mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41
Outcome: referred to
Commonwealth submitted that no fiduciary duty could arise. There is, of course, no complete or comprehensive statement of what constitutes a fiduciary. However, where a novel fiduciary duty is alleged it is customary to refer to the judgment of Mason J in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41 at 96-97 which is in these terms: The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations (cf. Phipps v. Boardman [1966] UKHL 2 ; [1967] 2 A.C. 46 , at p. 127), viz., trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions "for", "on behalf of", and "in the interests of" signify that the fiduciary acts in a "representative" character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal.
Case: Hunter v Canary Wharf Ltd [1997] UKHL 14 ; [1997] AC 655
Outcome: considered
authors of The Law of Torts in Australia (4th ed, OUP, 2007) devote an extensive section advocating a change to this position. They note the existence in the US of a right to recover where a case involves "extreme and outrageous intentional invasions of one's mental and emotional tranquility" citing Alcorn v Anbro Engineering Inc 468 P2d 216 (1970) at 218 [4] per Burke J. They also note the remarks of Lord Hoffman in Hunter v Canary Wharf Ltd [1997] UKHL 14 ; [1997] AC 655 at 707 to this effect: The perceived gap in Khorasandjian v. Bush was the absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v. Downton [1897] 2 Q.B. 57 and Janvier v. Sweeney [1919] 2 K.B. 316. The law of harassment has now been put on a statutory basis (see the Protection from Harassment Act 1997) and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence: see Hicks v. Chief Constable of the South Yorkshire Police [1991] UKHL 9 ; [1992] 2 All E.R. 65. The policy considerations are quite different. I do not therefore say that Khorasandjian v. Bush was wrongly decided. But it must be seen as a case on intentional harassment, not nuisance.
Case: Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 and 5) [2002] UKHL 19 ; [2002] 2 AC 883
Outcome: applied
of Mr Habib's claims would require a conclusion that a foreign State had committed grave wrongs. However, I would not regard the act of State doctrine as necessarily applicable to a claim based on misfeasance in a public office. This is because it is arguable that there is an exception to the principle where the acts of the foreign State in question constitute grave breaches of international law: Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 and 5) [2002] UKHL 19 ; [2002] 2 AC 883 at 1080-1081 per Lord Nicholls (with whom Lord Hoffman agreed at 1105 [125]), 1101 [113] per Lord Steyn, 1109 [140] per Lord Hope; Petrotimor at 369 per Black CJ and Hill J; cf. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 278 per Lord Cross. Indeed, as Lord Steyn explained at 1101 [113] in Kuwait Airways , the doctrine rests, in part, on the absence of available standards by which to judge the actions of the foreign state involved. Where the potential allegation is that the US and Egypt have committed grave breaches of the Geneva Conventions a clear standard is available: cf. Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at 584-585 [21] - [23] per Tamberlin J where the potential interaction between the act of State doctrine and the Third and Fourth Geneva Conventions was examined. For those reasons, I do not think it can be said that the doctrine prevents a misfeasance suit potentially going forward. Indeed, on one view of things, it may well lie in the heart of the exceptions. Conclusion
Case: Maguire v Makaronis [1997] HCA 23 ; (1997) 188 CLR 449
Outcome: cited
the nature of the "position of conflict" was left unexplained. Equity imposes upon fiduciaries a duty of undivided loyalty: Maguire v Makaronis [1997] HCA 23 ; (1997) 188 CLR 449 at 465 per Brennan CJ, Gaudron, McHugh and Gummow JJ. The duty is the obligation to avoid being placed in a position where that undivided loyalty might be challenged. The breach of duty arises merely from being placed in the position of conflict and does not require that the conflict be acted upon. Thus the 'no conflict' rule is infringed where a fiduciary occupies a position where his self-interest and the duty to the beneficiary conflict: Warman International Ltd v Dwyer [1995] HCA 18 ; (1994) 182 CLR 544 at 557 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ. It is also infringed where the fiduciary takes upon herself conflicting obligations: Breen v Williams (1996) 186 CLR 71 at 135 per Gummow J.
Case: Mutasa v Attorney General [1980] QB 114
Outcome: referred to
Commonwealth's submission was that it could not possibly be said that it had acted for, or on behalf of, Mr Habib. This submission is too simplistic. It is accepted that there is some kind of duty owed by the State to its overseas nationals. For example, in Mutasa v Attorney General [1980] QB 114 at 118-120 Boreham J spoke of the Crown having a duty to protect a citizen from unlawful detention but of that duty being one of imperfect obligation and thus unenforceable. So too, in China Navigation Company Ltd v Attorney General (1931) 40 Ll L Rep 110 at 112 Rowlatt J spoke of an alleged duty to assist a citizen against piracy as being but a "political" duty: cf. Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at 593-594 [62] - [66] per Tamberlin J. Thus, it is a little glib to say that there was no aspect of the relationship between Mr Habib and the Commonwealth which could involve it in potentially "acting" on his behalf.
Case: Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249
Outcome: referred to
of Mr Habib's claims would require a conclusion that a foreign State had committed grave wrongs. However, I would not regard the act of State doctrine as necessarily applicable to a claim based on misfeasance in a public office. This is because it is arguable that there is an exception to the principle where the acts of the foreign State in question constitute grave breaches of international law: Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 and 5) [2002] UKHL 19 ; [2002] 2 AC 883 at 1080-1081 per Lord Nicholls (with whom Lord Hoffman agreed at 1105 [125]), 1101 [113] per Lord Steyn, 1109 [140] per Lord Hope; Petrotimor at 369 per Black CJ and Hill J; cf. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 278 per Lord Cross.
Case: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 3 ; (2003) 126 FCR 354
Outcome: applied
the Commonwealth made a broad submission that the act of State doctrine operated to prevent this Court from examining the rights and wrongs of the acts of a foreign State. Over a century ago the doctrine was held to form part of "the settled law of all civilized countries": Potter v Broken Hill Pty Company Ltd [1906] HCA 88 ; (1906) 3 CLR 479 at 495 per Griffith CJ. More recently it has been described by the High Court as a long-recognised principle of international law: Attorney-General (UK) v Heinemann Publishers Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 at 40 and by a judge of this Court as a rule of private international law: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 3 ; (2003) 126 FCR 354 at 415 [159] per Beaumont J. The Commonwealth's submission that the act of State doctrine exists must be accepted: Petrotimor at 366-369 [33]-[45] per Black CJ and Hill J, 415-416 [159]-[160] per Beaumont J. Each of Mr Habib's claims would require a conclusion that a foreign State had committed grave wrongs. However, I would not regard the act of State doctrine as necessarily applicable to a claim based on misfeasance in a public office. This is because it is arguable that there is an exception to the principle where the acts of the foreign State in question constitute grave breaches of international law: Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 and 5) [2002] UKHL 19 ; [2002] 2 AC 883 at 1080-1081 per Lord Nicholls (with whom Lord Hoffman agreed at 1105 [125]), 1101 [113] per Lord Steyn, 1109 [140] per Lord Hope; Petrotimor at 369 per Black CJ and Hill J; cf. Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249 at 278 per Lord Cross.
Case: Potter v Broken Hill Pty Company Ltd [1906] HCA 88 ; (1906) 3 CLR 479
Outcome: cited
the Commonwealth made a broad submission that the act of State doctrine operated to prevent this Court from examining the rights and wrongs of the acts of a foreign State. Over a century ago the doctrine was held to form part of "the settled law of all civilized countries": Potter v Broken Hill Pty Company Ltd [1906] HCA 88 ; (1906) 3 CLR 479 at 495 per Griffith CJ. More recently it has been described by the High Court as a long-recognised principle of international law: Attorney-General (UK) v Heinemann Publishers Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 at 40 and by a judge of this Court as a rule of private international law: Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 3 ; (2003) 126 FCR 354 at 415 [159] per Beaumont J. The Commonwealth's submission that the act of State doctrine exists must be accepted: Petrotimor at 366-369 [33]-[45] per Black CJ and Hill J, 415-416 [159]-[160] per Beaumont J.
Case: R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213
Outcome: referred to
a cause of action may be viable in the United Kingdom: see R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213. However, it is not open for me to entertain the argument for it has been held on high authority that Australian law knows no action based on substantive legitimate expectations: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at 21 [66] - [67] per McHugh and Gummow JJ, 48 [148] per Callinan J. See also Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165 at 186-187 [82] per Finn J. Misfeasance in a public office
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: followed
a cause of action may be viable in the United Kingdom: see R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213. However, it is not open for me to entertain the argument for it has been held on high authority that Australian law knows no action based on substantive legitimate expectations: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at 21 [66] - [67] per McHugh and Gummow JJ, 48 [148] per Callinan J. See also Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165 at 186-187 [82] per Finn J. Misfeasance in a public office
Case: Rookes v Barnard [1964] UKHL 1 ; [1964] AC 1129
Outcome: cited
Commonwealth denies that such facts could constitute the tort of intimidation. There are three elements to this tort. First , there must be a demand made of the plaintiff by the defendant coupled with a threat to either the plaintiff or a third party: Stratford (JT) &amp; Son Ltd v Lindley [1965] AC 269 at 283 per Lord Denning MR. Secondly , the threat issued by the defendant must be to commit an unlawful or illegal act. The illegality required need not be criminal; indeed, it has been held that a threat to breach a contract is a sufficient threat for the purposes of the tort: Rookes v Barnard [1964] UKHL 1 ; [1964] AC 1129. Thirdly , it must be shown that the plaintiff complied with the demand: Stratford at 283. Messrs Balkin and Davis in the Law of Torts (3rd ed, LexisNexis Butterworths, 2004) summarise the tort this way (at 654 [21.30]): The essence of the tort of intimidation is that the defendant has, by a threat to commit an unlawful act, coerced another person into acting in a way in which the latter did not wish to act, the defendant having thereby intended and caused economic damage to the plaintiff.
Case: Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165
Outcome: referred to
a cause of action may be viable in the United Kingdom: see R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213. However, it is not open for me to entertain the argument for it has been held on high authority that Australian law knows no action based on substantive legitimate expectations: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at 21 [66] - [67] per McHugh and Gummow JJ, 48 [148] per Callinan J. See also Rush v Commissioner of Police [2006] FCA 12 ; (2006) 150 FCR 165 at 186-187 [82] per Finn J. Misfeasance in a public office
Case: Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719
Outcome: cited
either event, it is plain that the question of the extent of the executive power is consigned to the Chapter III courts. In that regard, at a functional level, the situation is not so very different to the treatment given by the English courts to the question of the extent of the prerogative. For, at least since the Case of Proclamations (1611) 12 Co Rep 74; 77 ER 1352, the courts of that country have asserted, and the other branches of government have eventually accepted, the final role of the courts in determining the ambit of that prerogative. Just as a Commonwealth law may delimit the scope of the executive power, so too it is well established that the prerogative may be excluded by statute. Attorney-General v De Keyser's Royal Hotel Ltd [1920] UKHL 1 ; [1920] AC 508 is an example of where a statute was found to have curtailed the prerogative. In Australia, Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 is an example where a statute was found not to have that effect; the Full Court of this Court's decision in Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 is a contrary example.
Case: Stratford (JT) &amp; Son Ltd v Lindley [1965] AC 269
Outcome: cited
Commonwealth denies that such facts could constitute the tort of intimidation. There are three elements to this tort. First , there must be a demand made of the plaintiff by the defendant coupled with a threat to either the plaintiff or a third party: Stratford (JT) &amp; Son Ltd v Lindley [1965] AC 269 at 283 per Lord Denning MR. Secondly , the threat issued by the defendant must be to commit an unlawful or illegal act. The illegality required need not be criminal; indeed, it has been held that a threat to breach a contract is a sufficient threat for the purposes of the tort: Rookes v Barnard [1964] UKHL 1 ; [1964] AC 1129. Thirdly , it must be shown that the plaintiff complied with the demand: Stratford at 283. Messrs Balkin and Davis in the Law of Torts (3rd ed, LexisNexis Butterworths, 2004) summarise the tort this way (at 654 [21.30]): The essence of the tort of intimidation is that the defendant has, by a threat to commit an unlawful act, coerced another person into acting in a way in which the latter did not wish to act, the defendant having thereby intended and caused economic damage to the plaintiff.
Case: Warman International Ltd v Dwyer [1995] HCA 18 ; (1994) 182 CLR 544
Outcome: cited
the nature of the "position of conflict" was left unexplained. Equity imposes upon fiduciaries a duty of undivided loyalty: Maguire v Makaronis [1997] HCA 23 ; (1997) 188 CLR 449 at 465 per Brennan CJ, Gaudron, McHugh and Gummow JJ. The duty is the obligation to avoid being placed in a position where that undivided loyalty might be challenged. The breach of duty arises merely from being placed in the position of conflict and does not require that the conflict be acted upon. Thus the 'no conflict' rule is infringed where a fiduciary occupies a position where his self-interest and the duty to the beneficiary conflict: Warman International Ltd v Dwyer [1995] HCA 18 ; (1994) 182 CLR 544 at 557 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ. It is also infringed where the fiduciary takes upon herself conflicting obligations: Breen v Williams (1996) 186 CLR 71 at 135 per Gummow J.
Case: Conroy v Shire of Springvale and Noble Park (1959) VR 737
Outcome: cited
Mr Gormly argues that academic standards can never be fully objectified such that their application is a matter of mere administration. He points out that different institutions prescribe different rules and standards. The certification, he submits, is not merely administrative; it is not purely routine and non-discretionary. Mr Gormly submits that the education provider, by reason of its certification of an academic result "to be at least satisfactory" for the purposes of Condition 8202 and its issue of a s 20 notice under the Students Act, impermissibly performs a "migration function" without regard to the objects of the Act. Condition 8202(3)(b) is, he submits, ultra vires (cf Ellis v Dubowski (1921) 3 KB 621 at 625). It makes the education provider the decision maker on the terms of the visa condition and on a breach of that condition, resulting in automatic cancellation. Mr Gormly submits that the result is an invalid sub-delegation ( Conroy v Shire of Springvale and Noble Park (1959) VR 737).
Case: Ellis v Dubowski (1921) 3 KB 621
Outcome: cited
Mr Gormly argues that academic standards can never be fully objectified such that their application is a matter of mere administration. He points out that different institutions prescribe different rules and standards. The certification, he submits, is not merely administrative; it is not purely routine and non-discretionary. Mr Gormly submits that the education provider, by reason of its certification of an academic result "to be at least satisfactory" for the purposes of Condition 8202 and its issue of a s 20 notice under the Students Act, impermissibly performs a "migration function" without regard to the objects of the Act. Condition 8202(3)(b) is, he submits, ultra vires (cf Ellis v Dubowski (1921) 3 KB 621 at 625). It makes the education provider the decision maker on the terms of the visa condition and on a breach of that condition, resulting in automatic cancellation. Mr Gormly submits that the result is an invalid sub-delegation ( Conroy v Shire of Springvale and Noble Park (1959) VR 737).
Case: Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558 at [30]
Outcome: cited
There is no basis for permitting the latest amendment and leave to amend should be refused. Apart from the general discretionary factors that would apply to an application to amend after the conclusion of the hearing, the applicant elected to seek merits review in the Tribunal of the Delegate's decision. The fact that such a review cured, in a legal sense, any defect in the hearing before the Delegate attributable to a denial of natural justice is now settled ( Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344; Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 ; (2005) 149 FCR 1 (special leave to appeal refused); Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558 at [30] ; Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028 at [67] ). There is no reason to permit the applicant to amend to seek orders against the Delegate. 50 Mr Johnson makes six points in his submissions as to the alleged denial of procedural fairness: 1. The Court is reviewing the decision of the Tribunal, which has no role to play in the processes of s 20 of the Students Act. 2. It is now settled by Zhou and Cheng that there is no legal interaction between the processes of s 20 of the Students Act and a cancellation under s 116 of the Act. 3. It is not contended that the Notice did not comply with s 20 of the Students Act. In any event, Morsed does not say that there is a breach of procedural fairness by the Tribunal where a notice issued pursuant to s 20 of the Students Act is misleading. 4. Even if it were misleading, the Notice did not affect the power of the Delegate to effect a visa cancellation under s 116 ( Humayun at [30]). Further, the Tribunal conducted a merits review and any defects in the decision of the Delegate were cured by that review ( Zubair ; Cheng at [67]). 5. The question whether there could be a cure for any deficiency in the Notice that gave rise to a denial of natural justice could not affect the operation of s 116 of the Act. Such a denial could not result in jurisdictional error on the part of the Tribunal. 6. No denial of natural justice or breach of statutory requirements can be established on the part of the Tribunal.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314
Outcome: cited
Further, in Mr Gormly's submission, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314, Zubair , and Uddin have no application because the Tribunal in this case could not cure the denial of procedural fairness occasioned by the Notice. The Notice was not part of the hearing before the Tribunal. To the extent that existing authority of this Court suggests otherwise, Mr Gormly seeks to distinguish this case which, he says, raises matters not considered by the Full Court in Zhou and Zubair or by Siopis J in Cheng. 57 The Minister submits that, as the hearing before the Tribunal is a merits review, the Tribunal can, in a legal sense, "cure" any defects leading to the decision of the Delegate under review ( Zubair ; Ahmed ; Uddin ; Hamayun ). Mr Gormly submits, however, that the Tribunal cannot cure any defects in the Notice because it formed no part of the Tribunal's review of the decision to cancel made under s 116. He submits that this was not considered in Cheng and that this inability on the part of the Tribunal to cure the denial of procedural fairness invalidates the Tribunal decision.
Case: Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
Mr Gormly adopts the characterisation of the defects in the s 20 notice in Morsed and relies upon the denial of procedural fairness resulting from that notice with its attendant effect on the opportunity for the applicant to rely on exceptional circumstances to avoid cancellation of her visa. He refers to Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [34] and submits that, because of the consequences of compliance with the Notice, the contents of the Notice cannot be quarantined from the procedural fairness requirements of a cancellation under s 116(3) of the Act. The failure to accord procedural unfairness cannot, he says, be cured by merits review by the Tribunal because of the lack of discretion on the part of the Delegate and the Tribunal.