mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Toll (FCGT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: followed
The deed poll is not, in itself, a contract between legal persons. But it is a commercial document intended to be the foundation of a contractual relationship embodied in the notes when issued. The ordinary principles of construction of contracts should be applied to the provisions of the deed poll, as well as to the transaction overall. These principles require the rights of the parties to be determined objectively, without reference to their subjective beliefs or understandings about what rights or liabilities would govern their relationship. What matters is what each party, by words and conduct, would have led a reasonable person in the position of the other party to believe. In this context, the role of the Court is to ascertain the common intention of the parties in the commercial matrix in which they contracted. This process involves discerning, in context, what a reasonable person would understand from the language in which the parties expressed their agreement, having regard to the objective surrounding circumstances with the purpose and the object of a transaction: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. The commercial purpose of a contract is, in essence, the purpose attributable to a reasonable person in the position of the parties who is aware of what was known at the time to both of them about the genesis of the transaction, its background, context and the market in which they were operating.
Case: Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159
Outcome: cited
The purpose of case management and the docket system adopted by this Court is to enable both the parties and the Court to be informed, from the outset of the case each of the parties intends to advance and to identify the real issues in dispute. This is so that directions can be crafted to enable the efficient management of the litigation, with a view to focusing on and allowing those issues to be tried, and, at the same time, eliminating irrelevant matters quickly and efficiently: White v Overland [2001] FCA 1333 at [3] - [4] per Allsop J (applied by Heydon JA in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 128-129 [28]-[32], Mason P and Young CJ in Eq agreeing); Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159 at [29] per Allsop J; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] - [162] per Allsop P, with whom Beazley and Campbell JJA agreed.
Case: White v Overland [2001] FCA 1333
Outcome: cited
The purpose of case management and the docket system adopted by this Court is to enable both the parties and the Court to be informed, from the outset of the case each of the parties intends to advance and to identify the real issues in dispute. This is so that directions can be crafted to enable the efficient management of the litigation, with a view to focusing on and allowing those issues to be tried, and, at the same time, eliminating irrelevant matters quickly and efficiently: White v Overland [2001] FCA 1333 at [3] - [4] per Allsop J (applied by Heydon JA in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 128-129 [28]-[32], Mason P and Young CJ in Eq agreeing); Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159 at [29] per Allsop J; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] - [162] per Allsop P, with whom Beazley and Campbell JJA agreed. 64 In Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7 at [72] , Finn, Emmett and Bennett JJ said: "In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4] ." (emphasis in original)
Case: Zhu v Treasurer of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530
Outcome: followed
But, in construing a deed poll, just as with any contract, it is important to avoid it making commercial nonsense or working commercial inconvenience. This approach enables the court to give a construction to the deed poll and other transaction documents which a reasonable person in the position of the parties would have understood them to have intended by the words they chose in the context in which they engaged: Zhu v Treasurer of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530 at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ. The circumstances known to both Unwired and Intel at the time the deed poll was made and the overall transaction was entered into, included an awareness that each had conflicting aims and had made compromises which were expressed in the executed documents. 34 As the letter of 23 August 2005 recognised, the final form of the documents involved counterbalancing the possibilities of the note holder earning the various potential rates of return in different circumstances, all of which were, at that time, uncertain future events. I am of opinion that it is not reasonable or necessary to imply any term of the kind asserted by Unwired to give business efficacy to the deed poll or transaction.
Case: SZGSR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs &amp; Anor [2006] FMCA 882
Outcome: related
is an application for an extension of time to file and serve a notice of appeal from a decision of Emmett FM, who had dismissed an application for relief in relation to a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa to the present applicant ( SZGSR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs &amp; Anor [2006] FMCA 882). The first matter to be dealt with is the explanation for delay in appealing. The explanation which is given is that the applicant had lost a key to a post box and thus did not receive the copy of the reasons for judgment, although he had been present when judgment was handed down. That is hardly a satisfactory explanation for delay. The second issue is whether or not there is, in any event, an arguable ground of appeal. The only ground in the draft notice of appeal is that the applicant claims he was deprived of receiving procedural fairness as the Tribunal was influenced by the contradictory information and that the 'Honourable trial judge erred in considering this issue'. That, of course, isolates no ground in any real sense. In what he has said to me today, the only matter of substance that he puts forward is that the learned federal magistrate did not accept the facts as he presented them in relation to his claims which were rejected by the Tribunal.
Case: Beyazkilinc v Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465
Outcome: cited
Section 75(1) obliges the Minister to decide whether an action is a controlled action and, if it is, which provisions of Part 3 are the controlling provisions. The applicant rightly points out that the language of s 75 requires the Minister to recognise his jurisdiction and that it does not follow that the Minister is to determine the issue subjectively. It is relevant that s 75 contains no reference to the Minister's mental state by the use of words such as "opinion", "belief" or "satisfaction" which often signify that the decision is not a jurisdictional fact. While the presence of such terms would almost invariably indicate that the determination of fact is not jurisdictional (see for instance, Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 ; (1999) 46 NSWLR 78 at 90-91), their absence is not decisive; see Timbarra at 64. See also Beyazkilinc v Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465 at 475-8 per Besanko J.
Case: Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39
Outcome: cited
The applicant supports the assertion that the impact of actions should be assessed in the context of the impact of other potential actions by referring to Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39, Minister for Environment and Heritage v Greentree [2004] FCA 741 ; (2004) 138 FCR 198, Greentree v Minister for Environment and Heritage [2005] FCAFC 128 ; (2005) 144 FCR 388, and Brown v Forestry Tasmania and Others (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1. In my view none of these cases supports the applicant's argument.
Case: Brown v Forestry Tasmania and Others (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1
Outcome: cited
The applicant supports the assertion that the impact of actions should be assessed in the context of the impact of other potential actions by referring to Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39, Minister for Environment and Heritage v Greentree [2004] FCA 741 ; (2004) 138 FCR 198, Greentree v Minister for Environment and Heritage [2005] FCAFC 128 ; (2005) 144 FCR 388, and Brown v Forestry Tasmania and Others (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1. In my view none of these cases supports the applicant's argument.
Case: Greentree v Minister for Environment and Heritage [2005] FCAFC 128 ; (2005) 144 FCR 388
Outcome: cited
The applicant supports the assertion that the impact of actions should be assessed in the context of the impact of other potential actions by referring to Booth v Bosworth [2001] FCA 1453 ; (2001) 114 FCR 39, Minister for Environment and Heritage v Greentree [2004] FCA 741 ; (2004) 138 FCR 198, Greentree v Minister for Environment and Heritage [2005] FCAFC 128 ; (2005) 144 FCR 388, and Brown v Forestry Tasmania and Others (No 4) [2006] FCA 1729 ; (2006) 157 FCR 1. In my view none of these cases supports the applicant's argument.
Case: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459
Outcome: discussed
The applicant's submission draws on the comments made by McHugh J in Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 490 where his Honour was discussing the common law concept of causation: The common law concept of causation recognises that conduct that infringes a legal norm may be causally connected with the sustaining of loss or damage even though other factors may have contributed to the loss or damage. ... The common law has avoided the technical controversies inherent in the logic of causation. Unlike science and philosophy, the common law is not concerned to discover universal connections between phenomena so as to enable predictions to be made. The common law concept of causation looks backward because its function is to determine whether a person should be held responsible for some past act or omission. Out of the many conditions that combine to produce loss or damage to a person, the common law is concerned with determining only whether some breach of a legal norm was so significant that, as a matter of common sense, it should be regarded as a cause of damage. 34 As his Honour's submissions make clear, the common law concept of causation is concerned not only with determining cause and effect but also with attributing legal responsibility. This injects an evaluative element into the enquiry. The Minister's task under s 75 is a factual enquiry about the impact of an action. Although there is an element of indeterminacy injected by the requirement that the action has, will have or be likely to have a significant impact, it is quite different from an enquiry into legal causation.
Case: Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 ; (2004) 139 FCR 24
Outcome: discussed
While there is no authority directly in point the approach of the Full Court in Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 ; (2004) 139 FCR 24 impliedly accepted that the Minister's determination was not subject to merits review by the Court. The Full Court stated at [53] of its reasons: Provided that the concept [of impact] is understood and applied correctly ... it is a question of fact for the Environment Minister whether a particular adverse effect is an "impact" of a proposed action. 73 There is, of course, much more that could be said for and against the proposition for which the applicant contends. I am satisfied, however, that for the reasons given the contention of jurisdictional fact cannot be supported. 74 For this and all the reasons given above, it is my view that the application must be dismissed with costs. It follows that the question reserved on 25 July 2007 (see [30] above) does not arise. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 20 September 2007 Counsel for the Applicant: L McCallum SC, C McGrath Solicitor for the Applicant: Environmental Defenders Office Counsel for the First Respondent: S Gageler SC, S Lloyd, A Mitchelmore Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: MJ Leeming SC Solicitor for the Second Respondent: Blake Dawson Waldron Date of Hearing: 21 and 22 August 2007 Date of Judgment: 20 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1480.html
Case: Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 ; (1999) 46 NSWLR 78
Outcome: referred to
Section 75(1) obliges the Minister to decide whether an action is a controlled action and, if it is, which provisions of Part 3 are the controlling provisions. The applicant rightly points out that the language of s 75 requires the Minister to recognise his jurisdiction and that it does not follow that the Minister is to determine the issue subjectively. It is relevant that s 75 contains no reference to the Minister's mental state by the use of words such as "opinion", "belief" or "satisfaction" which often signify that the decision is not a jurisdictional fact. While the presence of such terms would almost invariably indicate that the determination of fact is not jurisdictional (see for instance, Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 ; (1999) 46 NSWLR 78 at 90-91), their absence is not decisive; see Timbarra at 64. See also Beyazkilinc v Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465 at 475-8 per Besanko J.
Case: Barrett v The Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129
Outcome: cited
The applicant to pay the costs of the first respondent and the State of Queensland, to be taxed if not otherwise agreed. 3 In my view the orders I made this morning are interlocutory orders as they do not finally determine all rights of the parties in issue. (An order upholding an objection to competency on the basis that a decision is not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') is an interlocutory decision: Meredith v Commissioner of Taxation [2002] FCAFC 271 ; (2002) 125 FCR 308. Similarly an order rejecting an application for an extension of time to commence proceedings under the ADJR Act is an interlocutory order: Barrett v The Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129.)
Case: Federal Commissioner of Taxation v Hydrocarbon Products Pty Ltd (1987) 72 ALR 391
Outcome: applied
The principles applicable to granting leave to appeal from interlocutory orders are reasonably well settled. It is necessary to show that the order in respect of which leave to appeal is sought is attended with sufficient doubt to warrant it being reconsidered, and that substantial injustice would result if leave to appeal were refused: Federal Commissioner of Taxation v Hydrocarbon Products Pty Ltd (1987) 72 ALR 391, Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539. 8 I am very conscious that there are concurrent criminal proceedings in the Magistrates Court at Brisbane in respect of the applicant. The proceedings in the Magistrates Court are part-heard and are scheduled for further hearing on 22-24 January 2007. I am concerned that this Court may be being used to prevent those criminal proceedings in the Magistrates Court continuing as scheduled. Further, I note that the next scheduled Full Court hearings in this Court, which could hear an appeal by the applicant from the orders I made this morning, are not until February 2007. However, in applying the principles in Hydrocarbon Products and Telstra Corporation , I am satisfied that the orders in respect of which leave to appeal is sought are attended by sufficient doubt to warrant reconsideration in the sense that: &#8226; the orders raise important issues of law and the jurisdiction of the Federal Court under the ADJR Act, particularly in respect of s 9A, and &#8226; it is appropriate that these issues receive consideration by the Full Court.
Case: Meredith v Commissioner of Taxation [2002] FCAFC 271 ; (2002) 125 FCR 308
Outcome: cited
The applicant to pay the costs of the first respondent and the State of Queensland, to be taxed if not otherwise agreed. 3 In my view the orders I made this morning are interlocutory orders as they do not finally determine all rights of the parties in issue. (An order upholding an objection to competency on the basis that a decision is not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') is an interlocutory decision: Meredith v Commissioner of Taxation [2002] FCAFC 271 ; (2002) 125 FCR 308. Similarly an order rejecting an application for an extension of time to commence proceedings under the ADJR Act is an interlocutory order: Barrett v The Minister of State for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129.)
Case: Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539
Outcome: applied
The principles applicable to granting leave to appeal from interlocutory orders are reasonably well settled. It is necessary to show that the order in respect of which leave to appeal is sought is attended with sufficient doubt to warrant it being reconsidered, and that substantial injustice would result if leave to appeal were refused: Federal Commissioner of Taxation v Hydrocarbon Products Pty Ltd (1987) 72 ALR 391, Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539. 8 I am very conscious that there are concurrent criminal proceedings in the Magistrates Court at Brisbane in respect of the applicant. The proceedings in the Magistrates Court are part-heard and are scheduled for further hearing on 22-24 January 2007. I am concerned that this Court may be being used to prevent those criminal proceedings in the Magistrates Court continuing as scheduled. Further, I note that the next scheduled Full Court hearings in this Court, which could hear an appeal by the applicant from the orders I made this morning, are not until February 2007. However, in applying the principles in Hydrocarbon Products and Telstra Corporation , I am satisfied that the orders in respect of which leave to appeal is sought are attended by sufficient doubt to warrant reconsideration in the sense that: &#8226; the orders raise important issues of law and the jurisdiction of the Federal Court under the ADJR Act, particularly in respect of s 9A, and &#8226; it is appropriate that these issues receive consideration by the Full Court.
Case: Jacobs v London County Council [1950] AC 361
Outcome: cited
In Jacobs v London County Council [1950] AC 361 at 369 Lord Simonds said: There is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision because he has given another reason also. In Commissioners of Taxation (NSW) v Palmer [1907] AC 179 at 184 Lord Macnaghten for the Privy Council said: It is impossible to treat a proposition which a court declares to be a distinct and sufficient ground for its decision as a mere dictum, simply because there is another ground stated upon which, standing alone, the case might have been determined.
Case: Commissioners of Taxation (NSW) v Palmer [1907] AC 179
Outcome: cited
In Jacobs v London County Council [1950] AC 361 at 369 Lord Simonds said: There is in my opinion no justification for regarding as obiter dictum a reason given by a judge for his decision because he has given another reason also. In Commissioners of Taxation (NSW) v Palmer [1907] AC 179 at 184 Lord Macnaghten for the Privy Council said: It is impossible to treat a proposition which a court declares to be a distinct and sufficient ground for its decision as a mere dictum, simply because there is another ground stated upon which, standing alone, the case might have been determined.
Case: McBride v Monzie Pty Ltd [2007] FCA 1947
Outcome: cited
In McBride v Monzie Pty Ltd [2007] FCA 1947 Finkelstein J said at [6]: The ratio of a case is the ruling on a point of law upon which the judge acts to reach his (or her) conclusion: Cross &amp; Harris, Precedent in English Law (4th ed, 1990) at 72. If a judge gives two or more alternative reasons for reaching his (or her) decision each reason is part of the ratio ... Bristol-Meyers Squibb Co v F H Faulding &amp; Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 , 570-571. There may be some cases where the judge gives additional reasons but indicates that he does not wish them to be part of the ratio and is merely wanting to have his views recorded for the benefit of those who may later be required to consider the point. In that event, what the judge says is not part of the ratio: Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1, 25.