case_text: The further issue next addressed by the Minister was whether in any event, a jurisdictional error would arise from a breach of s 494D(1) by not giving any requisite notice to Ms Tang in Taiwan. Nevertheless upon the hypothesis of breach of s 494D(1) on the Minister's part, the Minister made the following observations and submissions: (i) it was not in dispute that the Tribunal, like the Minister, has no power to affirm the cancellation of the holder of a business skills visa unless a written notice under s 135 of the Act has been given to that holder within the three year period prescribed by s 134(9) of the Act; in the present case, there was no dispute that the applicant had received the relevant notice of cancellation within the prescribed period of time; the issue arising at the instance of the applicant was whether s 134(9) should be construed as being subject not only to the giving of the statutory notice to the applicant but also to the service thereof upon her purportedly authorised recipient; (ii) subsection 134(9) does not in any event require the notice to be given to an authorised recipient; in that regard, the subsection refers only to '... notice... given to its holder [of the visa] ' ; (iii) section 135 neither requires that the notice be given to an authorised recipient, nor requires that the notice be given by any one of the methods specified in s 494B of the Act (which I have earlier summarised), unlike incidentally many other provisions of the Act; in those circumstances, the Minister is empowered to use any of the methods specified in s 494B but is not required to use those methods; in that regard s 494A stipulates relevantly that '... the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph b(i) or (ii) of this section) '; (iv) the issue involved therefore becomes whether the enactment of s 494D in 2001 has the effect of so qualifying s 134(9) such that a notice given to a visa holder within time is no longer sufficient to crystallise the operation of the cancellation power; (v) the Minister submitted that s 494D 'imposed a duty upon the Minister to provide correspondence to an authorised recipient', but submitted that it did not follow that when that duty is breached in circumstances where nevertheless the principal received the relevant notice, that such notice is ineffective until the authorised recipient is also given the notice; (vi) moreover the Court decided in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221 at [13] - [20] (Mansfield J) that deemed notification to a principal is effective, even if an authorised recipient is not given a document contrary to a provision substantially equivalent to s 494D ; (vii) nothing in s 494D has the effect that the actual giving of a document to a principal is deemed not to have occurred if the authorised recipient is not provided with a copy; so much was said to have been held in the course of the analysis of the Full Federal Court (Gray, Whitlam and Mansfield JJ) in VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311 ; (2003) 133 FCR 570 at [6] , [9] and [27]; and (viii) in the present case there was no doubt that the applicant Ms Lo received actual notice from the Minister, as well as deemed notice irrespective of notification to any authorised recipient; in those circumstances the Minister submitted that there was no failure on the Minister's part to give the applicant a notice within the time prescribed by ss 134(9) and 135 of the Act. 39 As to the reasons for judgment in Makhu , I would observe that the applicant there involved sought to make out a case to the effect that he was not given the opportunity that would flow from the Tribunal's compliance with the invitation stipulated by s 359A of the Act. That section of the Act requires the Tribunal to 'give to the applicant in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that [it] considers would be the reason, or part of the reason, for affirming the decision that is under review' . Makhu concerned an applicant who had nominated a migration agent, in accordance with s 379G(1) of the Act, as the authorised recipient of communications under the Act. The Tribunal subsequently sent the applicant a letter for the purposes of s 359A of the Act, thereby highlighting certain deficiencies in his application and inviting him to address them. However, the letter was not addressed to the authorised recipient (the migration agent) at the migration agent's address, but rather it was addressed to the applicant care of the migration agent at the migration agent's address and it was copied to the applicant at his residential address. The applicant deposed as to not having received that letter. 40 Mansfield J observed at [18] to [19] in Makhu as follows: '18. I do not accept that by nomination of his migration agent as an authorised recipient, under s 379G of the Act, the notice under s 359A must only be given to the applicant by being addressed to and sent to the migration agent. Section 379G(2) provides: (2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.' 19. As noted, the letter of 6 February 2003 was addressed to the applicant care of the migration agent at the migration agent's address and to the applicant at his residential address. Section 379G(1) applies where the Tribunal has given to the authorised recipient, instead of the applicant, the document. Section 379G(2) provides, firstly, that giving the document to the authorised recipient means that the Tribunal is taken to have given the document to the applicant. However, it also expressly preserves the right of the Tribunal to give to the applicant a copy of the document. That it did.' 41 The applicant submitted that the reasoning of Mansfield J assisted her case because 'his Honour concludes that personal service is permitted by s 359G(2) where there has been purported service on the authorised recipient under s 359G(1) as well, (and, by implication, not otherwise)'. The applicant submitted, in the alternative, that if his Honour's decision is construed as standing for the 'broader proposition that deemed notification to a principal is effective even if an authorised recipient is not given a copy, then the decision is distinguishable because the service of the s 359A notice in that case was a procedural requirement in the course of the exercise of jurisdiction'. It was contended therefore that in the present situation, the service of the notice of intention to cancel is necessary relevantly to found jurisdiction. 43 The parties provided post-hearing submissions moreover concerning the recent Full Federal Court authority of Le v Minister for Immigration and Citizenship [2007] FCAFC 20 (Emmett, Allsop and Middleton JJ). Whilst the Minister submitted that the reasoning of the Full Court in Le is not consistent with the reasoning of Mansfield J in Makhu , he made the qualification that this is not to 'concede that Le is correctly decided or, to concede the issue'. The Minister contended that unlike the situation in Makhu , Le concerned a situation where there had been no grant of the visa and the correspondence in issue was held to be covered by an authorisation of a person under s 494D(1) in relation to the visa application that was still pending in that case. The Minister further submitted that 'the comments by the Full Court in Le to the effect that an authorisation under s 494D(1) continues in force until withdrawn, does not say anything about the authorisation applying to matters outside the scope of the visa application'; in support of that proposition, the Minister relied on their Honour's reasoning at [29], which is as follows: 'It is incumbent upon an applicant to remain in communication with a person who is authorised to receive documents under s 494D(1) until the applicant withdraws the notice given under that provision or varies it pursuant to s 494 (3). It is not for the Minister to ascertain whether or not an Authorised Recipient has died or is inactive. So long as the Minister is able to give documents to that Authorised Recipient by a method that the Minister considers appropriate, the applicant will be taken to have received the documents. Furthermore, the Minister must give a document to the Authorised Recipient.'


case_outcome: cited

case_text: The further issue next addressed by the Minister was whether in any event, a jurisdictional error would arise from a breach of s 494D(1) by not giving any requisite notice to Ms Tang in Taiwan. Nevertheless upon the hypothesis of breach of s 494D(1) on the Minister's part, the Minister made the following observations and submissions: (i) it was not in dispute that the Tribunal, like the Minister, has no power to affirm the cancellation of the holder of a business skills visa unless a written notice under s 135 of the Act has been given to that holder within the three year period prescribed by s 134(9) of the Act; in the present case, there was no dispute that the applicant had received the relevant notice of cancellation within the prescribed period of time; the issue arising at the instance of the applicant was whether s 134(9) should be construed as being subject not only to the giving of the statutory notice to the applicant but also to the service thereof upon her purportedly authorised recipient; (ii) subsection 134(9) does not in any event require the notice to be given to an authorised recipient; in that regard, the subsection refers only to '... notice... given to its holder [of the visa] ' ; (iii) section 135 neither requires that the notice be given to an authorised recipient, nor requires that the notice be given by any one of the methods specified in s 494B of the Act (which I have earlier summarised), unlike incidentally many other provisions of the Act; in those circumstances, the Minister is empowered to use any of the methods specified in s 494B but is not required to use those methods; in that regard s 494A stipulates relevantly that '... the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph b(i) or (ii) of this section) '; (iv) the issue involved therefore becomes whether the enactment of s 494D in 2001 has the effect of so qualifying s 134(9) such that a notice given to a visa holder within time is no longer sufficient to crystallise the operation of the cancellation power; (v) the Minister submitted that s 494D 'imposed a duty upon the Minister to provide correspondence to an authorised recipient', but submitted that it did not follow that when that duty is breached in circumstances where nevertheless the principal received the relevant notice, that such notice is ineffective until the authorised recipient is also given the notice; (vi) moreover the Court decided in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221 at [13] - [20] (Mansfield J) that deemed notification to a principal is effective, even if an authorised recipient is not given a document contrary to a provision substantially equivalent to s 494D ; (vii) nothing in s 494D has the effect that the actual giving of a document to a principal is deemed not to have occurred if the authorised recipient is not provided with a copy; so much was said to have been held in the course of the analysis of the Full Federal Court (Gray, Whitlam and Mansfield JJ) in VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311 ; (2003) 133 FCR 570 at [6] , [9] and [27]; and (viii) in the present case there was no doubt that the applicant Ms Lo received actual notice from the Minister, as well as deemed notice irrespective of notification to any authorised recipient; in those circumstances the Minister submitted that there was no failure on the Minister's part to give the applicant a notice within the time prescribed by ss 134(9) and 135 of the Act.


case_outcome: discussed

case_text: The applicant further invoked Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1000 , where Raphael FM found that a decision of the Refugee Review Tribunal was invalid because of the absence of compliance by the Tribunal with the terms of the former s 379G(iv) of the Act. In reaching that decision, his Honour made the following observations upon which the applicant seemingly placed reliance: '5. The fact that the Tribunal is entitled also to send a copy of the correspondence to the applicant, does not detract from the importance of the provision requiring it to send the document to the authorised representative for the reasons that Mr Dobbie posits. There is a similar provision in subsection 379G(iv) which I believe supports Mr Dobbie's view that the section itself is bent upon ensuing that at no stage shall the applicant's authorised representative be kept out of the loop. 6. In making the point that I have above, I am sensible of the fact that I appear to be flying in the face of the decision of his Honour Mansfield J in Makhu (supra). With respect to his Honour, whilst it may well be that his decision was correct when handed down, the views of the High Court concerning the importance of mandatory provisions of the Migration Act and the fact that his Honour may not have had the advantage of Mr Dobbie's assistance and his association of subsection 379G(iv) with subsection 379G(ii) permits me, I believe, to respectfully differ from the views expressed by him in that case. His Honour takes a view different to mine as to the work that is required of the word "instead". It appears to me that he uses it to give the Tribunal the ability to choose between which parties the Tribunal may address, whereas I believe that the Tribunal has no such discretion and that, in fact, there are no circumstances in which the authorised recipient should not receive a document.'


case_text: The parties provided post-hearing submissions moreover concerning the recent Full Federal Court authority of Le v Minister for Immigration and Citizenship [2007] FCAFC 20 (Emmett, Allsop and Middleton JJ). Whilst the Minister submitted that the reasoning of the Full Court in Le is not consistent with the reasoning of Mansfield J in Makhu , he made the qualification that this is not to 'concede that Le is correctly decided or, to concede the issue'. The Minister contended that unlike the situation in Makhu , Le concerned a situation where there had been no grant of the visa and the correspondence in issue was held to be covered by an authorisation of a person under s 494D(1) in relation to the visa application that was still pending in that case. The Minister further submitted that 'the comments by the Full Court in Le to the effect that an authorisation under s 494D(1) continues in force until withdrawn, does not say anything about the authorisation applying to matters outside the scope of the visa application'; in support of that proposition, the Minister relied on their Honour's reasoning at [29], which is as follows: 'It is incumbent upon an applicant to remain in communication with a person who is authorised to receive documents under s 494D(1) until the applicant withdraws the notice given under that provision or varies it pursuant to s 494 (3). It is not for the Minister to ascertain whether or not an Authorised Recipient has died or is inactive. So long as the Minister is able to give documents to that Authorised Recipient by a method that the Minister considers appropriate, the applicant will be taken to have received the documents. Furthermore, the Minister must give a document to the Authorised Recipient.' 44 The Minister also observed that the Full Court in Le at [31], accepted that a breach of s 494D(1) may not constitute a jurisdictional error in a case where the principal received actual notice. It was asserted that in the present case that 'the principal did receive actual notice and the Minister relies upon his submissions to the effect that there has been no jurisdictional error in those circumstances'. 45 In reply the applicant submitted that the Full Court in Le made it clear that s 494D authorisation operates until it is varied or withdrawn and that the Minister's contention that the authorisation in this case did not extend beyond the grant of the visa must be rejected. In support of that proposition the applicant made reference to Le at [24] where the Court observed: 'Nevertheless, an unequivocal requirement of s 494D(1) is that the Minister must give a document to the Authorised Recipient instead of to an applicant. Another unequivocal effect of s 494D(2) is that, by giving a document to the Authorised Recipient, the Minister is taken to have given the document to the applicant.' The applicant further submitted that the 'change of address form in Le (which notified the Minister of an applicant's change of address for correspondence) was not construed as revoking or varying the authorisation. 46 In regards to the Minister's reliance on Le in support of the argument that where actual notice has been received no jurisdictional error arises, the applicant submitted in reply that 'the comment by the Court in Le at [31] that a question may arise as to whether there is jurisdictional error when actual service has been effected is clearly obiter dicta , and does no more than pose the question without suggesting an answer'. The notice of intention to cancel was said to found the jurisdiction to make the decision, and that a failure to strictly meet all the requirements of the Act concerning service of it will be fatal to the jurisdiction which depends upon it. 47 In my opinion, the Minister is entitled to succeed, in the context of the circumstances of this case, essentially in line with his submissions of his case which I have outlined or reproduced. Those submissions seem to me to reflect the correct operation of the legislation presently in force as well as to produce an outcome that gives expression to the prevailing procedural requirements for effective notice of cancellation of visas, and, in particular, business or business skills visas. 48 I have difficulty with the applicant's characterisation of her case in the present litigation as one involving a jurisdictional fact. The situation propounded by the applicant seems to me more strictly to be approached as that of fulfilment or otherwise of statutory requirements for cancellation of a business visa. The issue arising for determination is whether in the events which happened, being events not at least relevantly in dispute, the Minister was required to give the subject notice of intention to cancel the applicant's business skills visa to Ms Tang at the address appearing in the applicant's original Form 956 bearing date 15 October 2001 and headed 'Authorisation of person to act and receive communication', being RM 703, No. 9, Nan-King E. RD., SEC 3 , Taipei City, Taiwan R.O.C. Upon that footing the applicant postulated the conclusion that the Minister's sending by post on 13 April 2005 of that notice of intention to cancel addressed to the applicant (of course as the visa holder) at No. 3 Allenby Crescent Strathfield NSW 2135 was invalid and ineffective to cancel the applicant's visa. There was no suggestion raised by the applicant that she did not receive in due course that notice of cancellation bearing date 13 April 2005, her only case being that the notice was invalidated by not having been sent to Ms Tang at her Taiwan address, that address also having been of course that which was specified in the applicant's Form 47BU completed and sent to the Department earlier on 15 October 2001 in the context of the applicant's original visa application. 49 In my opinion, the Minister's response to the applicant's case, as framed in outline in [33] above, is soundly based on the operation of the Act, and in particular on the prescription concerning the giving of notice of a ' proposed cancellation ' of a visa in conformity with the stipulations relevantly of the Act, and ss 134 and 135 and also of ss 494A and 494D thereof in particular. I can see no substance in as well as no sensible basis for the applicant's case. The applicant's details regarding correspondence contained in the initial Form 956 bearing date 15 October 2001 was plainly and unequivocally overtaken and superseded by the applicant's subsequent Form 1010 and Form 956, bearing dates 7 July 2004 and 5 May 2005 respectively, and understandably so given the transpiration of events which had subsequently taken place, including the applicant's subsequent presence at least for some time in Australia. In expressing the foregoing reasons I have reached the same conclusion as that of Deputy President Professor Walker below. Whilst my reasoning is more expansive I think that is because of the additional arguments which counsel for the applicant placed before the Court. I would agree moreover with Professor Walker's approach to reasoning as well, geared as it was in substance as well as appropriately to the relevant events which happened. My approach to the material and circumstances otherwise placed before the Court, requires therefore that the applicant's present application transferred from the Federal Magistrates Court be dismissed. 50 It follows that the present application must be dismissed with the usual consequence as to the costs thereof, inclusive of the proceedings to the extent initially commenced in the Federal Magistrates Court.


case_outcome: considered

case_text: As I said in a previous judgment in this proceeding concerning the second respondent in Furlong v Maxim Electrical Services (Aust) Pty Ltd [2005] FCA 1518 at [1] : "There is a real issue in this proceeding whether the relevant employees did engage in industrial action. That is yet to be determined." 5 Adapting what follows at [1] in the previous judgment to the current circumstances: "All I am currently required to do is to assess the appropriate penalty, if any, to be imposed on [Maxim (Vic)] , on the basis of the agreed statement of facts advanced by it and the applicant, Mr Furlong." 6 Maxim (Vic) admits that it made payments to certain of its employees at a time when those employees were engaged in industrial action on 5 and 6 August 2003. Those payments totalled $2,056.83. 11 The facts and circumstances of this matter are not materially distinguishable from those referred to in the previous judgment in this proceeding, that is, Furlong v Maxim Electrical Services (Aust) Pty Ltd [2005] FCA 1518. As was the case with the contractor referred to in that judgment, the breaches of s 187AA and of the relevant agreement were inadvertent and unlikely to recur. No utility would ordinarily be served by imposing a penalty. However, the parties, operating at arms length and competently advised, consider that a penalty of $1,750 should be imposed. I see no good reason to depart from that agreement as the sum is not a significant one for the seventh respondent. I will impose the penalty for breach of the Act but not impose any additional penalty for breach of the certified agreement, in respect of which a declaration will be recorded. 12 For the sake of completeness, as I did in the previous judgment, I reiterate that in accepting that Maxim (Vic) breached the agreement I am not expressing any view about the conduct of the third respondent, the Union or any respondent other that Maxim (Vic).


case_outcome: followed

case_text: At the directions hearing at which this aspect of the proceeding was programmed, counsel for the third to sixth respondents formally submitted that judgment against Maxim (Vic) should not be given at this stage. The submission was only formally advanced given my ruling at [10] to [13] in the previous judgment, in which I accepted the approach of Merkel J in Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428. I still adhere to that approach. Therefore there is no reason to withhold judgment concerning Maxim (Vic). I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 14 June 2006 Counsel for the Applicant: Mr P O'Grady Solicitor for the Applicant: Australian Government Solicitor Counsel for the Seventh Respondent: Mr J Twigg Solicitors for the Seventh Respondent: Giannokopoulos Solicitors Date of Hearing: 14 June 2006 Date of Judgment: 14 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/740.html


case_text: The appellant argued that the use of the post-hearing submission as to the age of discovery of his sexuality was not probative of anything. He said that it was not evidence and that for the tribunal to have acted on it showed that the actual decision was based on considerations which were irrelevant or irrational, or on findings or inferences of fact which were not supported by some probative material or logical grounds and that, therefore, the decision constituted a jurisdictional error: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1991) 170 CLR 321 at 366 per Deane J, and see also 358 per Mason CJ, with whom Brennan J agreed at 365. 18 If the appellant had made the statement in the post-hearing submission directly, the tribunal would have been entitled to act on it without any further reference to him and to discern the very inconsistency which it did. Unless there were a basis on which to conclude that the agent could not have made the submission on the appellant's behalf, I can see no basis on which it can be concluded that the tribunal was acting on material which was not probative. Why should the tribunal, it may be asked, have ignored the submission which the appellant was asking it to take into account in assessing his claim? And why should the tribunal have ignored material in that submission which could be treated as being an admission or a statement, of an evidentiary kind, in the sense embraced by s 424A of the Act? 22 Not everyone would have reasoned in the way the tribunal did. A want of logic by an administrative decision-maker in drawing an inference of fact does not amount in itself to an error of law. Nor was there anything in its reasons which amounted to an error of law constituting a jurisdictional error. As Tamberlin, Emmett and Weinberg JJ pointed out in NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 [22]-[29], illogical reasoning, of itself, does not constitute an error of law or jurisdictional error. Mason CJ said in Bond 170 CLR at 356: 'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference in other words, the particular inference is reasonably open even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' (His Honour's emphasis)


case_text: Not everyone would have reasoned in the way the tribunal did. A want of logic by an administrative decision-maker in drawing an inference of fact does not amount in itself to an error of law. Nor was there anything in its reasons which amounted to an error of law constituting a jurisdictional error. As Tamberlin, Emmett and Weinberg JJ pointed out in NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 [22]-[29], illogical reasoning, of itself, does not constitute an error of law or jurisdictional error. Mason CJ said in Bond 170 CLR at 356: 'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference in other words, the particular inference is reasonably open even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' (His Honour's emphasis)


case_text: "Sign" is defined in s 6 to include a letter, word, name, device etc. Chinese characters can constitute a sign: see Australian Chinese Newspapers Pty Ltd v Melbourne Chinese Press Pty Ltd (2003) 58 IPR 1. 8 Section 17 defines a trade mark as: "... a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person."


case_text: The respondent submitted that the applicant has not made out a serious question to be tried for a number of reasons. The respondent first contended, correctly in my view, that there was no arguable case that he had used the Chinese characters in question as a trade mark. Counsel for the respondent referred to the well-known statement of Lord Herschell in Eastman Photographic Materials Company Limited v Comptroller General of Patents, Designs and Trademarks [1898] AC 571 at 580: "... it would obviously have been out of the question to permit a person by registering a trade-mark in respect of a particular class of goods to obtain a monopoly of the use of a word having reference to the character or quality of those goods. The vocabulary of the English language is common property: it belongs alike to all; and no one ought to be permitted to prevent the other members of the community from using for the purposes of description a word which has reference to the character or quality of goods." In my view, the characters in question are simply descriptive of the service the respondent provides, that is to say a professional driving school in Melbourne. Moreover, used in the context of the advertisements, the descriptive nature of the Chinese characters is emphasised by their use in conjunction with the "L" device which forms the distinctive part of the respondent's mark. The respondent has used characters which appropriately describe his business and, in addition, he has used a device which is quite different from the steering wheel device in the applicant's mark. 10 The respondent's second argument, which I also accept, was that s 122(1)(b)(i) of the Act applies. Section 122(1)(b)(i) provides that a person does not infringe a registered trademark when the person uses a sign in good faith to indicate the kind, quality, quantity, intended purpose, value, geographical origin or some other characteristic of services. While there were some assertions from the bar table regarding the respondent's use of information about the applicant's business allegedly acquired by the respondent while he was an employee, there was no evidence to that effect. In any event, the important issue for this case is whether the respondent's use of the sign was in good faith. Given that the words complained of in the respondents' mark are purely descriptive, as already explained, there is no reasonable basis on which to attribute any lack of good faith to the respondent in relation to the use of his mark that being the only relevant question for present purposes.


case_text: Given my findings above, it is unnecessary to consider in any detail the further ground relied upon by the respondent, namely that the respondent's mark was not substantially identical with or deceptively similar to the applicant's mark. Counsel for the applicant referred to Melbourne Chinese Press Pty Ltd v Australian Chinese Newspaper Pty Ltd [2004] FCAFC 201 , a trade mark infringement case concerning the mastheads of competing Chinese language newspapers. At first instance, Conti J held that the respondent's masthead was deceptively similar to the applicant's mark and therefore constituted an infringement, a decision which was upheld by the Full Court. As was discussed in Melbourne Chinese Press at [41], the two marks are not to be compared side by side, and the marks must be considered in their entirety. Having regard to the distinctive devices used in the marks in conjunction with the purely descriptive Chinese characters, I am not satisfied there is an arguable case of deceptive similarity. 12 There is no evidence of any real damage to the applicant caused by the respondent's use of his mark. The applicant deposed: "The income earned from the driving school is my only source of income. Due to the infringement of my registered trademark by the respondent, I believe that I have lost income and I will continue to lose income if the respondent is not restrained from infringing my registered trade mark. I have learnt from many would be learner drivers that they thought that the respondent's business is also my business, or is associated with my business and hence they engaged him as their instructor." 13 The last sentence was objected to by counsel for the respondent. I did not uphold the objection, but because of its vagueness very little evidential weight can be attributed to it. Further, there is also some hardship that would occur to the respondent were the injunction to be granted as he would be required to register another business name.


case_text: High Court made it abundantly clear in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 that before an interlocutory injunction can be granted it is necessary to identify a substantive right which is to be determined at the trial and in respect of which final relief is sought. An interlocutory injunction, according to equitable principles, cannot be granted simply to preserve the status quo if no right is sought to be vindicated by final relief: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra) at 218 per Gleeson CJ. However, two of the judges in the majority in Lenah Game Meats made it clear that they were not concerned with "some special statutory jurisdiction" (per Gleeson CJ at 217; see also Gaudron J at 232) to grant injunctive relief.


case_text: the investors may wish to preserve the status quo of the sale contract to see whether they may have some cause of action which might be brought by the liquidator in their name, it was not suggested that the sale contract is illegal as a result of having been entered into by participants in an unregistered managed investment scheme. There is clear authority to the contrary. In Karl Suleman Enterprizes Pty Ltd (In Liq) v Babanour (2004) 49 ACSR 612, the New South Wales Court of Appeal said at [51]: "The registration requirement for the operation of a managed investment scheme is for the protection of investors. The legislation does not expressly make an unregistered scheme unlawful. Rather it impugns the conduct of the entity responsible for registration by imposing a penal sanction for a contravention of the registration provisions. The members of an unregistered scheme are protected by the provisions whereby the scheme may be compulsorily wound up. There is nothing, therefore, in the scheme of the legislation whereby an implication of an illegality would arise, nor is there anything that points to a legislative intention that contracts entered into as part of an unregistered scheme are illegal." See also Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42 ; (1978) 139 CLR 410; Mier v F N Management Pty Ltd (2005) 56 ACSR 93 at 96.


case_title: Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42 ; (1978) 139 CLR 410


case_text: the investors may wish to preserve the status quo of the sale contract to see whether they may have some cause of action which might be brought by the liquidator in their name, it was not suggested that the sale contract is illegal as a result of having been entered into by participants in an unregistered managed investment scheme. There is clear authority to the contrary. In Karl Suleman Enterprizes Pty Ltd (In Liq) v Babanour (2004) 49 ACSR 612, the New South Wales Court of Appeal said at [51]: "The registration requirement for the operation of a managed investment scheme is for the protection of investors. The legislation does not expressly make an unregistered scheme unlawful. Rather it impugns the conduct of the entity responsible for registration by imposing a penal sanction for a contravention of the registration provisions. The members of an unregistered scheme are protected by the provisions whereby the scheme may be compulsorily wound up. There is nothing, therefore, in the scheme of the legislation whereby an implication of an illegality would arise, nor is there anything that points to a legislative intention that contracts entered into as part of an unregistered scheme are illegal." See also Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42 ; (1978) 139 CLR 410; Mier v F N Management Pty Ltd (2005) 56 ACSR 93 at 96. It is then necessary to consider whether the general terms of s 601EE(2) of the Act would extend to the granting of an injunction abrogating or suspending for a period of time McKinnon Road's right to rescind the sale contract. Although it is cast in general terms, s 601EE(2) must be read within the context of a provision for the winding up of a managed investment scheme. In Re Crust'N'Crumb Bakers (Wholesale) Pty Ltd [1992] 2 Qd R 76 at 78 McPherson SPJ described the concept of "winding up" as: "a process that consists of collecting the assets, realising and reducing them to money, dealing with proofs of creditors by admitting or rejecting them, and distributing the net proceeds, after providing for costs and expenses, to the persons entitled". In Mier v F N Management Pty Ltd (supra) Keane JA, with whom McMurdo P and Douglas J agreed, said at 98: "...where a statute makes reference, without more, to the 'winding up' of an entity, it is referring to the application of a procedure containing these essential characteristics [those described by McPherson SPJ] . It follows that s 601EE(2) must be read as empowering a court to make such orders as it considers appropriate in order to apply such a procedure to an unregistered managed investment scheme. It may also be accepted that the terms of the section allow for further orders to be made as needed so long as they are required for the 'due conduct and completion of the winding up'. The necessary corollary is that an order that could not reasonably be seen as advancing this procedure would not be authorised by s 601EE(2)." (Footnotes omitted) In Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (2002) 42 ACSR 240, Barrett J said at 243: "In relation to s 601EE(2) of the Corporations Act , I accept that the powers conferred upon the court are very broad. The concept of winding up, as it is applied by s 601EE to an unregistered managed investment scheme, is not the subject of any explanation or elaboration in the statute. It seems to me, as a matter of general principle, however, that what is contemplated is the realisation of assets of the scheme, discharge of liabilities and distribution of any surplus among beneficiaries or members in an appropriate way. So much is clearly implied by the expression 'winding up', the general meaning of which may be gathered from approaches taken to that general subject under statutes dealing not only with companies but also with partnerships. Those statutory approaches were built on foundations which pre-dated legislation in either area. Given that s 601EE(2) enables the court to make 'any orders it considers appropriate for the winding up of the scheme' (emphasis added), it must be accepted that the court has jurisdiction to settle or prescribe any aspect or element of the basis for winding up or the winding up process which it is necessary to supply because that element cannot be obtained from any other source. In this respect, it is noteworthy that the statute itself does not attempt to lay down the basis for or method of winding up. That is, to my mind, an indicator of intention that the court should be able to act in the comprehensive way I have outlined."


case_text: is then necessary to consider whether the general terms of s 601EE(2) of the Act would extend to the granting of an injunction abrogating or suspending for a period of time McKinnon Road's right to rescind the sale contract. Although it is cast in general terms, s 601EE(2) must be read within the context of a provision for the winding up of a managed investment scheme. In Re Crust'N'Crumb Bakers (Wholesale) Pty Ltd [1992] 2 Qd R 76 at 78 McPherson SPJ described the concept of "winding up" as: "a process that consists of collecting the assets, realising and reducing them to money, dealing with proofs of creditors by admitting or rejecting them, and distributing the net proceeds, after providing for costs and expenses, to the persons entitled". In Mier v F N Management Pty Ltd (supra) Keane JA, with whom McMurdo P and Douglas J agreed, said at 98: "...where a statute makes reference, without more, to the 'winding up' of an entity, it is referring to the application of a procedure containing these essential characteristics [those described by McPherson SPJ] . It follows that s 601EE(2) must be read as empowering a court to make such orders as it considers appropriate in order to apply such a procedure to an unregistered managed investment scheme. It may also be accepted that the terms of the section allow for further orders to be made as needed so long as they are required for the 'due conduct and completion of the winding up'. The necessary corollary is that an order that could not reasonably be seen as advancing this procedure would not be authorised by s 601EE(2)." (Footnotes omitted) In Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (2002) 42 ACSR 240, Barrett J said at 243: "In relation to s 601EE(2) of the Corporations Act , I accept that the powers conferred upon the court are very broad. The concept of winding up, as it is applied by s 601EE to an unregistered managed investment scheme, is not the subject of any explanation or elaboration in the statute. It seems to me, as a matter of general principle, however, that what is contemplated is the realisation of assets of the scheme, discharge of liabilities and distribution of any surplus among beneficiaries or members in an appropriate way. So much is clearly implied by the expression 'winding up', the general meaning of which may be gathered from approaches taken to that general subject under statutes dealing not only with companies but also with partnerships. Those statutory approaches were built on foundations which pre-dated legislation in either area. Given that s 601EE(2) enables the court to make 'any orders it considers appropriate for the winding up of the scheme' (emphasis added), it must be accepted that the court has jurisdiction to settle or prescribe any aspect or element of the basis for winding up or the winding up process which it is necessary to supply because that element cannot be obtained from any other source. In this respect, it is noteworthy that the statute itself does not attempt to lay down the basis for or method of winding up. That is, to my mind, an indicator of intention that the court should be able to act in the comprehensive way I have outlined."


case_text: is then necessary to consider whether the general terms of s 601EE(2) of the Act would extend to the granting of an injunction abrogating or suspending for a period of time McKinnon Road's right to rescind the sale contract. Although it is cast in general terms, s 601EE(2) must be read within the context of a provision for the winding up of a managed investment scheme. In Re Crust'N'Crumb Bakers (Wholesale) Pty Ltd [1992] 2 Qd R 76 at 78 McPherson SPJ described the concept of "winding up" as: "a process that consists of collecting the assets, realising and reducing them to money, dealing with proofs of creditors by admitting or rejecting them, and distributing the net proceeds, after providing for costs and expenses, to the persons entitled". In Mier v F N Management Pty Ltd (supra) Keane JA, with whom McMurdo P and Douglas J agreed, said at 98: "...where a statute makes reference, without more, to the 'winding up' of an entity, it is referring to the application of a procedure containing these essential characteristics [those described by McPherson SPJ] . It follows that s 601EE(2) must be read as empowering a court to make such orders as it considers appropriate in order to apply such a procedure to an unregistered managed investment scheme. It may also be accepted that the terms of the section allow for further orders to be made as needed so long as they are required for the 'due conduct and completion of the winding up'. The necessary corollary is that an order that could not reasonably be seen as advancing this procedure would not be authorised by s 601EE(2)." (Footnotes omitted) In Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (2002) 42 ACSR 240, Barrett J said at 243: "In relation to s 601EE(2) of the Corporations Act , I accept that the powers conferred upon the court are very broad. The concept of winding up, as it is applied by s 601EE to an unregistered managed investment scheme, is not the subject of any explanation or elaboration in the statute. It seems to me, as a matter of general principle, however, that what is contemplated is the realisation of assets of the scheme, discharge of liabilities and distribution of any surplus among beneficiaries or members in an appropriate way. So much is clearly implied by the expression 'winding up', the general meaning of which may be gathered from approaches taken to that general subject under statutes dealing not only with companies but also with partnerships. Those statutory approaches were built on foundations which pre-dated legislation in either area. Given that s 601EE(2) enables the court to make 'any orders it considers appropriate for the winding up of the scheme' (emphasis added), it must be accepted that the court has jurisdiction to settle or prescribe any aspect or element of the basis for winding up or the winding up process which it is necessary to supply because that element cannot be obtained from any other source. In this respect, it is noteworthy that the statute itself does not attempt to lay down the basis for or method of winding up. That is, to my mind, an indicator of intention that the court should be able to act in the comprehensive way I have outlined." In Re Stacks Managed Investments Ltd (2005) 54 ACSR 466, White J expressed some doubt about the range of orders which could be made under s 601EE(2) , but he did not express any conclusion on the scope of the Court's power under that section. He agreed (at 475) with the observations of Barrett J in Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (supra) that: "the power to make orders for the winding up, must extend to settling or prescribing any aspect or element of the basis of winding up or the winding-up process which cannot be supplied from other sources. Section 601EE(2) empowers the court to fashion the winding-up process." But White J appeared to accept that s 601EE(2) was a source of new powers not otherwise found in other provisions in the Act relating to the winding up of corporations or other entities. His Honour said at 478: "It [s 601NF(2)] authorises the making of directions of a kind which would be made in an administration suit for the purpose of settling the entitlements of members. But in my view, and notwithstanding the authorities under s 601EE(2) , the subsection does not authorise the court to confer additional powers upon a responsible entity to which third parties would be made subject, or to interfere with the rights which third parties would otherwise enjoy. The fact that the power is to give directions indicates that it is one to direct the responsible entity in how to perform its functions and obligations, not that it be the source of new powers. In this respect it differs from s 601EE(2)."


case_text: scope of the definition of a "managed investment scheme" has been considered in a number of cases. In Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46, Barrett J approved and adopted the description and explanation of a "managed investment scheme and its components" in Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 at [45] - [49] and Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at [26]-[32]. I agree with and adopt those descriptions and explanations.


case_title: Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339


case_title: Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561


case_text: Australian Securities and Investments Commission v ABC Fund Managers Ltd (No 3) [2001] VSC 397 , Warren J granted a permanent injunction restraining a party from dealing with the funds of schemes which were wound up pursuant to s 601EE of the Act and in respect of which a liquidator was appointed. There was no discussion by Warren J as to the basis for the grant of the injunction. The jurisdiction was assumed.


case_outcome: distinguished

case_text: referred to Australian Securities and Investments Commission v Landy DFK Securities Ltd [2002] FCA 1056 ; (2002) 123 FCR 548 in which a managed investment scheme was ordered to be wound up pursuant to s 601EE of the Act and the Court appointed liquidators of the scheme. The liquidators filed a motion in the winding up proceeding seeking an order for possession of a property owned by the scheme and an injunction restraining the occupant of the property, who claimed to be a lessee under a lease and entitled to purchase the property under an option in the lease, from remaining in possession of the property. The lessee claimed that the Court had no jurisdiction to grant the relief sought in the proceeding and that the Court did not have jurisdiction or power to make a substantive order resolving a dispute between the liquidators and third parties on the liquidators' interlocutory motion in the winding up proceeding.


case_text: Re Stacks Managed Investments Ltd (2005) 54 ACSR 466, White J expressed some doubt about the range of orders which could be made under s 601EE(2) , but he did not express any conclusion on the scope of the Court's power under that section. He agreed (at 475) with the observations of Barrett J in Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd (supra) that: "the power to make orders for the winding up, must extend to settling or prescribing any aspect or element of the basis of winding up or the winding-up process which cannot be supplied from other sources. Section 601EE(2) empowers the court to fashion the winding-up process." But White J appeared to accept that s 601EE(2) was a source of new powers not otherwise found in other provisions in the Act relating to the winding up of corporations or other entities. His Honour said at 478: "It [s 601NF(2)] authorises the making of directions of a kind which would be made in an administration suit for the purpose of settling the entitlements of members. But in my view, and notwithstanding the authorities under s 601EE(2) , the subsection does not authorise the court to confer additional powers upon a responsible entity to which third parties would be made subject, or to interfere with the rights which third parties would otherwise enjoy. The fact that the power is to give directions indicates that it is one to direct the responsible entity in how to perform its functions and obligations, not that it be the source of new powers. In this respect it differs from s 601EE(2)."


case_text: Warne v GDK Financial Solutions Pty Ltd [2006] NSWSC 259 , Young CJ was asked to wind up an unregistered managed investment scheme. Part of the relief sought was an injunction restraining the exercise of rights under a vendor mortgage until after inquiry by an Associate Justice. The vendor mortgage purportedly secured debts due by investors in the scheme in respect of their purchase of the subject property. Issues had arisen as to the parties to the vendor mortgage and as to the amount due to the mortgagee under it. Young J decided to grant an injunction to preserve the status quo and to prevent the mortgagee from enforcing any rights it might have under the vendor mortgage. He did so for two reasons. First, because of the desirability of preserving rights pending determination of the issues as to the amount due to the mortgagee under the mortgage. Secondly, because there was a serious question as to breaches by the management company of its obligations to the investors which justified an enquiry. Primelife sought to distinguish this case from the present circumstances under consideration on the basis that it involved an inter partes proceeding and a dispute about scheme property. Such a distinction is not warranted. The case involved issues as to the implementation of the winding up of the scheme and was not an inter partes proceeding in the sense that it involved a dispute outside the framework of the winding up of the scheme. Primelife contended that whereas Warne v GDK Financial Solutions Pty Ltd (supra) involved a dispute about scheme property, the issue here involved Primelife's right to rescind which could not be classified as scheme property. That distinction is not valid. Primelife's right to rescind is in respect of the sale contract, which is executory and is scheme property. Although the investors in the present case contended that they had a cause of action available to them for misleading and deceptive conduct which would give rise to an injunction restraining enforcement of the sale contract, relying on s 87 of the Trade Practices Act 1974 (Cth), they were not seeking the injunction for the purposes of enabling them to proceed with such a cause of action. Nor were they seeking an injunction to enable them, or for that matter, the liquidator, to institute a proceeding against the Primelife interests for not carrying out their obligations in relation to the promotion, implementation and administration of the schemes. Rather they wished the liquidator to have time to consider whether he might consider such actions being brought by him on their behalf. However, I consider such a possibility as an insufficient basis for the grant of an injunction. Even if such causes of action might be available to the investors or to the liquidator of the schemes on their behalf, such causes of action do not depend for their existence or prosecution on the fact that the sale contract is still alive, executory and capable of being completed by transfer if there were funds or finance available to enable the sale contract to be completed. If the sale contract were to be rescinded such causes of action would still be available to the investors. Of course, whether such causes of action might be successful depends on how the investors put their case and the strength of the evidence that is available to them. Put another way, there is no practical reason for the injunction to be granted or for the status quo in respect of the sale contract to be preserved. The investors do not suggest that they wish to complete the sale contract and they cannot obtain the finance to do so. If the sale contract is rescinded by the vendor, such causes of action as they may have available to them will not, by virtue of that rescission alone, be lost to them. Turning to the order sought that the liquidator be entitled to bring proceedings in his name as liquidator of the schemes on behalf of the schemes and/or Kastabon and/or Novena, there are conceptual difficulties in making such an order. Novena has gone into liquidation and has been de-registered. As counsel for Primelife pointed out, the liquidator is not the liquidator of Kastabon or Novena; rather he is liquidator of the scheme. But what is the scheme? It is not a legal entity as such. Each scheme was defined in the orders of 26 September 2005 winding up the schemes as the partnership formed pursuant to the partnership agreement dated 30 June 1999 between Kastabon as manager for the investors in the Kastabon Syndicate and Novena as manager for the investors in the Novena Syndicate.


case_text: Hamilton v Piggott Wood & Baker [2003] FCA 1055 , Heerey J made an order entitling a liquidator of an unregistered managed investment scheme to bring proceedings in his name as liquidator of the scheme. Heerey J was faced with the potential problem of two partners in a firm of solicitors who were administering the scheme being the plaintiffs as well as partners in the defendant firm. Heerey J observed at [8] that "the provision for the winding up of an investment scheme cannot always be neatly fitted into the analogy of the winding up of a company", an observation with which I agree. His Honour noted that the scheme itself was not a legal entity and could not be a plaintiff so he gave the liquidator leave to bring the proceeding in his name as liquidator of the scheme. His Honour did not consider the nature of the structure of the scheme. However, his Honour's conclusion is not inconsistent with the conclusion I have reached which is predicated on an understanding of the contractual foundation for the schemes. What is sought is an enabling order. In my view it is desirable that there be no doubt as to the ability of the liquidator to bring proceedings on behalf of the investors who constituted the syndicates which were the subject of the partnership agreement between Kastabon and Novena. All the proposed order will do procedurally is ensure that no challenge can be made to any proceeding brought by the liquidator on the ground that the entities which were the constituent and contracting entities which brought the schemes into existence are not properly parties to any such proceeding. I will therefore make an order in respect of each proceeding and each scheme in the following terms: Colin McIntosh Nicol is entitled to bring in the name 'Colin McIntosh Nicol as Liquidator of the Claremont Terrace Scheme' being the scheme defined in the schedule to the order made on 26 September 2005, any proceeding (as he may be advised) on behalf of the scheme and/or Kastabon Pty Ltd and/or Novena Holdings Pty Ltd (notwithstanding that it has been deregistered) against any person whether or not a party to this proceeding.


case_outcome: approved

case_text: First, the writ is to be directed to those who have custody or control of the person detained: Hicks v Ruddock [2007] FCA 299 at [36] [50], [2007] FCA 299 ; 156 FCR 574 at 588 91. Justice Tamberlin there held that " control or custody is an essential element to the issue of the writ ": at [36]. In the present proceedings, neither the Republic of Finland nor the magistrates are such persons. 11 This difficulty could be overcome by the Applicant seeking a writ or an order in the nature of a writ directed to the appropriate Respondent. And this may be the reason why counsel for the First Respondent did not today rely upon this difficulty as the basis upon which she sought an order for the dismissal of the Application.


case_title: R v Carter; Ex parte Kisch (1934) 52 CLR

case_text: The writ of habeas corpus is an important safeguard of liberty: Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478. And, when an application is made, it is the detaining party who bears the onus of showing the lawfulness of the detention: R v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227. Every person is presumed entitled to his freedom unless some reason is made to appear to the satisfaction of a court why he is lawfully deprived of that freedom: R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62 per Sholl J, (1962) 3 FLR 271. See also Clark and McCoy, Habeas Corpus: Australia, New Zealand, the South Pacific (2000) 227 8.


case_title: R v Governor of Metropolitan Gaol; Ex parte Di Nardo (1962) 3 FLR 271


case_text: The writ of habeas corpus is an important safeguard of liberty: Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478. And, when an application is made, it is the detaining party who bears the onus of showing the lawfulness of the detention: R v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227. Every person is presumed entitled to his freedom unless some reason is made to appear to the satisfaction of a court why he is lawfully deprived of that freedom: R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62 per Sholl J, (1962) 3 FLR 271. See also Clark and McCoy, Habeas Corpus: Australia, New Zealand, the South Pacific (2000) 227 8. 12 The second reason why it is considered that the Application should be dismissed, and the basis now relied upon by the First Respondent, is the lawfulness of the Applicant's detention. The Applicant has the benefit of a presumption in favour of liberty. Albeit not the person who has the custody or control of the Applicant, the Republic of Finland has tendered a copy of the O rder For Arrest as made on 21 December 2007; a copy of the order made by Rares J on 24 December 2007; and a copy of the order made by the Full Court on 15 February 2008. The lawfulness of the detention of the Applicant is thereby established. In Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478 at 480, Deane J addressed the importance of the writ of habeas corpus and continued: It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity. There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void. Similarly, in the present proceedings, there is no reason to challenge the validity of the orders made on 21 and 24 December 2007 and the order made by the Full Court on 15 February 2008.


case_text: On 21 December 2007 an Application was then made by the Republic of Finland to the Duty Judge of this Court for the arrest of the Applicant. That order was made pursuant to s 21(6)(e) of the 1988 Act and an Order For Arrest has since been executed. An Application for bail was refused by Rares J on 24 December 2007. The order then made by his Honour was that the Applicant was to be kept in custody up to and including 15 February 2007: Republic of Finland v Tervonen [2007] FCA 2107.


case_title: Tervonen v Finland [2007] FCA 2067

case_text: It is unnecessary for present purposes to detail the sequence of those various challenges. It is sufficient to note that on 20 December 2007 Gyles J ordered that the Applicant be released from custody: Tervonen v Finland [2007] FCA 2067.


case_text: On 15 February 2008 the Full Court of the Federal Court heard an appeal from the decision of Gyles J and an appeal from a further decision concluding that notices issued under s 16 of the 1988 Act were invalid ( Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589). On that date the Full Court extended the orders as previously made by Rares J for a period " up to and including the determination of the appeal from Gyles J ." 5 Now before the Court is an Application seeking a writ of habeas corpus . The Respondents to that Application are identified as " Finland " and two magistrates. 6 The Application, together with two further proceedings commenced by the Applicant, were first before the Court on 4 February 2008. On that occasion counsel for the Republic of Finland, Ms Morgan, sought an order that the Application be dismissed. That order was opposed by the Applicant and the proceedings were stood over to today. 12 The second reason why it is considered that the Application should be dismissed, and the basis now relied upon by the First Respondent, is the lawfulness of the Applicant's detention. The Applicant has the benefit of a presumption in favour of liberty. Albeit not the person who has the custody or control of the Applicant, the Republic of Finland has tendered a copy of the O rder For Arrest as made on 21 December 2007; a copy of the order made by Rares J on 24 December 2007; and a copy of the order made by the Full Court on 15 February 2008. The lawfulness of the detention of the Applicant is thereby established. In Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478 at 480, Deane J addressed the importance of the writ of habeas corpus and continued: It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity. There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void. Similarly, in the present proceedings, there is no reason to challenge the validity of the orders made on 21 and 24 December 2007 and the order made by the Full Court on 15 February 2008.


case_text: The test for whether leave to appeal is granted or refused is well established: Décor Corp v Dart Industries Inc (1991) 3 FCR 397 at [9]. 12 The applicant's grounds contained in his notice of appeal do not identify any error in the Federal Magistrate's decision. Rather, the grounds are directed to the decision of the Tribunal. 13 The applicant alleges that the Tribunal failed to comply with sections 424A and 441A of the Act . This ground is unparticularised. The Tribunal as first constituted wrote to the applicant inviting his comment on two occasions. The Tribunal was not required to write to the applicant, as reconstituted, in respect of any information upon which it relied as its findings relied on the applicant's evidence given to the Tribunal, both as originally constituted and as reconstituted and the documents provided by the applicant to the Tribunal. Accordingly, there is no merit to this ground.


case_outcome: referred to

case_text: The fourth ground alleges that the Tribunal failed to consider evidence in favour of the applicant and that it only considered evidence which was not in favour of the applicant. To the extent that this is an allegation of bias the applicant has not met the requirement that such an allegation be firmly and distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia Le Geng [2001] HCA 17 ; (2001) 205 CLR 507 at [530] . 20 To the extent that the Tribunal, upon considering the evidence as a whole (which it expressly stated it had done) gave no weight to evidence on its face favourable to the applicant it did so because it found the applicant not to be a credible witness. No error and in particular no jurisdictional error arises by reason of that approach which was clearly open to it. 21 Accordingly I am of the opinion that the Federal Magistrate's decision is not attended by sufficient doubt to warrant it being reconsidered by the Federal Court. Whilst the applicant disagrees with the decision below he has been unable to point to any relevant error. It is evident that no substantial injustice would result from my refusal of leave.


case_text: Traditionally, agreements to negotiate in ' good faith ' were viewed as unenforceable due to want of certainty or lack of consideration, eg Carr v Brisbane City Council [1956] St R Qd 402; Mallozzi v Carapelli SpA [1976] 1 Lloyd's Rep 407 and Walford v Miles [1992] 2 AC 128 at 138 cited by Einstein J in Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996 ; (1999) 153 FLR 236 at [80] . 119 However, since the early 1990's courts have, in certain circumstances, held that an explicit promise to negotiate in good faith is sufficiently certain to be contractually binding: eg Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1; Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104; Aiton Australia at [80]; and see Carter JW, Peden E, Tolhurst GJ, Contract Law in Australia (5 th ed, 2007) at 94-95. 123 Furthermore, in Aiton Australia, Einstein J at [98] said that: "It appears to be common sense that as an obligation to act in "good faith" may, in principle, be legally recognised as an implied or imputed obligation, there is no reason why it should be struck down as uncertain in cases where there is an express contractual term...". 138 First, what is 'good faith' or the content of a good faith obligation will inevitably turn on the facts of each case. It has been described as a contextual standard. In Australia, this has been the starting point for an assessment of good faith in a number of cases. The contextual standard has been variously described. In Aiton Australia , Einstein J said at [129]: "The good faith concept acquires substance from the particular events that take place and to which it is applied. As such, the standard must be fact-intensive and is best determined on a case-by-case basis using the broad discretion of the trial court." 149 Although as noted above, the boundaries of good faith evade precise definition, there appears to be at least some consensus on the limits of any such duty. In particular, a duty of good faith: (1) is not fiduciary in nature; (2) does not require a party to subordinate its own interests, let alone act selflessly; and (3) does not require a party to restrict decisions and actions, reasonably taken, which are designed to promote the legitimate interests of a party and which are not otherwise in breach of an express contractual term. See Justice Finn "Good Faith and Fair Dealing: Australia" Commercial Good Faith Conference (Auckland, New Zealand, 2 September 2005); South Sydney District Rugby League at [394] in the context of an implied duty and, finally, in the context of a duty to negotiate in good faith arising out of an alternative dispute resolution clause see Aiton Australia at [83]. (vi)


case_title: Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349

case_text: Although no implied duty to negotiate in good faith was pleaded or relied on, it is convenient to consider the issue for such light that it sheds upon the express duty that was both pleaded and relied on. There has been a recent willingness of Australia Courts to find that a duty of ' good faith ' in negotiations is an implied or incidental term of every commercial contract unless the duty is either excluded expressly or by necessary implication: Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] ; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 ; Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 ; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) 21 ATPR 41-703; Alcatel Australia Pty Ltd v Scarcella (1998) 44 NSWLR 349; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 and Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 .


case_text: In the circumstances, I am not persuaded that Latitude was misled by BreakFree. Though private contractual negotiations involving a corporation in trade or commerce may support a claim for a breach of s 52 of the TPA, it is important to distinguish infringing conduct from representations that are apposite to "sharp commercial practice" or made in the course of parties bargaining at arm's length: Rhone Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 490; Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 475; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32 (per Black CJ); at 40-41 (per Gummow J); Poseidon Ltd v Adelaide Petroleum NL Ltd (1992) 105 ALR 25 at 26 and Australian Competition and Consumer Commission v Oceania Commercial Pty Ltd [2003] FCA 1516 at [196] - [201] . The relationship between Latitude and BreakFree was that of vendor and purchaser, bargaining at arm's length. In these circumstances, there cannot be said to have been any expectation on either side that BreakFree would not reserve its rights to undertake development, either in relation to the Erskine on the Beach Project or other projects. This is reinforced by the evidence outlined above. Similarly, any non-disclosure by BreakFree about its commercial intentions should a long form contract not be struck with Latitude cannot be construed as misleading or to have misled Latitude.


case_text: However, since the early 1990's courts have, in certain circumstances, held that an explicit promise to negotiate in good faith is sufficiently certain to be contractually binding: eg Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1; Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104; Aiton Australia at [80]; and see Carter JW, Peden E, Tolhurst GJ, Contract Law in Australia (5 th ed, 2007) at 94-95.


case_text: Although no implied duty to negotiate in good faith was pleaded or relied on, it is convenient to consider the issue for such light that it sheds upon the express duty that was both pleaded and relied on. There has been a recent willingness of Australia Courts to find that a duty of ' good faith ' in negotiations is an implied or incidental term of every commercial contract unless the duty is either excluded expressly or by necessary implication: Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] ; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 ; Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 ; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) 21 ATPR 41-703; Alcatel Australia Pty Ltd v Scarcella (1998) 44 NSWLR 349; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 and Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 . 143 As a result, some academics and judges have resorted to ascertaining the scope of ' good faith ' by focusing on the negative or the exclusions - what constitutes ' bad faith '. This has been described as the ' excluder ' definition on the basis that the good faith requirement cannot actually be satisfied in positive terms: See Summers RS, "'Good Faith' in General Contract Law and the Sales Provisions of the Uniform Commercial Code" (1968) 54 Va L Rev 195; Renard Constructions at 266; Burger King at [150]; and Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] - [65] . 184 In Australia, part of the impetus for the recognition of a implied duty to act in good faith has been the desirability and practice of courts in controlling reliance on general rescission clauses so as to prevent their use " for improper and extraneous purposes ": see Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36 ; (1972) 128 CLR 529 at 548; Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 at 587 (per Barwick CJ); and Burger King at [151]. In light of these matters and of the foregoing analysis, the issue is whether the conduct of BreakFree, in the course of negotiations and ultimately relying on its power to terminate the HofA under cl 2.2.2, judged objectively, demonstrated a lack of good faith.


case_text: Traditionally, agreements to negotiate in ' good faith ' were viewed as unenforceable due to want of certainty or lack of consideration, eg Carr v Brisbane City Council [1956] St R Qd 402; Mallozzi v Carapelli SpA [1976] 1 Lloyd's Rep 407 and Walford v Miles [1992] 2 AC 128 at 138 cited by Einstein J in Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996 ; (1999) 153 FLR 236 at [80] .


case_outcome: applied

case_text: However, since the early 1990's courts have, in certain circumstances, held that an explicit promise to negotiate in good faith is sufficiently certain to be contractually binding: eg Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1; Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104; Aiton Australia at [80]; and see Carter JW, Peden E, Tolhurst GJ, Contract Law in Australia (5 th ed, 2007) at 94-95. 120 In Coal Cliff at 26, Kirby P said that: "...so long as the promise is clear and part of an undoubted agreement between the parties, the court will not adopt a general principle that relief for the breach of such promise must be withheld." 121 The first question is the proper construction of cl 3.3 of the HofA. Clause 3.3 of the HofA provides that: "[e]ach party will conduct all such negotiations in good faith to ensure that the terms set out in these [HofA] are given full effect." 122 It is a composite clause. It appears to involve two concepts - " negotiations in good faith " - but directed at a particular end - "to ensure that the terms set out in these [HofA] are given full effect. " The phrase " negotiations in good faith " is not a defined term. That does not necessarily make the requirement uncertain. In Coal Cliff at 27, Kirby P acknowledged that: "[i]n a small number of cases, by reference to a readily ascertainable external standard, the court may be able to add flesh to a provision which is otherwise unacceptably vague or uncertain or apparently illusory: see eg, Powell v Jones [1968] SASR 394 at 399; Sweet and Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699; cf Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571 at 589; Jillcy Film Enterprises [ Inc v Home Box Office Inc 593 F Supp 515 at 521 (1984); [and]] Ridgeway Coal Co Inc v FMC Corporation [616 F Supp 404 (1985) at 408] ." 126 An examination of just two cases illustrates the difficulties in identifying any standard or principle against which the certainty of such a clause is to be considered. In Coal Cliff , the Court found that an obligation to proceed " in good faith to consult together upon the formulation of a more comprehensive and detailed joint venture agreement " was uncertain: see Kirby P at 28 with whom Waddell A-JA agreed. Kirby P, while clearly recognising that some contracts to negotiate in good faith will be enforceable at law (at 27), considered that the contract in question was outside the " small number of cases" : "This was not a case where an external arbitrator was nominated to resolve outstanding differences. There were many such differences at the time of the heads of agreement and a number remain even three years later when negotiations were finally broken off. A court would be extremely ill-equipped to fill the remaining blank spaces and to resolve questions which three years of painful negotiation between the solicitors for the parties had failed to remove. A court could not, in this case, appeal to objective standards or to its own experience as it might in filling a blank space in a lease of domestic premises or a contract less complex and more familiar than one for a major mining development. At stake are commercial decisions involving adjustments which would contemplate binding the parties for years and deciding issues that lie well beyond the expertise of a court. How mining executives, attending to the interests of their corporation and its shareholders might act in negotiating such a complex transaction is quite unknowable." (Emphasis added) Clearly, his Honour was concerned about the incompleteness of the contract and the extent to which the court, if it was to give effect to the clause, would be required to undertake the inappropriate exercise of determining terms yet to be negotiated in order to make the contract workable. 130 I consider that cl 3.3 of the HofA is uncertain. Clause 3.3 of the HofA suffers from the same problems referred to by Kirby J in Coal Cliff . As I have said, what does the phrase " [e]ach party will conduct all such negotiations in good faith to ensure that the terms set out in these [HofA] are given full effect " mean? How and against what standard is the Court to fill in the gaps? I consider the issue of the content of any such duty in further detail in section (iii) below. For present purposes, it is sufficient to note that I do not consider that it was open to BreakFree to seek to terminate the HofA on the grounds that Latitude had breached cl 3.3 of the HofA. The term was uncertain.


case_text: As will be apparent, I have characterised the events of and from 12 August 2004 as the mutual giving up of the capacity to terminate for the failure to satisfy the Deposits Condition Precedent. The parties variously described the events as 'waiver', 'new contract' and variation. BreakFree submitted that there was no waiver in fact or at law. I have dealt with the facts. The legal submission does not assist BreakFree. It is true that in Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 at 423, Brennan J defined waiver as " a unilateral release or abandonment of a right" where the right is abandoned once and for all. However, his honour went on to note (at 425) that " it is a characteristic of a right susceptible of waiver that it is introduced solely for the benefit of one party" . In the present case and notwithstanding the fact that BreakFree was contractually bound to proceed with the development in the absence of the HofA, the express terms of cl 2.1.5 make it abundantly clear that it was not a right susceptible of waiver it was not introduced solely for the benefit of one party. To suggest otherwise is to ignore the express words not only of cl 2.1.5 but also cl 2.3 of the HofA. 113 There is also arguably a further difficulty with BreakFree's contention that it was entitled to rely upon the Deposits Condition Precedent. It is by no means clear that BreakFree would have been entitled to resile from any contract, whether it be a 'new contract', the HofA or the long form contract, for non-fulfilment by it of its contractual obligations in circumstances where the innocent party had no recourse against it. The termination letter on 31 August 2004 demonstrated an intention by BreakFree to use its own contractual breach to avoid completion of the HofA or any 'new' or long-form contract in existence at that time. 114 BreakFree sought to rely on other conduct of Latitude as a basis for termination. That conduct was variously described as a breach of duty by Latitude to negotiate in good faith to give full effect to the HofA, the alleged failure by Latitude to provide the Second Bank Guarantee, the Third Bank Guarantee and the Fixed and Floating Charge and the conduct of Latitude after 31 August 2004. I will deal with each purported basis in turn.


case_text: Conversely, in Con Kallergis Pty Ltd (trading as Sunlighting Australasia) v Calshonie Pty Ltd (formerly CW Norris Pty Ltd) (1998) 14 BCL 201, in an unanimous decision of the Victorian Court of Appeal, Hayne J at 212 said: "Some of the writing in this area seeks to suggest that there can be only one answer to the general question whether an agreement to negotiate is enforceable. The discussion by the members of the courts who decided Coal Cliff and Trawl Industries , as well as the discussion by Giles, J. of the problems he had to consider in Hooper Bailie and in Elizabeth Bay show that the question may be more complex than the simple statement of it may suggest and that the answer to the problem may vary according to the precise terms of the agreement. They suggest that it is only when all of the circumstances are known that it can be seen whether the obligations of the parties (described as "to negotiate") can be identified with certainty." 128 The Court then went on to conclude that the agreement in question, expressed in the following terms, was certain: "an arrangement between A and B that B would pay A a price for work done by A which was a price "to be negotiated" by B with C ...The argument before [the Court] assumed that [B] was obliged by its agreement with [A] to conduct the negotiations with [C] in good faith (or honestly and reasonably)." 129 The agreement was considered 'certain' because " B and C must negotiate (B because it is bound to A to do so and C because it is bound to B to do so) and there is a process for resolving any disagreement between B & C" : at 212. Hayne J distinguished the agreement in Con Kallergis from that considered by the House of Lords in Walford. The latter was found to be uncertain because either party could break off negotiations at any time and for any reason.


case_text: It is sufficient to note that intermediate courts have repeatedly been willing to hold that such a duty exists. However, as noted earlier I was referred to only one decision where the existence of such a duty (express or implied) was held to have been breached: Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [66] , a decision which Gyles J subsequently described as ' adventurous ': Council of the City of Sydney v Goldspar Australia Pty Ltd (2006) 230 ALR 437 at [166]. Two things should be noted about the decision at first instance. First, the breach of such a duty was not determinative ( Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [60] ) and the decision was the subject of appeal. Finn and Sundberg JJ at [119] considered that it was unnecessary or inappropriate to deal with the issue given their conclusions on other issues and, further, went on to say (at [119]) that: "Given both the multiple assumptions required to be made if one was to consider [the subject of breach of an implied duty of good faith] and the potentially contentious nature character of it in any event, we do not consider it is appropriate or helpful to enter upon the matter at this point in this appeal." See also Emmett J at [235] [238]. 139 More recently Gyles J in Goldspar at [168] said: "The best way for a single judge to travel through this thicket is to concentrate upon the particular contractual provision in question, in the particular contract, in the particular circumstances of the case." 146 Specific conduct has also been identified by various courts as constituting ' bad faith ' or a lack of ' good faith ' including: (1) acting arbitrarily, capriciously, unreasonably or recklessly: e.g. see Viscount Radcliffe in Selkirk v Romar Investments Ltd [1963] 1 WLR 1415 at 1422-23 cited by Gyles J in Goldspar at [173]; and Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [65] ; (2) acting in a manner that is oppressive or unfair in its result by, for example, seeking to prevent the performance of the contract or to withhold its benefits: Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [65] - [66] ; (3) failing to have reasonable regards to the other party's interests: Overlook Management BV v Foxtel Management Pty Ltd (2002) ACR 90 143 at [67] cited by Peden E, Good Faith in the Performance of Contracts (2003) at 160. (4) failing to act 'reasonably' in general. I consider this requirement in further detail below. 177 A party, which has properly brought a contract to an end by accepting a wrongful repudiation by the other party to an executory contract, must establish that it was ready and willing to carry out the contract at the time of acceptance of the repudiation and such readiness and willingness includes capacity: Goldspar at [200] [202] and the authorities cited. As those authorities make clear the question is whether Latitude demonstrated that it was not then " disabled or incapacitated from ... performance ": Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 408-409 (per Mason CJ). That issue raises two questions - what was to be performed and was the relevant party to the contract disabled or incapacitated from performing those matters?


case_title: Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31


case_text: A party, which has properly brought a contract to an end by accepting a wrongful repudiation by the other party to an executory contract, must establish that it was ready and willing to carry out the contract at the time of acceptance of the repudiation and such readiness and willingness includes capacity: Goldspar at [200] [202] and the authorities cited. As those authorities make clear the question is whether Latitude demonstrated that it was not then " disabled or incapacitated from ... performance ": Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 408-409 (per Mason CJ). That issue raises two questions - what was to be performed and was the relevant party to the contract disabled or incapacitated from performing those matters?


case_text: Although no implied duty to negotiate in good faith was pleaded or relied on, it is convenient to consider the issue for such light that it sheds upon the express duty that was both pleaded and relied on. There has been a recent willingness of Australia Courts to find that a duty of ' good faith ' in negotiations is an implied or incidental term of every commercial contract unless the duty is either excluded expressly or by necessary implication: Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] ; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 ; Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 ; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) 21 ATPR 41-703; Alcatel Australia Pty Ltd v Scarcella (1998) 44 NSWLR 349; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 and Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 . 147 A requirement to act ' reasonably ' when acting in good faith was first articulated in Australia by Priestly JA in Renard Constructions where his Honour observed that reasonableness had " much in common with the notions of good faith" : at 263. Following this decision, courts have favoured ' reasonableness ' as one of the requirements of good faith. Finkelstein J in Garry Rogers Motors stated that "provided the party exercising the power acts reasonably in all the circumstances, the duty to act fairly and in good faith will ordinarily be satisfied" : at [37]. However, several Australian academics have rejected the proposition that good faith includes a requirement of reasonable conduct: See Carter et al (2007) at 27 and Peden, E " When Common Law Trumps Equity: the Rise of Good Faith and Reasonableness and the Demise of Unconscionability " (2005) 21 JCL 226. Factors tied to the content of the contract


case_text: In Australia, part of the impetus for the recognition of a implied duty to act in good faith has been the desirability and practice of courts in controlling reliance on general rescission clauses so as to prevent their use " for improper and extraneous purposes ": see Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36 ; (1972) 128 CLR 529 at 548; Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 at 587 (per Barwick CJ); and Burger King at [151]. In light of these matters and of the foregoing analysis, the issue is whether the conduct of BreakFree, in the course of negotiations and ultimately relying on its power to terminate the HofA under cl 2.2.2, judged objectively, demonstrated a lack of good faith.


case_text: Although no implied duty to negotiate in good faith was pleaded or relied on, it is convenient to consider the issue for such light that it sheds upon the express duty that was both pleaded and relied on. There has been a recent willingness of Australia Courts to find that a duty of ' good faith ' in negotiations is an implied or incidental term of every commercial contract unless the duty is either excluded expressly or by necessary implication: Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] ; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 ; Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 ; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) 21 ATPR 41-703; Alcatel Australia Pty Ltd v Scarcella (1998) 44 NSWLR 349; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 and Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 . 133 In Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 76 ALJR 436 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [40], Kirby J at [87] [89]) and Callinan J at [156], the High Court declined to decide the issue of the existence and content of such an obligation. At that time, the authorities relevant to the implied term of ' fair dealing' were collected and discussed by Finn J in Hughes Aircraft Systems at 188-198. It is unnecessary to traverse either those authorities or the more recent decisions that have considered the issue. 140 Earlier in Hughes Aircraft Systems at 192-193, Finn J described the implied duty in more general terms. He said: "...I consider a virtue of the implied duty to be that it expresses in a generalisation of universal application, the standard of conduct to which all contracting parties are to be expected to adhere throughout the lives of their contracts." (iv) 141 The difficulty with the contextual standard or a " generalisation of universal application " ( Hughes Aircraft Systems at 193) is to identify the precise boundaries of this standard. It has evaded the grasp of precise judicial statement. However, the factors put forward by various judges as indicative factors of good faith and, the converse, bad faith may be divided into three categories intention, conduct and the content of the particular contract in question. Factors highlighting intention 142 It appears common ground that good faith requires ' honesty ': Carter et al (2007) at 26 citing, as an example, the definition in s 5(2) of the Sale of Goods Act 1923 (NSW), that " [a] thing is deemed to be done " in good faith " within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not " (emphasis added); Mason A, "Contract, Good Faith and Equitable Standards in Fair Dealing" (2000) 116 LQR 66. The difficulty in identifying the scope of ' honesty ' suffers the same problems as defining the expression ' in good faith '. It merely replaces one term with another.