mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40
Outcome: referred to
Second, the applicant contends that a duty to act in good faith should also be implied into the Mentone BSA generally, or into the right to terminate specifically. The general duty is said to include an obligation of full and frank disclosure of all matters relevant to the implementation of the agreement. The applicant submits that the term is to be implied ad hoc, and as a matter of law. See Renard ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 190-98 per Finn J; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR |P41-703; Central Exchange Ltd v Anaconda Nickel Ltd (2001) 24 WAR 382; GEC Marconi Systems v BHP-IT [2003] FCA 50 ; (2003) 128 FCR 1 at [920] per Finn J; and Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] - [65] per Finkelstein J. I note that the latter case was the subject of a Full Court appeal in which judgment was given following the hearing of this proceeding. However, the majority of the Full Court did not deal with the findings of the primary judge in relation to the implied duty of good faith in the exercise of a termination right: see Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 at [119] per Finn and Sundberg JJ.
Case: Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
Outcome: cited
In Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 (" Renard "), Priestley JA commented upon the notion of implications on an ad hoc basis. His Honour said, at 255-6: "Questions of construction and different kinds of implication tend to blur together. In recent years terms implied in contracts have been said to fall into two classes the first of which has come to be called, somewhat misleadingly, implication in fact, the second, implication by law. The so-called implication in fact is really implication by judge based on the judge's view of the actual intention of the parties drawn from the surrounding circumstances of the particular contract, its language, and its purposes, as they emerge from the language and in the circumstances. This has been called implication ad hoc (see Professor Lucke "Ad Hoc Implications in Written Contracts" (1973-1976) 5 Adelaide Law Review 32) a usage I will adopt." 210 Second, the applicant contends that a duty to act in good faith should also be implied into the Mentone BSA generally, or into the right to terminate specifically. The general duty is said to include an obligation of full and frank disclosure of all matters relevant to the implementation of the agreement. The applicant submits that the term is to be implied ad hoc, and as a matter of law. See Renard ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 190-98 per Finn J; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR |P41-703; Central Exchange Ltd v Anaconda Nickel Ltd (2001) 24 WAR 382; GEC Marconi Systems v BHP-IT [2003] FCA 50 ; (2003) 128 FCR 1 at [920] per Finn J; and Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] - [65] per Finkelstein J. I note that the latter case was the subject of a Full Court appeal in which judgment was given following the hearing of this proceeding. However, the majority of the Full Court did not deal with the findings of the primary judge in relation to the implied duty of good faith in the exercise of a termination right: see Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 at [119] per Finn and Sundberg JJ.
Case: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596
Outcome: cited
Third, the applicant submits there is an implied term requiring Franklins to do all such acts as are necessary on its part to enable the applicant to enjoy the promised benefits of the agreement. The applicant contends that this term is to be implied by operation of law or, alternatively, on an ad hoc basis. It referred to Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 607 per Mason J to support its contention.
Case: Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21 ; (1931) 45 CLR 359
Outcome: discussed
In relation to the implied term not to deprive a party of the benefit of that agreement, the applicant relies upon Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21 ; (1931) 45 CLR 359 at 378, where Dixon J stated that the express promise of the appellant to use his best endeavours to obtain fabric orders for the respondent fabric manufacturer "necessarily includes an obligation not to hinder or prevent the fulfilment of its purpose". The applicant contends, by analogy, that the express promise of Franklins to use reasonable endeavours to satisfy the condition precedent necessarily includes an obligation not to hinder or prevent fulfilment of it.
Case: United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49 ; (1985) 157 CLR 1
Outcome: cited
The applicant relied upon the following passage in United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49 ; (1985) 157 CLR 1 at 12 per Mason, Brennan and Deane JJ to support its case: "In particular, a fiduciary relationship with attendant fiduciary obligations may, and ordinarily will, exist between prospective partners who have embarked upon the conduct of the partnership business or venture before the precise terms of any partnership agreement have been settled. Indeed, in such circumstances, the mutual confidence and trust which underlie most consensual fiduciary relationships are likely to be more readily apparent than in the case where mutual rights and obligations have been expressly defined in some formal agreement. Likewise, the relationship between prospective partners or participants in a proposed partnership to carry out a single joint undertaking or endeavour will ordinarily be fiduciary if the prospective partners have reached an informal arrangement to assume such a relationship and have proceeded to take steps involved in its establishment or implementation." 218 The relationship between Franklins and the applicant was not one of "mutual trust and confidence". The arrangements between Franklins and the applicant concerning the efforts to obtain the consent of the Lessor to the assignment of the Mentone store lease had a singularly fragile quality. They could be terminated on short notice. At the first directions hearing in the Supreme Court proceedings on 19 October 2001, counsel then appearing for the applicant and Franklins submitted, in support of the application for expedition, that there was "nothing to stop the parties walking away". When counsel spoke of "the parties" he was referring to the applicant and Franklins. He also said that it was "a fair inference, given the nature of the commercial dealings between the parties, that the matter is quite fragile". That was an accurate statement of the parties' legal position vis-a-vis one another. 219 The reality of the litigation agreement was that Franklins lent its name to the Supreme Court proceedings, but the applicant's solicitors, Mason Sier Turnball, and counsel conducted the proceedings, and the applicant funded them. However, at the same time, Franklins retained HWL to maintain what Mr Colbran QC, counsel for Franklins, described as a "supervising brief" over the proceedings.
Case: Bull v Repatriation Commission (2001) 188 ALR 756
Outcome: referred to
That gives rise to the first ground of appeal. The last sentence reverses the effect of s 120(1) of the Act. It is well established that, once a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person has been raised, then the death will be determined as war caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination (s 120(1) of the Act; Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 98, corrected in a manner not relevant here in Bull v Repatriation Commission (2001) 188 ALR 756 at [14] [15]). 18 The argument put by Counsel for the Commission is not unlike that considered in Bull 188 ALR 756 . However, the discussion there concerned the existence of a reasonable hypothesis pursuant to s 120(3) rather than negating that hypothesis pursuant to s 120(1). The facts, of course, were different from those in issue here. 21 In my opinion, the parties were correct in focusing argument before the Tribunal on the existence of the necessary hypothesis, as occurred in Bull 188 ALR 756, but the Tribunal ended up misdirecting itself as to the interplay between s 120(1) and s 120(3) and so applied the wrong standard of proof. The remaining grounds of appeal are best seen as aspects of that fundamental problem. I have remarked elsewhere upon the difficult task that the Tribunal has in applying these sections as they have been interpreted by the relevant authorities of the High Court and this Court ( Byrne v Repatriation Commission [2007] FCAFC 126 , 97 ALD 359 at [1] ).
Case: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564
Outcome: followed
The presiding Member of the Tribunal appeared to recognise that in the comment made during the course of argument which I have quoted. There were various bases for a link between operational service and alcohol dependence in the material before the Tribunal. The Tribunal considered and dealt with some of those bases and not others. There are occasions where primary facts alleged to support a hypothesis might be positively rejected and the hypothesis, or an essential integer of it, negated beyond reasonable doubt ( Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 570). That is not the manner in which the Tribunal proceeded and, having in mind the objective circumstances of the case, it could hardly have proceeded to find the relevant circumstances disproved in that sense. 21 In my opinion, the parties were correct in focusing argument before the Tribunal on the existence of the necessary hypothesis, as occurred in Bull 188 ALR 756, but the Tribunal ended up misdirecting itself as to the interplay between s 120(1) and s 120(3) and so applied the wrong standard of proof. The remaining grounds of appeal are best seen as aspects of that fundamental problem. I have remarked elsewhere upon the difficult task that the Tribunal has in applying these sections as they have been interpreted by the relevant authorities of the High Court and this Court ( Byrne v Repatriation Commission [2007] FCAFC 126 , 97 ALD 359 at [1] ). 23 The appeal will be upheld and the decision of the Tribunal set aside. The notice of appeal seeks a further order that the matter be remitted to the Tribunal for redetermination in accordance with the law and does not seek a substantive favourable order from this Court pursuant to s 44(4), (5) and (7) of the AAT Act (cf Byrne [2007] FCAFC 126 per Gyles J at [4], Edmonds J at [14] and Buchanan J at [59] [60]). The appeal will be stood over for a short period to enable the parties to make submissions as to the appropriate ancillary orders to be made. The Commission will be ordered to pay the costs of the applicant of the appeal. The administrative law proceeding will be dismissed with no order as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 18 December 2007 Counsel for the Applicant: Ms E Wood Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Repatriation Commission: Miss RM Henderson Solicitor for the Repatriation Commission: Australian Government Solicitor Date of Hearing: 7 December 2007 Date of Judgment: 18 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2021.html
Case: Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Outcome: cited
The suggestion as to the Naval historian was not followed up by the Tribunal. In that respect, I refer to what I said in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [16] [19] (on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130 ; 97 ALD 534 at [33] [34]).
Case: Keeley v Brooking [1979] HCA 28 ; (1979) 143 CLR 162 
Outcome: cited
The foregoing analysis persuades me that the mis-statement of the statutory task pursuant to s 120(1) in the reasons cannot simply be ignored and treated as a slip of the pen. Satisfaction beyond reasonable doubt is an exacting standard, particularly where it is framed in the negative. As Barwick CJ said in Keeley v Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 169: "To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain."
Case: Repatriation Commission v Deledio (1998) 83 FCR 82 
Outcome: applied
That gives rise to the first ground of appeal. The last sentence reverses the effect of s 120(1) of the Act. It is well established that, once a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person has been raised, then the death will be determined as war caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination (s 120(1) of the Act; Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 98, corrected in a manner not relevant here in Bull v Repatriation Commission (2001) 188 ALR 756 at [14] [15]).
Case: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 
Outcome: cited
During the hearing the presiding Member of the Tribunal summed up the arguments for the applicant by referring to the factors as: (1) Monotony of service life; (2) Peer pressure; and (3) Attitude to misfortune or service mishaps. There is no reference in the findings to monotony and no finding is made as to peer group pressure from June 1950 onwards. The latter is surprising as the Tribunal was expressly referred to the decision in Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 in that connection. 15 It is relevant to note that the Commission's statement of facts and contentions, filed before the hearing in the Tribunal, put in issue the existence of a reasonable hypothesis of connection rather than proposing disproof of such an hypothesis. It was argued that factor 6(f) was not related to the relevant service rendered by the Veteran as required by cl 5 of the SOP. Naturally enough, the applicant's statement of facts and contentions was directed to establishing the reasonable hypothesis. 16 The transcript of the argument that took place before the Tribunal does not reveal any submission on the part of the representative of the Commission that a reasonable hypothesis, if raised, was negated beyond reasonable doubt. That is not surprising. The only reference to reasonable doubt was in the following passage: "MS POLLOCK (Solicitor for the applicant) : Well, from my point of view we only have to get to the stage of a reasonable hypothesis and then at the end of the day if that hypothesis is a reasonable hypothesis that the things that he complained of to Dr Dinnen was sufficient to create some causal connection to his operational service, then it is a matter for the respondent to be able to establish, to the satisfaction of the tribunal, beyond reasonable doubt that it's not." "DR CAMPBELL (Member presiding) : That is a correct exposition, I think. That, in itself, creates some difficulties for the respondent in the absence of the veteran and the absence of material. Normally you would be relying on 119 but he would probably want to rely on it." The representative of the Commission referred to material "pointing away" in the passage immediately following that exchange. That is a common phrase used where considering whether a reasonable hypothesis has been raised pursuant to s 120(3).
Case: Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130 ; 97 ALD 534
Outcome: cited
The suggestion as to the Naval historian was not followed up by the Tribunal. In that respect, I refer to what I said in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [16] [19] (on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130 ; 97 ALD 534 at [33] [34]).
Case: Bellinz v Commissioner of Taxation (1998) 84 FCR 154
Outcome: cited
Part IVAAA was considered by the Full Court in Bellinz v Commissioner of Taxation (1998) 84 FCR 154. The Court drew the following conclusions from the legislative scheme of Pt IVAAA: 1. ... the issue of a public ruling is to be made in accordance with the Act as interpreted by the Commissioner and not in accordance with some practice which the Commissioner may have adopted, to the extent that that is inconsistent with the Assessment Act. What is to be ruled upon is the way in which, inter alia, the Act under which the extent of a liability for income tax of the appellants is to be worked out would apply. 2. A public ruling which is inconsistent with a prior public ruling may be made if the Commissioner decides that the law is otherwise than as stated in the initial public ruling. However the new ruling will not operate retrospectively in respect of arrangements commenced or brought into operation prior to the earlier ruling. 3. A public ruling which is inconsistent with a prior private ruling may be made if the Commissioner determines that the initial private ruling was wrong. In that case the initial private ruling will be taken to have been withdrawn: ... 4. The binding quality which the legislation gives to a public ruling applies to the tax consequences of the arrangement or class of arrangements to which the ruling relates, and not, ..., to the underlying philosophy behind the ruling. That this is so follows inexorably from the language of s 14ZAAE ... The Court was also of the view that Pt IVAAA left no room for the operation of any doctrine of estoppel or the reintroduction of that doctrine through administrative law remedies. Their Honours said (at 169): The public ruling operates as if it is the statutory basis upon which tax is to be levied. No question arises as to whether it is or is not relied upon. I take that last statement not to be a statement that a public ruling has statutory force. Rather, it reflects a commitment on the part of the Commissioner to a particular approach to the law in those cases to which it applies. That commitment will necessarily be qualified by the extent to which the ruling itself embodies qualifications and conditions in its own terms.
Case: Ross Palmer Holdings v Federal Commissioner of Taxation (2003) 52 ATR 805
Outcome: cited
In Ross Palmer Holdings v Federal Commissioner of Taxation (2003) 52 ATR 805, which was concerned with the exercise of the discretion under s 80G(6A) of the ITAA 1936, Spender J identified the purpose of the loss transfer provisions (at 816-817): ... to permit and facilitate the transfer of losses within a group of companies so that there is no difference in the tax treatment of a group of companies, each carrying on separate enterprises, as against a single company that carries on the same enterprises in separate divisions. The purpose of the provisions was also considered by the Full Court in Commissioner of Taxation v Asiamet (No 1) Resources Pty Ltd [2004] FCAFC 73 ; (2004) 137 FCR 146 in the judgment of Allsop J (Ryan and Finkelstein JJ agreeing). In rejecting, as overstated, the proposition that their statutory purpose was to allow for the transfer of losses within a group so as to equate the tax treatment of a group to that of a company with divisions, his Honour said (at [141]): That, with respect, overstates the purpose of s 80G. Section 80G is intended to be beneficial to the taxpayer: Harts Australia Ltd v Commissioner of Taxation (Cth) [2001] FCA 761 ; (2001) 109 FCR 405 at [18] . There is not, however, a complete equation with the single company. Conditions apply to the transfer of losses, one of which is that the agreement must be made before the date of lodgment of the return of income or the income company, or later as the Commissioner allows. The legislative history of s 80G, and in particular the content of the Asprey Committee Report and the Campbell Committee Report , reveals that a choice was made by Parliament not to adopt the group assessment procedure which might be seen as a complete equation of subsidiaries with divisions. His Honour accepted the statement of the policy of the section as set out in the Commissioner's Taxation Ruling, TR 98/12 saying (at [142]): There is, undoubtedly, a beneficial policy underlying s 80G as described at [87] of the ruling: broadly to align the treatment of company groups with divisional companies. That is not to deny, however, that a broad, otherwise expressly unconfined discretion, is reposed in the Commissioner in s 80G(6A)(b). Naturally, the discretion is to be confined by reference to the subject matter, scope and purposes of the provisions and the ITAA as a whole.
Case: Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371
Outcome: cited
The Full Court in Zizza v Federal Commissioner of Taxation (1999) 42 ATR 371 said it would be an error to regard the summary in Hunter Valley Developments Pty Ltd 3 FCR 344 as complete or to treat each of the six principles it contained as necessarily applicable to any particular application for extension of time especially an application under different legislation. The Court agreed with the observations to that effect made by Hill J in Brown 42 ATR 118 (at 376).
Case: ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51
Outcome: referred to
Although their Honours referred to the 'common law of Australia', that law derives its unity through the role of the High Court under s 73 of the Constitution which enables that Court to harmonize differences in the earlier common laws of the various States by establishing common principles (see e.g. Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at 29-30 per Brennan J; ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at 71 [38] per Gummow and Hayne JJ; Blunden v The Commonwealth [2003] HCA 73 ; (2003) 218 CLR 330 at 349 [59] per Kirby J). Nonetheless, the source of that 'common law of Australia' in relation to the inherent power of the Supreme Court of New South Wales to punish for contempt of court can only be the common law of that State, because, as the Native Title Case (1995) 183 CLR at 487 held, the Commonwealth itself has no such source.