mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 222 ALR 306
Outcome: discussed
An appeal by the dealers and guarantors to the Full Court of this Court (Beaumont, Conti and Crennan JJ) was dismissed with costs ( Ringrow Pty Ltd v BP Australia Pty Ltd (2004) 209 ALR 32) as was their further appeal to the High Court ( Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 222 ALR 306). The Lansvale site was reconveyed by Ringrow to BP earlier this year. 52 But, once the validity of the termination was established, as Hely J found, the deed of option was not a means of providing BP with any form of compensation monetary or otherwise in respect of a breach of the POSA (203 ALR at 305 [109]) applying Forestry Commission (NSW) v Steffanetto [1976] HCA 3 ; (1976) 133 CLR 507 at 515 per Barwick CJ, 519 per Mason J, see too Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 222 ALR 306 at 311 [21] . When Ringrow and the other applicants brought their appeals, the sole issue was whether the deed of option was unenforceable by BP because it was a penalty. The cumulative imposition of the option on the liquidated damages clause in the POSA was also alleged to be penal (222 ALR at 312 [25]). 53 Justice Hely did not make an order for specific performance of the option. He said that was because that might have had an unintended effect of preventing Ringrow from challenging the valuation process which the option provided for fixing the price payable by BP on its exercise (203 ALR at 317 [159]; 222 ALR at 308 [6]). I was informed by the parties that BP did not press for such an order at the final hearing. However, his Honour's observations highlighted that enforcement of rights under the option was not the same as enforcement of other rights under the POSA. 54 Even so, BP contended that but for Ringrow's defaults and breaches of the POSA, it would not have been involved in the need to litigate the issue of penalties on the two appeals. BP argued that Ringrow's defaults under and breaches of the POSA were a cause of its costs on the penalties issue before not just Hely J but also in the appeals.
Case: Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20 NSWLR 82
Outcome: applied
In Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20 NSWLR 82 at 97B-C, Cole J held at general law a mortgagee is only entitled to recover party/party costs under its mortgage contract in the absence of a contractual basis which had the effect of widening the entitlement. He followed Hodgson J in AGC (Advances) Ltd v West (1984) 5 NSWLR 301 at 304, as a matter of comity, in coming to that conclusion. 87 In other contexts, such as a right of a trustee in bankruptcy to recover costs, the word 'properly' has been held to mean work reasonably and bona fide undertaken for the purpose of administering the estate or performing any public duty imposed by the Bankruptcy Act 1966 (Cth) conformably with the trustee's duty to perform the work with reasonable care and skill and in an efficient and economical way ( Adsett v Berlouis (1992) 37 FCR 201 at 212 per Northrop, Wilcox and Cooper JJ). But the limits on what a trustee may recover as 'properly' incurred have become somewhat unsettled in recent years as Ormiston JA demonstrated in Nolan v Collie [2003] VSCA 39 ; (2003) 7 VR 287 at 303-308 [44] - [53] . However, it is unnecessary to explore this question further because I agree with the view expressed by Cole J in Sandtara Pty Ltd v Australian European Finance Corporation Ltd (1990) 20 NSWLR 82 at 96E-97A. He said that while the discussion in the cases was helpful, the question in a case like the present is one of the construction of a particular contract, in this case, in the form of the POSA. As he said, a mortgagee does not enter into a mortgage assuming that default will occur. However, it takes steps to protect itself against the possibility that default will occur. If it does, a mortgagee will, or may, incur additional costs, charges and expenses both internally and to third parties. It is to guard against the exposure to such costs that a mortgagee, or in a case such as the present, BP, provides contractually for the payment of costs. Justice Cole held that if as a result of default, the lender incurs such costs they would fall within an expression such as 'all other costs of the lender' arising 'from default' under the securities and would also amount to being 'costs and expenses of default'. Obviously, the contract there was in different words and was entered into in different circumstances from the POSA in the present dispute.
Case: Skalkos v T&amp;S Recoveries Pty Ltd [2004] NSWCA 281 ; (2004) 65 NSWLR 151
Outcome: cited
The costs which BP properly incurred in respect of its position as a party to the POSA ought be recoverable by it. That includes costs incurred by BP to the extent it acted reasonably in ascertaining or defending its rights under the POSA (cp: National Provincial Bank of England v Games (1886) 31 Ch D 582 at 592 per Cotton LJ applying Lord Cottenham LC in Dryden v Frost (1838) 3 My &amp; Cr 670 at 675 [40 ER 1084 at 1086]). Thus, as Lord Cottenham LC pointed out in Dryden v Frost (1838) 3 My &amp; Cr 670 at 676 [40 ER 1084 at 1087] if a mortgagee asserts a right to which the Court finds it was not entitled, those costs are not necessarily nor properly incurred in asserting a right which the mortgage gave the mortgagee. In other words, the mortgagee cannot recover costs arising from a mistake as to its rights or from an attempt to obtain something to which it is not entitled. Nor can a trustee recover costs incurred in fighting a doubtful case when he or she ought first to have sought the direction of the Court before continuing: Dagnell v Freedman &amp; Co [1993] 1 WLR 388 at 396E-H per Lord Browne-Wilkinson. And, in determining whether costs have been reasonably and properly incurred, it is relevant to consider whether they bear a reasonable relationship to the value and importance of the subject matter in issue ( Skalkos v T&amp;S Recoveries Pty Ltd [2004] NSWCA 281 ; (2004) 65 NSWLR 151 at 153 [8] per Ipp JA).
Case: Wilkie v Gordian Runoff Ltd [2005] HCA 17 ; (2005) 221 CLR 522
Outcome: cited
In McCann v Switzerland Insurance Australia Ltd [2000] HCA 65 ; (2000) 203 CLR 579 at 589 [22] , Gleeson CJ said: 'Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure.' This statement was applied in Wilkie v Gordian Runoff Ltd [2005] HCA 17 ; (2005) 221 CLR 522 at 528-529 by Gleeson CJ, McHugh, Gummow and Kirby JJ. And in Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 ; (2001) 210 CLR 181 at 188[11] Gleeson CJ, Gummow and Hayne JJ said: 'Interpretation of a written contract involves, as Lord Hoffmann has put it ( Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28 ; [1998] 1 WLR 896 at 912; [1997] UKHL 28 ; [1998] 1 All ER 98 at 114. See also the remarks of Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 350-352, and of Lord Bingham of Cornhill in Bank of Credit and Commerce International SA v Ali [2001] UKHL 8 ; [2002] 1 AC 251 at 259): "the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract." That knowledge may include matters of law, ...'
Case: Maritime Union of Australia &amp; Ors v Geraldton Port Authority &amp; Ors [1999] FCA 899 ; (1999) 93 FCR 34
Outcome: referred to
Because the respondent must exclude delegateship and membership as a reason for termination, normally sworn evidence denying any such reason is necessary and, in most cases, an explanation of the real reason for dismissal consistent with the absence of delegateship or membership as a reason is, in a practical sense, also necessary. An instructive example of the interaction between the two categories of evidence and the consequence of partial acceptance only of the explanations proffered may be seen in Maritime Union of Australia &amp; Ors v Geraldton Port Authority &amp; Ors [1999] FCA 899 ; (1999) 93 FCR 34 esp at [313], [325], [332], [338], [339], [345], [350] and [351]. 30 Where more than one person contributes to a decision to dismiss it may be necessary to lead appropriate evidence from each such person. In the present case, for reasons which appear later, it was necessary for Ms Hobbs and Mr Grbic, in particular, to persuade me that neither delegateship nor membership was a reason for the dismissal of the applicants. 31 The respondents did not contend that the applicants had failed to make out any element of their own case. Properly, in the circumstances, the respondent accepted that the onus fell to it to displace the legislative presumption arising from s 809 of the WR Act. The case therefore centred on this issue. 32 The respondent's case was based on two foundations: first, an explicit denial from relevant decision makers that the retrenchment of either of the applicants was for the reason that he was a delegate or member of an industrial organisation; and, secondly, an explanation of the 'real reason' for dismissal. 33 The real reason, on the respondent's case, was that on 27 September 2006 the process followed to select persons, including the applicants, to be retrenched was:- &#8226; pay regard to volunteers but refuse to release any volunteer whose skills were important to retain; &#8226; thereafter select the least skilled employees to make up the numbers required to be retrenched.
Case: Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877
Outcome: cited
far as actual bias is concerned, I do not think that such a charge has been made out in this case. In order for such a conclusion to be reached by this Court, there would have to be much more by way of evidence than is presently before me. The reasons of the Tribunal, taken on their own, do not betray actual bias on the part of the Tribunal. As the Federal Magistrate said at [16] of his reasons: The applicant has done no more than make the allegation. She has provided no indication of how these difficult hurdles to establishing that allegation may be overcome. The "difficult hurdles" referred to by the Magistrate were those cited by him from the judgment of Lander J in Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877. For the above reasons, there is no error apparent in the decision of the Tribunal or in the approach taken by the Federal Magistrate in reviewing that decision. For these reasons, I propose to dismiss the appeal with costs. The first respondent has sought a fixed sum costs order. The amount which is claimed ($3,470.00) is reasonable. The appellants made no submissions against the making of such an order. Accordingly, I order that the costs of the first respondent be fixed in the amount of $3,470.00. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 19 August 2009 The Appellants appeared in person Counsel for the First Respondent: Ms L Clegg Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent submitted save as to costs Date of Hearing: 17 August 2009 Date of Judgment: 17 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/905.html
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 ; (2004) 78 ALJR 92
Outcome: followed
speaking, the Tribunal is under no duty to inquire or to investigate claims imposed upon it (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 ; (2004) 78 ALJR 92). Such a duty will only arise in rare cases. Those cases will be where it is very obvious that material is readily available which is centrally relevant to the decision to be made (see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 170). As I have already said, nothing in the materials before me suggests that such a course of investigation should have been undertaken by the Tribunal in the present case.
Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Outcome: followed
speaking, the Tribunal is under no duty to inquire or to investigate claims imposed upon it (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 ; (2004) 78 ALJR 92). Such a duty will only arise in rare cases. Those cases will be where it is very obvious that material is readily available which is centrally relevant to the decision to be made (see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 170). As I have already said, nothing in the materials before me suggests that such a course of investigation should have been undertaken by the Tribunal in the present case.
Case: Gangemi v Australian Securities and Investment Commission [2003] FCA 494 ; (2003) 129 FCR 284
Outcome: referred to
Gangemi v Australian Securities and Investment Commission [2003] FCA 494 ; (2003) 129 FCR 284, French J considered whether the Australian Securities and Investment Commission ('the Commission') had the power to give a non-disclosure direction and to direct that solicitors who had acted for other persons the Commission might wish to examine be excluded from the applicants' examinations. He followed Bell and his own decision in Stockbridge v Ogilvie (supra) and held that the Commission had both these powers.
Case: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1
Outcome: referred to
reaching that conclusion I acknowledge the force of the respondent's reasoning. In terms of avoiding prejudice to the investigation there is much to be said for a direction which would prevent Ms Boots from assisting the applicant in preparing for the examination. However, I do not think that because a direction preventing a solicitor acting or appearing for an examinee at an examination is justified by reference to the need to avoid prejudice to the investigation that that in turn means that any direction that might avoid prejudice to the investigation is within power. The question is what can be implied from the statutory provisions. In the case of inferior courts or tribunals the test for implying a power is a reasonably demanding one and a court will look carefully at the statutory provisions to discern if the particular power is legally ancillary to some other power which the inferior court or tribunal possesses, or is reasonably required for the purposes of some other such power or powers: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 per Dawson J at 16-17; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19 ; (1999) 198 CLR 435; Medical Board of SA v N, JRP (2006) 93 SASR 546. There is no reason to think that a similar test does not apply in the case of an ABC Commissioner conducting an investigation under the Act. The power to direct that a solicitor not act for a party is a significant power and, whilst it may not be correct to say that a party has a right to be represented by a solicitor of his or her own choice, the Courts have looked carefully at the circumstances before making an order that a solicitor not act for a party: Rakusen v Ellis, Munday &amp; Clarke [1912] 1 Ch 831. Courts have made such orders either in the exercise of their inherent jurisdiction (Mr K Mason QC, 'The Inherent Jurisdiction of the Court' (1983) Australian Law Journal 449) or, put another way, their special jurisdiction over solicitors who are officers of the court ( Rakusen v Ellis, Munday &amp; Clarke (supra) per Cozens-Hardy MR at 835) or by reference to a substantive doctrine of law such as the need to protect confidential information. Clearly, the ABC Commissioner does not have such powers and I do not think that there are sufficiently strong indications in the statutory provisions to conclude that there is an implied statutory power to make a direction which goes beyond preventing a solicitor from acting or appearing for an examinee at an examination.
Case: Hogan v Australian Crime Commission (2005) 154 A Crim R 336
Outcome: referred to
was no suggestion that Ms Boots would knowingly disclose confidential information to the applicant. Nevertheless, the respondent considered that to permit the same legal representative to appear for the applicant will or may prejudice the investigation. The essence of the respondent's reasons is set out above (at [26]). I have read the written notice issued to B and the record of his examination and I am satisfied that there is a proper basis for the respondent's conclusion that the applicant's examination will be 'virtually identical' to the subject matter of the examination of B. This is not a case like that which was before Mansfield J in Hogan v Australian Crime Commission (2005) 154 A Crim R 336 where the evidence did not disclose the nature of the previous examination. Mansfield J said (at 347): 'But the risk of such disclosure does not arise by assertion. It must arise on material known to the examiner. Here, I have found the examiner had no relevant knowledge, other than the counsel having previously appeared at an examination by another examiner of another person in the same special investigation. The nature of the former examinee or of the evidence that person gave or of the questions that person was asked was not known.' In this case once one concludes that the risk of inadvertent disclosure is a sufficient basis for a direction (as it is on the authorities) the conclusion that there was a proper basis for a direction preventing Ms Boots from acting or appearing for the applicant at his examination is inevitable. The respondent had the power to make a direction that Ms Boots not act or appear for the applicant at the examination and there was a proper basis for the exercise of the discretion to make such a direction. However, the direction actually made by the respondent went further than this, and, to the extent that it did, it is beyond power. In view of those conclusions I will hear the parties as to the appropriate orders and on the question of costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 12 October 2006 Counsel for the Applicant: M Gibian Solicitor for the Applicant: Gibson &amp; Gibson Counsel for the Respondent: T Southall QC, with T Jacobs Solicitor for the Respondent: Australian Government Solicitor (Victoria) Date of Hearing: 19 June 2006 Date of Judgment: 12 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1334.html
Case: Medical Board of SA v N, JRP (2006) 93 SASR 546
Outcome: referred to
reaching that conclusion I acknowledge the force of the respondent's reasoning. In terms of avoiding prejudice to the investigation there is much to be said for a direction which would prevent Ms Boots from assisting the applicant in preparing for the examination. However, I do not think that because a direction preventing a solicitor acting or appearing for an examinee at an examination is justified by reference to the need to avoid prejudice to the investigation that that in turn means that any direction that might avoid prejudice to the investigation is within power. The question is what can be implied from the statutory provisions. In the case of inferior courts or tribunals the test for implying a power is a reasonably demanding one and a court will look carefully at the statutory provisions to discern if the particular power is legally ancillary to some other power which the inferior court or tribunal possesses, or is reasonably required for the purposes of some other such power or powers: Grassby v The Queen [1989] HCA 45 ; (1989) 168 CLR 1 per Dawson J at 16-17; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19 ; (1999) 198 CLR 435; Medical Board of SA v N, JRP (2006) 93 SASR 546. There is no reason to think that a similar test does not apply in the case of an ABC Commissioner conducting an investigation under the Act. The power to direct that a solicitor not act for a party is a significant power and, whilst it may not be correct to say that a party has a right to be represented by a solicitor of his or her own choice, the Courts have looked carefully at the circumstances before making an order that a solicitor not act for a party: Rakusen v Ellis, Munday &amp; Clarke [1912] 1 Ch 831. Courts have made such orders either in the exercise of their inherent jurisdiction (Mr K Mason QC, 'The Inherent Jurisdiction of the Court' (1983) Australian Law Journal 449) or, put another way, their special jurisdiction over solicitors who are officers of the court ( Rakusen v Ellis, Munday &amp; Clarke (supra) per Cozens-Hardy MR at 835) or by reference to a substantive doctrine of law such as the need to protect confidential information. Clearly, the ABC Commissioner does not have such powers and I do not think that there are sufficiently strong indications in the statutory provisions to conclude that there is an implied statutory power to make a direction which goes beyond preventing a solicitor from acting or appearing for an examinee at an examination.