mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640 
Outcome: cited
The proposed implication is consistent with and supported by, but does not depend upon, the conduct of the parties in the performance of the contract. There has been considerable debate about the use that can be made of post-contractual conduct (eg Charles, 'Interpretation of Ambiguous Contracts by Reference to Subsequent Conduct', (1991) 4 Journal of Contract Law 16). The current received wisdom is that it may not be used for purposes of construction of the contract ( Winstonu Pty Ltd (t/a Harvey Norman Electrics) v Pitson [2001] FCA 541 ; Magill v National Australia Bank Ltd (2001) Aust Contract R 90 131, [2001] NSWCA 221 ; Collins Hill Group Pty Ltd v Trollope Silverwood &amp; Beck Pty Ltd [2002] VSCA 205) . However, Charles QC (as he then was) referred with approval to the view of Greig and Davis ( The Law of Contract (1987) 436 438) that subsequent conduct could provide a basis for implying an additional term into an existing contract. A similar view is expressed by the authors of Carter and Harland, Contract Law in Australia, 4 th ed, 2002 at [719]. I can see no difficulty in regarding subsequent conduct as relevant to the question as to whether a term is necessary to give business efficacy to the contract. Indeed, if a contract has been performed without adhering to, or without inconsistency with, the claimed term, without complaint or commercial difficulty, that would be powerful evidence that the term is not necessary. The law prefers facts to prophecies ( HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640 at [39] ). It would be odd to imply a term as necessary where such a conclusion would be contrary to the facts as they later appeared. If conduct may be relevant to negative the implication of a term as being necessary then it should also be relevant to support the implication of a term on the same basis. Here, the contract was always administered on the basis that advance notice of particular requirements was required to be given by the Council. Indeed, even Orders No 1 and No 2 illustrate that. It is a short, and appropriate, step to say that such notice must be reasonable, as had been the case in practice until 19 October 1999.
Case: Magill v National Australia Bank Ltd (2001) Aust Contract R 90 131, [2001] NSWCA 221
Outcome: distinguished
The proposed implication is consistent with and supported by, but does not depend upon, the conduct of the parties in the performance of the contract. There has been considerable debate about the use that can be made of post-contractual conduct (eg Charles, 'Interpretation of Ambiguous Contracts by Reference to Subsequent Conduct', (1991) 4 Journal of Contract Law 16). The current received wisdom is that it may not be used for purposes of construction of the contract ( Winstonu Pty Ltd (t/a Harvey Norman Electrics) v Pitson [2001] FCA 541 ; Magill v National Australia Bank Ltd (2001) Aust Contract R 90 131, [2001] NSWCA 221 ; Collins Hill Group Pty Ltd v Trollope Silverwood &amp; Beck Pty Ltd [2002] VSCA 205) . However, Charles QC (as he then was) referred with approval to the view of Greig and Davis ( The Law of Contract (1987) 436 438) that subsequent conduct could provide a basis for implying an additional term into an existing contract. A similar view is expressed by the authors of Carter and Harland, Contract Law in Australia, 4 th ed, 2002 at [719]. I can see no difficulty in regarding subsequent conduct as relevant to the question as to whether a term is necessary to give business efficacy to the contract. Indeed, if a contract has been performed without adhering to, or without inconsistency with, the claimed term, without complaint or commercial difficulty, that would be powerful evidence that the term is not necessary. The law prefers facts to prophecies ( HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640 at [39] ). It would be odd to imply a term as necessary where such a conclusion would be contrary to the facts as they later appeared. If conduct may be relevant to negative the implication of a term as being necessary then it should also be relevant to support the implication of a term on the same basis. Here, the contract was always administered on the basis that advance notice of particular requirements was required to be given by the Council. Indeed, even Orders No 1 and No 2 illustrate that. It is a short, and appropriate, step to say that such notice must be reasonable, as had been the case in practice until 19 October 1999.
Case: Psaltis v Schultz [1948] HCA 31 ; (1948) 76 CLR 547
Outcome: cited
The requirements to be proved by a party, which has properly brought a contract to an end by accepting a wrongful repudiation by the other party to an executory contract and seeks damages, was considered in Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385, although that was not the precise point of the case. Such a party must establish that it was ready and willing to carry out the contract on its part at the time of acceptance of the repudiation and readiness and willingness includes capacity. However, in a situation in which the wrongdoer relieves the other party from actual performance in the future, that task is not particularly demanding. In Psaltis v Schultz [1948] HCA 31 ; (1948) 76 CLR 547 Dixon J said (at 560): 'It is enough that he is not presently incapacitated from future performance and is not indisposed to do, when the time comes, what the contract requires.'
Case: Rawson v Hobbs [1961] HCA 72 ; (1961) 107 CLR 466
Outcome: cited
In Rawson v Hobbs [1961] HCA 72 ; (1961) 107 CLR 466 Dixon CJ said (at 481): 'One must be very careful to see that nothing but a substantial incapacity or definitive resolve or decision against doing in the future what the contract requires is counted as an absence of readiness and willingness.'
Case: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 
Outcome: applied
In one sense there is no difficulty in implying the pleaded term (a) it reflects the following passage from the judgment of Mason J (Gibbs, Stephen and Aickin JJ agreeing) in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (Secured Income Real Estate) [1979] HCA 51 ; (1979) 144 CLR 596 at 607 608: 'But it is common ground that the contract imposed an implied obligation on each party to do all that was reasonably necessary to secure performance of the contract. As Lord Blackburn said in Mackay v. Dick [(1881) 6 App. Cas. 251, at p.263]: "as a general rule ... where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect." It is not to be thought that this rule of construction is confined to the imposition of an obligation on one contracting party to co-operate in doing all that is necessary to be done for the performance by the other party of his obligations under the contract. As Griffith C.J. said in Butt v. M'Donald [(1896) 7 Q.L.J. 68, at pp.70 71]: "It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract." 162 The difficulty lies in giving content to that obligation. It is not a mechanism for alleviating the consequences of hard, even harsh or unconscionable, contractual provisions. The duty of cooperation does not extend to being nice or even reasonable to the other party. As Mason J said in Secured Income Real Estate (at 607): 'It is easy to imply a duty to co-operate in the doing of acts which are necessary to the performance by the parties or by one of the parties of fundamental obligations under the contract. It is not quite so easy to make the implication when the acts in question are necessary to entitle the other contracting party to a benefit under the contract but are not essential to the performance of that party's obligations and are not fundamental to the contract. Then the question arises whether the contract imposes a duty to co-operate on the first party or whether it leaves him at liberty to decide for himself whether the acts shall be done, even if the consequence of his decision is to disentitle the other party to a benefit. In such a case, the correct interpretation of the contract depends, as it seems to me, not so much on the application of the general rule of construction as on the intention of the parties as manifested by the contract itself.'
Case: Winstonu Pty Ltd (t/a Harvey Norman Electrics) v Pitson [2001] FCA 541
Outcome: distinguished
The proposed implication is consistent with and supported by, but does not depend upon, the conduct of the parties in the performance of the contract. There has been considerable debate about the use that can be made of post-contractual conduct (eg Charles, 'Interpretation of Ambiguous Contracts by Reference to Subsequent Conduct', (1991) 4 Journal of Contract Law 16). The current received wisdom is that it may not be used for purposes of construction of the contract ( Winstonu Pty Ltd (t/a Harvey Norman Electrics) v Pitson [2001] FCA 541 ; Magill v National Australia Bank Ltd (2001) Aust Contract R 90 131, [2001] NSWCA 221 ; Collins Hill Group Pty Ltd v Trollope Silverwood &amp; Beck Pty Ltd [2002] VSCA 205) . However, Charles QC (as he then was) referred with approval to the view of Greig and Davis ( The Law of Contract (1987) 436 438) that subsequent conduct could provide a basis for implying an additional term into an existing contract. A similar view is expressed by the authors of Carter and Harland, Contract Law in Australia, 4 th ed, 2002 at [719]. I can see no difficulty in regarding subsequent conduct as relevant to the question as to whether a term is necessary to give business efficacy to the contract. Indeed, if a contract has been performed without adhering to, or without inconsistency with, the claimed term, without complaint or commercial difficulty, that would be powerful evidence that the term is not necessary. The law prefers facts to prophecies ( HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640 at [39] ). It would be odd to imply a term as necessary where such a conclusion would be contrary to the facts as they later appeared. If conduct may be relevant to negative the implication of a term as being necessary then it should also be relevant to support the implication of a term on the same basis. Here, the contract was always administered on the basis that advance notice of particular requirements was required to be given by the Council. Indeed, even Orders No 1 and No 2 illustrate that. It is a short, and appropriate, step to say that such notice must be reasonable, as had been the case in practice until 19 October 1999.
Case: Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155
Outcome: followed
Where an applicant before the tribunal explicitly adopts what he or she put to the Minister in support of the initial application for a protection visa, including adding qualifications or amendments to that claim, the applicant for review can be seen properly to have 'given' the initial material to the tribunal for the purpose of his or her application for review: Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155 at [17] per Heerey, Mansfield and Emmett JJ. I am of opinion that in the circumstances of this case the tribunal was entitled to proceed on the basis that the appellant had given it the information in her protection visa application in the form of the claim which she had earlier made. It was entitled to have regard to that information without serving any notice under s 424A(1). The submission made by RACS in April 2005, in my opinion, expressly republished the original claim in the protection visa application for the purposes of the application for review: see also SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [36] - [51] . 17 The appellant put forward no material to suggest why the tribunal could be seen to have acted in a way that was either biased or gave the appearance of bias. I reject that ground. I have considered the tribunal's reasons for myself and have not seen any basis on which prejudgment either appeared or could be suggested. Rather, the tribunal appears to have considered the appellant's claims on its merits. While s 422B indicates qualification of the natural justice hearing rule, it does not qualify any obligation of the tribunal to identify the claims made by an applicant for review and to determine those claims. 18 I now return to the first two grounds raised by the appeal.
Case: Walton v Gardiner [1992] HCA 12 ; (1983) 177 CLR 378 at 393
Outcome: applied
The Federal magistrate was satisfied that the present application fell within the principles addressed by Mason CJ, Deane and Dawson JJ in Walton v Gardiner [1992] HCA 12 ; (1983) 177 CLR 378 at 393, and concluded as follows in her reasons for judgment of 17 January 2006: 'I consider that the bringing of the current application can be considered unjustifiably vexatious amounting to an abuse of process, particularly having regard to the underlying public interest in the finality of litigation. I am satisfied that the current proceedings are an abuse of process and ought to be summarily dismissed to avoid further public expense in defending proceedings that have already taken up the resources of the Federal Magistrates Court, the Federal Court and the High Court and have raised no arguable case.' 4 It has been long established that an application for leave to appeal should fail if no arguable ground of appeal is raised by the applicant, or if the judgment below is not attended by sufficient doubt to warrant allowing the application or the appeal to go forward. 5 The applicants have failed to identify any conceivably viable arguable ground of appeal. The draft notice of appeal and purported written submissions make unparticularised allegations of error in the Federal Magistrate's decision and of jurisdictional error in the earlier Refugee Review Tribunal's reasons for decision. The applicants' written submissions also seek in substance and reality impermissible merits review. At least in the absence of any evidence to support those allegations or any particulars in order to render the same meaningful, which is the situation here readily evident, the present purported application must necessarily fail.
Case: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Outcome: applied
thing which s 44 does not confer upon this Court is jurisdiction to embark upon an appeal by way of a rehearing of the merits or otherwise of conclusions of fact to which the Tribunal came in its assessment of the material before it. A series of decisions of the Full Court of this Court earlier this decade have emphasised the centrality of the need for a question of law for there to be jurisdiction to entertain a proceeding under s 44 of the AAT Act. I refer in that regard to the decisions of the Full Court in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 and Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522. When one turns to examine the so-called questions of law in para 2 of the notice of appeal those which appear immediately under the heading "The applicant says that", save perhaps for the first dot point, do not, it seems to me, raise a question of law. Neither, for that matter, do any of the other propositions which appear in the balance of para 2. Rather, they seem to me to have a quality which was described in Etheridge's case at para 29 in these terms: The invitation which is inherent in the above question, to examine the evidence and other material before the Tribunal is sufficient to show that it is not a question of law within the meaning of s 44(1) of the AAT Act (see Birdseye at para 18). It is at best a mixed question of law and fact. Looked at more critically, it is open to be understood as an invitation to the Court to conduct a rehearing with respect to important aspects of the controversy that came before the Tribunal for determination. This is not an invitation that the Court may accept on an appeal under s 44(1) of the AAT Act. The first dot point does not, in terms, pose a question but rather makes a statement: The Tribunal erred in the application of s 17 of the Social Security Act as applying to the facts of the matter as presented and in accordance with the applicable standard of proof.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Outcome: cited
what has proved to be an influential decision, a Full Court of this Court, in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, set out five general propositions which emerge from the cases as to what can amount to a question of law. The fifth of those propositions was this: The only question whether facts fully found fall within the provisions of a statutory enactment properly construed is generally a question of law. Authority is then cited for that proposition. Their Honours then qualify that fifth proposition by reference to remarks that Fullagar J made in Hayes v Federal Commissioner of Taxation [1956] HCA 21 ; (1956) 96 CLR 47 and, at page 288 observe: This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts found fall within those words. Where it is reasonably open to hold that they do then the question whether they do or not is one of fact. In the way in which the first dot point in para 2 is cast, and having regard to what was said in Pozzolanic in relation to the fifth principle and its qualification, it seems to me that there is not a raised question of law. There was material before the Tribunal which admitted of a conclusion that the payment that came to be made to Mr Borcherdt, pursuant to the order of the court, was one which was made in respect of economic loss. The Tribunal's reasoning in that regard does not seem to me to be in any way illogical, or made unreasonably in the sense of being unsupported by any material before it. Mr Borcherdt's contract arguments depended, in the end, on an acceptance by the Tribunal of the proposition that, irrespective of whether or not he had validly rescinded an agreement struck on 27 November, there had nonetheless been an acceptance of a repudiation by the defendant and its representatives and a payment pursuant to an offer which he had made in that letter. That is not an inference which necessarily arises as the only inference to be drawn. The Tribunal was not, in any way, obliged to accept that as a necessary conclusion of fact on the material at hand. It is to be noted that there is an absence of correspondence between the terms of Mr Borcherdt's letter as to bases of payment and payees and the form in which the order of the court, on 29 February, came to be made. Even then if my conclusion, that there is not raised in the notice of appeal a question of law is incorrect, and that the case is to be viewed as one in which the question propounded is whether the Tribunal was entitled to conclude on the evidence before it that the payment was one within the terms of the statute, it seems to me that the Tribunal was reasonably entitled to reach that conclusion.
Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: applied
thing which s 44 does not confer upon this Court is jurisdiction to embark upon an appeal by way of a rehearing of the merits or otherwise of conclusions of fact to which the Tribunal came in its assessment of the material before it. A series of decisions of the Full Court of this Court earlier this decade have emphasised the centrality of the need for a question of law for there to be jurisdiction to entertain a proceeding under s 44 of the AAT Act. I refer in that regard to the decisions of the Full Court in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 and Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522.
Case: Hayes v Federal Commissioner of Taxation [1956] HCA 21 ; (1956) 96 CLR 47
Outcome: cited
what has proved to be an influential decision, a Full Court of this Court, in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, set out five general propositions which emerge from the cases as to what can amount to a question of law. The fifth of those propositions was this: The only question whether facts fully found fall within the provisions of a statutory enactment properly construed is generally a question of law. Authority is then cited for that proposition. Their Honours then qualify that fifth proposition by reference to remarks that Fullagar J made in Hayes v Federal Commissioner of Taxation [1956] HCA 21 ; (1956) 96 CLR 47 and, at page 288 observe: This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts found fall within those words. Where it is reasonably open to hold that they do then the question whether they do or not is one of fact.
Case: J C Williamson Limited v Lukey and Mulholland [1931] HCA 15 ; (1931) 45 CLR 282
Outcome: referred to
College submitted to the Federal Court that the case propounded by the applicant did not disclose any justiciable cause of action, and moreover duplicated the proceedings he had already initiated in the Supreme Court. The College submitted that his case had been brought in reality for a collateral purpose, no declarations or orders as to consequential relief having been framed. Moreover it was emphasised that an order for the applicant to be effectively installed as a Fellow of the College, given that any such order may in theory have been juridically open to be made in the first place, 'might well require supervision from time to time as occasion might require'; reference in that context was made to J C Williamson Limited v Lukey and Mulholland [1931] HCA 15 ; (1931) 45 CLR 282 at 200-300 (Dixon J as he then was). For example, so it was pointed out by the College, the applicant would not be absolved from continuing compliance with the governing rules of or a member's ongoing contractual arrangements with the College.