be tried as to whether ONGC has acted unconscionably in contravention of s 51AA of the Act in calling on or threatening to call on the performance guarantees despite there being no legal right on its part to do so. As Austin J said in Boral Formwork v Action Makers (2003) ATPR 41-953 at [14] when referring relevantly to s 51AA of the Act: 'the principle of autonomy applicable to a standby letter of credit, cannot override the statute'. I am also satisfied that upon the same factual matrix, there is a serious issue to be tried whether ONGC is in breach if [sic] the negative stipulation conditioning the right to call up the performance guarantees."
Case: Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406
Outcome: referred to
In order to fall within the terms of s 51AA of the TPA the conduct must be unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories. In Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315 the High Court considered the meaning of the terms "unconscientious" and "unconscionable". In the joint reasons of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ their Honours made the point (at 324 [20]) that the terms are used across a broad range of the equity jurisdiction. It is wrong to suggest that "sufficient foundation for the existence of the necessary 'equity' to interfere in relationships established by, for example, the law of contract, is supplied by an element of hardship or unfairness in the terms of the transaction in question, or in the manner of its performance" (at 325 at [26]). Their Honours discuss the Court's previous decisions in Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 and Stern v McArthur [1988] HCA 51 ; (1988) 165 CLR 489. Their Honours endorse (at 328 [37]) the approach taken by Mason CJ in Stern (at 503) that Legione and Ciavarella v Balmer [1983] HCA 26 ; (1983) 153 CLR 438 established that the Court will not readily relieve against loss of a contract for sale validly rescinded by the vendor for breach of an essential condition "and, in particular, equity was not authorised 'to reshape contractual relations into a form the Court thinks more reasonable or fair where subsequent events have rendered one side's situation more favourable'". 62 It said (at 318 [48]): "Under the rubric of unconscionable conduct, equity will: (i) Set aside a contract or disposition resulting from the knowing exploitation by one party of the special disadvantage of another. The special disadvantage may be constitutional, deriving from age, illness, poverty, inexperience or lack of education Commercial Bank of Australia v Amadio . Or it may be situational, deriving from particular features of a relationship between actors in the transaction such as the emotional dependence of one on the other Louth v Diprose ; Bridgewater v Leahy [1998] HCA 66 ; (1998) 194 CLR 457. (ii) Set aside as against third parties a transaction entered into as the result of the defective comprehension by a party to the transaction, the influence of another and the want of any independent explanation to the complaining party Garcia v National Australia Bank Ltd [1998] HCA 48 ; (1988) 194 CLR 395. (iii) Prevent a party from exercising a legal right in a way that involves unconscionable departure from a representation relied upon by another to his or her detriment Waltons Stores (Interstate) Ltd v Maher ; Commonwealth v Verwayen . (iv) Relieve against forfeiture and penalty Legione v Hateley ; Stern v McArthur . (v) Rescind contracts entered into under the influence of unilateral mistake Taylor v Johnson ."
Case: Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380
Outcome: referred to
In Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380 (" Olex Focas "), Batt J granted injunctions in respect of mobilisation guarantees given in connection with a construction project on the ground that there was a serious question to be tried as to whether the party making a demand under the guarantee had acted unconscionably within s 51AA of the TPA. His Honour took a broad view of what might constitute unconscionable conduct. I refer to his Honour's observations at 404. In Samton the Full Court said (at 319 [50]) that it did not need to pass on the correctness of the decision in Olex Focas . 67 In Boral Formwork and Scaffolding Pty Ltd v Action Makers Ltd (in administrative receivership) (2003) ATPR 41-953 (" Boral Formwork "), Austin J considered whether an order should be made restraining a bank which had issued a letter of credit from paying any amount in excess of an undisputed amount to the beneficiary under the letter of credit. The parties seeking the order alleged that the beneficiary under the letter of credit had engaged in conduct that was unconscionable within s 51AA of the TPA. Austin J noted that the principle of autonomy applicable to a standby letter of credit could not override the provisions of the TPA. He referred with approval to the observations of Batt J in Olex Focas . Austin J considered the significance of the beneficiary being insolvent when the call is made on an irrevocable instrument. He said (at [81]): "If the parties have agreed to protect the beneficiary from credit risk, there is unlikely to be anything unconscionable in the consequence that the beneficiary may (for the benefit of its creditors) call on the irrevocable instrument at the account party's expense, leaving the account party to claim in the beneficiary's insolvency if the dispute is resolved in its favour." A little later, his Honour said (at [94]): "I hope it is clear, that in deciding to grant the relief sought by Boral, I have given anxious consideration to the principle of autonomy and the dangers associated with any judicial intervention with the performance of unconditional commercial obligations. The terms of the irrevocable instrument and the underlying contract, properly construed, are highly relevant to the decision whether conduct in connection with those arrangements is unconscionable for statutory or equitable purposes. It is not normally unfair or unreasonable or otherwise unconscionable to exercise commercial rights under an autonomous commercial contract, even if (for example) for the purpose of applying pressure to resolve a dispute. Even if the conduct is unconscionable, the principle of autonomy is relevant to the exercise of the Court's discretion to grant injunctive relief or leave the plaintiff to other remedies. Here the circumstances, involving as they do a call on the letter of credit on a false basis, are sufficiently special to overcome the hesitation which the principle of autonomy generates."
Case: Stern v McArthur [1988] HCA 51 ; (1988) 165 CLR 489
Outcome: referred to
In order to fall within the terms of s 51AA of the TPA the conduct must be unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories. In Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315 the High Court considered the meaning of the terms "unconscientious" and "unconscionable". In the joint reasons of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ their Honours made the point (at 324 [20]) that the terms are used across a broad range of the equity jurisdiction. It is wrong to suggest that "sufficient foundation for the existence of the necessary 'equity' to interfere in relationships established by, for example, the law of contract, is supplied by an element of hardship or unfairness in the terms of the transaction in question, or in the manner of its performance" (at 325 at [26]). Their Honours discuss the Court's previous decisions in Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 and Stern v McArthur [1988] HCA 51 ; (1988) 165 CLR 489. Their Honours endorse (at 328 [37]) the approach taken by Mason CJ in Stern (at 503) that Legione and Ciavarella v Balmer [1983] HCA 26 ; (1983) 153 CLR 438 established that the Court will not readily relieve against loss of a contract for sale validly rescinded by the vendor for breach of an essential condition "and, in particular, equity was not authorised 'to reshape contractual relations into a form the Court thinks more reasonable or fair where subsequent events have rendered one side's situation more favourable'". 62 It said (at 318 [48]): "Under the rubric of unconscionable conduct, equity will: (i) Set aside a contract or disposition resulting from the knowing exploitation by one party of the special disadvantage of another. The special disadvantage may be constitutional, deriving from age, illness, poverty, inexperience or lack of education Commercial Bank of Australia v Amadio . Or it may be situational, deriving from particular features of a relationship between actors in the transaction such as the emotional dependence of one on the other Louth v Diprose ; Bridgewater v Leahy [1998] HCA 66 ; (1998) 194 CLR 457. (ii) Set aside as against third parties a transaction entered into as the result of the defective comprehension by a party to the transaction, the influence of another and the want of any independent explanation to the complaining party Garcia v National Australia Bank Ltd [1998] HCA 48 ; (1988) 194 CLR 395. (iii) Prevent a party from exercising a legal right in a way that involves unconscionable departure from a representation relied upon by another to his or her detriment Waltons Stores (Interstate) Ltd v Maher ; Commonwealth v Verwayen . (iv) Relieve against forfeiture and penalty Legione v Hateley ; Stern v McArthur . (v) Rescind contracts entered into under the influence of unilateral mistake Taylor v Johnson ."
Case: Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315
Outcome: referred to
In order to fall within the terms of s 51AA of the TPA the conduct must be unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories. In Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57 ; (2003) 217 CLR 315 the High Court considered the meaning of the terms "unconscientious" and "unconscionable". In the joint reasons of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ their Honours made the point (at 324 [20]) that the terms are used across a broad range of the equity jurisdiction. It is wrong to suggest that "sufficient foundation for the existence of the necessary 'equity' to interfere in relationships established by, for example, the law of contract, is supplied by an element of hardship or unfairness in the terms of the transaction in question, or in the manner of its performance" (at 325 at [26]). Their Honours discuss the Court's previous decisions in Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 and Stern v McArthur [1988] HCA 51 ; (1988) 165 CLR 489. Their Honours endorse (at 328 [37]) the approach taken by Mason CJ in Stern (at 503) that Legione and Ciavarella v Balmer [1983] HCA 26 ; (1983) 153 CLR 438 established that the Court will not readily relieve against loss of a contract for sale validly rescinded by the vendor for breach of an essential condition "and, in particular, equity was not authorised 'to reshape contractual relations into a form the Court thinks more reasonable or fair where subsequent events have rendered one side's situation more favourable'".
Case: Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: referred to
It is common ground that any order on the motion would be an interlocutory order, so that ordinary principles governing summary dismissal of a proceeding should apply. That is, an application under s 84C should be approached with caution and should be allowed only where a clear case for summary dismissal has been made: Williams v Grant [2004] FCAFC 178 at [48] - [49] per Lander J (with whom North and Dowsett JJ agreed); Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at 89 [51] per Stone J. The general approach, therefore, is consistent with the approach of Courts in other applications to summarily dismiss proceedings, namely that they should be dismissed only in very clear cases: Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 at 129. As in Williams v Grant at [84] and [87] per Lander J, the first applicants seeking to strike out the Town of Batchelor No 2 application under s 84C have the onus and responsibility of establishing that the second applicants were not authorised by the native title claim group to bring that claim, and so to make out a very clear case of want of authorisation, or a clear failure to comply with one or other of the requirements of ss 61 , 61A or 62 .
Case: General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: referred to
It is common ground that any order on the motion would be an interlocutory order, so that ordinary principles governing summary dismissal of a proceeding should apply. That is, an application under s 84C should be approached with caution and should be allowed only where a clear case for summary dismissal has been made: Williams v Grant [2004] FCAFC 178 at [48] - [49] per Lander J (with whom North and Dowsett JJ agreed); Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at 89 [51] per Stone J. The general approach, therefore, is consistent with the approach of Courts in other applications to summarily dismiss proceedings, namely that they should be dismissed only in very clear cases: Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 at 129. As in Williams v Grant at [84] and [87] per Lander J, the first applicants seeking to strike out the Town of Batchelor No 2 application under s 84C have the onus and responsibility of establishing that the second applicants were not authorised by the native title claim group to bring that claim, and so to make out a very clear case of want of authorisation, or a clear failure to comply with one or other of the requirements of ss 61 , 61A or 62 . 14 It is, therefore, hard to resist the temptation of determining such a fundamental issue as authorisation before a full trial of the native title determination application with the very substantial resources which are then involved. To do so has the attraction of expedition and economy. Certain recent decisions of the Court have illustrated that proper authorisation is a matter which should not be overlooked, and the possibility of a challenge, at an early point in the proceeding: see e.g. Risk v Northern Territory [2006] FCA 404 ; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1. The mere complexity of an issue, or the fact that extensive argument may be necessary to demonstrate that the claim is untenable, is not a reason not to dispose of an application summarily: General Steel Industries Inc v Commissioner for Railways (NSW) 112 CLR at 130 per Barwick CJ.
Case: Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495
Outcome: discussed
In Landers v South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at 497 [7] I said: ... The power summarily to dismiss an application should be exercised only where the claim as expressed is untenable, and upon the version of the evidence favourable to the applicant. The Court should not, upon such an application, generally undertake any weighing of conflicting evidence or of the inferences which might be drawn from such evidence: Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603. 36 In my view, on his own material, those two clans are a mere subset of the FRBG. It is therefore inappropriate that they should constitute the native title claim group: see e.g. Ward v Western Australia [1998] FCA 1478 ; (1998) 159 ALR 483 at 581; Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Tilmouth v Northern Territory [2001] FCA 820 ; [2001] 109 FCR 240 at 241-242; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Landers v South Australia [2003] FCA 264 ; [2003] 128 FCR 495 at 504; and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1209]-[1217].
Case: Quall v Risk [2001] FCA 389
Outcome: referred to
As has been often observed, proper authorisation is fundamental to the legitimacy of native title applications (see e.g. Quall v Risk [2001] FCA 378 at [67] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Quandamooka People (No 1) v State of Queensland [2002] FCA 259 at [25] ; Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 at [48] ; Daniel v Western Australia [2002] FCA 1147 at [11] .
Case: Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364
Outcome: referred to
As has been often observed, proper authorisation is fundamental to the legitimacy of native title applications (see e.g. Quall v Risk [2001] FCA 378 at [67] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Quandamooka People (No 1) v State of Queensland [2002] FCA 259 at [25] ; Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 at [48] ; Daniel v Western Australia [2002] FCA 1147 at [11] . 36 In my view, on his own material, those two clans are a mere subset of the FRBG. It is therefore inappropriate that they should constitute the native title claim group: see e.g. Ward v Western Australia [1998] FCA 1478 ; (1998) 159 ALR 483 at 581; Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Tilmouth v Northern Territory [2001] FCA 820 ; [2001] 109 FCR 240 at 241-242; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Landers v South Australia [2003] FCA 264 ; [2003] 128 FCR 495 at 504; and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1209]-[1217].
Case: Quandamooka People (No 1) v State of Queensland [2002] FCA 259
Outcome: referred to
As has been often observed, proper authorisation is fundamental to the legitimacy of native title applications (see e.g. Quall v Risk [2001] FCA 378 at [67] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Quandamooka People (No 1) v State of Queensland [2002] FCA 259 at [25] ; Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 at [48] ; Daniel v Western Australia [2002] FCA 1147 at [11] .
Case: Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637
Outcome: referred to
As has been often observed, proper authorisation is fundamental to the legitimacy of native title applications (see e.g. Quall v Risk [2001] FCA 378 at [67] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Quandamooka People (No 1) v State of Queensland [2002] FCA 259 at [25] ; Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 at [48] ; Daniel v Western Australia [2002] FCA 1147 at [11] .