mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429
Outcome: applied
process of construction is intended elucidate and give effect to what the parties by their words or actions objectively conveyed to one another was their agreement. Courts seek to avoid being the destroyers of bargains and should be reluctant to find agreements void for uncertainty. The process of construction will result in a meaning which the court decides is the proper construction of the contract. As Barwick CJ emphasised in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436-437, in the search for the parties' intention, no narrow or pedantic approach is warranted, particularly in the case of commercial agreements. Unless parties have expressed themselves in such a way that their terms are so obscure or incapable of any definite or precise meaning so that the Court cannot attribute to them any particular contractual intention, the Court will find a meaning which an objective person in the position of the parties at the time they entered into the contract would have understood them to have intended: see also Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) [2000] HCA 25 ; (2000) 202 CLR 588 at 599 [15] per Gaudron, McHugh, Gummow and Hayne JJ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ( CEPU ) v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 510 [164] - [166] , 511 [171], 512 [174] per Weinberg and Bennett JJ and myself.
Case: Vitol SA v Norelf Ltd (The Santa Clara) [1996] AC 800
Outcome: cited
what his Lordship said there appears to have been obiter dicta, for he pointed out that it did not matter which party was first to treat the other as having repudiated, since neither lost its right to claim damages for the breaches by the other, irrespective of which of them brought the contract to an end ( Golodetz [1989] 2 Lloyd's Rep at 287). Other parts of Kerr LJ's judgment have been disproved by the House of Lords: Vitol SA v Norelf Ltd (The Santa Clara) [1996] AC 800 at 812A-B.
Case: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 ; (2008) 242 ALR 383
Outcome: cited
McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55 ; (2005) 221 CLR 646 at 661 [40] McHugh, Gummow and Heydon JJ discussed the construction of a section which had been re-enacted in the same words in new legislation. They departed from the construction of the earlier legislation in a previous decision of the High Court and said: 'It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions (see Ogden Industries Pty Limited v Lucas [1970] AC 113 at 127; Brennan v Comcare (1994) 50 FCR 555 at 572.)' And, in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 ; (2008) 242 ALR 383 at 391 [31] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ applied McHugh J's comments in Marshall v Director-General, Department of Transport [2001] HCA 37 ; (2001) 205 CLR 603 , where he said (at 632-3 [62]): ' But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.' (emphasis added) In my respectful opinion, although his Honour did not have the benefit of the reasoning in Baxter Health Care [2007] HCA 38 ; 237 ALR 512 , which was delivered subsequently to the reasons in Ketchell [2007] NSWCA 161 , the reasoning of Mason P is plainly wrong. In addition, Ketchell [2007] NSWCA 161 was decided on different legislation: see McNamara 221 CLR at 661 [40]; Walker Corporation 242 ALR at 391 [31]. I am of opinion that the non-compliance by Allphones with its obligations under cl 11 of the Code did not make the franchise agreement void. That non-compliance is a factor which, had Hoy Mobile wished to do so, could have been raised by it to seek relief under s 87 of the Act. It would defeat the evident purpose of the Code if Allphones were entitled to rely on its own breach of its obligation imposed under cl 11 to deny a franchisee with whom it had entered into a contract, the entitlement to enforce that contract against it or to seek a variation of it or relief from it under the Act. For these reasons I reject Allphones' argument that the franchise agreement is void.
Case: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217
Outcome: cited
is a balance of deductions from Hoy Mobile's commissions that comes to $3,581.49, which the experts agreed related to the credit charge fees, EFTPOS fees, IT fees, or late banking fees. However, they were unable to allocate that sum among the individual categories. In my opinion, it was for Allphones to justify its deductions. Hoy Mobile has established that Allphones made substantial deductions from commission amounts it was paid without a contractual basis. Mr Nicoll could have given evidence as to any basis for reducing the unallocated balance but did not. And, in their reports neither Mr Nicoll nor the two expert accountants could allocate the sums involved. Hoy Mobile has discharged any onus on it: Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 64; [1774] EngR 2 ; 98 ER 969 at 970; Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ and see too at 233 per Brennan and Toohey JJ; R v Burdett (1820) 4 B &amp; Ald 95 at 161-162 per Abbott LCJ at 140 per Holroyd J; 106 ER 873 at 898 and 890. Since Allphones did not justify any portion of this balance as a fee payable by Hoy Mobile, the whole amount claimed by it should be paid by Allphones.. 25.5 Retention canvassing
Case: Yorkshire Insurance Co Ltd v Craine [1922] 2 AC 541
Outcome: cited
also argued that cll 15 and 16 operated to prevent Hoy Mobile relying on any election, by Allphones to keep the franchise agreement on foot, which was not in writing. Because of my findings above it is not necessary to consider the application of R v Paulson [1921] 1 AC 271 at 282-283 to cll 15 and 16 on which Hoy Mobile relied. However, their Lordships indicated that the issue depends on the facts for they said, as Owen J pointed out in Owendale Pty Ltd v Anthony [1967] HCA 52 ; (1967) 117 CLR 539 at 610, that '[i]t may well be that many cases may occur to which the clause as to waiver would be applicable' before saying that, in that case, it was not: see too Owendale 117 CLR at 590 per Taylor J with whom Barwick CJ agreed on this issue at 569; per McTiernan J at 581; per Kitto J at 581-582. And, in any event, contractual provisions like cll 15 and 16 are strictly construed: Craine 28 CLR at 325-326; affirmed in Yorkshire Insurance Co Ltd v Craine [1922] 2 AC 541 at 546; (1922) 31 CLR 27 ; see too Melbourne Harbour Trust Commissioners v Hancock [1927] HCA 26 ; (1927) 39 CLR 570 at 584 per Knox CJ and Gavan Duffy J; 589 per Isaacs J; 590 per Rich J; and 594 per Starke J.
Case: Zhu v Treasurer of NSW (2004) 218 CLR 53
Outcome: cited
is necessary to construe an agreement so as to avoid making it commercial nonsense or working commercial inconvenience: Zhu v Treasurer of NSW [2004] HCA 56 ; (2004) 218 CLR 530 at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ. In Australasian Performing Rights Association Ltd v Monster Communications Pty Ltd (2006) 71 IPR 212 at 235-237 [103]-[108] I referred to the principles applicable to the construction of contracts. I am of opinion that the genesis of the franchise agreement, the background context and market in which the parties were operating were all relevant, as known to both of them, for the purpose of construing what was intended to be referred to by the use of 'N/A' in describing the territory. There is no evidence that the terms of the franchise agreement as settled between the parties was the subject of drafting, before execution, by lawyers. Of course, at common law the courts cannot make a contract for the parties which they did not make for themselves (cp: s 87(2) of the Trade Practices Act ). But commercial contracts '... ought to be construed fairly and liberally for the purpose of carrying out the object of the parties': Duncan v Koster; The Teutonia (1872) LR 4 PC 171 per Mellish LJ at 182, applied by Isaacs J in Cohen &amp; Co v Ockerby &amp; Co Ltd [1917] HCA 58 ; (1917) 24 CLR 288 at 300. Isaacs J went on to hold that expressions in a mercantile contract are not to be read narrowly, but as the Court would suppose two honest business people would understand the words they actually used with reference to their subject matter and the surrounding circumstances: Cohen &amp; Co 24 CLR at 300. And the Court construes a commercial contract to avoid it making commercial nonsense or working commercial inconvenience: Zhu 218 CLR at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ.
Case: Brown v The Queen [1986] HCA 11 ; (1985) 160 CLR 171
Outcome: followed
It is not considered that the present proceeding exposes any sufficient reason to depart from the " general policy " set forth in s 39 of the 1976 Act. The only legislative limitation on the exercise of the discretion conferred by s 40 is one directing attention to whether " the ends of justice appear to render it expedient to do so ": Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172 at 181. Relevant to the exercise of the discretion is a recognition of the important role that juries have long played in English and Australian law and the circumstances in which juries have traditionally been employed. Although the scarcity of the population was a reason why in colonial New South Wales the number of jurors was confined to 4 and not 12 persons (see: Henchman P, ' The New South Wales Jury of Four Persons ' (1959) 33 ALJ 235), the importance of juries in the administration of justice was acknowledged from the outset: Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482 at 488 92 per Else-Mitchell J. " It is the fundamental institution in our traditional system of administering criminal justice ": Brown v The Queen [1986] HCA 11 ; (1985) 160 CLR 171 at 197 per Brennan J.
Case: Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482
Outcome: considered
It is not considered that the present proceeding exposes any sufficient reason to depart from the " general policy " set forth in s 39 of the 1976 Act. The only legislative limitation on the exercise of the discretion conferred by s 40 is one directing attention to whether " the ends of justice appear to render it expedient to do so ": Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172 at 181. Relevant to the exercise of the discretion is a recognition of the important role that juries have long played in English and Australian law and the circumstances in which juries have traditionally been employed. Although the scarcity of the population was a reason why in colonial New South Wales the number of jurors was confined to 4 and not 12 persons (see: Henchman P, ' The New South Wales Jury of Four Persons ' (1959) 33 ALJ 235), the importance of juries in the administration of justice was acknowledged from the outset: Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482 at 488 92 per Else-Mitchell J. " It is the fundamental institution in our traditional system of administering criminal justice ": Brown v The Queen [1986] HCA 11 ; (1985) 160 CLR 171 at 197 per Brennan J.
Case: Cheng v The Queen [2000] HCA 53 , 203 CLR 248
Outcome: followed
But it must now to be accepted -- at least in this Court -- that s 80 is confined to a " trial on indictment ": Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264 at 276 7; Cheng v The Queen [2000] HCA 53 , 203 CLR 248.
Case: Commonwealth Bank of Australia v Heinrich [2000] FCA 1255
Outcome: followed
The Bankruptcy Act , it must nevertheless be accepted, confers no entitlement to trial by jury: Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 , 88 FCR 445. Cooper, Kiefel and Tamberlin JJ were there addressing s 30(3) of the 1966 Act, and not s 30(1)(i), but relevantly concluded: Jury [27] Mr and Mrs Hubner also say that the bankruptcy proceedings should be heard with a jury pursuant to s30(3) of the Act. That provision reads: "(3) If in a proceeding before the Court under this Act a question of fact arises that a party desires to have trial before a jury, the Court may, if it thinks fit, direct the trial to that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trail of an issue of fact in an action." [28] The appellants say that it is a civil right of all Queenslanders to have a trial by jury under s30(3). [29] In view of the approach taken by his Honour, which we consider to be correct, the question of a jury trial does not arise; so we do not accept the applicants' submissions in relation to this matter. Moreover, there was no relevant question of fact raised for a jury to determine. The Court under s30(3) has a wide discretion and there is no entitlement to a jury trial given by the section. We are not persuaded, given the necessity for a clear case of error to be shown on a matter of principle that there is any justification for ordering a jury trial in the present case. We see no error on the part of his Honour. Section 30(3) is not beyond the legislative competence of Commonwealth Parliament and is not invalid because of any unfounded assertion that it " undermines or perverts " the Constitution : Commonwealth Bank of Australia v Heinrich [2000] FCA 1255 at [18] [25] per Mansfield J. Nor is there any entitlement to trial by jury arising by reason of either some " unwritten law " such as natural justice or by reason of Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth): Hubner v ANZ Banking Group Ltd [2000] FCA 140 at [9] [10], [2000] FCA 140 ; 101 FCR 71 at 73 per Drummond, Dowsett and Katz JJ.
Case: Dinnison v Commonwealth [2000] FCA 1841 , 106 FCR 418
Outcome: cited
Sections 39 and 40 of the Federal Court of Australia Act , it may further be noted, are in substantially the same form as ss 12 and 13 of the High Court Procedure Act 1903 (Cth). Those latter provisions were considered by Fullagar J in McDermott v Collien [1953] HCA 44 ; (1953) 87 CLR 154. His Honour there formulated the " general policy " as follows (at 157): Two things ... seem clear enough. The first is that with the merits and demerits of trial by jury as a means of determining civil causes I have nothing whatever to do. ... [S]o far as any question of general policy is involved, it is settled for me by the High Court Procedure Act. Trial without a jury is the normal mode of trial of actions in this Court, and some special reason must be shown for a departure in any particular case from that normal mode. The second thing that seems clear is that it is not enough to show that the cause of action is of a kind which could quite properly be tried with a jury and which was normally tried with a jury in England before the Judicature Act 1873 (36 &amp; 37 Vict. c. 66). The decisions of Hodges J. and of Isaacs J. perhaps suggest that the nature of the cause of action is not even a relevant consideration. I would not be prepared to assent to that as a general proposition: indeed I would rather have thought that it might in some cases be a potent consideration. But it is clear that it is not enough to say: "This is a kind of action which is quite suitable for trial with a jury, and I would like to have it tried with a jury." Appl'd: Dinnison v Commonwealth [2000] FCA 1841 , 106 FCR 418.
Case: Draper v Official Receiver [2004] FCA 1379
Outcome: considered
Moreover, and although there may be trial by jury in bankruptcy proceedings, it is the exception rather than the rule: Re Shields; Ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308. Einfeld J there observed (at 309): ... in bankruptcy proceedings jury trials will be the exception rather than the rule. ... A jury trial involves a great deal of expense and time both to the parties and the Court, as well as considerable inconvenience to the members of the community who constitute the jury. The use of juries in civil matters has steadily declined during this century and is now largely reserved for those areas where serious imputations are to be made against the character of a party. Like divorce, bankruptcy is no longer regarded as such a matter. In the absence of some very compelling special circumstance, the intention of Parliament is clearly that bankruptcy proceedings be heard by a judge. See also: Re Allen (1905) 5 SR (NSW) 55 at 57; Draper v Official Receiver [2004] FCA 1379 at [5] per Mansfield J. Some " special reason " must be shown for a departure from the normal mode of trial: Commonwealth Bank of Australia v Rigg [2001] FCA 590. Section 30(3) only applies where " a question of fact arises ". See: Ray v Perrett [2007] FCA 1672. " While fraud generally is some ground for giving the parties or one of the parties a right to trial by jury, this fact is not conclusive ": Stapleton v Brady [1952] QWN 15 per Clyne J.
Case: Gargan v Commonwealth Bank of Australia [2004] FCA 641
Outcome: followed
The normal method or mode of trial in this Court is by judge alone: Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172 at 182. " Substantial reason ", it has been said, must be shown for a departure from the usual mode of trial: Gargan v Commonwealth Bank of Australia [2004] FCA 641 at [6] per Hely J.
Case: Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 , 66 ATR 225
Outcome: considered
Albeit in a different context, applications made pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) may allege in an appropriate case that statutory powers have been exercised for an " improper purpose ". Indeed, the 1977 Act expressly contemplates that a ground upon which an administrative decision may be sought to be impugned is " bad faith ": s 5(2)(d). It may be considered that an allegation of " bad faith " is a more serious allegation than one of pursuing an " improper purpose ". Both are serious allegations. But such applications have long been heard and determined by Judges of this Court without a jury. Although it must readily be recognised that an allegation of " bad faith " is a " very serious allegation " to make, it is an allegation that has in fact been made in other proceedings against both a Deputy Commissioner of Taxation (eg, Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225) and against others exercising statutory power (eg, SCAS v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 397 at [19] ; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 , 194 ALR 749). " Fraud " or " equitable fraud " is likewise a very serious allegation. Public confidence in the administration of justice by this Court, it is considered, has only been enhanced by this Court entertaining and resolving such " serious " allegations. Such allegations have been made in the past and presumably will continue to be made. And when made they will be resolved. It may be that a case will arise where a Judge of this Court orders a jury. But this proceeding is not that case.
Case: Hubner v ANZ Banking Group Ltd [2000] FCA 140 , 101 FCR 71
Outcome: followed
The Bankruptcy Act , it must nevertheless be accepted, confers no entitlement to trial by jury: Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 , 88 FCR 445. Cooper, Kiefel and Tamberlin JJ were there addressing s 30(3) of the 1966 Act, and not s 30(1)(i), but relevantly concluded: Jury [27] Mr and Mrs Hubner also say that the bankruptcy proceedings should be heard with a jury pursuant to s30(3) of the Act. That provision reads: "(3) If in a proceeding before the Court under this Act a question of fact arises that a party desires to have trial before a jury, the Court may, if it thinks fit, direct the trial to that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trail of an issue of fact in an action." [28] The appellants say that it is a civil right of all Queenslanders to have a trial by jury under s30(3). [29] In view of the approach taken by his Honour, which we consider to be correct, the question of a jury trial does not arise; so we do not accept the applicants' submissions in relation to this matter. Moreover, there was no relevant question of fact raised for a jury to determine. The Court under s30(3) has a wide discretion and there is no entitlement to a jury trial given by the section. We are not persuaded, given the necessity for a clear case of error to be shown on a matter of principle that there is any justification for ordering a jury trial in the present case. We see no error on the part of his Honour. Section 30(3) is not beyond the legislative competence of Commonwealth Parliament and is not invalid because of any unfounded assertion that it " undermines or perverts " the Constitution : Commonwealth Bank of Australia v Heinrich [2000] FCA 1255 at [18] [25] per Mansfield J. Nor is there any entitlement to trial by jury arising by reason of either some " unwritten law " such as natural justice or by reason of Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth): Hubner v ANZ Banking Group Ltd [2000] FCA 140 at [9] [10], [2000] FCA 140 ; 101 FCR 71 at 73 per Drummond, Dowsett and Katz JJ.
Case: Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172
Outcome: followed
The normal method or mode of trial in this Court is by judge alone: Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172 at 182. " Substantial reason ", it has been said, must be shown for a departure from the usual mode of trial: Gargan v Commonwealth Bank of Australia [2004] FCA 641 at [6] per Hely J. 39 It is not considered that the present proceeding exposes any sufficient reason to depart from the " general policy " set forth in s 39 of the 1976 Act. The only legislative limitation on the exercise of the discretion conferred by s 40 is one directing attention to whether " the ends of justice appear to render it expedient to do so ": Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172 at 181. Relevant to the exercise of the discretion is a recognition of the important role that juries have long played in English and Australian law and the circumstances in which juries have traditionally been employed. Although the scarcity of the population was a reason why in colonial New South Wales the number of jurors was confined to 4 and not 12 persons (see: Henchman P, ' The New South Wales Jury of Four Persons ' (1959) 33 ALJ 235), the importance of juries in the administration of justice was acknowledged from the outset: Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482 at 488 92 per Else-Mitchell J. " It is the fundamental institution in our traditional system of administering criminal justice ": Brown v The Queen [1986] HCA 11 ; (1985) 160 CLR 171 at 197 per Brennan J.