mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Consort Express Lines Pty Ltd v J-Mac Pty Ltd (2006) 232 ALR 341
Outcome: applied
The usual practice of the Court when awarding interest under s 51A of the Federal Court of Australia Act 1976 (Cth) is to adopt the rates of interest applied by the Supreme Court of the State or Territory in which the Court is sitting. I have previously considered that to be appropriate in a case like the present: Consort Express Lines Pty Ltd v J-Mac Pty Ltd (2006) 232 ALR 341 at 358 [97]. The Supreme Court of New South Wales has a similar power to order interest before judgment under s 100 of the Civil Procedure Act 2005 (NSW). As with s 51A, there is no prescribed rate under s 100 of the Civil Procedure Act . However, Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) prescribe as the rate payable on judgment debts 9% per annum for the period between 1 March 2002 and 31 December 2006 and 10% thereafter. That compares to 10.5% which, since 1997, O 35 r 8 of the Federal Court Rules 2001 (Cth) has prescribed as the equivalent rate on judgment debts in this Court. The practice in the Supreme Court of New South Wales has been to use its prescribed rates as a 'broad standard approach' to the award of prejudgment interest: Kalls Enterprises Pty Ltd (In Liq) v Baloglow (No 3) [2007] NSWCA 298 at [22] per Giles, Ipp and Basten JJA.
Case: Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65 ; (1998) 196 CLR 161
Outcome: referred to
Article 3 r 2 is, of course, expressly subject to the provisions of Art 4. The interaction between the two articles was discussed recently by the Full Court in the Ankergracht 160 FCR 342. It is well established that in order for a carrier to rely on the exceptions contained in Art 4 r 2 it must not be negligent or at fault, that is to say in breach of, relevantly, Art 3 r 2: Gamlen Chemical 147 CLR at 152, 154 per Stephen J, 164-165 per Mason and Wilson JJ; Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65 ; (1998) 196 CLR 161 at 193 [85] , 195-196 [91]-[95] per McHugh J, 216-219 [143]-[146] per Kirby J, 243 [228] per Callinan J, see too at 180-181 [49]-[50] per Gaudron, Gummow and Hayne JJ; the Ankergracht 160 FCR at 413-414 [270] per Rares J. 85 The fundamental question which the rules require to be addressed in a case like this is why was the cargo damaged: Great China 196 CLR at 173 [26], 181 [49] per Gaudron, Gummow and Hayne JJ, 195-196 [91]-[95] per McHugh J, 218-219 [146] per Kirby J, 243 [226] per Callinan J. Here, the answer is clear: because the ship did not properly and carefully discharge the Yubase 6. It permitted the admixture. The exceptions in Art 4 r 2 and particularly Art 4 r 2(i) simply cannot be engaged by a carrier who seeks to assert, as Dorval did here, that the cargo interest must direct it in performing its responsibilities under Art 3 r 2. 86 Article 3 r 8 expressly prohibits a carrier contracting out of its responsibilities and liabilities under the amended Hague Rules. I am of opinion that Dorval's contention that Hilditch had a responsibility to stop Dorval discharging when it was in breach of its obligations under Art 3 r 2 should be rejected. 87 Mr Kanagasabai and Mr McCarthy both gave evidence that during the discharge operations, the ship's officers observed the taking of samples from the ship's manifold from time to time. They said, and I accept, that each of those samples was contaminated. Each said that not all of the samples which he took were retained. I accept their evidence. I find that it was evident to both the ship's officers and crew and Hilditch's surveyors that the Yubase 6 was being discharged in a damaged condition and that the damage had occurred on the ship. Hilditch could have asked for the discharge to be halted and the cause of contamination investigated. Mr Kanagasabai did make such a request, but it appears to have been put to one side by him and the ship's officers. Just as obviously, the ship's officers could have, and should have, halted the discharge operation after seeing that the cargo was discharging in a contaminated condition. There is no evidence of why the officers and crew did nothing.
Case: Heskell v Continental Express Ltd [1950] 1 All ER 1033
Outcome: discussed
In Heskell v Continental Express Ltd [1950] 1 All ER 1033 at 1046-1048 Devlin J discussed the operation of concurrent causes on the ability of a plaintiff to recover damages in both tort and contract. He concluded that whatever the true rule of causation may be, if a breach of contract is one of two causes, both co-operating and both of equal efficacy, it was sufficient to entitle the plaintiff to recover damages for breach of contract: Heskell [1950] 1 All ER at 1049.
Case: Kalls Enterprises Pty Ltd (In Liq) v Baloglow (No 3) [2007] NSWCA 298
Outcome: applied
The usual practice of the Court when awarding interest under s 51A of the Federal Court of Australia Act 1976 (Cth) is to adopt the rates of interest applied by the Supreme Court of the State or Territory in which the Court is sitting. I have previously considered that to be appropriate in a case like the present: Consort Express Lines Pty Ltd v J-Mac Pty Ltd (2006) 232 ALR 341 at 358 [97]. The Supreme Court of New South Wales has a similar power to order interest before judgment under s 100 of the Civil Procedure Act 2005 (NSW). As with s 51A, there is no prescribed rate under s 100 of the Civil Procedure Act . However, Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) prescribe as the rate payable on judgment debts 9% per annum for the period between 1 March 2002 and 31 December 2006 and 10% thereafter. That compares to 10.5% which, since 1997, O 35 r 8 of the Federal Court Rules 2001 (Cth) has prescribed as the equivalent rate on judgment debts in this Court. The practice in the Supreme Court of New South Wales has been to use its prescribed rates as a 'broad standard approach' to the award of prejudgment interest: Kalls Enterprises Pty Ltd (In Liq) v Baloglow (No 3) [2007] NSWCA 298 at [22] per Giles, Ipp and Basten JJA.
Case: Key v Cotesworth (1852) 7 Ex Ch 595
Outcome: cited
By delivering a bill of lading endorsed in blank together with an invoice for apparent transmission to National Australia Bank in accordance with the letter of credit it had opened, SK vested property in the goods, including Yubase 6, in whomever was the bearer of the bill of lading: Key v Cotesworth (1852) 7 Ex Ch 595 at 607 per Parke B giving the judgment of the Court of Exchequer; see too Walley v Montgomery (1803) 3 East 585 at 591 per Lord Ellenborough CJ, Grose, Lawrence and Le Blanc JJ concurring; see also Carver on Bills of Lading (1 st ed, 2001) at [6-030]; Gaskell N, Asariotis R and Baatz R, Bills of Lading: Law and Contracts (2000) at [4.80]-[4.81].
Case: Leduc v Ward (1888) 20 QBD 475
Outcome: cited
Even though the bill of lading was originally made between SK, as charterer, and Dorval, as owner, incorporating the charterparty dated 1 June 2006 between them, the bill contained the clause paramount. In the present circumstances it is common ground that that had the effect of incorporating the amended Hague Rules as a clause paramount in the bill of lading when it was transferred as a negotiable instrument by SK. Once the bill had been transferred before delivery of the cargo, the terms of the bill, as amended by the clause paramount, constituted the contract of carriage for the Yubase 6 cargo. This is because the bill had been endorsed by SK in blank and subsequently delivered to Hilditch: Leduc v Ward (1888) 20 QBD 475 at 479 per Lord Esher MR; The 'A1 Battani' [1993] 2 Lloyd's Rep 219 at 222 per Sheen J; Tate and Lyle Ltd v Hain Steamship Co Ltd (1936) 55 Ll L Rep 159 at 174 per Lord Atkin. Hilditch became the holder and bearer of the bill.
Case: Lickbarrow v Mason (1794) 5 TR 683
Outcome: applied
Under the law merchant, an endorsement in blank of a negotiable instrument made out to order converts the instrument to a bearer instrument: Sewell v Burdick (1884) 10 App Cas 74 at 83 per Earl of Selborne LC, 92-93 per Lord Blackburn. In Lickbarrow v Mason (1794) 5 TR 683 at 686 the jury found that: '... by the custom of merchants, indorsements of bills of lading in blank, that is to say, by the shipper or shippers with their names only, have been, and are, and may be, filled up by the person or persons to whom they are so delivered or transmitted. ...' That custom has been accepted commercial practice since Lickbarrow v Mason 5 TR 683. The case established that a bill of lading was a transferable document of title: Glyn Mills Currie &amp; Co v The East and West India Dock Company (1882) 7 App Cas 591 at 604 per Lord Blackburn. In Scrutton on Charterparties and Bills of Lading (18 th ed, 1974) at 181 (20 th ed, 1996) at 184 the learned authors observed that a bill of lading endorsed in blank may pass from hand to hand by mere delivery so as to affect the property in the goods: see too Keppel Tatlee Bank Ltd v Bandung Shipping Pte Ltd [2003] 1 Lloyd's Rep 619 at 622 [18]-[20] (CA Singapore).
Case: Sewell v Burdick (1884) 10 App Cas 74
Outcome: cited
Under the law merchant, an endorsement in blank of a negotiable instrument made out to order converts the instrument to a bearer instrument: Sewell v Burdick (1884) 10 App Cas 74 at 83 per Earl of Selborne LC, 92-93 per Lord Blackburn. In Lickbarrow v Mason (1794) 5 TR 683 at 686 the jury found that: '... by the custom of merchants, indorsements of bills of lading in blank, that is to say, by the shipper or shippers with their names only, have been, and are, and may be, filled up by the person or persons to whom they are so delivered or transmitted. ...' That custom has been accepted commercial practice since Lickbarrow v Mason 5 TR 683. The case established that a bill of lading was a transferable document of title: Glyn Mills Currie &amp; Co v The East and West India Dock Company (1882) 7 App Cas 591 at 604 per Lord Blackburn. In Scrutton on Charterparties and Bills of Lading (18 th ed, 1974) at 181 (20 th ed, 1996) at 184 the learned authors observed that a bill of lading endorsed in blank may pass from hand to hand by mere delivery so as to affect the property in the goods: see too Keppel Tatlee Bank Ltd v Bandung Shipping Pte Ltd [2003] 1 Lloyd's Rep 619 at 622 [18]-[20] (CA Singapore). 25 Hilditch was entitled to delivery of the cargo because it was the holder of the bill of lading. It presented the bill to Dorval and received delivery of the Yubase 6. At the time of presentation, on the evidence, Hilditch was also the owner of the cargo and had the property in it. (There is no evidence that its rights were subject to any security interest which National Australia Bank might have had. But, in any event, such an interest does not prevent Hilditch having property in the cargo: Sewell 10 App Cas at 84-85 per Earl of Selborne LC, 92-93 per Lord Blackburn; Westpac Banking Corporation v 'Stone Gemini' [1999] FCA 434 ; (1999) 110 FCR 47 at 58-59 [36] - [37] per Tamberlin J.)
Case: Tate and Lyle Ltd v Hain Steamship Co Ltd (1936) 55 Ll L Rep 159
Outcome: cited
Even though the bill of lading was originally made between SK, as charterer, and Dorval, as owner, incorporating the charterparty dated 1 June 2006 between them, the bill contained the clause paramount. In the present circumstances it is common ground that that had the effect of incorporating the amended Hague Rules as a clause paramount in the bill of lading when it was transferred as a negotiable instrument by SK. Once the bill had been transferred before delivery of the cargo, the terms of the bill, as amended by the clause paramount, constituted the contract of carriage for the Yubase 6 cargo. This is because the bill had been endorsed by SK in blank and subsequently delivered to Hilditch: Leduc v Ward (1888) 20 QBD 475 at 479 per Lord Esher MR; The 'A1 Battani' [1993] 2 Lloyd's Rep 219 at 222 per Sheen J; Tate and Lyle Ltd v Hain Steamship Co Ltd (1936) 55 Ll L Rep 159 at 174 per Lord Atkin. Hilditch became the holder and bearer of the bill.
Case: The 'Al Battani' [1993] 2 Lloyd's Rep 21
Outcome: cited
Even though the bill of lading was originally made between SK, as charterer, and Dorval, as owner, incorporating the charterparty dated 1 June 2006 between them, the bill contained the clause paramount. In the present circumstances it is common ground that that had the effect of incorporating the amended Hague Rules as a clause paramount in the bill of lading when it was transferred as a negotiable instrument by SK. Once the bill had been transferred before delivery of the cargo, the terms of the bill, as amended by the clause paramount, constituted the contract of carriage for the Yubase 6 cargo. This is because the bill had been endorsed by SK in blank and subsequently delivered to Hilditch: Leduc v Ward (1888) 20 QBD 475 at 479 per Lord Esher MR; The 'A1 Battani' [1993] 2 Lloyd's Rep 219 at 222 per Sheen J; Tate and Lyle Ltd v Hain Steamship Co Ltd (1936) 55 Ll L Rep 159 at 174 per Lord Atkin. Hilditch became the holder and bearer of the bill.
Case: The Torenia [1983] 2 Lloyd's Rep 210
Outcome: cited
At the end of the day, the question of whether a carrier can rely upon an immunity under Art IV r 2 must be answered by reference to all the circumstances of a particular case: Gamlen Chemical 147 CLR at 165 per Mason and Wilson JJ. Where the facts disclose that a loss was caused by the concurrent effects of an excepted and non-excepted circumstance, the carrier remains liable. The carrier will only escape liability if it proves that the loss or damage was caused by an excepted circumstance alone: cannot The Torenia [1983] 2 Lloyd's Rep 210 at 218; see also Tetley W, Marine Cargo Claims (3 rd ed, 1988) p 328.
Case: Walley v Montgomery (1803) 3 East 585
Outcome: cited
By delivering a bill of lading endorsed in blank together with an invoice for apparent transmission to National Australia Bank in accordance with the letter of credit it had opened, SK vested property in the goods, including Yubase 6, in whomever was the bearer of the bill of lading: Key v Cotesworth (1852) 7 Ex Ch 595 at 607 per Parke B giving the judgment of the Court of Exchequer; see too Walley v Montgomery (1803) 3 East 585 at 591 per Lord Ellenborough CJ, Grose, Lawrence and Le Blanc JJ concurring; see also Carver on Bills of Lading (1 st ed, 2001) at [6-030]; Gaskell N, Asariotis R and Baatz R, Bills of Lading: Law and Contracts (2000) at [4.80]-[4.81].
Case: Westpac Banking Corporation v 'Stone Gemini' [1999] FCA 434 ; (1999) 110 FCR 47
Outcome: cited
Hilditch was entitled to delivery of the cargo because it was the holder of the bill of lading. It presented the bill to Dorval and received delivery of the Yubase 6. At the time of presentation, on the evidence, Hilditch was also the owner of the cargo and had the property in it. (There is no evidence that its rights were subject to any security interest which National Australia Bank might have had. But, in any event, such an interest does not prevent Hilditch having property in the cargo: Sewell 10 App Cas at 84-85 per Earl of Selborne LC, 92-93 per Lord Blackburn; Westpac Banking Corporation v 'Stone Gemini' [1999] FCA 434 ; (1999) 110 FCR 47 at 58-59 [36] - [37] per Tamberlin J.)
Case: Australian Olives Limited v Stout [2007] FCA 1958
Outcome: discussed
for Huntley referred to a statement by Greenwood J in Australian Olives Limited v Stout [2007] FCA 1958 at [33] where his Honour observed: In order to maintain continuity for those persons dealing with the register, a company recorded by ASIC as a responsible entity of a registered scheme remains the responsible entity until the record is altered to name the new entity, notwithstanding anything in Division 2. This passage paraphrases subs(1) of s 601FJ and adds an explanation of the purpose of the provision, namely, "to maintain continuity for those persons dealing with the register". I do not see any inconsistency between the passage quoted and my construction of s 601FJ(1). The passage quoted applies comfortably to AOL's position. Even on the assumption that there was a valid removal of AOL and appointment of Huntley, those who had dealt with AOL on the faith of the register would be safe in continuing to do so until the register was altered to name Huntley as the new RE. Counsel for Huntley suggests that my construction would lead to intolerable outcomes for innocent third parties, who would be in a quandary as to which company they should deal with as RE. It is true that at the present time, for example, according to the construction I have suggested, Huntley's status as registered RE might be falsified, so that a person dealing with Huntley in reliance on the register might subsequently discover that AOL was the RE. However, the person would have the benefit of the prima facie evidence constituted by the register, which would have to be displaced by evidence, and would have a claim against Huntley for breach of an implied warranty that it was the RE and therefore trustee for the scheme members (see s 601FC(2) of the Act). In any event, the construction urged by Huntley can also lead to difficulty in that the true RE would be denied that status, even if it placed convincing proof of it before the person, unless and until the dispute between the rivals for the position of RE was resolved and ASIC altered the register. Whatever course is followed, the disconformity between the true facts and those suggested by the registration could be a potential cause of hardship and loss in particular circumstances that can be hypothesised.
Case: H A Stephenson &amp; Son Limited (in liq) v Gillanders, Arbuthnot &amp; Co [1931] HCA 47 ; (1931) 45 CLR 476
Outcome: referred to
the construction suggested is consistent with the scheme of the registers kept by ASIC. Generally speaking, an ASIC writing that is based on the ASIC national database is only prima facie evidence: see, for example, ss 1274(7) and 1274B(2) of the Act. An exception is found in s 1274(7A) which is the familiar provision to the effect that a certificate issued by ASIC stating that a company has been registered under the Act is conclusive evidence that all requirements of the Act for its registration were complied with and that the company was duly registered as a company under the Act on the date specified in the certificate. The policy underlying that longstanding provision in the companies legislation was explained Evatt J in H A Stephenson &amp; Son Limited (in liq) v Gillanders, Arbuthnot &amp; Co [1931] HCA 47 ; (1931) 45 CLR 476 at 497 500. Unlike the issuing of a certificate of registration of a company, the making or changing of entries in a register on information supplied to ASIC does not create a new entity and associated rights and obligations, but is supposed to reflect rights and obligations that have already arisen.
Case: ING Funds Management Limited v ANZ Nominees Limited [2009] NSWSC 243
Outcome: cited
a somewhat analogous provision is found in s 601GC(2) of the Act which requires that any modification to a registered scheme's constitution be lodged with ASIC and cannot take effect until lodged. In ING Funds Management Limited v ANZ Nominees Limited [2009] NSWSC 243 there was a question as to the effectiveness of actions taken by an RE to suspend the rights of members of two registered schemes to require redemption of their units. The RE contended that the actions taken by it were effective to modify the constitutions of the schemes to create the suspension. Section 601GC of the Act provided: (1) The constitution of a registered scheme may be modified, or repealed and replaced with a new constitution; (a) ... (b) by the responsible entity if the responsible entity reasonably considers the change will not adversely affect members' rights. (2) The responsible entity must lodge with ASIC a copy of the modification of the new constitution. The modification, or repeal and/or replacement cannot take effect until the copy has been lodged. The RE lodged documents with ASIC. Barrett J held, for reasons that do not presently matter, that a deed was required and that the execution and lodgment of the documents, which, it was common ground, did not constitute deeds, did not cause the constitutions to be modified pursuant to s 601GC(1)(b).
Case: Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329
Outcome: applied
These factors, together with the need for the protection of industrial freedom of association, were re-affirmed by two members of the Full Court in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329 per Branson J at 362 and Marshall J at 370. 31 Other factors made relevant by other authorities include: &#8226; the financial position and nature of the respondents; &#8226; the co-operation of the respondents; and &#8226; the contrition of the respondents. 32 Counsel for the respondents reminds the Court that the dispute which led to the contraventions of the Act arose out of a serious and legitimate safety dispute which caused an imminent risk to health and safety at the site after a spillage of 12 tonnes of concrete. This occurred in circumstances where previous serious safety issues about lead paint fragments and asbestos had arisen on the site.
Case: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Outcome: applied
Weighing up all the circumstances and relevant sentencing factors, including the CFMEU's co-operation in the proceeding with Mr Cahill and its expenditure of funds in its involvement in the proceeding, I consider that a penalty of $4,000 is an appropriate one, doing one's best to weigh together all the countervailing factors referred to above and applying the totality principle to the contraventions; see Ponzio [2007] FCAFC 65 ; (2007) 158 FCR 543 per Jessup J at 575 and Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 per Gray J at [23] and Graham J at [66] and [71-73].
Case: MacKeigan v Hickman [1989] 2 SCR 796
Outcome: cited
The senior member then set out the terms of s 5 of the FOI Act , and a passage quoted from the judgment of the High Court in Fingleton v The Queen [2005] HCA 34 (2005) 227 CLR 166 at [52] per Gleeson CJ, to which I refer below. The senior member then referred to MacKeigan v Hickman [1989] 2 SCR 796 , to which Gleeson CJ had referred in Fingleton , for its comments by the Supreme Court of Canada on the limits of the power to investigate the reasons for a decision to assign a judge to a case. The senior member then continued: 8. The Tribunal has considered the nature of the documents relevant to Ms Bienstein's request, and finds that the documents refer to organisational matters such as Court lists and the assigning of judicial officers to particular cases. As noted in Fingleton, these are matters affecting litigants and the public, and are intimately related to the independent and impartial administration of justice. They are not documents of internal administration. 9. For these reasons under s 5 of the FOI Act the Tribunal finds that the relevant documents are not documents that relate to matters of an administrative nature, so the FOI Act does not apply to the request for access to the documents.