case_title: Weiner v Harris [1910] 1 KB 285

case_text: (ii) Often interlocking factors of some significance are (a) by whom is the sale price to the third party set? and (b) how is the intermediary remunerated/rewarded for the sale to the third party? If the intermediary is remunerated by commission pre-arranged with the seller this will ordinarily indicate an agency relationship: eg Weiner v Harris [1910] 1 KB 285; although in exceptional circumstances a buyer for resale may be paid what is described, or is misdescribed, as a commission: eg Gannow Engineering Co Ltd v Richardson [1930] NZLR 361 ; Jackson v Royal Bank of Scotland [2000] EWCA Civ 203 at [17] - [18] . In the absence of fully informed consent, it would be a breach of fiduciary duty for an agent to profit on the sale of its principal's property by, for example, marking up the principal's stipulated sale price and retaining the difference. That an intermediary so acts may itself be indicative that the parties relationship was that of seller and buyer for resale and not agency for sale: Ex parte White; In re Nevill (1870) LR 6 Ch App 397. Nonetheless, a principal may agree to an agent deriving its remuneration from a mark-up on the price the principal stipulates it is to receive from the sale: eg Ex parte Bright; In re Smith (1879) 10 Ch D 566. In Mercantile International Group plc in circumstances in which the agreements between the parties pointed unambiguously to an agency relationship, it was held that that conclusion was unaffected by the circumstances that the principal knew that the intermediary charged more to purchasers than it confirmed to the principal; the principal did not mind nor care to know the detail of the matter, but was satisfied to get the price it stipulated; and the principal was content that the intermediary should keep for itself an undefined margin, it obtaining no remuneration by way of commission or otherwise from the principal: at [5] and [36].


case_outcome: cited

case_title: Gannow Engineering Co Ltd v Richardson [1930] NZLR 361


case_title: Jackson v Royal Bank of Scotland [2000] EWCA Civ 203


case_outcome: considered

case_text: (ii) Often interlocking factors of some significance are (a) by whom is the sale price to the third party set? and (b) how is the intermediary remunerated/rewarded for the sale to the third party? If the intermediary is remunerated by commission pre-arranged with the seller this will ordinarily indicate an agency relationship: eg Weiner v Harris [1910] 1 KB 285; although in exceptional circumstances a buyer for resale may be paid what is described, or is misdescribed, as a commission: eg Gannow Engineering Co Ltd v Richardson [1930] NZLR 361 ; Jackson v Royal Bank of Scotland [2000] EWCA Civ 203 at [17] - [18] . In the absence of fully informed consent, it would be a breach of fiduciary duty for an agent to profit on the sale of its principal's property by, for example, marking up the principal's stipulated sale price and retaining the difference. That an intermediary so acts may itself be indicative that the parties relationship was that of seller and buyer for resale and not agency for sale: Ex parte White; In re Nevill (1870) LR 6 Ch App 397. Nonetheless, a principal may agree to an agent deriving its remuneration from a mark-up on the price the principal stipulates it is to receive from the sale: eg Ex parte Bright; In re Smith (1879) 10 Ch D 566. In Mercantile International Group plc in circumstances in which the agreements between the parties pointed unambiguously to an agency relationship, it was held that that conclusion was unaffected by the circumstances that the principal knew that the intermediary charged more to purchasers than it confirmed to the principal; the principal did not mind nor care to know the detail of the matter, but was satisfied to get the price it stipulated; and the principal was content that the intermediary should keep for itself an undefined margin, it obtaining no remuneration by way of commission or otherwise from the principal: at [5] and [36]. 179 Under the shadow of the principles to which I earlier referred and of the decisions of International Harvester Co , Ex parte White; In re Neville and Witt in particular, the factual matters upon which TVO relies primarily for this conclusion are: (i) the transaction between TVO and Farmlink was at a firm price; (ii) the documentation all reflected a sale from TVO to Farmlink; (iii) Farmlink set the price for the overseas sale and kept its sale price and margin a secret; (iv) Farmlink engaged all the freight forwarders and paid the freight costs itself; (v) Farmlink never accounted to TVO in a way which showed the total amount received, its margin and amounts paid for freight, etc; (vi) Farmlink issued invoices to its overseas customers; (vii) Farmlink alone knew the identity and location of its overseas customers; (viii) Farmlink identified itself as the shipper on the bills of lading and airway bills; (ix) Farmlink negotiated the changes in price without checking or obtaining instructions from TVO or Mr Hannaford; and (x) significantly in the year that there was insurance, the insured was Farmlink, the consignee's interest was noted, but there was no recording of TVO having any interest in the cherries.


case_title: Ex parte Bright; In re Smith (1879) 10 Ch D 566


case_text: (i) As an agent for sale ordinarily acts on behalf of its principal: but cf in relation to a broker selling in its own name: Bailey & Co Ltd v Balholm Securities Ltd [1973] 2 Lloyd's Rep 404 at 408; Jackson Securities Ltd v Cheesman (1986) 4 NSWLR 484 at 489-490; is it apparent from the facts that the seller has actually conferred on the intermediary an authority to negotiate and/or to sell on the seller's behalf thus bringing into existence direct contracts between the seller and the third party buyer: Mercantile International Group plc at [30]-[34]? 55 There are two final matters to which I should refer. First, while the relationships of agency and sale are mutually exclusive, it is not uncommon for an intermediary to be the agent of its seller-principal but to be a principal vis-à-vis a third party on the sale to it: see eg Bailey & Co Ltd v Balholm Securities Ltd at 408; Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676. As was said by Roskill LJ in Romalpa (at 690): I see no difficulty in the contractual concept that, as between the defendants and their sub-purchasers, the defendants sold as principals, but that, as between themselves and the plaintiffs, those goods which they were selling as principals within their implied authority from the plaintiffs were the plaintiffs' goods which they were selling as agents for the plaintiffs to whom they remained fully accountable. As will be seen, the respondents seek to draw some comfort from this.


case_outcome: distinguished

case_text: There are two final matters to which I should refer. First, while the relationships of agency and sale are mutually exclusive, it is not uncommon for an intermediary to be the agent of its seller-principal but to be a principal vis-à-vis a third party on the sale to it: see eg Bailey & Co Ltd v Balholm Securities Ltd at 408; Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676. As was said by Roskill LJ in Romalpa (at 690): I see no difficulty in the contractual concept that, as between the defendants and their sub-purchasers, the defendants sold as principals, but that, as between themselves and the plaintiffs, those goods which they were selling as principals within their implied authority from the plaintiffs were the plaintiffs' goods which they were selling as agents for the plaintiffs to whom they remained fully accountable. As will be seen, the respondents seek to draw some comfort from this. 74 To anticipate matters, the applicant's contention is that the above documentation clearly indicated that each transaction involved a sale by TVO to Farmlink with a re-sale to the overseas buyer. Farmlink, in contrast, contends that the documentation is consistent with its having acted as an agent for sale vis-à-vis TVO and as a seller vis-à-vis the overseas buyers, hence its reliance upon Romalpa at 690. 75 Consistent with her practice in earlier seasons, Ms Churchill arranged a pre-season planning meeting at PBVO on 30 October 2003 with growers (including Mr Hannaford) with whom she hoped to deal and who may have been interested in exporting some cherries. Apart from having a wrap-up of the previous season, the agenda referred, amongst other matters, to crop expectations, ie volume, size, quality and timing, to export market potential and to packaging requirements. The agenda did not refer to price unsurprisingly in my view given that the meeting was almost two months in advance of when exporting might be expected to commence and about a month before picking. It is Ms Churchill's evidence that price probably was not discussed at that meeting: "Not that early, no". I would note that the Cherry Export Marketing Strategy she faxed to TVO on 2 December 2003 made no mention of price and, in a fax to Freshmart of the same date suggesting an export "Program for Singapore", she gave only indicative prices as it was "too early for the real prices". 76 At some time, though, it is clear that the growers told Ms Churchill what prices per kilo they wanted for cherries (categorised by size), such that there was, according to Ms Churchill, an understanding between not just Farmlink and TVO, but all the growers that "this was the sort of price they would want to go out to the market to return, and that's what they expected". It is equally clear that she calculated her own export strategy referred to below on the basis of those prices. Those prices were (i) $7.00/kg for 24-26mm fruit; (ii) $9.00/kg for 26-28mm fruit; (iii) $11.00/kg for 28mm fruit; and (iv) there was about a $1.00 premium on 500gm punnets. Farmlink and TVO later agreed several changes to these prices as actual consignments were made. It also is alleged that Farmlink made unauthorised changes on occasion, ie changes not negotiated with TVO. 184 The issue that remains is: what was the true character of the TVO-Farmlink relationship? As I have earlier indicated, while the relationships of agency and sale are mutually exclusive, it is not uncommon for an intermediary to be the agent of its seller-principal but to be a principal vis-à-vis a third party on a sale to it: see above [55]. In my view the present is not one such case. And it is, in any event, far removed from the reservation of title clause type of case exemplified by Romalpa on which the respondents' rely.


case_text: Such orders were effected usually by TVO delivering the packaged cherries to PBVO or, on occasion, to freight forwarders retained and paid for by Farmlink. It is agreed between the parties that, if the relationship between TVO and Farmlink was that of sale and purchase, such delivery was an unconditional appropriation such that property passed to Farmlink: see Sale of Goods Act , s 18 rule 5(1) ; Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd [1987] HCA 30 ; (1987) 163 CLR 236 ; Carlos Federspiel & Co SA v Charles Twigg & Co Ltd [1957] 1 Lloyd's Rep 240. When making a delivery TVO usually faxed what it called a "dispatch docket" to Farmlink. This handwritten document, which made no reference to price, was for present purposes the only document of significance generated by TVO for delivery to Farmlink in any season. Mr Hannaford's explanation for the absence of a price on the dispatch docket was that: We didn't put a price on because sometimes the price can vary a little bit and this was one reason for creating these documents was for our own internal records as well to keep track of our sales for our own viewpoint but there was very often a price variation to do with cost of freight [or] the fact if they were in punnets or gift boxes, there may be some variation to the agreed price. 187 Being a contract for the sale of goods, each order filled was subject to the provisions of the Sale of Goods Act . As I earlier noted, it is agreed in light of my sale finding that property in the cherries passed in respect of each consignment when the goods were appropriated to the contract and this occurred on delivery: see Sale of Goods Act , s 18 rule 5 ; Gamer's Motor Centre (Newcastle) at 255; Carlos Federspiel & Co SA . The individual orders equally were subject to the provisions of s 14 of the Act as to implied conditions as to quality and fitness. Though it has not been the subject of contest by TVO, I am prepared to assume without deciding that, with the subject matter of the contract being perishables and it being a known purpose of the individual orders that the cherries were intended to travel to, variously, Singapore and Hong Kong for resale, it was an implied condition of each order filled that the cherries were, at the time of sale, in such a condition that they would still be fit for human consumption at the end of their shipment unless "that condition is unnaturally changed" after delivery to the first buyer, ie Farmlink: Sale of Goods Act , s 14(a) ; Kemp Ltd v Tolland (trading as James Tolland & Co) [1956] 2 Lloyd's Rep 681 at 684-685; Benjamin's Sale of Goods at [11-067], but see also [11-060] and [11-062] as it is contended by TVO that Farmlink had an opportunity to inspect prior to shipment. I will refer to this later in these reasons: see [235]. The corollary of this condition was that Farmlink bore responsibility for unnatural changes in the cherries' condition occurring after delivery to it and until delivery to the overseas buyers: Kemp at 684-685.


case_title: Carlos Federspiel & Co SA v Charles Twigg & Co Ltd [1957] 1 Lloyd's Rep 240


case_text: On 26 March 2004, Farmlink was sent a solicitor's letter on Mr Hannaford's behalf concerning Farmlink's conduct "in acting as the agent" for TVO in relation to the export of its cherries during January 2004. Some reliance, necessarily slight: see [47](2) above and WK Witt (WA) Pty Ltd v Metters Ltd [1967] WAR 15 at 18; is placed upon this characterisation of the relationship. Reliance equally is placed upon a discovered TVO table relating to the exports to Hong Kong in which the heading: "Expected Price" and "Expected Amount" have been altered by hand to "Agreed Price" and "Agreed Amount". Mr Hannaford could not identify the handwriting. Farmlink relies on this as evidence of attempted reconstruction of events to support TVO's sale of goods claim. 172 Evidence on quality control apart (which is considered below), there is a deal of material before me to which I need make no, or only slight, reference. Though much has been said of the Australian market in general and of TVO's dealing with Woolworths and Coles in particular, I do not consider that the evidence on that market or on those dealings has any significant probative value either in characterising the TVO-Farmlink relationship or in resolving the quality questions raised. I would note in particular that it is accepted by TVO that their sales to local wholesale markets are conducted through agents; and that both Woolworths and Coles conduct their own inspections based on their own specifications and reject cherries that do not meet the specifications. No question of rejection has arisen in this matter although evidence was put on of three rejections by Woolworths of entire deliveries in January 2004. Equally, I draw from Dr Brown's evidence that risks to the maintenance of the cool chain for cherries transported in the domestic freight system are of a different order to those presented by export freight. 173 I equally have not had regard to evidence concerning TVO's dealings with other exporters and in particular Jayfresh "J" in other years. The bare detail of financial outcomes devoid of context and circumstance, I consider to be likely to mislead and therefore to prejudice. 179 Under the shadow of the principles to which I earlier referred and of the decisions of International Harvester Co , Ex parte White; In re Neville and Witt in particular, the factual matters upon which TVO relies primarily for this conclusion are: (i) the transaction between TVO and Farmlink was at a firm price; (ii) the documentation all reflected a sale from TVO to Farmlink; (iii) Farmlink set the price for the overseas sale and kept its sale price and margin a secret; (iv) Farmlink engaged all the freight forwarders and paid the freight costs itself; (v) Farmlink never accounted to TVO in a way which showed the total amount received, its margin and amounts paid for freight, etc; (vi) Farmlink issued invoices to its overseas customers; (vii) Farmlink alone knew the identity and location of its overseas customers; (viii) Farmlink identified itself as the shipper on the bills of lading and airway bills; (ix) Farmlink negotiated the changes in price without checking or obtaining instructions from TVO or Mr Hannaford; and (x) significantly in the year that there was insurance, the insured was Farmlink, the consignee's interest was noted, but there was no recording of TVO having any interest in the cherries. 185 The evidence, in my view, simply cannot sustain a conclusion that Farmlink acted on TVO's behalf in a "representative": cf Bowstead & Reynolds at [1-001]; Colonial Mutual Life Assurance Society at 48-50; or "fiduciary": cf Restatement of Agency , Second , SS1.01; capacity in selling its cherries. Farmlink was a purchaser buying for the purposes of resale. It is significant in this that (i) the parties agreed in advance the prices at which TVO would sell its cherries they were not simply indicative prices (I will refer below to the significance in this of purchase discounts); (ii) while the consignments were into markets with which TVO had some, albeit rudimentary knowledge, they were simply two of the overseas markets into which TVO cherries were consigned by exporters in the 2003/2004 season; (iii) Farmlink, in contrast, was knowledgeable about, and experienced in, those two markets at that time: cf Witt at 18-19; (iv) TVO did not assume responsibility for the export or the costs associated with the export this was at Farmlink's expense: cf Witt at 18-19 and Farmlink, not TVO, bore responsibility for misadventures happening to the cherries after delivery to it; (v) TVO was not in a position to exercise practical control over Farmlink (other than by refusing orders); (vi) TVO was unaware of Farmlink's price; (vii) while Mr Hannaford doubtless understood that Farmlink would obtain its own return on the sales (howsoever this was done), there was nothing unusual about his having no interest in that matter as his relationship with Farmlink did not otherwise point to an agency relationship: cf Mercantile International Group plc at [5] and [36]; and (ix) TVO happened to know the Singapore buyer was a company with which Mr Koh was associated but did not know the identity of the Hong Kong buyer. In short, having regard to the context in which they dealt with each other, the relationship they formed in the making and filling of orders was that of seller and buyer for resale. The contrary inference that TVO appointed Farmlink its agent for sale is neither a reasonable, nor the most probable, deduction from the known facts.


case_text: By way of preface to my own conclusions, I should make the following general observations. The relationships of TVO and Farmlink, and of Farmlink and Freshmart and Mak respectively, were clearly interdependent ones as the evidence of the process of making and filling orders reveals. It was open to Farmlink to choose to so structure its relationship with TVO or for that matter with Freshmart or Mak in a manner which obliged it to act in the interests either of TVO in the sale of cherries or of Freshmart or Mak in their purchase. It equally was open to Farmlink to choose to structure its relationships with TVO and the overseas buyers in a manner which, while requiring cooperation with, and some level of trust in, them, served its own several interests: cf Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44 ; (2006) 149 FCR 569 at [17] . In my view, Farmlink chose the latter course. This was clearly manifest in its price agreement with TVO and in its seller-purchaser relationship with the overseas buyers. There was nothing fiduciary about it. 178 The rival contentions of the parties can be simply put. TVO's case is that an overarching (or framework) conditional contract was entered into in or about December 2003 under which it agreed that, if it accepted an order or orders to sell cherries to Farmlink, it would do so at the prices that the parties had previously agreed. That agreement was effectuated in the individual orders filled by TVO.


case_text: The documentation passing between Farmlink and Freshmart and Mak respectively admits of no other conclusion, the more so given the international trading context in which the dealings occurred. It is, in my view, most improbable that the overseas buyers would reasonably have committed themselves to a contractual arrangement with a principal of whose actual identity or circumstances they may have been unaware, especially where the goods in question were perishables of a type that were apt to give rise to some level of quality issue during periodic dealings over a season: on the distinction between unidentified and undisclosed principals, see Carminco Gold & Resources Ltd v Findlay & Co Stockbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472. The view I take of Farmlink's contracts with Freshmart and Mak is that they were ones to which TVO was a stranger. If the prices in those contracts were to be re-negotiated for reasons of quality defects, market conditions or whatever, that was to be by the contracting parties alone. Likewise if claims for defects in quality permissible under the applicable law against the seller were to be made they were to be made against Farmlink. 183 The final comment I would make on Farmlink's relationship with the overseas buyers is that it would have been obvious to them that Farmlink was not the grower of the cherries Freshmart and Mak purchased. It was an exporter. But there is nothing in the evidence reasonably to suggest that Farmlink was acting, or was purporting to act, in the overseas sales in a "representative" capacity: cf above [47](3).


case_text: I would add, because it is a matter relied upon by the respondents, that I do not derive any assistance from the manner in which Farmlink received payments from its buyers and "accounted" to TVO. If it was an agent, then, subject to how its accounting to TVO was (or was taken in the circumstances to have been) agreed, the manner in which it held the proceeds of sale of its principal's property (ie in its own trading account) may itself have constituted a breach of trust: see Palette Shoes Pty Ltd v Krohn [1937] HCA 37 ; (1937) 58 CLR 1 at 30; but cf The "Tiiskeri" [1983] 2 Lloyd's Rep 658 at 663 ff. For understandable reasons, I have not been addressed on this. However, if, as I have held, Farmlink was receiving the purchase price for its consignments from its purchaser and then was settling with its own seller, there was nothing unusual in the manner of its so doing. I would add that it may well have been the case that the timing of its settlement was an implied actual term of their framework contract (the bulk of orders being settled en bloc at the end of the season).


case_title: The "Tiiskeri" [1983] 2 Lloyd's Rep 658


case_text: Being a contract for the sale of goods, each order filled was subject to the provisions of the Sale of Goods Act . As I earlier noted, it is agreed in light of my sale finding that property in the cherries passed in respect of each consignment when the goods were appropriated to the contract and this occurred on delivery: see Sale of Goods Act , s 18 rule 5 ; Gamer's Motor Centre (Newcastle) at 255; Carlos Federspiel & Co SA . The individual orders equally were subject to the provisions of s 14 of the Act as to implied conditions as to quality and fitness. Though it has not been the subject of contest by TVO, I am prepared to assume without deciding that, with the subject matter of the contract being perishables and it being a known purpose of the individual orders that the cherries were intended to travel to, variously, Singapore and Hong Kong for resale, it was an implied condition of each order filled that the cherries were, at the time of sale, in such a condition that they would still be fit for human consumption at the end of their shipment unless "that condition is unnaturally changed" after delivery to the first buyer, ie Farmlink: Sale of Goods Act , s 14(a) ; Kemp Ltd v Tolland (trading as James Tolland & Co) [1956] 2 Lloyd's Rep 681 at 684-685; Benjamin's Sale of Goods at [11-067], but see also [11-060] and [11-062] as it is contended by TVO that Farmlink had an opportunity to inspect prior to shipment. I will refer to this later in these reasons: see [235]. The corollary of this condition was that Farmlink bore responsibility for unnatural changes in the cherries' condition occurring after delivery to it and until delivery to the overseas buyers: Kemp at 684-685. 195 I would add, though it does not strictly arise given my amendment ruling, that I have great reservations about whether what we know about (a) past purchase discounts passed on; (b) the explanations for, and contexts of, them (we know nothing of the causes of the alleged defects: cf Kemp ); (c) the fact that the only catastrophic discounts (in the 2001/2002 season) gave rise to insurance claims which ameliorated the loss; and (d) the usually small to moderate amounts for discounts in past years revealed in the material before me, would be sufficient to justify inferring a term committing Mr Hannaford to accept a quality discount passed on to him, assuming such a term could be formulated intelligibly. 196 I should make this additional comment about prior dealings. It is clear that Mr Hannaford appears to have accepted as of course some level of price discounts during the preceding years of dealing with Farmlink. It is unsurprising that he did so given the perishable nature of cherries and the known factors that could produce defects even in well run orchards and packing sheds which he clearly considered TVO to be. To repeat what he frankly conceded: I mean, there is always some things that happen during the season. There are quite often some issues, some problems. Maybe it is our fault. Maybe some cherries snuck through the system and so there are, from time to time there are some issues, either fair or unfair, that can result in some discounts, yes. 197 Parties to a sales contract are, as a matter of party autonomy, quite entitled to agree a regime of some form which would permit a buyer unilaterally to discount the price paid for the goods purchased because of some quality defect in them. As I earlier noted, the CISG contains such a regime: see also Sale of Goods Act (1979) (UK), s 48C(1)(a) and Benjamin's Sale of Goods (at [19-203]). Benjamin's Sale of Goods (at [12-129]) notes that this "special remedy of reduction of the price" is one which may lead to a monetary award different from what an award of damages would produce. 212 No expert evidence was called in relation to these shipments. Ms Churchill, in passing the discounts on, appears simply to have assumed without inquiry that the alleged defects were caused by circumstances for which TVO was responsible. Given the view I take of the TVO-Farmlink contract, this was a matter for Farmlink to prove, not assume, if it was to secure a reduction in price: see Kemp . In any event, the evidence of the complaints made by Mr Koh does not establish the truth of what he alleged, let alone justify the discounts applied. I say this while acknowledging that, if the Farmlink-Freshmart contracts were subject to the provisions of the CISG, Mr Koh's emails may have provided the trigger to unilateral price reductions in the Farmlink-Freshmart contract, under Art 50 of the Convention. 213 Purchase discounts, allegedly for quality reasons, were applied to ten of the eleven consignments to Hong Kong. As to five of these orders 4020, 4035, 4036, 3038 and 4039 there is no evidence at all of any quality problems with them. There were no written complaints from Mak; no emails; and no Marinasia reports. Absent such evidence, Farmlink could proffer no reasonable basis for its accepting a purchase reduction let alone for passing it on to TVO. In any event the circumstances surrounding at least order 4020 excite a real suspicion that this order, and possibly some orders other than the above (eg order 4023), were discounted in whole or in part for reasons unrelated to quality as such. Mak, as I earlier indicated, had been caught on a falling market. 214 Of the remaining five orders, order 4023 elicited a belated email quality complaint and photographs from Mak on 9 January 2004; the remaining orders 4017 (the sea shipment), 4028, 4037 and 4041 resulted initially in emails and photographs alleging quality issues and subsequently in each instance, a Marinasia Report. I would emphasise that all five of these orders were total losses. The price discount in each instance exceeded TVO's agreed price and resulted in a nil return to Farmlink as well. In what follows I am concerned only with these five orders. The discounts applied to the other five orders were clearly not appropriately substantiated. 220 Fourthly, there is evidence, relied upon by each side when to its own advantage, both of cherries included in the consignments in question being picked from the same sub-block at the same time as those accepted by Woolworths and Coles and of such cherries being rejected by Woolworths and Coles. It is understandable that TVO would rely upon the former of these particularly in light of Devlin J's comment in Kemp (at 687) on the relevance of sales of the same commodity to other purchasers without complaint, when searching for causes of defects. The most that I consider should be said generally of the comparison of export and domestic consignments is that the domestic picture for comparable quality cherries does not match that from Hong Kong. However, I place little reliance upon this in relation to the five orders under consideration for the reason that the evidence on which to base the comparability of cherries going to Woolworths and Coles and to the export market does not for the most part permit meaningful and in the case of order 4028 any comparison: see Schedule 3 to the Schedules Brief. 221 The only expert evidence called by the respondents was that of Dr Brown. The instructions Farmlink's solicitors gave to Dr Brown are not unimportant in understanding his report and the significance to be attributed to it. They include: On the basis of the assumptions we have asked you to accept, we seek your written report and opinion as to possible causes for the condition and quality of the cherries as observed, commented on and photographed by Freshmart in Singapore and Mr Thomas Kwan, Managing Director of Marinasia (Hong Kong) limited to whether their condition and quality could possibly have been caused during: 1. the growing and/or; 2. the picking and/or; 3. the packing and/or; 4. the storing of the cherries prior to their transport from the premises of the packer to the warehouses in Australia from where they were shipped or airfreighted overseas. If you are of the view that there are possible causes for the observations, comments and photos made and taken in Singapore and Hong Kong during the above stages, can you identify them and explain how they could possibly occur. We realise that some if not all of the observations and comments could have been due to causes during the export stage, but we do not seek your opinion on this issue, except to ask you to identify any observations or comments as to condition or quality that could not possibly have been caused during the export stage, and if so, for the reasons why not. 222 The applicant's counsel, again for understandable reasons, focussed upon the last paragraph quoted and has submitted that it constituted an admission made in circumstances such that it can be treated as having been made by Farmlink under s 87 of the Evidence Act . Before dealing with that submission, I would note that Dr Brown indicated in his report that he did "not cover possible causes of the fruit deterioration that may have occurred during transport, shipment and receival". The alleged admission 237 Even if, which is not the case, Farmlink was defending TVO's claim for its sale price on the basis of breach of a s 14 warranty or was suing for such a breach, I am satisfied that, on the material before me, it would be unsuccessful in either case. As I have already indicated, TVO's warranties of quality and fitness address the condition of its cherries at the time of sale to Farmlink, albeit that condition must be such that they would be fit for consumption on delivery overseas (unless their condition had been changed through causes for which TVO was not responsible: Kemp at 684-685). 238 The evidence clearly suggests potential causes contributing in whole or in part to the losses on the five orders in question for which, variously, TVO, Farmlink and Mak would, if made out, be separately responsible. And there is Farmlink's problem. The state of the evidence in relation to these five orders could not reasonably justify a finding that TVO was alone responsible for the total losses, bearing in mind that Farmlink would bear the onus of proof of that: Kemp at 685. This said, I am satisfied in relation to order 4041 in particular that a cause of defects in the cherries in that shipment could have been a matter for which TVO bore responsibility. 239 The Marinasia reports and the circumstances of three of the four surveys (orders 4028, 4037 and 4041) on which they were based are quite incapable of sustaining the burden of proving TVO's sole responsibility, the more so in relation to the three mentioned because of the unexplained delays in shipment or inspection and of the circumstances of the inspection (ie at Mak's store). There are, in consequence, real grounds for apprehending that the losses were caused or contributed to by causes for which either, or both, Farmlink and Mak were responsible, eg possible inappropriate storage during delays in air shipment (cf Dr Brown's evidence) and breaks in the cool chain through exposure to warm and humid conditions in Hong Kong. Equally, there are unresolved questions surrounding order 4017 (the sea shipment): eg was the vent setting altered? Farmlink packed the container, but did it break the cool chain after delivery to it? 240 The reports, moreover, while purporting to describe the condition and appearance of the cherries, do not address the causes thereof. While those causes ought to have been of some concern to Ms Churchill for the purposes of Farmlink's own contractual obligations to Mak, they should have been of vital concern to her if Farmlink was to ascribe sole responsibility for the losses to TVO under its contract with Farmlink. The evidence does not suggest that Ms Churchill questioned or probed the Marinasia reports or Mak in any way. TVO's responsibility for the loss seems to have been assumed and Mak's assertion of total losses accepted without question. And for the purposes of this proceeding, Farmlink has relied upon them. Mak was not called to give evidence.


case_text: My conclusion in effect necessitates that the applicant must succeed in his claim to be paid the purchase price. Farmlink has not set up as a defence the seller's breach of the implied condition of quality and fitness: see BICC plc v Burndy Corporation [1985] 1 Ch 232 at 247; Sutton, Sales and Consumer Law at [22.24] ff (4 th ed, 1995). That breach is only relied upon in justification of the price discounts applied: FAD 8.2 and 10.3. While a cross-claim for damages for breach of the implied condition has been pleaded, it has not been prosecuted: see "The Cross-Claim" below. In the circumstances Farmlink can only be said to have persisted in a "self-help" remedy which lost any semblance of justification when TVO insisted on its strict legal rights. 208 It is not strictly necessary for me to deal with these matters given the view I have taken of the TVO-Farmlink contract and of the defence and cross-claim pleaded by the respondents. However, because they loomed large in the evidence adduced, though not so much so in submissions, I will state briefly my own views on them. 209 By way of preface to what I have to say, I should indicate that it is necessary to deal separately with quality issues as they relate to Singapore and Hong Kong consignments respectively.


case_title: Flowers Case , Saarbrücken Provincial Court of Appeal, 3 June 1998, CISG-online 354, http://cisgw3.law.pace.edu/cases/980603g 1 .html


case_text: My conclusion on the contract claim makes it strictly unnecessary to consider directly the misleading or deceptive conduct claim against Farmlink or to discuss (inevitably at some length: see Cheshire and Fifoot at [11.118]) the interaction of s 51A and s 52 of the TP Act and contractual promises: see eg Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217. It is necessary, though, to deal with the claims as they relate to each of the natural person respondents, Ms Churchill, Mr Plummer and Mr Koh. Though claims are made against all three under the TP Act (via s 75B), the Fair Trading Act 1987 (SA) s 54 and the Misrepresentation Act 1971 (SA) s 7, I will as a matter of convenience deal only with the TP Act claims given the view I take of the actual allegations made against the respondents individually. I would add that the TP Act claims against Ms Churchill provide in substance the foundation of the claims against Farmlink on whose behalf she was acting at all relevant times: see TP Act s 84(2). 248 It needs to be said at the outset that the claims, understandably, have been formulated against the contingency of fact findings quite different from those I have made. While it is necessary for the reason I gave above briefly to consider them, I recognise that those findings have rendered these claims superfluous. 249 There are three categories of representation alleged to have been made by Ms Churchill to Mr Hannaford and on which he is said to have relied, which constituted misleading or deceptive conduct. These were as follows: (i) In representing that Farmlink could sell TVO's cherries into Hong Kong and Singapore such that TVO would receive the agreed prices, Ms Churchill impliedly represented that Farmlink had reasonable grounds to make that representation: FASC paras 14-16, ("the negotiations representations"); (ii) In a sequence of telephone conversations with Mr Hannaford after cherry consignments had commenced, she misled him in the following four respects (FASC paras 13.7.3 13.7.6, 17 and 18): (a) from about 23 December 2003, Mr Hannaford and Ms Churchill had daily telephone conversations in relation to the ordering, delivery and sale of TVO's cherries. In those conversations Ms Churchill said words to the effect that everything was going "all right", when she had no reasonable basis to make such a representation; (b) on about 4 January 2004, Mr Hannaford, in one such telephone conversation said to Ms Churchill words to the effect that he had heard from China that he was going to lose significantly and get nothing from dealing in the Hong Kong market. Ms Churchill said words to the effect that as far as she knew everything was all right, when she had no or no reasonable basis to make such a representation; (c) on about 6 January 2004 Mr Hannaford in a telephone conversation asked Churchill words to the effect whether the Chinese market had crashed. Churchill said words to the effect that it had not but it was "a bit weak", with a "bit of oversupply" which should clear quickly when she had no or no reasonable basis to say the market was only "a bit weak" or only "bit over supplied" and would clear quickly but should have said that there was no or no reasonable prospect of TVO obtaining the Agreed Prices; (d) after 6 January 2004, Mr Hannaford continued to have regular telephone conversations with Ms Churchill. Ms Churchill did not advise Mr Hannaford in those conversations of any difficulties with selling TVO cherries in the Hong Kong market, save and except for saying there were allegedly problems with the quality of cherries in one shipment. It is alleged that in making the representations in (a) to (d) above, Ms Churchill impliedly represented that TVO would receive the agreed prices but she knew or should have known from and after 29 December 2003 that Farmlink was unable to sell TVO's cherries into the Hong Kong market and from and after 8 January 2004 that it was unable to sell TVO's cherries into the Singapore market at prices such that it could pay or TVO would receive the Agreed Prices and should have known at least from and after the last-mentioned dates that the market for cherries in Hong Kong and Singapore had crashed or become very poor or grim: ("the market representations"). (iii) Finally, it is pleaded that (FASC para 19) Farmlink was, by Ms Churchill and its directors Mr Koh and Mr Plummer, silent as to the difficulties in fact being experienced in selling TVO's cherries in Hong Kong and Singapore markets at prices such that it could pay to TVO the Agreed Prices or at all. That silence, in the context of the relationship between TVO and Farmlink and the representations in (i) above made during negotiations constituted misleading and deceptive conduct or conduct which was likely to mislead or deceive": ("silence"). 254 Thirdly, by virtue of s 51A(2) where a corporation makes a representation as to a future matter and does not have reasonable grounds for making it, the representation is taken to be misleading: CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd (2005) ATPR 40-042. The onus is on the representor to adduce evidence of reasonable grounds: Futuretronics International Pty Ltd.


case_text: First, misleading or deceptive conduct is conduct which in the circumstance does lead, or is capable of leading, a person into error or, in non-disclosure cases, which fails to disabuse a person of his or her error: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 at 198.


case_title: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191


case_text: Secondly, a statement of opinion (ie of a belief or judgment) will not be misleading or deceptive or be likely to be so merely because it misinforms or is likely to do so: Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd [1987] FCA 332 ; (1987) 78 ALR 193 at 242. It may be otherwise if the opinion was not in fact held, or had implicit in it the representation that it was reasonably based on a substratum of fact which was incorrect: RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd [1993] FCA 92 ; (1993) 41 FCR 164 ; Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 ; Cheshire and Fifoot at [11.116].


case_title: RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd [1993] FCA 92 ; (1993) 41 FCR 164


case_title: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388


case_text: Thirdly, by virtue of s 51A(2) where a corporation makes a representation as to a future matter and does not have reasonable grounds for making it, the representation is taken to be misleading: CCP Australian Airships Ltd v Primus Telecommunications Pty Ltd (2005) ATPR 40-042. The onus is on the representor to adduce evidence of reasonable grounds: Futuretronics International Pty Ltd.


case_text: Fourthly, silence, ie non-disclosure of a relevant fact or matter, can constitute misleading or deceptive conduct in circumstances in which one party is reasonably entitled to expect disclosure of the existence of that fact or matter if known to the other with whom it is dealing: see Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 198-201.


case_title: Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151


case_title: Watson v Foxman (1995) 49 NSWLR 315

case_text: Of the representations alleged in this category, the first in conversations from 23 December Ms Churchill said words to the effect that everything was going "all right" to Mr Hannaford does not warrant serious individual consideration. The pleading is devoid of detail and of context and is quite unilluminating: cf the observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319. The submissions have not ameliorated this. 261 The representations alleged to have been made in phone conversations around 4 and 6 January 2004 relating to the China market cannot stand in light of my earlier findings. I have rejected Mr Hannaford's evidence as to the timing of the operative conversations and I have accepted Ms Churchill's evidence as to their substance. They occurred on 3 and 7 January and resulted in Mr Hannaford's agreement to two price reductions. These conclusions necessarily must lead to my rejection of both of these allegations of misleading or deceptive conduct. More significantly, I have found that at the relevant times Ms Churchill did make Mr Hannaford aware of the market conditions in the China market. 262 The final representation of this category was that after 6 January 2004 Ms Churchill had regular telephone conversations with Mr Hannaford but did not advise him of any difficulties with selling TVO cherries in the Hong Kong market save for saying there were allegedly problems with the quality of cherries in one shipment. An allegation so broadly cast is not only unsatisfactory, it is contradicted by a body of evidence. I will not reiterate that evidence here other than to note that I have found that on 7 January, Ms Churchill communicated the substance of Mak's "serious decline" email to Mr Hannaford; probably on 7 January he agreed to cancel a shipment; the next morning he suggested a price reduction to which Mak agreed on 9 January; on 9 January two separate quality complaints were made by Mak, these being the first such complaint made by Mak; and notwithstanding the above, Mr Hannaford agreed to Farmlink's "Mud Map" of 10 January proposing four air freight shipments to Hong Kong. Whatever might be said from this time onwards about the adequacy or otherwise of Ms Churchill's investigation of the quality complaints made, the burden of the complaint that she did not advise of any difficulties with selling in the Hong Kong market is not made out.


case_title: Gurney v Grimmer (1932) 38 Com Cas 7

case_text: 2.3.3(2) of the Determination, which uses the term ' and/or ' without further limitation, leaves open the possibility in option (d) above. A referral in terms of option (d) is not void for uncertainty ( Looke v Parbury, Henty & Co Pty Ltd [1950] VLR 94) but authorises the Parliamentary Service Commissioner to decide which of the above alternatives (ie. (a), (b) or (c)) to adopt ( Gurney v Grimmer (1932) 38 Com Cas 7).


case_title: Looke v Parbury, Henty & Co Pty Ltd [1950] VLR 94


case_title: Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) [2008] HCA 59 ; (2008) 251 ALR 612

case_text: Priestley made submissions concerning orders made at an earlier stage of these proceedings by a judge of the Court. No appeal or application for leave to appeal was brought against those orders in this Court. However, it appears that those orders were the subject of consideration by the High Court in Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) (2008) 251 CLR 612. In that case, French CJ said that Mr Priestley's allegations regarding those previous orders were ' baseless '. I indicated to Mr Priestley that I would not deal with his submissions regarding those previous orders in these proceedings and I do not do so. In his application, Mr Priestley also seeks orders that he be provided with a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the claimed decision dated 10 May 2007, as well as disclosure of the evidence or other material on which the findings on material questions of fact were based. To the extent that this represents an additional order to the order sought to provide reasons for the claimed decision, it is also predicated upon there having been a decision as Mr Priestley characterised it made on that date. The relevant facts as to whether or not the claimed decision was made and what decision was made are evident from the documentary material in evidence. There was no claimed decision. He is not entitled to these orders. The decision for which Mr Priestley seeks reasons was not made. Mr Priestley's application has no reasonable prospect of success. It follows that the proceedings should be dismissed pursuant to s 31A of the Federal Court Act, with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 28 May 2009 The Applicant appeared in person. Counsel for the Respondents: Mr D O'Donovan Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 28 April 2009 Date of Judgment: 28 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/561.html


case_outcome: referred to

case_text: follows from my conclusions above that it is unnecessary to consider whether or not Mr Priestley is a person aggrieved or whether or not s 23 of the Federal Court Act is a source of additional jurisdiction. In any event, I considered these grounds in Priestley v Godwin (No 4) [2009] FCA 560 which was heard concurrently with this application and the same conclusions apply. Section 23 of the Federal Court Act is not a source of additional jurisdiction ( Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 161). Mr Priestley may not have established that he is a person aggrieved but that does not fall to be determined on this application under s 31A of the Federal Court Act. I am prepared to assume for the purposes of this notice of motion that, had the claimed decision been made, Mr Priestley would have been a person aggrieved.


case_title: Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150


case_title: Commonwealth v Amman Aviation [1991] HCA 54 ; (1991) 174 CLR 64

case_text: In McRae , the plaintiffs recovered damages for the agreed purchase price together with the expenditure wasted in reliance on the promise that there was oil tanker in the locality of the reef. The wasted expenditure fell within the second rule in Hadley v Baxendale (1854) 9 Ex 341: see McRae at 413-415; see also The Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54 ; (1991) 174 CLR 64 at 88-89. 120 There may be some differences from McRae in the present case; in particular, a question arises as to whether it was impossible for Cairnsmore to establish what its profits would have been under the SBA: see Amman at 89. However, I am inclined to the view that the difficulties which arose from the move to Paragem tend in favour of the application of the wasted expenditure principle to the facts of this case.


case_title: Hadley v Baxendale (1854) 9 Ex 341

case_text: In McRae , the plaintiffs recovered damages for the agreed purchase price together with the expenditure wasted in reliance on the promise that there was oil tanker in the locality of the reef. The wasted expenditure fell within the second rule in Hadley v Baxendale (1854) 9 Ex 341: see McRae at 413-415; see also The Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54 ; (1991) 174 CLR 64 at 88-89.


case_text: The same amount is recoverable under s 82 of the Trade Practices Act : see I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109 at [50] . Those damages are recoverable by Cairnsmore and Mr Howland against Bearsden. It is clear that the representations were made in trade or commerce and that reliance was established. 126 I will deal below with the question of the personal claim against Mr Hodge. 127 The representations made by Bearsden and Mr Hodge as to Bearsden's title to sell the business were eventually admitted. The admission was that oral and written submissions were made by Mr Hodge as second respondent, including on behalf of Bearsden, in terms of recitals A and B, cll 5.4, 6, 7, 8.1, 8.2, 8.3, 9.1, 9.2, 15.2, 19.1, 20, 24 and 25 of the SBA.


case_outcome: applied

case_text: The following issues are raised in the proceedings: (i) Whether upon the proper construction of the SBA, Bearsden contracted to sell the assets of the business in which it had no legal or beneficial interest. (ii) If so, whether Cairnsmore is entitled to damages for breach of contract in accordance with the principles stated by Dixon J and Fullagar J in McRae v Commonwealth Disposals Commission [1950] HCA 12 ; (1951) 84 CLR 377 at 409 415. (iii) Whether the move from GPL to Paragem constituted the exercise of a "right of title" by Bearsden under cl 5.4 of the SBA, thereby entitling Cairnsmore to a refund of the first instalment and damages for breach of contract. See McDonald v Dennys Lascelles Limited [1933] HCA 25 ; (1933) 48 CLR 457. (iv) Whether the move from GPL to Paragem was to the disadvantage of Cairnsmore within the meaning of cl 9.1 of the SBA. (v) Whether Cairnsmore is entitled to recover damages either in contract or under the Trade Practices Act 1974 (Cth) for expenditure incurred by it in reliance upon representations made by Bearsden in the SBA that it owned and carried on the business and had the right to sell it. (vi) Whether Cairnsmore and Mr Howland are entitled to recover against Mr Hodge by virtue of ss 6(3) or 75B of the Trade Practices Act . (vii) Whether, if Cairnsmore's contentions are not correct, Bearsden is entitled to recover payment of the second and third instalments of the purchase price as claimed by it in its cross claim. 107 This was a contract for the payment of the purchase price by instalments. It is well established that a purchaser is entitled to recover the instalments other than the deposit where the contract is not completed: McDonald v Dennys Lascelles at 477 to 478. 108 Furthermore, a termination for breach is not a rescission ab initio . Both parties are discharged from further performance but rights which have been unconditionally acquired are not divested: McDonald v Dennys Lascelles at 476 to 477. It follows in my view that the fees paid to Cairnsmore were irrecoverable under this principle. 109 The meaning of cl 9.1 is not entirely clear, however at very least the clause provides a "warranty" that Cairnsmore will not suffer an economic disadvantage by reason of any change of the identity of the AFS licensee from GPL to another entity. 110 Counsel for Cairnsmore devoted a great deal of attention to this issue. A large number of reasons were put forward to support a finding that Cairnsmore did suffer a disadvantage by reason of the move to Paragem.


case_text: The following issues are raised in the proceedings: (i) Whether upon the proper construction of the SBA, Bearsden contracted to sell the assets of the business in which it had no legal or beneficial interest. (ii) If so, whether Cairnsmore is entitled to damages for breach of contract in accordance with the principles stated by Dixon J and Fullagar J in McRae v Commonwealth Disposals Commission [1950] HCA 12 ; (1951) 84 CLR 377 at 409 415. (iii) Whether the move from GPL to Paragem constituted the exercise of a "right of title" by Bearsden under cl 5.4 of the SBA, thereby entitling Cairnsmore to a refund of the first instalment and damages for breach of contract. See McDonald v Dennys Lascelles Limited [1933] HCA 25 ; (1933) 48 CLR 457. (iv) Whether the move from GPL to Paragem was to the disadvantage of Cairnsmore within the meaning of cl 9.1 of the SBA. (v) Whether Cairnsmore is entitled to recover damages either in contract or under the Trade Practices Act 1974 (Cth) for expenditure incurred by it in reliance upon representations made by Bearsden in the SBA that it owned and carried on the business and had the right to sell it. (vi) Whether Cairnsmore and Mr Howland are entitled to recover against Mr Hodge by virtue of ss 6(3) or 75B of the Trade Practices Act . (vii) Whether, if Cairnsmore's contentions are not correct, Bearsden is entitled to recover payment of the second and third instalments of the purchase price as claimed by it in its cross claim. 95 First, it is not what Bearsden contracted to sell under the SBA. Second, it would have been contrary to Part 7.6 of the Corporations Act , in particular s 916B(3). As in McCrae , the only proper construction of the SBA is that it included a promise by Bearsden that the subject matter of the agreement existed: see McRae at 410. It is plain that the subject matter did not exist because Bearsden did not own the business. The subject matter was not simply a business conducted at the premises, it was the business owned by Bearsden. It is true that Bearsden had the power to direct where the income stream that it received through HBN was paid, but it had no enforceable right against GPL because there was no contractual relationship between those parties. 96 In short, the commercial purpose which Bearsden sought to achieve could not have been put in place without an agreement between HBN and Cairnsmore. It would in my view have been necessary in addition for GPL to have been a party. The defect was not cured by Annexure B to the SBA, ie, the Agency Agreement on p 743 of Exhibit A. That document was legally ineffective (even if it was properly executed on behalf of HBN, which I doubt). This is because it entirely ignored the structure in place in the various agreements fully described in counsel's diagram annexed to my reasons for judgment. 97 This case therefore falls within the principles stated by Dixon and Fullagar JJ in McCrae at 409 to 411. Bearsden must pay damages for breach of its promise to give title. 119 In McRae , the plaintiffs recovered damages for the agreed purchase price together with the expenditure wasted in reliance on the promise that there was oil tanker in the locality of the reef. The wasted expenditure fell within the second rule in Hadley v Baxendale (1854) 9 Ex 341: see McRae at 413-415; see also The Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54 ; (1991) 174 CLR 64 at 88-89. 120 There may be some differences from McRae in the present case; in particular, a question arises as to whether it was impossible for Cairnsmore to establish what its profits would have been under the SBA: see Amman at 89. However, I am inclined to the view that the difficulties which arose from the move to Paragem tend in favour of the application of the wasted expenditure principle to the facts of this case.


case_text: There has been some debate in the cases as to whether liability under s 75B requires the accessory to know that the conduct of the principal is misleading or deceptive: see for example Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289 ; (2003) 135 FCR 1 at [83] . 135 The question in the present case turns on Mr Hodge's knowledge. 136 Mr Hodge was an unsatisfactory witness. I cannot accept him as a witness of truth. He either could not or would not answer questions directly. He denied propositions that were put to him that were clearly supported by contemporaneous documents. His denials were in the teeth of the contemporaneous documentary record. 137 By contrast, I though that Mr Howland was a truthful witness. He did not have a good recollection of the detail but he did his best to answer honestly and directly. I prefer his evidence where it conflicts with that of Mr Hodge. 138 It is clear that Mr Hodge was aware of all the necessary elements. He made the representations and he was aware of the structure under which the business was established. In addition, the documents given to clients showed quite plainly that Mr Hodge informed them that HBN was the corporate representative of GPL and that Mr Hodge was the personal authorised representative of GPL.


case_text: This requires the court when construing a commercial contract to have regard to the commercial purpose of the contract, the context and the market in which the parties were operating: Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 at 995-996; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] .


case_title: Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 at 995-996


case_text: Whether or not Cairnsmore relied on that breach when it gave notice of the termination of the SBA, it is open to Cairnsmore to rely on that breach in these proceedings: see Shepherd v Felt & Textiles of Australia Limited [1931] HCA 21 ; (1931) 45 CLR 359. 99 I will deal later with the question of damages. 100 Clause 5.4 is to be construed in the light of the provisions of cll 6 and 7 of the SBA.


case_text: The SBA is to be construed in accordance with the objective theory of contractual construction reaffirmed by the High Court in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at [40] .


case_text: It seems to me that although cl 9.1 speaks of a "warranty," it was in truth a condition of the SBA that Cairnsmore would not suffer a disadvantage: see Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 39 SR (NSW) 632 at 641-642. 117 This view is supported by the object and purpose of the SBA and the surrounding circumstances, including GPL's standing as a premium dealer and Mr Howland's concerns that he be protected against a move from GPL. 118 Accordingly, in my view Cairnsmore is entitled to terminate for breach of cl 9.1.


case_text: Respondents then pointed to the now accepted position that there is no constitutional prohibition against the appointment of more than one Minister of State to administer a department: Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [17] ; 415-416; [66], 460, [211]; 498, [320] and 519, [380]; Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 165; Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 at 594; Tervonen v Minister for Justice and Customs [No 2] [2007] FCA 1684 at [128] to [130]. That being so, it was submitted that the Minister was entitled to administer the Judiciary Act , which included the administration of s 672A of the Queensland Criminal Code , to the extent that it was rendered applicable by s 68 of the Judiciary Act to the pardon application made by the Applicant. As already noted, s 68 of the Judiciary Act must be read subject to the Constitution : s 15A Acts Interpretation Act . While that provision of the Acts Interpretation Act has a purpose in preserving statutory provisions from invalidity by promoting their construction so as to accord with the limits of constitutional legislative competence, it also serves as a reminder that Commonwealth legislation ought not be construed in a way which ignores constitutionally permissible practices in the discharge of the business of the Executive Government. R v Judd [1919] HCA 9 ; (1919) 26 CLR 168 , O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 , Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 , Carltona Ltd v Commissioners of Works [1943] 2 All E R 560 and R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 each offer an example of ways in which such practices have been taken into account by the courts in the construction of legislation and with regard to the validity of the exercise of powers by public officials. It is useful also to recall the following observations made by Gleeson CJ in Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [15] [16] with respect to the provisions in the Constitution concerning the Executive Government of the Commonwealth: For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our system of democratic government as the office of Prime Minister, or the Cabinet. The concept of administration of departments of State, appearing in s 64 , is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory.


case_text: case was cited as authority for the existence of a power to make such orders and none of any worth could be. For such orders are quite beyond the powers granted to the Court under s 16 of the ADJR Act. They are most certainly not, contrary to the Applicant's submission, authorised by s 16(1)(d) of that Act. To make such an order would be fundamentally to violate the role of a reviewing court on judicial review, qv Attorney-General (NSW) v Quin [1990] HCA 21 ; (1989-1990) 170 CLR 1 at 35-36. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 6 March 2009 Counsel for the Applicant: Mr P Sumner-Potts Solicitor for the Applicant: Cameron Price Lawyers Counsel for the Respondents: Mr S McLeod Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 26-27 February 2009 Date of Judgment: 6 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/207.html


case_text: already noted, s 68 of the Judiciary Act must be read subject to the Constitution : s 15A Acts Interpretation Act . While that provision of the Acts Interpretation Act has a purpose in preserving statutory provisions from invalidity by promoting their construction so as to accord with the limits of constitutional legislative competence, it also serves as a reminder that Commonwealth legislation ought not be construed in a way which ignores constitutionally permissible practices in the discharge of the business of the Executive Government. R v Judd [1919] HCA 9 ; (1919) 26 CLR 168 , O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 , Attorney-General (Cth) v Foster [1999] FCA 81 ; (1999) 84 FCR 582 , Carltona Ltd v Commissioners of Works [1943] 2 All E R 560 and R v Secretary of State for the Home Department; Ex parte Doody [1993] QB 157 each offer an example of ways in which such practices have been taken into account by the courts in the construction of legislation and with regard to the validity of the exercise of powers by public officials. It is useful also to recall the following observations made by Gleeson CJ in Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403, [15] [16] with respect to the provisions in the Constitution concerning the Executive Government of the Commonwealth: For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our system of democratic government as the office of Prime Minister, or the Cabinet. The concept of administration of departments of State, appearing in s 64 , is not further defined. This is hardly surprising. The practices and conventions which promote efficient and effective government administration alter over time, and need to be able to respond to changes in circumstances and in theory.


case_text: insight into the subject matter, scope and purpose of s 672A(a) is offered by another Queensland Court of Appeal decision, R v Daley; Ex parte Attorney-General (Qld) [2005] QCA 162 , and by earlier Queensland authorities concerning that section referred to by Keane JA, who delivered the principal judgment in that case (Williams and Muir JJA agreeing). His Honour observed: It may be said that this new evidence might have been obtained with reasonable diligence prior to trial so that it would not satisfy the test for the admission of "fresh evidence" enunciated in Ratten v. The Queen [1974] HCA 35 ; (1974) 131 CLR 510 at 516, 517. However that may be, it seems that on a reference under Section 672A, the Court has a broader discretion to ensure that justice is done and is seen to be done. See The Queen v. Young (No 2) [1969] Qd R 566 ; The Queen v. Condren Ex Parte Attorney-General [1991] 1 Qd R 574 at 578, 579. ... [The] issue was not whether Mr Daley's legal representation was incompetent. The issue is whether a miscarriage of justice has occurred. See TKWJ v. The Queen (2002) 202 CLR 124; Ali v. The Queen [2005] HCA 8 ; (2005) 214 ALR 1. It is one thing to set aside a conviction upon such a reference applying this test but, having done so, quite another to order the entry of a verdict of acquittal, as opposed to ordering a new trial. To order the former is to usurp a function ordinarily consigned to a jury under our system of criminal justice in respect of offences prosecuted on indictment. A discretion exists, but ordinarily an appellate court would exercise it against the entry of a verdict of acquittal unless it had held that the case considered as a whole required a jury to acquit the appellant because it must entertain a reasonable doubt or that a conviction would necessarily be unsafe: Dyers v The Queen [2002] HCA 45 ; (2002) 210 CLR 285 at 297, [23] per Gaudron and Hayne J and at 331, [134] per Callinan J, cf at 316-317, [86]-[90] per Kirby J; see also Condren; Ex parte Attorney-General (Qld) v R [1991] 1 Qd R 574 at 577 per Kelly SPJ and at 591 per Dowsett J, cf at 585-588 per Thomas J.


case_text: is one thing to set aside a conviction upon such a reference applying this test but, having done so, quite another to order the entry of a verdict of acquittal, as opposed to ordering a new trial. To order the former is to usurp a function ordinarily consigned to a jury under our system of criminal justice in respect of offences prosecuted on indictment. A discretion exists, but ordinarily an appellate court would exercise it against the entry of a verdict of acquittal unless it had held that the case considered as a whole required a jury to acquit the appellant because it must entertain a reasonable doubt or that a conviction would necessarily be unsafe: Dyers v The Queen [2002] HCA 45 ; (2002) 210 CLR 285 at 297, [23] per Gaudron and Hayne J and at 331, [134] per Callinan J, cf at 316-317, [86]-[90] per Kirby J; see also Condren; Ex parte Attorney-General (Qld) v R [1991] 1 Qd R 574 at 577 per Kelly SPJ and at 591 per Dowsett J, cf at 585-588 per Thomas J.


case_text: Eastman v Attorney-General (ACT) (2007) 210 FLR 440 ( Eastman v A-G (ACT) ), Lander J, sitting as an additional judge of the ACT Supreme Court, after a comprehensive review of authority touching upon the extent, if at all, to which a decision to refuse a pardon was judicially reviewable, expressed the opinion that, while the exercise of the discretion in respect of the prerogative of mercy was not amenable to judicial review, he was "[not] prevented however from concluding that the processes which must be observed either by the statute which empowers the exercise of the prerogative (or statutory) power or by the law generally are subject to judicial review" (at 458-459, [78]). On appeal, it proved unnecessary for the Court of Appeal to explore the correctness of this aspect of his Honour's reasons: Eastman v Australian Capital Territory (2008) 163 ACTR 29 at 41, [41].


case_title: Eastman v Australian Capital Territory (2008) 163 ACTR 29


case_text: test to be applied by a court upon a reference under s 672A(a) and its analogues in deciding whether to set aside a conviction on the ground of fresh evidence is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial: Mickelberg v The Queen [1989] HCA 35 ; (1988-1989) 167 CLR 259 at 273 per Mason CJ (Mickelberg). That test, as Mason CJ noted in Mickelberg , is derived from views expressed by four of the judges in Gallagher v The Queen [1986] HCA 26 ; (1985-1986) 160 CLR 392 (Gallagher). Of these, it is worthy of note in the present context that, in so concluding as to the nature of the relevant test, Gibbs CJ observed (at 399) that, "it is too severe, and indeed speculative, a test to require that the court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so." Also worthy of note in the present context is a further observation of Mason CJ in his judgment in Mickelberg (at 272) in respect of the reference in that case that it indicated "the existence of public concern about the propriety of the convictions". Having regard to what was said in Mickelberg and Gallagher , described above, as to the basis upon which an appellate court on a reference will set aside a conviction, the words emphasised overstate the position. Evidence which is "fresh and compelling" may very well persuade an appellate court not only to set aside a conviction but also not to order a retrial and perhaps to order the entry of an acquittal. However, to secure the setting aside of a conviction, it is enough that the appellate court, considering the case as a whole, concludes that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant. It is true that, earlier in his reasons, the Minister expresses the opinion that, "I consider it appropriate to refer a case to the Court of Appeal where the material presented raises a doubt or question about the conviction or sentence." Read in isolation, that might be thought to posit a test not materially different to that adopted in Mickelberg and Gallagher . As to that though, the Minister is not performing the function of an appellate court, only exercising a discretion as to whether or not there is a case which warrants referral to such a court. His role is to determine whether the applicant has presented a case in which it is reasonably arguable that an appellate court, applying the test in those cases and upon a consideration of the whole of the case, would set aside the conviction. That is a lesser threshold.


case_text: discretion conferred by s 68 of the Judiciary Act by applying s 672A of the Queensland Criminal Code is a statutory adjunct to a prerogative of mercy. The prerogative forms part of the executive power of the Commonwealth but, as applied by s 68, the power exercised by the Court of Appeal upon a reference under s 672A is an exercise of the judicial power of the Commonwealth pursuant to a conferral of federal jurisdiction on that court for that purpose by s 68(2) of the Judiciary Act . It is consistent with the views expressed by Lander J in Eastman v A-G (ACT) to regard a Ministerial decision as to whether to engage that statutory adjunct as amenable to judicial review even if, as Horwitz v Connor [1908] HCA 33 ; (1908) 6 CLR 38 would bind me to hold, a decision to refuse a pardon is not itself reviewable. For completeness, reference should be made to von Einem v Griffin (1998) 72 SASR 110 in which a conception that the feature that the referral power was an adjunct to the prerogative of mercy led a Full Court of the South Australian Supreme Court to hold that a Minister's decision not to refer a case to the Full Court pursuant to that State's analogue of s 672A, s 369(a) of the Criminal Law Consolidation Act 1935 (SA), was not amenable to judicial review. Given that conception, Horwitz v Connor was considered to dictate that result. von Einem v Griffin was not a case where the judicial review application was made under an equivalent of the ADJR Act. In this case though, the view is open that, insofar as he refused to refer the case to the Court of Appeal, the Minister made a decision: under an enactment, namely s 68 of the Judiciary Act , which rendered applicable s 672A of the Queensland Criminal Code ; of an administrative character; and accordingly one to which the ADJR Act applies. von Einem v Griffin is, for this reason alone, distinguishable. Further, as the Court's jurisdiction is sufficiently invoked by the reliance on the ADJR Act, it is unnecessary to decide whether an alternative basis for a judicial review jurisdiction exists having regard to s 75(v) of the Constitution and s 39B of the Judiciary Act and given that the decision is one made under statute by an officer of the Commonwealth. Though Perrier v Kerr , Pepper v Attorney-General (Qld) [No 2] and Eastman v A-G (ACT) are not, strictly, binding, I ought to follow them unless, which is not the case here, I am convinced that they are clearly in error.


case_text: Mallard v The Queen [2005] HCA 68 ; (2005) 224 CLR 125 ( Mallard's Case) at [4] Gummow, Hayne, Callinan and Heydon JJ observed of the Western Australian equivalent of s 672A: [4] Provision for the referral of petitions for clemency to the courts owes its modern origin to public adverse reaction to the excessive imposition of capital punishment in the nineteenth and earlier centuries. As the capital statutes were repealed so as to apply the death penalty to fewer offences, appeals for pardons to the Crown tended to be made in cases of asserted miscarriages of justice, despite the anomaly to which a successful petition might give rise, that a person who has in fact come to be considered to have been wrongly convicted or innocent, is pardoned, and not acquitted of the crime. The importance of this avenue of recourse to justice, effectively controlled by the Executive, declined, after the introduction of the Criminal Appeal Act 1907 (UK) to establish the Court of Criminal Appeal, although no attempt was made to abolish it. It proved fortunate that this was so because there was, initially at least, a judicial reluctance to allow appeals in criminal cases, occasioned in part no doubt by the sanctity accorded, and usually desirably so, to the verdict of a jury, and less desirably, to the legal conservatism of some of the judiciary of the day. Mallard's Case is also important for present purposes because of the emphasis given (at [10]) by Gummow, Hayne, Callinan and Heydon JJ in their joint judgment to the need for an appeal court on a reference under s 672A(a) to adhere to the letter and spirit of the words "the whole case" when determining a reference: [The] explicit reference to "the whole case" conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words "the whole case" embrace the whole of the evidence properly admissible, whether "new", "fresh" or previously adduced, in the case against, and the case for the appellant. Another concern arises from the following passages in the Minister's reasons, "The majority of the claims raised in the application were considered at trial or on appeal" and, in respect of "Ground 2", "Even without the material provided in the application, the jury seems to have been well aware that the defence questioned the accuracy of [the complainant's] evidence and argued that the trip actually occurred in August 2001." So much may be accepted, but those claims were not considered against the additional background of the further evidence provided by the Applicant in his application to the Minister. Immediately after the passage from the joint judgement of Gummow, Hayne, Callinan and Heydon JJ in Mallard's Case (at [10]) which I have quoted above (at para 48) their Honours further observe: That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code . [Emphasis added] Paragraphs [49] and [53] of the judgment delivered by McMurdo P in the Applicant's unsuccessful appeal, quoted above, highlight that evidence which the complainant and the Applicant gave at the trial as to the number of flights undertaken with each other, when and for what purpose, were before the jury to evaluate in an assessment of the their respective credibility and on the then state of their and other evidence. What was not before the jury or the Court of Appeal was the further evidence which formed part of the Applicant's submission to the Minister. Further, para [53] of the judgment also shows that the absence of contemporary corroboration of the Applicant's log book entries was recognised as a factor which need not have compelled the acceptance of the veracity of those entries. On a reference under s 672A that on the Applicant's earlier appeal the log book had been dealt with in this fashion might, when considering the whole of the case, which would include the PNGCAA material, be thought to raise a stronger interrogative note concerning the relative credibility of the Applicant and the complainant. The enhanced corroboration of other aspects of the Applicant's account of events offered by the other evidence might perhaps also be similarly viewed. Be this as it may, what can be said, having regard to this further observation in Mallard's Case , is that in deciding whether or not there is a reasonably arguable case advanced that on a reference an appellate court would conclude that there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant, it does not follow that because, having regard to the then state of the evidence, an appeal against conviction was dismissed, like claims made against a broader evidentiary background must necessarily meet the same fate. The passage quoted from the Minister's reasons evidences a misunderstanding of the role of the Court of Appeal on a reference under s 672A. Of course, as McMurdo P was astute to point out in her judgment, the question before the jury at the Applicant's trial was not whether or not the complainant was mistaken as to the number of flights to Port Moresby she undertook with the Applicant, when and for what purposes. It was whether the Crown had proved beyond reasonable doubt on admissible evidence that the Applicant had committed the offence charged. Nonetheless, an assessment as to whether the offence had been so proved very much depended in the circumstances of this case on questions of credibility. What the Minister has not considered is whether on the whole of the evidence, as it now stands, the Applicant has presented an arguable case on the authorities for the setting aside of the conviction. A further concern is that the Minister has been dismissive of the Applicant's request for a reference on the basis that the evidence was not "fresh". Having regard to what was said in Daly's Case, Condren's Case and Mallard's Case, that new evidence contained in a request for a reference under s 672A might have been obtained with reasonable diligence prior to trial and therefore not strictly "fresh" does not mean that the Court of Appeal on a reference could not receive it as a matter of discretion. It is not even evident from the Minister's reasons whether, in referring to an absence of fresh evidence, the Minister is using "fresh" to mean that, though "new", it was evidence that might have been obtained with reasonable diligence prior to trial. Such analysis as there is in the Minister's reasons of the particular evidence which accompanied the submission to him displays a misunderstanding of what amounts to "evidence", be it "new" or "fresh", as the following passage in respect of "Ground 1" reveals: The information in the log book is the same as that in the document from the Papua New Guinea Civil Aviation Authority (PNGCAA). It is therefore not 'new evidence' as the information was before the jury when it considered the case. The subjects of when flights were undertaken and with whom were before the jury. At the trial, evidence on that subject came, inter alia, from the Applicant's oral testimony, that of the complainant and from the Applicant's log book. The PNGCAA documentation was evidence, was at least "new" and was never before the jury. These errors aside, the passage quoted is underpinned by the premise, erroneous on the authorities, that, because a subject was before a jury, that means that, faced with new evidence touching on that subject, an appellate court on a reference cannot hold, on the whole of the case, that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the "fresh" or "new" evidence been before it.


case_text: test to be applied by a court upon a reference under s 672A(a) and its analogues in deciding whether to set aside a conviction on the ground of fresh evidence is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial: Mickelberg v The Queen [1989] HCA 35 ; (1988-1989) 167 CLR 259 at 273 per Mason CJ (Mickelberg). That test, as Mason CJ noted in Mickelberg , is derived from views expressed by four of the judges in Gallagher v The Queen [1986] HCA 26 ; (1985-1986) 160 CLR 392 (Gallagher). Of these, it is worthy of note in the present context that, in so concluding as to the nature of the relevant test, Gibbs CJ observed (at 399) that, "it is too severe, and indeed speculative, a test to require that the court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so." Also worthy of note in the present context is a further observation of Mason CJ in his judgment in Mickelberg (at 272) in respect of the reference in that case that it indicated "the existence of public concern about the propriety of the convictions". Such considerations would not be exhaustive of matters to which the Minister might, without committing the error of taking into account an irrelevant consideration, advert in deciding whether or not to refer a case. Because, in making the decision, the Minister acts administratively, he might take into account material which would not be admissible on the consideration of a reference by the Court of Appeal. Thus, as for example, Mason CJ apprehended in his judgment in Mickelberg , he might note public concern as to the propriety of the conviction. His sources of information in this regard might, for example, be reports in the media, a petition presented to Parliament, a representation from a parliamentary colleague, or perhaps hearsay evidence as to the reliability of a complainant or other information in an application for a pardon which did not constitute admissible evidence which could be considered by an appellate court on a reference. None of these would though be considerations that he was obliged to take into account, ie "relevant considerations". Having regard to what was said in Mickelberg and Gallagher , described above, as to the basis upon which an appellate court on a reference will set aside a conviction, the words emphasised overstate the position. Evidence which is "fresh and compelling" may very well persuade an appellate court not only to set aside a conviction but also not to order a retrial and perhaps to order the entry of an acquittal. However, to secure the setting aside of a conviction, it is enough that the appellate court, considering the case as a whole, concludes that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant. It is true that, earlier in his reasons, the Minister expresses the opinion that, "I consider it appropriate to refer a case to the Court of Appeal where the material presented raises a doubt or question about the conviction or sentence." Read in isolation, that might be thought to posit a test not materially different to that adopted in Mickelberg and Gallagher . As to that though, the Minister is not performing the function of an appellate court, only exercising a discretion as to whether or not there is a case which warrants referral to such a court. His role is to determine whether the applicant has presented a case in which it is reasonably arguable that an appellate court, applying the test in those cases and upon a consideration of the whole of the case, would set aside the conviction. That is a lesser threshold.


case_text: the purposes of the particular improper exercise of power error ground specified in s 5(2)(b) of the ADJR Act, where a statute confers on an official a discretionary power to make a decision, a consideration will be a "relevant consideration" in relation to the making of that decision if it is one which by that statute the official is bound to take into account either expressly or by necessary implication from its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 33 ; (1985-1986) 162 CLR 1 at 39-40. The Applicant submitted that s 672A did not authorise the Minister to act as a "gatekeeper", second guessing what the Court of Appeal might make of fresh evidence. The submission allowed that the Minister might refuse to refer an application which was obviously frivolous but that it did not authorise the ignoring, as was submitted had occurred, of the evidence submitted with the application to the Minister. The Respondents submitted that s 672A of the Queensland Criminal Code does not expressly specify any criteria as relevant to the exercise of the discretionary power for which that section provides, such that the scope of the discretion was unconfined save insofar as the subject matter, scope and purpose of the section dictated otherwise. So much may be accepted but it rather begs the question as to what is dictated by the subject matter, scope and purpose of s 672A? To answer this question it is necessary to consider in some detail authorities concerning s 672A and its analogues.


case_text: consideration of the Minister's reasons must commence from the premise that they are meant to inform and are not to be read narrowly or zealously with an eye for error upon judicial review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272. Further, and with all due respect to its author, the Minister was confronted with an application which, even as it came to be amplified, was diffuse and, as the title "corrupt prosecution" might suggest, attended with large claims about a course of conduct in respect of the Applicant allegedly involving agencies here and in Papua New Guinea tantamount to a conspiracy to pervert the course of justice. The Minister's reasons take the form in which they appear because of an evident endeavour by him and those advising him to engage in an orderly way with the Applicant's application. I do not underestimate the difficulty which that presented in the circumstances. The "conspiracy" aspects of the submission made to the Minister were supported by hearsay accounts of varying degrees of remoteness from various persons. Another part of Mrs Tapari's statement had such material in it. It is not necessary for the purpose of deciding this judicial review application to refer in detail to that part of her statement or to other hearsay accounts. The Minister could, in my opinion, have taken these into account in deciding whether or not to refer a case, but he was not bound so to do. In the form presented, this material did not constitute evidence to which the Court of Appeal might advert upon its consideration of the whole of the case. Likewise, the withdrawal of a separate charge in respect of a complaint by another person had nothing to do with whether there existed further evidence warranting a reference to the Court of Appeal. Grounds 3, 4, 5 and 6 of the Minister's reasons relate to these aspects of the application. Of the attached reasons, only grounds 1 and 2 appear to relate to the request for a reference under s 672A. In my respectful opinion, the Minister's reasons demonstrate that he has applied an overly rigorous test in deciding whether or not to refer the case to the Court of Appeal. Of particular concern is the following passage: In the absence of fresh and compelling evidence casting doubt on your conviction, paramount weight must be placed on the decision of the court. As the further evidence provided in the application was not fresh or compelling it does not warrant further consideration of this case by the Court of Appeal. [Emphasis added]


case_title: O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1


case_text: High Court has observed of s 68 of the Judiciary Act that it is a "central provision in the administration and enforcement of federal criminal law" which "fulfils an important role in ensuring that federal criminal law is administered in each State upon the same footing as State law and avoids the establishment of two independent systems of justice": R v Murphy [1985] HCA 50 ; (1985) 158 CLR 596 at 617. To this end, s 68 has been interpreted so as to permit the Commonwealth Attorney-General to appeal against a sentence in respect of a federal offence in circumstances where under State law and in respect of a State offence such a right of appeal was conferred upon a State Attorney-General: Peel v R [1971] HCA 59 ; (1971) 125 CLR 447 ( Peel's Case ). Section 68 of the Judiciary Act does not, in terms, refer to any Minister. Rather, it "picks up" provisions of State legislation, which may or may not themselves refer to a State Minister or other official, and applies them "so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth". In so doing, "the adoption of the State law must proceed by analogy", an observation made by Sir Owen Dixon in Williams v The King [No 2] [1934] HCA 19 ; (1934) 50 CLR 551 at 561, which commended itself to Gibbs J (as his Honour then was) in Peel's Case [1971] HCA 59 ; (1971) 125 CLR 447 at 469 and to Gibbs CJ, Mason and Wilson JJ in Rhode's Case [1986] HCA 50 ; (1986) 161 CLR 119 at 124; see also to like effect in that case the separate judgement delivered by Brennan J (1986) 161 CLR at 126-127.


case_title: Pepper v Attorney-General (Qld) [No 2] [2008] QCA 207

case_text: assumption that a decision by Queensland's Attorney-General not to refer a case to the Court of Appeal under s 672A was amenable to judicial review under that State's analogue of the ADJR Act, the Judicial Review Act 1991 (Qld) (Judicial Review Act), underpins the decision of the Court of Appeal in Pepper v Attorney-General (Qld) (No 2) [2008] QCA 207 ( Pepper's Case). It was held that the State Attorney could not be ordered pursuant to s 38(2) of the Judicial Review Act (an analogue of s 13(4) and (4A) of the ADJR Act) to furnish a statement of reasons for the refusal. The basis for the Court of Appeal's so holding was not that the State Attorney's decision was not one to which the Judicial Review Act applied, but rather that it was a decision in the administration of criminal justice and thus, by virtue of the exemption for which s 31(2) and Schedule 2, item 1 of the Judicial Review Act provide, exempt from the statutory obligation to give reasons if requested. For completeness, reference should be made to von Einem v Griffin (1998) 72 SASR 110 in which a conception that the feature that the referral power was an adjunct to the prerogative of mercy led a Full Court of the South Australian Supreme Court to hold that a Minister's decision not to refer a case to the Full Court pursuant to that State's analogue of s 672A, s 369(a) of the Criminal Law Consolidation Act 1935 (SA), was not amenable to judicial review. Given that conception, Horwitz v Connor was considered to dictate that result. von Einem v Griffin was not a case where the judicial review application was made under an equivalent of the ADJR Act. In this case though, the view is open that, insofar as he refused to refer the case to the Court of Appeal, the Minister made a decision: under an enactment, namely s 68 of the Judiciary Act , which rendered applicable s 672A of the Queensland Criminal Code ; of an administrative character; and accordingly one to which the ADJR Act applies. von Einem v Griffin is, for this reason alone, distinguishable. Further, as the Court's jurisdiction is sufficiently invoked by the reliance on the ADJR Act, it is unnecessary to decide whether an alternative basis for a judicial review jurisdiction exists having regard to s 75(v) of the Constitution and s 39B of the Judiciary Act and given that the decision is one made under statute by an officer of the Commonwealth. Though Perrier v Kerr , Pepper v Attorney-General (Qld) [No 2] and Eastman v A-G (ACT) are not, strictly, binding, I ought to follow them unless, which is not the case here, I am convinced that they are clearly in error. Section 672A was described by Muir JA, de Jersey CJ and Fraser JA agreeing, in Pepper's Case, [2008] QCA 207 at [11] , as "a mechanism which the Crown may employ so that the exercise of the pardoning power may be properly informed or so as to grant the petitioner, in effect, a further appeal". His Honour further stated (at [12]), "The issue to be determined by the Court of Appeal in considering a matter referred under s 672A(a) is the same as that falling for resolution on an appeal, namely whether there has been a miscarriage of justice".