case_text: also points to the absence of the following from the framework agreements: no provision for choice of contractors or the selection of materials; no definition of "practical completion"; and no specifications for any design elements of the infrastructure. The documents referred to in the Recitals to each agreement would have, no doubt, assisted in clarifying the matters absent from the agreements. In light of those documents, following the approach of Ipp J in Anaconda [2000] WASCA 27 ; 22 WAR 101 at [61] , it may have been possible to conclude that, despite the long list of matters said to render the framework agreements uncertain and incomplete, there was a binding contract, workable by implying terms or on the proper construction of the agreement. The court will apply orthodox principles of implying terms by reference to the implied duty to co-operate and use considerations of reasonableness, to give effect to that intention: Australian Broadcasting Corporation v XIVth Commonwealth Games 18 NSWLR 540; Moffat Property Development Group Pty Ltd v Hebron Park Pty Ltd [2009] QCA 60. The asserted uncertainty or incompleteness may therefore be overcome once the requisite intention to contract is found to be present. In Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 , the NSW Court of Appeal emphasised that determining whether parties have come to a concluded agreement is a matter of their objectively ascertained intention in the particular case. Giles JA stated that the Masters v Cameron categories and a possible fourth category are intellectual aids, and that categorisation does not greatly contribute to the decision in the particular case, which is concerned with finding what agreement, if any, the parties came to, [26]. Similarly, in Moffat Property Development Group Pty Ltd [2009] QCA 60 , Keane JA, with whom McMurdo P and Atkinson J agreed, said at [37] in relation to classifying the putative agreement in that case under one of the four Masters v Cameron categories: In my respectful opinion, however, there is little purpose to be served in seeking to resolve the issue of classification. A concern as to classification should not be allowed to obscure or distract from the real task of the court which is to ascertain and give effect to the intentions of the parties. The approach taken in G R Securities 40 NSWLR 631, Anaconda [2000] WASCA 27 ; 22 WAR 101 and Tasman Capital [2008] NSWCA 248 was followed very recently by the Queensland Court of Appeal in Moffat Property Development Group [2009] QCA 60 , mentioned above, which underlined the importance of the parties' manifest intention to contract. The issue was whether a contract for the sale of rural residential land had been made by an exchange of letters. The Queensland Court of Appeal held that the parties intended to be legally bound through their exchange of correspondence and that there was a contract even though matters such as the timing of completion and arrangements at settlement, the precise timing of the payment of the deposit, the place of settlement, responsibility for insurance, GST issues and the terms of a put and call option were not spelt out in the correspondence. Keane JA delivered the court's judgment. His Honour: (a) accepted McHugh JA's point in G R Securities that "the decisive issue is always the intention of the parties": [23]-[25]; (b) said "the terms of the correspondence exchanged between the parties contemplated the execution of a further contract as the means whereby the bargain which they had concluded would be implemented. It is necessarily implicit in such an agreement that the parties will co-operate to do what must be done to make the further agreement": [30]; (c) adopted McHugh JA's approach in G R Securities and explained that the implied obligation of each party to co-operate with the other to ensure each side obtains the benefit of its bargain serves to supply the deficiencies: [34]; (d) cited Australian Broadcasting Corporation v XIVth Commonwealth Games 18 NSWLR at 548 in stating: "I am of the view that there can be no doubt as to the orthodoxy of referring to 'implied terms or ... considerations of reasonableness' in order to determine whether the parties' 'consensus is sufficiently comprehensive to be legally binding : [51]. Accordingly, Moffat Property Development Group [2009] QCA 60 , has most recently emphasised that the central question is the parties' manifest intention to contract, and the court will apply orthodox principles of implying terms, by reference to the implied duty to co-operate, and use considerations of reasonableness, to give effect to the parties' contractual intention. Alleged uncertainty or incompleteness is usually able to be overcome if the requisite intention to contract is found to be present. Was the opinion of FMG and Forrest honestly and reasonably held? In my view, for the following reasons, the evidence, particularly as to the oversight and legal advice given to FMG by Huston and the adoption of FMG's opinion by the Chinese Contractors amply supports the conclusion that the opinion of FMG through Forrest that the framework agreements were legally binding agreements to build, finance and transfer the infrastructure, were reasonably and honestly held. It also disposes of ASIC's claim that if FMG had obtained competent legal advice it would not have made the disclosures it did as to the legal effect of the framework agreements. ASIC alleges in relation to FMG's disclosures that neither it nor Forrest genuinely held the opinion that each of the framework agreements was a legally enforceable build, finance and transfer agreement. It palpably failed to establish this allegation.


case_outcome: cited

case_text: effect of the amendments was to expand the scope of s 1041H beyond dealing in securities to any misleading and deceptive conduct in relation to a financial product or financial services. The Full Federal Court has recognised that the scope of the operation of s 1041H is very wide: Australian Securities and Investments Commission v Narain [2008] FCAFC 120 ; (2008) 169 FCR 211. Special leave to appeal to the High Court was refused: Narain v Australian Securities and Investments Commission [2008] HCATrans 408 per Crennan and Kiefel JJ. Section 1041H: general principles


case_outcome: considered

case_text: National Exchange v Australian Securities and Investments Commission [2004] FCAFC 90 ; (2004) 22 ACLC 609 , Dowsett J, with whom Jacobson and Bennett JJ agreed with generally, compiled at [18] a helpful summary of the propositions relevant to the application of s 52 emerging from the High Court's judgment in Campomar Sociedad. Dowsett J's summary, to which I have added references to the paragraphs of the High Court's judgment applicable to each proposition, is as follows. His Honour accepted that these observations are of general application in proceedings alleging contravention of s 1041H(1) of the Act, [19]. Conduct will only be misleading or deceptive, or likely to mislead or deceive if there is a nexus between such conduct and any actual or anticipated misconception or deception. [98] In identifying such nexus regard must be had to the circumstances of the particular case, including the remedies sought. Section 52 of the TP Act does not confer any entitlement to a remedy for breach or anticipated breach. One must look elsewhere in the TP Act for such entitlement and construe the act as a whole. [99] In some cases, a representation may be made to identified individuals; in other cases the representation may be to the public at large or to a section thereof. In the former case the process of deciding whether or not the representation is misleading or deceptive or likely to be so may be 'direct and uncomplicated'. In the latter case 'the issue with respect to the sufficiency of the nexus between the conduct or the apprehended conduct and the misleading or deception or likely misleading or deception of prospective purchasers is to be approached at a level of abstraction not present where the case is one involving an express untrue representation allegedly made only to identified individuals'. (I infer that the word "representation" in [100] of Nike should be "misrepresentation", relying upon the relevant passage in Taco Bell to which the High Court was referring.) [100] When the representation is made to the public or to a section thereof, one must consider its effect upon an ordinary or reasonable member of the class in question. Although such class may include a wide range of persons, the ordinary or reasonable member will objectively be identified as having certain characteristics. In particular he or she can be expected to take reasonable care for his or her own interests and otherwise to behave reasonably. [101]-[102] It is necessary to inquire as to how a particular or anticipated misconception has arisen or may arise. In so doing, the Court will consider 'the effect of the relevant conduct on reasonable members of the class'. [103] Conduct will only be misleading or deceptive or likely to mislead or deceive if the representee 'labours under some erroneous assumption' or may be expected so to labour. Such an assumption or anticipated assumption may be obvious, predictable or fanciful. [104] In assessing the reactions or likely reactions of the ordinary or reasonable member of the class, the Court may decline to treat as reasonable, assumptions which are extreme or fanciful. The initial question which must be determined is whether the misconception or deception, alleged or anticipated, is properly attributable to an ordinary or reasonable member of the class. [105] The 'question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description contained in s 52.' [106] However, where there is a finding of intention to deceive, the court may more readily infer that the intention has been or in all probability will be effective: Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 at 861; S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd [1999] FCA 316 ; (1998) 88 FCR 354 at 362; Campomar Sociedad [2000] HCA 12 ; 202 CLR 45 at [33] and National Exchange [2004] FCAFC 90 ; 22 ACLC 609 at [63] per Jacobson and Bennett JJ.


case_outcome: referred to

case_text: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 at 449-450 Mason CJ, Brennan, Deane and Gaudron JJ referred to Dixon J's considerations in Briginshaw and said: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud . On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (Emphasis added. Citations omitted)


case_text: makes the following submission which I accept as a correct statement of the law. The proper construction of an agreement should be determined by what reasonable people in the position of the parties would have understood by the relevant clauses by considering not only their text, but also the surrounding circumstances and the purpose and object of the transaction: e.g. Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] ; International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 234 CLR 151 at [8] and [53]. The whole of the document should be considered and its provisions given harmonious effect: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 at 109 (Gibbs J, in dissent, but not on the applicable principle).


case_text: Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd's Rep 601 the English Court of Appeal held that a binding contract had been made in circumstances where no price, quantity, delivery date, loading rate, rate of demurrage and despatch or date of commencement in regard to the sale of corn gluten feed pellets had been agreed in an exchange of telexes between the parties. The fact that the terms yet to be agreed were of economic significance did not prevent a contract being binding if that was what the parties intended. Further, the fact that the parties continued to negotiate after the first agreement had been entered had no effect on whether the agreements were binding because ' ...it was only to be expected that they would continue negotiating the terms that remained without delay' (at 620.8). Lloyd LJ's listing of the principles to be derived from the authorities included at 619.1 that: ...the parties may intend to be bound forthwith even though there are further terms still to be agreed or some further formality to be fulfilled'. Lloyd LJ also stated at 619.5: It is sometimes said that the parties must agree on the essential terms and that it is only matters of detail which can be left over. This may be misleading, since the word "essential" in that context is ambiguous. If by "essential" one means a term without which the contract cannot be enforced then the statement is true: the law cannot enforce an incomplete contract. If by "essential" one means a term which the parties have agreed to be essential for the formation of a binding contract, then the statement is tautologous. If by "essential" one means only a term which the Court regards as important as opposed to a term which the Court regards as less important or a matter of detail, the statement is untrue. It is for the parties to decide whether they wish to be bound and, if so, by what terms, whether important or unimportant. It is the parties who are, in the memorable phrase coined by the Judge, "the masters of their contractual fate". Of course the more important the term is the less likely it is that the parties will have left it for future decision. But there is no legal obstacle which stands in the way of parties agreeing to be bound now while deferring important matters to be agreed later. It happens everyday when parties enter into so called 'heads of agreement'. (Emphasis added). But at [29] Ipp J also referred to the statement of Lloyd LJ in Pagnan SpA [1987] 2 Lloyd's Rep 601 that I have extracted above, where his Lordship emphasised that that the meaning of 'essential' in the context of agreeing upon essential terms was ambiguous and that there was no legal obstacle standing in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. In Uranium Equities [2008] WASCA 33 ; 36 WAR 97 , the parties to the putative agreement had been negotiating over a proposed mining joint venture, but no heads of agreement had been executed. The Court found that the trial judge was right in concluding that the parties did not intend to be bound by anything said or done by them until such time as the heads of agreement had been executed. The Court went on to state on the question of uncertainty at [257] that it is "trite" that, even when the requisite intention is present, a contract can fail for uncertainty. The Court said it is also trite that only the omission of an essential term will have the effect that a contract is so incomplete or uncertain as to render it invalid, citing Ipp J in Anaconda [2000] WASCA 27 ; 22 WAR 101 at [29] . The Court referred to the statement of Lloyd LJ from Pagnan SpA [1987] 2 Lloyd's Rep at 619 and found that when regard was had to all the circumstances the parties did not intend to be bound by anything said or done by them until such time as the heads of agreement had been executed . The Court concluded that although some of the matters left over by the parties for future negotiation were important, none were essential to the efficacy of the alleged agreement in the sense that the agreement could not be enforced without it. In the same vein in Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2002] 2 NZLR 433 at 445, Blanchard J observed: The court has an entirely neutral approach when determining whether the parties intended to enter into a contract. Having decided that they had that intention, however, the Court's attitude will change. It will then do its best to give effect to their intention and, if at all possible, to uphold the contract despite any omissions or ambiguities. At 448, Blanchard J referred to the statement of the English Court of Appeal in Pagnan SpA v Feed Products [1987] 2 Lloyd's Rep 601: Merely because an important term is deferred to be settled on a future occasion that does not mean that there is no intention to be bound.


case_text: further relevant principle concerns the intention of the representor. Intention is not a necessary element of the contravention of s 52. The section involves no questions of intent upon the part of the corporation whose conduct is in question: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216 at 228 per Stephen J; Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 216 per Brennan J.


case_title: Payne v Parker [1976] 1 NSWLR 191

case_text: the Court of Appeal in Manly Council referred to the principles concerning the application of Jones v Dunkel set out by Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-202 which have been widely regarded as correct although Glass JA was in dissent as to the application of the principles to the facts: per Campbell JA with whom Beazley JA and Pearlman AJA agreed, at [53]. In Payne [1976] 1 NSWLR 191 , Glass JA said that whether Jones v Dunkel should be applied depends on establishing three conditions: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained. In my view, what Sackville J said in Singh concerning the application of the Jones v Dunkel principle to the case before him is merely an application of the second condition given by Glass JA in Payne at p 201 as to whether the principle can or should be applied, namely whether the evidence of the missing witness would elucidate a particular matter. There was no occasion to draw an inference from the Minister's failure to give evidence because in his Honour's view, the question of whether he took into account the character references was adequately addressed by the statement of reasons.


case_text: accept ASIC's submission that a chief executive officer or managing director may reasonably be expected to have more information available to him or her and to be more diligent than other board members. The title, Managing Director, is synonymous with Chief Executive Officer. This matter of principle may be discerned from a number of authorities. A managing director has a particular responsibility to make sure the other directors understand the potential harm in a proposed transaction: Permanent Building Society v Wheeler (1994) 11 WAR 187, at 241. A chief executive officer will be employed under a contract containing an express or implied term that he or she exercise the care and skill expected of a person in that position: AWA Ltd v Daniels t/as Deloitte Haskins & Sells (1992) 7 ACSR 759 at 1014. At p 867 the Court explained that a chairman is: ...responsible to a greater extent than any other director for the performance of the board as a whole and each member of it. The chairman has the primary responsibility of selecting matters and documents to be brought to the board's attention, in formulating the policy of the Board and in promoting the position of the company.


case_text: Qantas Airways Limited v Gama [2008] FCAFC 69 ; (2008) 167 FCR 537 , French and Jacobson JJ stated at [110] that the "so-called Briginshaw test" does not create any third standard of proof between the civil and the criminal. Their Honours said the standard of proof remains the same, that is proof on the balance of probabilities, and that the degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made.


case_text: amongst other corporate officers, the chief executive officer stands at the apex of the operational and managerial structures of the company, and his or her authority is qualified only by any residual power left in the board: Randall v Aristocrat Leisure Ltd [2004] NSWSC 411. A chairperson of a listed public company may have special responsibilities beyond those of other non-executive directors. These responsibilities include such things as the public announcement of information: ASIC v Rich [2009] NSWSC 1229 at 463. Einstein J in Randall v Aristocrat Leisure [2004] NSWSC 411 said at [383]: Subject always to the terms of appointment, it is evident that the law tends to assume that where the board resolves to appoint a chief executive officer, his or her powers to control the operational and managerial aspects of the company's business will be broad indeed. In the seminal case of Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 , for example, Lord Diplock held (at 505) that where a board permits a person to "act in the management or conduct of the company's business", that delegation of executive authority alone is sufficient to vest that person with ostensible authority to bind the company to transactions usually entered into "in the course of such business" by such managers... Moreover, and equally facilitative of the exercise by a chief executive of broad powers of company management, is the replaceable rule in s 198C(1) of the Act, which provides that "[t]he directors of a company may confer on a managing director any of the powers that the directors can exercise. The breadth of managerial powers delegated to the chief executive officer by the board is ultimately contingent on the terms of appointment of the CEO: Harold Holdsworth & Co (Wakefield) Ltd v Caddies [1955] 1 WLR 352 as cited in Randall v Aristocrat Leisure [2004] NSWSC 411 at [382] . There is no evidence to demonstrate that Forrest's powers and authority as Chief Executive Officer were limited in any relevant way. I find that he was intimately and directly involved in the execution of the framework agreements, the formulation of FMG's notifications to the ASX and other disclosures, as well as the ongoing discussions with the NDRC and CMCC seeking Chinese government approval. Likewise, Forrest was intimately and directly involved in discussions with the NDRC and CMCC concerning the NDRC precondition to approval that FMG must provide one or more nominated Chinese companies with minority equity participation in FMG or the Project.


case_title: Re Bradberry; National Provincial Bank Ltd v Bradberry (1943) Ch 35

case_text: in effect, was a restatement of what was said by Dixon J in Willis v Commonwealth [1946] HCA 22 ; (1946) 73 CLR 105 at 116 who in turn had cited a passage from Uthwatt J in In re Bradberry; National Provincial Bank Ltd v Bradberry (1943) Ch 35 at pp 42-45.


case_title: Rich v Australian Securities & Investment Commission [2003] NSWCA 342 ; (2003) 203 ALR 671

case_text: to the civil penalty authorities, in Rich , the High Court reversed a decision of the New South Wales Court of Appeal ( Rich v Australian Securities & Investments Commission [2003] NSWCA 342 ; (2003) 203 ALR 671) that the defendants in civil penalty proceedings brought by ASIC were not permitted to resist an order for discovery made by the trial judge by claiming the privilege against self-exposure to penalty. The orders sought by ASIC included disqualification orders but not pecuniary penalties. The trial judge, Austin J, did not classify the proceedings as proceedings for the imposition of a penalty: Australian Securities and Investments Commission v Rich (No 3) [2003] NSWSC 328 ; (2003) 21 ACLC 920 , at [53]. the Court of Appeal (Spigelman CJ, with whom Ipp JA agreed; McColl JA dissenting) upheld Austin J's ruling, identifying a disqualification order as having an exclusively protective purpose and stating that it should not be characterized as a penalty for the purposes of the penalty privilege. However, the High Court (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ, Kirby J dissenting) decided that the disqualification order was a penalty and accordingly the proper course was to refuse any order for discovery: per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [37]-[40]. The ruling was made in the joint judgment in consideration of s 1317L of the Act which requires the application of the rules of evidence and procedure for civil matters when hearing proceedings for a declaration of contravention or a pecuniary penalty order. Their honours concluded at [19] that that the statute itself requires the application of the body of law which has developed in relation to the privileges against penalties and forfeitures when deciding whether an order for discovery should be made.


case_title: Rich v Australian Securities & Investment Commission [2004] HCA 42 ; (2004) 220 CLR 129

case_text: made no submissions on whether Jones v Dunkel had any application. Citing Dyers v The Queen [2002] HCA 45 ; (2002) 210 CLR 285 , Forrest submitted in written closing submissions that a Jones v Dunkel inference may not be drawn against an accused in a criminal case because the application of the rule in Jones v Dunkel is incompatible with the presumption of innocence and the rights of the accused; further, this reasoning applies with equal force to the accused calling other persons to give evidence. Forrest then submitted that the point of principle that, when an accused exercises the right not to give evidence the jury is directed that no adverse inference should be drawn, applies to a civil proceeding as against an individual defendant. He referred to the statement of Gleeson CJ, Gummow, Hayne, and Heydon JJ in Rich v Australian Securities and Investment Commission [2004] HCA 42 ; (2004) 220 CLR 129 at [24] that the privilege against exposure to penalty serves the purpose of ensuring that those who allege criminality or other (illegal) conduct should prove it, and said there is no expectation that a defendant will give evidence on matters for which the plaintiff bears the onus of proof. He said there is no authority that supports the proposition that a Jones v Dunkel inference is available against an individual defendant in a civil penalty proceeding, though, he said, the position may be different for a company. Finally, Forrest submitted that inferences are to be drawn from the documents before considering any question of Jones v Dunkel ; and a Jones v Dunkel inference is not be used in determining what inference ought to be drawn from the documents, citing Singh v Minister for Immigration [2001] FCA 389 ; (2001) 109 FCR 152 at [71] .


case_text: accept however that evidence of the actual effect of the information actually disclosed on FMG's share price may be relevant to assist the Court in its determination of whether s 674(2) has been contravened: Rivkin Financial Services Ltd v Sofcom Ltd (2004) 51 ACSR 486 by analogy at [113]-[116]; Jubilee Mines NL v Riley (2009) 253 ALR 673 at [33], [130] and [134]. This involves an ex post inquiry . Such evidence may constitute a relevant cross-check as to the reasonableness of an ex ante judgment about a different hypothetical disclosure. Gzell J in ASIC v Macdonald (No 11) 256 ALR at [1067] said: Where likelihood of the occurrence of an event is in issue and relevant facts are available, they are to be preferred to prophecies.


case_text: foreshadowed that it would call evidence from its executives, such as Rowley, David Liu and Alan Watling but it did not do so. ASIC submits that, where an inference is open from facts proved, the unexplained failure of a party to call a witness or tender a document may be taken into account as a circumstance in favour of the drawing inference: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 308, 312 and 320-321; RPS v The Queen [2000] HCA 3 ; (2000) 199 CLR 620 at [26] . ASIC submits that it should be inferred that Rowley, Liu and Watling were available to be called, but FMG chose not to call them for strategic reasons. As a result, ASIC says, if there are inferences to be drawn from documents in evidence, which could have been explained by these executives, or by Forrest who also elected not to give evidence, the inference should be drawn against FMG that the evidence of these executives would have been of no assistance to their case, and that the documents should bear the meaning contended for by ASIC. In RPS [2000] HCA 3 ; 199 CLR 620 , Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50 and Dyers [2002] HCA 45 ; 210 CLR 285 , the High Court considered the applicability of the rule in Jones v Dunkel to criminal proceedings. It decided that the rule is of very limited application to defendants in criminal cases, its reasoning based on the accusatorial nature of criminal proceedings. As an illustration of the Court's approach, in Dyers , Gaudron and Hayne JJ stated at [9]: As was pointed out in RPS... , it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in ... Jones v Dunkel (26) ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject-matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi , that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. In RPS [2000] HCA 3 ; 199 CLR 620 , at [26]-[27] Gaudron A-CJ, Gummow, Kirby and Hayne JJ contrasted the reasonable expectation that a party in a civil trial would give or call relevant evidence in the circumstances described in Jones v Dunkel with the conclusion that it would seldom, if ever, be reasonable to expect an accused in a criminal trial to give evidence. Weissensteiner provides an example of where the latter would be reasonable.


case_text: where there is a finding of intention to deceive, the court may more readily infer that the intention has been or in all probability will be effective: Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 at 861; S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd [1999] FCA 316 ; (1998) 88 FCR 354 at 362; Campomar Sociedad [2000] HCA 12 ; 202 CLR 45 at [33] and National Exchange [2004] FCAFC 90 ; 22 ACLC 609 at [63] per Jacobson and Bennett JJ.


case_text: use of such expressions supports a finding of an intention to contract. In Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd 40 NSWLR 622 , McLelland J, in finding that by an exchange of letters the parties to an alleged agreement mutually communicated their respective assents to be legally bound by terms capable of having contractual effect, afforded the expression "legally binding" primacy despite the expression "agreement in principle" also found in the relevant agreement (628). His Honour thought that the case fell into the fourth category as recognised in Sinclair, Scott & Co [1929] HCA 34 ; 43 CLR 310 (629F) . The appeal from McLelland J's judgment G R Securities v Baulkham Hills Private Hospital 40 NSWLR 631 was dismissed. McHugh JA accepted in line with Sinclair, Scott & Co [1929] HCA 34 ; 43 CLR 310 , that it was possible for the parties to be bound immediately and agree to substitute for the first contract a further contract containing additional terms (634G). Further, McHugh JA applied the general rule applicable to every contract explained by Mason J in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 607 that each party was obliged to do all that was necessary on his part to enable the other party to have the benefit of the contract.


case_text: courts have also recognised a fourth class of case additional to the three mentioned in Masters v Cameron [1954] HCA 72 ; 91 CLR 353 , a class identified by Knox CJ, Rich J and Dixon J in Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 317 as: ... one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms. The use of such expressions supports a finding of an intention to contract. In Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd 40 NSWLR 622 , McLelland J, in finding that by an exchange of letters the parties to an alleged agreement mutually communicated their respective assents to be legally bound by terms capable of having contractual effect, afforded the expression "legally binding" primacy despite the expression "agreement in principle" also found in the relevant agreement (628). His Honour thought that the case fell into the fourth category as recognised in Sinclair, Scott & Co [1929] HCA 34 ; 43 CLR 310 (629F) . The appeal from McLelland J's judgment G R Securities v Baulkham Hills Private Hospital 40 NSWLR 631 was dismissed. McHugh JA accepted in line with Sinclair, Scott & Co [1929] HCA 34 ; 43 CLR 310 , that it was possible for the parties to be bound immediately and agree to substitute for the first contract a further contract containing additional terms (634G). Further, McHugh JA applied the general rule applicable to every contract explained by Mason J in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 607 that each party was obliged to do all that was necessary on his part to enable the other party to have the benefit of the contract.


case_text: made no submissions on whether Jones v Dunkel had any application. Citing Dyers v The Queen [2002] HCA 45 ; (2002) 210 CLR 285 , Forrest submitted in written closing submissions that a Jones v Dunkel inference may not be drawn against an accused in a criminal case because the application of the rule in Jones v Dunkel is incompatible with the presumption of innocence and the rights of the accused; further, this reasoning applies with equal force to the accused calling other persons to give evidence. Forrest then submitted that the point of principle that, when an accused exercises the right not to give evidence the jury is directed that no adverse inference should be drawn, applies to a civil proceeding as against an individual defendant. He referred to the statement of Gleeson CJ, Gummow, Hayne, and Heydon JJ in Rich v Australian Securities and Investment Commission [2004] HCA 42 ; (2004) 220 CLR 129 at [24] that the privilege against exposure to penalty serves the purpose of ensuring that those who allege criminality or other (illegal) conduct should prove it, and said there is no expectation that a defendant will give evidence on matters for which the plaintiff bears the onus of proof. He said there is no authority that supports the proposition that a Jones v Dunkel inference is available against an individual defendant in a civil penalty proceeding, though, he said, the position may be different for a company. Finally, Forrest submitted that inferences are to be drawn from the documents before considering any question of Jones v Dunkel ; and a Jones v Dunkel inference is not be used in determining what inference ought to be drawn from the documents, citing Singh v Minister for Immigration [2001] FCA 389 ; (2001) 109 FCR 152 at [71] . Before stating my conclusion on whether I ought to make any Jones v Dunkel inferences, I will deal with the final authority cited by Forrest, Singh v Minister for Immigration [2001] FCA 389 ; (2001) 109 FCR 152 , from which he submits the following propositions emerge: that inferences are to be drawn from the documents before considering any question of Jones v Dunkel ; and that a Jones v Dunkel inference is not to be used in determining what inference ought to be drawn from the documents. In Singh , the applicant sought judicial review of a Ministerial decision to refuse to grant a spouse visa on character grounds. The Minister's reasons for decision were given in two documents: a decision record and a statement of reasons. The applicant argued that the Minister erred in making his decision by failing to have regard to the character references in support of the applicant which were annexed to a letter attached to the decision record. The Minister did not give evidence at trial, but Sackville J found that the statement of reasons provided affirmative evidence that the Minister gave consideration to the contents of the character references. The inferences that the applicant sought to draw by the Minister's failure to give evidence were contradicted by the Minister's statement of reasons. In my view, what Sackville J said in Singh concerning the application of the Jones v Dunkel principle to the case before him is merely an application of the second condition given by Glass JA in Payne at p 201 as to whether the principle can or should be applied, namely whether the evidence of the missing witness would elucidate a particular matter. There was no occasion to draw an inference from the Minister's failure to give evidence because in his Honour's view, the question of whether he took into account the character references was adequately addressed by the statement of reasons.


case_outcome: distinguished

case_text: will now turn to the cases cited by ASIC in support of its submission that the framework agreements were unenforceable because they were uncertain due to a lack of essential terms such as price: Hall v Busst 104 CLR 207; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd (1994) 2 VR 106 at 168-177 per Tadgell J; Faulkner v Thomas [2000] TASSC 159 at [34] ; and Southern Cross Financial Group (Newcastle) Pty Ltd v Rodrigues (2005) 66 IPR 166 at [36], [44]. In Southern Cross Financial Group 66 IPR 166 , Young CJ in Eq stated at [36] that in a contract for the sale of any article there are at least three basic requirements: precise identification of the parties to the contract; the property to be sold; and the price at which it is to be sold. In connection with the price requirement, his Honour referred to the analysis of Fullagar J in Hall v Busst 104 CLR at 222, and stated at [44] that this analysis made it quite clear that with "very, very, very few" exceptions, a contract to sell property at fair value is not binding and is incomplete. The exceptions included 'an industry which has a measure of what a fair value is or there is some other criteria'. I would add that Fullagar J stated at 222 that it would be sufficient if the sale was expressed to be for a price or value to be fixed by a named or described person. The CREC Framework Agreement did not simply state that the infrastructure items would be transferred at fair value or in like terms. Rather, the agreement expressly provided a pricing mechanism. Further, Southern Cross Financial Group 66 IPR 166 is distinguishable from the present matter because Young CJ found that the case was one where the parties intended there not to be a concluded contract unless and until a formal document had been executed .


case_text: Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 , the NSW Court of Appeal emphasised that determining whether parties have come to a concluded agreement is a matter of their objectively ascertained intention in the particular case. Giles JA stated that the Masters v Cameron categories and a possible fourth category are intellectual aids, and that categorisation does not greatly contribute to the decision in the particular case, which is concerned with finding what agreement, if any, the parties came to, [26]. Similarly, in Moffat Property Development Group Pty Ltd [2009] QCA 60 , Keane JA, with whom McMurdo P and Atkinson J agreed, said at [37] in relation to classifying the putative agreement in that case under one of the four Masters v Cameron categories: In my respectful opinion, however, there is little purpose to be served in seeking to resolve the issue of classification. A concern as to classification should not be allowed to obscure or distract from the real task of the court which is to ascertain and give effect to the intentions of the parties. Since Anaconda was decided by the Court of Appeal on 17 February 2000 it has been cited, considered or applied without disapproval in a number of contract law cases involving questions of incompleteness or uncertainty, for example: Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] per Steytler J at [95]; Liristis Holdings Pty Ltd v Wallville Pty Ltd [2001] NSWSC 428 per Barrett J at [38]; African Minerals Limited v Pan Palladium Limited [2003] NSWSC 268 per Einstein J at [26]; Thompson v White & Ors [2006] NSWCA 350 per Tobias JA with whom Ipp and McColl JJA agreed at [100]; Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 per Giles JA with whom McColl JA and Young CJ in EQ agreed at [27]-[28]; Donald Fin Enterprises Pty Ltd v APIR Systems Ltd (2008) 67 ACSR 219 per Edmonds J at [131]-[132]; Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [No 3] [2009] WASC 352 per Murray J at [90]. The approach taken in G R Securities 40 NSWLR 631, Anaconda [2000] WASCA 27 ; 22 WAR 101 and Tasman Capital [2008] NSWCA 248 was followed very recently by the Queensland Court of Appeal in Moffat Property Development Group [2009] QCA 60 , mentioned above, which underlined the importance of the parties' manifest intention to contract. The issue was whether a contract for the sale of rural residential land had been made by an exchange of letters. The Queensland Court of Appeal held that the parties intended to be legally bound through their exchange of correspondence and that there was a contract even though matters such as the timing of completion and arrangements at settlement, the precise timing of the payment of the deposit, the place of settlement, responsibility for insurance, GST issues and the terms of a put and call option were not spelt out in the correspondence. Keane JA delivered the court's judgment. His Honour: (a) accepted McHugh JA's point in G R Securities that "the decisive issue is always the intention of the parties": [23]-[25]; (b) said "the terms of the correspondence exchanged between the parties contemplated the execution of a further contract as the means whereby the bargain which they had concluded would be implemented. It is necessarily implicit in such an agreement that the parties will co-operate to do what must be done to make the further agreement": [30]; (c) adopted McHugh JA's approach in G R Securities and explained that the implied obligation of each party to co-operate with the other to ensure each side obtains the benefit of its bargain serves to supply the deficiencies: [34]; (d) cited Australian Broadcasting Corporation v XIVth Commonwealth Games 18 NSWLR at 548 in stating: "I am of the view that there can be no doubt as to the orthodoxy of referring to 'implied terms or ... considerations of reasonableness' in order to determine whether the parties' 'consensus is sufficiently comprehensive to be legally binding : [51].


case_text: submits in written closing submission that the authorities such as Anaconda, Pagnan SpA, Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 and Uranium Equities v Fewster [2008] WASCA 33 ; (2008) 36 WAR 97 relied on by FMG state that whether or not the parties intended to contract, they must agree on such terms, normally described as essential terms, such that the contract could be enforced or made complete by implying terms or applying considerations of reasonableness. I will consider these authorities further. In Anaconda [2000] WASCA 27 ; 22 WAR 101 , the Court of Appeal found that a binding contract had been made when a heads of agreement containing five clauses was signed, the last paragraph of which said that the heads of agreement "constituted an agreement in itself intended to be replaced by a fuller agreement not different in substance or form". At [28], Ipp J referred to the following statement by Sugerman J, approved by Menzies J in Thorby v Goldberg [1964] HCA 41 ; (1964) 112 CLR 597 at 607: It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least its essential and critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future agreement of the parties. Again, there is no binding contract where the language used is so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any particular contractual intentions. In Uranium Equities [2008] WASCA 33 ; 36 WAR 97 , a recent judgment of the Supreme Court of Western Australia (Court of Appeal), the Court stated at [127]: There is some overlap between the requirements of intention to create legal relations and certainty. If a contract is legally uncertain, this might indicate that the parties did not intend to create legal relations. A contract can be uncertain in various ways, one of these being incompleteness, in the sense that essential terms are lacking: Thorby v Goldberg [1964] HCA 41 ; (1964) 112 CLR 597 , 603 (Kitto J); Godecke v Kirwan [1973] HCA 38 ; (1973) 129 CLR 629 , 646 - 647 (Gibbs J). The overlap between intention and uncertainty is at its greatest in cases in which agreement on some matters is deliberately postponed. If what is postponed is essential to the agreement (itself a question that largely depends upon the intention of the parties) , the agreement, to the extent that it has been reached, will be void. Also, the fact that essential terms have been left over for later agreement will militate against a finding that the parties intended to create contractual relations. (Emphasis added)


case_title: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 84 ; (1979) 42 FLR 331

case_text: Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 84 ; (1979) 42 FLR 331 was a case under s 45D of the TPA concerning secondary boycotts. It was, in that case, necessary that the impugned conduct "would have or be likely to have" the relevant effect. Consideration was given to whether, on an ex post view, the specified effect had occurred. Deane J at 347 citing Dixon J in Willis v Commonwealth [1946] HCA 22 ; 73 CLR 105 explained: if conduct had run its ordinary course and had not had the specified effect, it would be but rarely that a court would feel justified in disregarding the lesson of the event and finding that while the conduct did not have the specified effect it had been more likely than not that it would have had that effect. Tillmanns [1979] FCA 84 ; 42 FLR 331 was referred to with apparent approval by Gzell J in ASIC v Macdonald (No 11) 256 ALR at [1068] although in relation to s 1041E of the Act where the test, whilst similar, is not the same. Materiality: a commercial judgment The question is whether the Informations was information for the purposes of s 674(2) read together with s 677 which would or would be likely to influence common investors in deciding whether to acquire or dispose of FMG's securities and thereby be information which a reasonable person would expect if it were generally available, to have a material effect on the price of FMG's shares. The threshold of relevant influence is not, in my opinion, a high one. ASIC, in this case, says that expert assistance is unnecessary for the Court. Senior counsel for ASIC submits that the question of influence for the purposes of s 677 involves primarily a commonsense test for the Court upon a consideration of the primary facts although assistance may be derived from experts who professionally buy and sell shares in large tranches and make investment decisions of the kind contemplated by s 677. I accept this submission. ASIC submits that the fact or likelihood of relevant influence of the Informations is obvious having regard to the nature of this information which individually and together concerned a step forward about the construction of the Project infrastructure, which was integral to FMG's plans. ASIC says that if the three framework agreements were to lead, as both parties evidently intended, to binding build, finance and transfer type agreements, this would be a major advance as it would secure finance and a construction agreement for FMG's total estimated payout costs of $1.85 billion. It adds that the likely influence upon common investors of the Informations is a matter of common sense: it was information which was very significant for the Project and its prospects of being realised, as it was a step forward in arranging for the financing and construction of the rest of its Pilbara infrastructure. ASIC seems ambivalent as to the effect of the Framework Agreements. It says, on the one hand, that they are merely agreements to negotiate and are probably not even enforceable as such. Then on the question of materiality under s 674(2)(c)(ii) ASIC contends that they represent a "major advance" if the negotiations proved successful.


case_text: makes the following submission which I accept as a correct statement of the law. The proper construction of an agreement should be determined by what reasonable people in the position of the parties would have understood by the relevant clauses by considering not only their text, but also the surrounding circumstances and the purpose and object of the transaction: e.g. Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] ; International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 234 CLR 151 at [8] and [53]. The whole of the document should be considered and its provisions given harmonious effect: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 at 109 (Gibbs J, in dissent, but not on the applicable principle).


case_text: will now turn to the cases cited by ASIC in support of its submission that the framework agreements were unenforceable because they were uncertain due to a lack of essential terms such as price: Hall v Busst 104 CLR 207; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd (1994) 2 VR 106 at 168-177 per Tadgell J; Faulkner v Thomas [2000] TASSC 159 at [34] ; and Southern Cross Financial Group (Newcastle) Pty Ltd v Rodrigues (2005) 66 IPR 166 at [36], [44]. Toyota Motor Corporation 2 VR 106, a judgment of the Appeal Division of the Supreme Court of Victoria concerned the enforceability of a purported agreement set out in a letter for two Toyota companies to rescue a motor vehicle dealer group of companies that was in financial trouble. The purported agreement contained 12 conditions relating to the rescue offer. Brooking J referred to many examples in the purported agreement of ambiguity, uncertainty and incompleteness. Tadgell J held that the Toyota companies did not send the letter to the dealer group as an offer, and accordingly, they could not have assented to it as embodying the terms of a contract. Furthermore, as Brooking J stated at 132: Each case is different. A relatively short letter may be held to record a binding agreement in a matter of great consequence and considerable complexity, in which numerous formal documents will have to be prepared and executed to give effect to the transaction, as in Custom Credit Corporation Ltd v Cenepro Pty Ltd (unreported, Court of Appeal of New South Wales, 7 August 1991). I respectfully agree with Brooking J. The brevity of the framework agreements does not of itself point to those agreements as lacking legal effect in circumstances where the agreements expressly referred to the preparation of fuller and more detailed agreements not different in intent. Toyota Motor Corporation 2 VR 106, does not assist ASIC. Each member of the court in Toyota Motor Corporation 2 VR 106, concluded that there was no contractual intention evident: Brooking J at 136; Tadgell J at 177; JD Phillips J at 201. This, of itself, distinguishes this decision from the present case. It is correct that no price was specified in the CREC Framework Agreement, but it is explicit as to the pricing mechanism that was agreed to apply: FMG had to make a down payment of only 10% of the value of the Works in exchange for a bank guarantee from CREC, which bank guarantee was to be returned when 10% of the Works had been completed; and thereafter FMG's obligations of payment were to arise progressively after practical completion. This was an agreement on the pricing mechanism, which meant that FMG was not required to raise capital before the Works were effected, save for the first 10% of the value. It was not an agreement to agree but arguably rather an agreement as to what would be in the general conditions.


case_text: seeks to draw Jones v Dunkel inferences against FMG by reason of the failure of Forrest and the other executives to give evidence. ASIC does not seek to draw the inferences against Forrest himself. Forrest has relied on the privilege against self-incrimination and the privilege against exposure to penalty, privileges which are are not available to corporations: Trade Practices Commission v Abbco Ice Works Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96. However, even if ASIC had sought to draw inferences against Forrest as well as the corporate entity, on my review of the authorities it would not have been precluded from doing so. There is no reason therefore, in these circumstances, why the inferences cannot, as a matter of law, be drawn against FMG in the present proceedings. The question which then arises is whether I should draw such an inference in the manner urged by ASIC


case_title: Uranium Equities Ltd v Fewster [2008] WASCA 33 ; (2008) 36 WAR 97

case_text: submits in written closing submission that the authorities such as Anaconda, Pagnan SpA, Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 and Uranium Equities v Fewster [2008] WASCA 33 ; (2008) 36 WAR 97 relied on by FMG state that whether or not the parties intended to contract, they must agree on such terms, normally described as essential terms, such that the contract could be enforced or made complete by implying terms or applying considerations of reasonableness. I will consider these authorities further. In Anaconda [2000] WASCA 27 ; 22 WAR 101 , the Court of Appeal found that a binding contract had been made when a heads of agreement containing five clauses was signed, the last paragraph of which said that the heads of agreement "constituted an agreement in itself intended to be replaced by a fuller agreement not different in substance or form". At [28], Ipp J referred to the following statement by Sugerman J, approved by Menzies J in Thorby v Goldberg [1964] HCA 41 ; (1964) 112 CLR 597 at 607: It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least its essential and critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future agreement of the parties. Again, there is no binding contract where the language used is so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any particular contractual intentions. In Uranium Equities [2008] WASCA 33 ; 36 WAR 97 , a recent judgment of the Supreme Court of Western Australia (Court of Appeal), the Court stated at [127]: There is some overlap between the requirements of intention to create legal relations and certainty. If a contract is legally uncertain, this might indicate that the parties did not intend to create legal relations. A contract can be uncertain in various ways, one of these being incompleteness, in the sense that essential terms are lacking: Thorby v Goldberg [1964] HCA 41 ; (1964) 112 CLR 597 , 603 (Kitto J); Godecke v Kirwan [1973] HCA 38 ; (1973) 129 CLR 629 , 646 - 647 (Gibbs J). The overlap between intention and uncertainty is at its greatest in cases in which agreement on some matters is deliberately postponed. If what is postponed is essential to the agreement (itself a question that largely depends upon the intention of the parties) , the agreement, to the extent that it has been reached, will be void. Also, the fact that essential terms have been left over for later agreement will militate against a finding that the parties intended to create contractual relations. (Emphasis added) In Uranium Equities [2008] WASCA 33 ; 36 WAR 97 , the parties to the putative agreement had been negotiating over a proposed mining joint venture, but no heads of agreement had been executed. The Court found that the trial judge was right in concluding that the parties did not intend to be bound by anything said or done by them until such time as the heads of agreement had been executed. The Court went on to state on the question of uncertainty at [257] that it is "trite" that, even when the requisite intention is present, a contract can fail for uncertainty. The Court said it is also trite that only the omission of an essential term will have the effect that a contract is so incomplete or uncertain as to render it invalid, citing Ipp J in Anaconda [2000] WASCA 27 ; 22 WAR 101 at [29] . The Court referred to the statement of Lloyd LJ from Pagnan SpA [1987] 2 Lloyd's Rep at 619 and found that when regard was had to all the circumstances the parties did not intend to be bound by anything said or done by them until such time as the heads of agreement had been executed . The Court concluded that although some of the matters left over by the parties for future negotiation were important, none were essential to the efficacy of the alleged agreement in the sense that the agreement could not be enforced without it. This fourth category was recognised by McLelland J in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 and on appeal in G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 where McHugh JA delivered the Court of Appeal's judgment and observed that the magnitude, subject matter or complexities of a transaction may indicate that an agreement was a limited one not intended to have legal effect (634D) but that what was critical was the parties' intention objectively ascertained, and that this intention should prevail (634E-F). In Uranium Equities Ltd [2008] WASCA 33 ; 36 WAR 97 , the Supreme Court of Western Australia (Court of Appeal) stated at [129] that the fourth Masters v Cameron category was a variation of the first category.


case_text: J noted that in Vines v ASIC [2007] NSWCA 75 ; (2007) 62 ACSR 1 at [62] Spigelman CJ stated that the rule in Browne v Dunn is a rule of practice designed to achieve procedural fairness, and therefore, when it is claimed that the rule has been departed from and that consequences should follow, the first consideration to be considered by the court is whether there has been some procedural fairness that needs to be addressed. That requires the assessment of "matters of fact and degree". Forrest then submits that the mere fact that a director participates in conduct that carries with it a foreseeable risk of harm to a company's interest does not necessarily mean that the director failed to exercise a reasonable degree of care and diligence in the discharge of his duty: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 per Ipp J at 449-450; Vines v Australian Securities and Investments Commission [2007] NSWCA 75 ; (2007) 62 ACSR 1 per Santow J at [598] and [599]. Conclusion


case_text: then submits that the mere fact that a director participates in conduct that carries with it a foreseeable risk of harm to a company's interest does not necessarily mean that the director failed to exercise a reasonable degree of care and diligence in the discharge of his duty: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 per Ipp J at 449-450; Vines v Australian Securities and Investments Commission [2007] NSWCA 75 ; (2007) 62 ACSR 1 per Santow J at [598] and [599]. Conclusion


case_title: Walford v Miles [1992] 2 AC 128

case_text: relies upon the following authorities in support of its submission that the framework agreements are bare agreements to negotiate the scope and terms, in each case, of a further agreement to build transfer and finance the relevant Project infrastructure and that such agreements are not enforceable: Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 ; Jobern Pty Ltd v Breakfree Resorts (Victoria) Pty Ltd [2007] FCA 1066 ; Walford v Miles [1992] 2 AC 128. Walford v Miles [1992] 2 AC 128 was an appeal to the House of Lords. The parties had been negotiating over the sale of a business. Their Lordships considered the validity of a 'lock-out' agreement, an agreement committing the seller not to negotiate with anyone other than the buyer over the sale of the business. The plaintiffs, the disappointed buyers, claimed that not only were the sellers "locked-out" for some unspecified time from dealing with any third party, but were "locked-in" to dealing with the plaintiffs for an unspecified period. The court considered the "lock-in" agreement in terms of an obligation on the parties to negotiate in good faith. Lord Ackner (with whom all the other Law Lords agreed) stated that an agreement to negotiate, like an agreement to agree, is unenforceable, because it lacks the necessary certainty. Lord Ackner said at [138G]: A duty to negotiate in good faith is as unworkable in practice as it is inherently inconsistent with the position of a negotiating party. It is here that the uncertainty lies. In my judgment, while negotiations are in existence either party is entitled to withdraw from these negotiations, at any time and for any reason. There can be thus no obligation to continue to negotiate until there is a 'proper reason' to withdraw. Accordingly a bare agreement to negotiate has no legal content. In my view Coal Cliff Collieries 24 NSWLR 1, Jobern [2007] FCA 1066 and Walford [1992] 2 AC 128 do not assist ASIC. I do not take Coal Cliff Collieries as authority for the proposition that a bare agreement to negotiate in good faith is not enforceable, as submitted by ASIC. In my view, that case is authority for the proposition that a promise to negotiate in good faith may, in particular circumstances, be enforceable, depending on the precise terms as construed from the contract. In Jobern [2007] FCA 1066 , it was not in dispute that the heads of agreement document was binding only the negotiation clause was held to be uncertain. In Walford [1992] 2 AC 128 , the agreement that was found to be uncertain was a 'lock-in' agreement committing the parties to negotiate with each other, which is to be distinguished from the types of obligations found in the framework agreements under consideration in the present case.


case_text: Azzopardi [2001] HCA 25 ; 205 CLR 50 , in their joint majority judgment Gaudron, Gummow, Kirby and Hayne JJ referred to Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 where the High Court held it was appropriate for the trial judge to direct the jury as to the manner in which they might take into account the failure of the accused to give evidence, and their Honours stated at [61] that what was important in Weissensteiner and what warranted the remarks to the jury in that case was that, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused, and thus could not be the subject of evidence from any other person or source. At [68], their Honours emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional and will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. Their Honours said a comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. In RPS [2000] HCA 3 ; 199 CLR 620 , at [26]-[27] Gaudron A-CJ, Gummow, Kirby and Hayne JJ contrasted the reasonable expectation that a party in a civil trial would give or call relevant evidence in the circumstances described in Jones v Dunkel with the conclusion that it would seldom, if ever, be reasonable to expect an accused in a criminal trial to give evidence. Weissensteiner provides an example of where the latter would be reasonable. Further authority for the availability of the rule in Jones v Dunkel in civil penalty proceedings is found in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442 , where Hill J stated at [33]: Where the proceedings are criminal (and the present proceedings are not; they are proceedings, inter alia, for the recovery of a civil penalty) it might be thought that the failure of the accused to go into evidence should not lead to the drawing of Jones v Dunkel inferences. After all it is clear that a witness can not be compelled to give evidence which is likely to incriminate the witness or expose the witness to a penalty. However, even in criminal cases it has been held that the failure of the accused, who is in a position to deny, explain or answer the evidence adduced by the prosecution, to give evidence will permit the jury to draw inferences adverse to the accused more readily: see Azzopardi v R [2001] HCA 25 ; (2001) 179 ALR 349 , affirming Weissensteiner v R [1993] HCA 65 ; (1993) 178 CLR 217. A fortiori, therefore, the failure of a respondent to proceedings for recovery of a pecuniary penalty to give evidence on a matter relevant to an issue in the proceeding and deny, explain or answer the evidence adduced against the respondent will permit the Court more readily to draw the inferences to which the decision in Jones v Dunkel refers.


case_title: Wheeler Grace & PierucciPty Ltd v Wright (1989) 16 IPR 189

case_text: reasonable reader of the disclosures made by FMG and Forrest on FMG's behalf would have expected FMG to have a genuine and reasonable basis for making those statements: Global Sportsman v Mirror Newspapers [1984] FCA 180 ; 2 FCR 82 at 88; James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 372 per Toohey J; Wright v Wheeler Grace & Pierucci Pty Ltd (1988) ATPR 40-865 at 49,375-49,376 per French J (affirmed in Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189) ; Bateman v Slayter (1987) 71 ALR 553 at 559 per Burchett J.


case_text: authorities dealing with misleading and deceptive conduct under s 52 of the TPA are useful when characterising conduct for the purposes of s 1041H. As Rolfe J observed in Wilkinson v Feldworth Financial Services Pty Ltd (1999) 17 ACLC 220 at 228 in relation to s 995 of the Corporations Law: ... the engaging in conduct that is misleading or deceptive or is likely to mislead or deceive has the same meaning as, and should be treated in the same way as, those words in s 52 of the Trade Practices Act from which they have obviously been taken.


case_text: in effect, was a restatement of what was said by Dixon J in Willis v Commonwealth [1946] HCA 22 ; (1946) 73 CLR 105 at 116 who in turn had cited a passage from Uthwatt J in In re Bradberry; National Provincial Bank Ltd v Bradberry (1943) Ch 35 at pp 42-45. Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 84 ; (1979) 42 FLR 331 was a case under s 45D of the TPA concerning secondary boycotts. It was, in that case, necessary that the impugned conduct "would have or be likely to have" the relevant effect. Consideration was given to whether, on an ex post view, the specified effect had occurred. Deane J at 347 citing Dixon J in Willis v Commonwealth [1946] HCA 22 ; 73 CLR 105 explained: if conduct had run its ordinary course and had not had the specified effect, it would be but rarely that a court would feel justified in disregarding the lesson of the event and finding that while the conduct did not have the specified effect it had been more likely than not that it would have had that effect.


case_title: Wright v Wheeler Grace & Pierucci Pty Ltd (1988) ATPR 40-865


case_text: have concluded, for reasons which I explain later in this Part that, in the case of each of the framework agreements, there was an intention to contract. This, as a starting point considerably strengthens the case for the defendants because in such circumstances a Court will always strive to give effect to that intention: Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2 ; [1932] All ER Rep 494 ; York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth [1949] HCA 23 ; (1949) 80 CLR 11 ; G R Securities 40 NSWLR 631; Fletcher Challenge Energy [2002] NZLR 433 .


case_outcome: applied

case_text: next submits that, whatever the correct apportionment of the costs liability ought to be, those costs should be awarded against it only on the ordinary party-party basis rather than an indemnity basis. In the quantum judgment, I cited the reasons of Besanko J in Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2 ) [2008] FCA 746 at [17] (which in turn cited Goldberg J's decision in Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191) for the proposition that a respondent's conduct in its unsuccessful defence of an infringement action may warrant an award of costs against it on an indemnity basis: [2008] FCA 1493 at [58] , [63]. The cited cases, among others, stand as authority for the general proposition that a defendant's conduct in the defence of an action may support an award of indemnity costs where, among other things, the applicant is put to proof of its case unreasonably, the conduct causes undue delay or waste, or the conduct demonstrates wilful disregard of known facts of established law.


case_title: Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2 ) [2008] FCA 746


case_text: was a copyright infringement and breach of confidence case in which I previously delivered reasons for decision finding in favour of the applicant, Krueger Transport Equipment Pty Ltd ("Krueger"), on the issues of both liability and quantum: Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd [2008] FCA 803 (liability judgment) and Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd (No 2) [2008] FCA 1493 (quantum judgment). The reader's familiarity with those earlier reasons is assumed for present purposes.


case_text: was a copyright infringement and breach of confidence case in which I previously delivered reasons for decision finding in favour of the applicant, Krueger Transport Equipment Pty Ltd ("Krueger"), on the issues of both liability and quantum: Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd [2008] FCA 803 (liability judgment) and Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd (No 2) [2008] FCA 1493 (quantum judgment). The reader's familiarity with those earlier reasons is assumed for present purposes. In the quantum judgment, I did not make final orders, but instead directed the parties to submit a joint minute of proposed final orders as to the amount of damages and costs: [2008] FCA 1493 at [66] . The parties now agree, subject of course to any eventual appeal by the fourth respondent, Vawdrey Australia Pty Ltd ("Vawdrey"), that the appropriate order is that there be judgment for Krueger against Vawdrey in the sum of $438,904.60, including interest, to be paid within 28 days. The calculation of the sum of $438,904.60 was provided by the parties and was also the subject of agreement. The calculation is set out in Confidential Annexure A, as a component of the calculation is confidential. On the question of costs, the parties are not in agreement. In the quantum judgment, I outlined my preliminary views as to the appropriate costs orders, which were that Vawdrey pay: (1) on an indemnity basis, one-third of Krueger's costs of and incidental to the proceedings up to and including the trial on liability; and (2) on a party-party basis, Krueger's costs of and incidental to the proceedings following the conclusion of the trial on liability, but excluding Krueger's costs of and incidental to the settlement with the first to third and fifth respondents (collectively, the Camerons parties): [2008] FCA 1493 at [63] - [65] . The question of the costs of the cross-claim was addressed in the liability judgment: see para 3 of the Orders made on 30 May 2008. Krueger submits that these are the appropriate orders to be made, primarily for the reasons given in the quantum judgment, but also on the basis that Vawdrey failed to achieve an outcome more favourable than that which would have been achieved had it accepted Krueger's Notice of Offer and Calderbank Offer made together on 18 September 2006 ("the settlement offers"). Vawdrey disagrees. With respect to the first proposed costs order, it contends that it should pay only one-sixth of Krueger's costs, and then only on a party-party basis. As to the second order, Vawdrey submits that it should pay a proportion of Krueger's costs and Krueger should pay "a substantial proportion" of its costs. For the following reasons, I reject Vawdrey's submissions and will make the costs orders foreshadowed in the quantum judgment and now contended for by Krueger. It is difficult to know where to begin in unpacking this submission. First, as I noted in the quantum judgment, Camerons should, as a prima facie matter, be liable for the whole of the costs related to breach of confidence because Vawdrey was not a party to that claim: [2008] FCA 1493 at [65] . It is unclear why Vawdrey would appear to submit, against its own interests and against what has already been acknowledged by the Court in its favour, that Camerons should be liable for less than all such costs. Probably what Vawdrey meant to say was that: 1. the Cameron entities should be liable for all of the costs of the breach of confidence claim (and thus three-sixths of the overall costs) and two-thirds of the copyright costs on the basis that there were two Camerons corporate respondents but only one for Vawdrey (and thus a further two-sixths of the overall costs); and 2. Vawdrey should be liable for the remaining one-third of the copyright costs (and thus one-sixth of the overall costs). In the next paragraph of its submissions, Vawdrey seems to confirm this liberal interpretation of its submissions, submitting that it should have no liability for Krueger's costs in relation to the breach of confidence claim but should bear one-third of the copyright-related costs (and therefore, presumably, one-sixth of the overall costs). That being said, it does not matter how Vawdrey really meant to allocate responsibility for the copyright costs because I cannot accept Vawdrey's underlying premise. Although there were four respondents on the Camerons side (two individuals and two corporations) that were alleged to have engaged (and were found to have engaged) in one course of conduct, they were represented jointly by one set of legal advisers and ran one defence. Vawdrey makes no argument (and I can see none) that Krueger incurred appreciably more costs by virtue of the fact that there were four Camerons respondents rather than one Camerons respondent. In the circumstances, I decline to apportion the costs relating to the copyright claim otherwise than equally among the Camerons parties and Vawdrey. In the end, therefore, I am not dissuaded from my tentative view that, prima facie, Vawdrey should bear one-half of Krueger's costs in relation to the copyright claim because that was the only claim made against Vawdrey and because the Camerons entities, who acted and were represented together, must be considered collectively, not individually, as Vawdrey's co-respondent on the copyright claim. The reason I did not propose to make what seemed prima facie to be the appropriate costs order was because the issues and evidence involved in the breach of confidence and copyright claims were overlapping. For example, evidence that Camerons communicated the substance of the Krueger Drawings to Vawdrey in order to aid Vawdrey in the creation of its own drawings was relevant to establishing both a breach of Camerons' obligation of confidence to Krueger as well as a breach of Krueger's copyright in the Krueger Drawings. I thus considered that it would be difficult, if not impossible, for the parties or a taxing officer to apportion costs on a per-claim basis: [2008] FCA 1493 at [65] . As a compromise, I considered that the better approach would be to simply award Krueger some fraction of its overall costs, which I proposed to be one-third. I call this figure a compromise because it is more than Vawdrey would have had to pay had the two causes of action been completely independent (in which case, assuming Krueger incurred an equal amount of costs in relation to each cause, Vawdrey would have been liable for a quarter of the total costs), which is the second implicit premise of Vawdrey's proposed apportionment. At the same time, the one-third figure is less than Vawdrey would have had to pay had the costs incurred in relation to the two causes of action been completely overlapping (in which case Vawdrey would have been liable for one-half of the total costs). In other words, my figure implicitly accepts that there was some evidence and costs incurred by Krueger solely in relation to the breach of confidence claim for which Vawdrey should not be held liable but rejects the premise implicit in Vawdrey's one-sixth figure that there was no overlap between the costs of the breach of confidence and copyright claims. Admittedly, the one-third proportion is the product of a fairly crude calculation, which is why I gave the parties the opportunity to make submissions as to a better approach, if they had one. That did not happen. For its part, Krueger appears to be content with my proposal, while in its submissions, Vawdrey does not address the problem I flagged of overlapping costs and how to either separate or adjust for them. Instead, it simply rejects the proposed solution. In relevant part, Vawdrey submits: [I]f there were to be an apportionment ..., it should be only in respect of the costs found on a taxation to be referable to the copyright claim against Vawdrey. Vawdrey should not be liable for any of Krueger's costs directly referable to Krueger's claim against the Cameron parties and each of the Cameron party's defences. Those costs should be excluded before any apportionment is made. Vawdrey next submits that, whatever the correct apportionment of the costs liability ought to be, those costs should be awarded against it only on the ordinary party-party basis rather than an indemnity basis. In the quantum judgment, I cited the reasons of Besanko J in Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2 ) [2008] FCA 746 at [17] (which in turn cited Goldberg J's decision in Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191) for the proposition that a respondent's conduct in its unsuccessful defence of an infringement action may warrant an award of costs against it on an indemnity basis: [2008] FCA 1493 at [58] , [63]. The cited cases, among others, stand as authority for the general proposition that a defendant's conduct in the defence of an action may support an award of indemnity costs where, among other things, the applicant is put to proof of its case unreasonably, the conduct causes undue delay or waste, or the conduct demonstrates wilful disregard of known facts of established law. Vawdrey submits that, notwithstanding the matters I referred to in the quantum judgment, its conduct in the defence of the infringement action was not such as to warrant departure from an ordinary party-party costs award. I reject this submission. In the quantum judgment, I cited four examples of conduct I considered supported an indemnity costs order: [2008] FCA 1493 at [63] . Vawdrey submits that the first example, the evidence of Paul and Michael Vawdrey that each was the creator of the sliding gates restraint system (which was inconsistent as between the two and with co-defendant Camerons' claim that they had created the system), was not unreasonable at the outset and did not result in Krueger being put to proof unreasonably. I cannot accept this submission. Vawdrey knew or should have known that the evidence was unreasonable at the outset. As I found in the liability judgment (at [20]), Paul Vawdrey's evidence that he came up with the idea was inconsistent with his own earlier statutory declaration that he could not remember who came up with the idea as well as his father's evidence (at [44]). While a party is of course entitled to put mutually inconsistent theories in the alternative, the proffer of such inherently implausible evidence here in light of other evidence within that party's own control and knowledge from the outset goes beyond ordinary litigation conduct. Moreover, I find that it did lengthen the conduct of the trial, both by adding to the cross-examination required of Messrs Vawdrey and by increasing the amount of evidence that Krueger had to put on to meet the point. The second example I cited in the quantum judgment was the fact that Michael Vawdrey had instructed an employee to backdate a drawing for purposes of the litigation. Vawdrey contends that this conduct does not support an award of indemnity costs because Vawdrey admitted to the misconduct, it therefore did not add to the length of the trial, and in any event, the backdated document did not go to any fact of significance in the case. Assuming for the sake of argument that all of that were true, I would nevertheless still give the backdating conduct weight in deciding whether to award indemnity costs. It is no excuse for Vawdrey to say in effect, "Well, in this case no harm was done in the end, so no penalty ought be imposed." I consider that the manipulation of documents for purposes of litigation, whether successful in the end or not, is a serious matter which impugns the integrity of Court processes and cannot go unnoticed. The third example, the alteration of the Vawdrey job sheet for purposes of the litigation, falls in the same category as the backdated drawing. Vawdrey argues that this conduct should be discounted because the job sheet was only secondary evidence regarding the creation of the Vawdrey lock and sliding gate restraint system. Again, such a submission, even if accepted, misses the point. Litigation misconduct by a party cannot be overlooked on the ground that it failed to have the desired effect. Finally, I noted that Vawdrey had failed to provide an explanation as to how or when it came into possession of a Krueger quote annotated with the handwriting of Camerons' staff. Vawdrey argues that the fact that the document was in Vawdrey's possession at the time an affidavit was sworn verifying the list of documents in Vawdrey's possession proves nothing and thus does not require an explanation. I cannot accept this submission. That Vawdrey had in its possession a Krueger quote with Camerons' staff handwriting opened an inference that Camerons, having received the document from Krueger, then passed it to Vawdrey. In other words, it supports the inference that Camerons was providing information regarding Vawdrey's competitors to Vawdrey in connection with the Amcor Tender. In those circumstances, Vawdrey's failure to explain its possession of the document and adoption instead of the position that its proposal to Camerons was independent of Krueger's suggests a wilful disregard of known facts. For those reasons, taken singularly and collectively, I am not dissuaded from my tentative view expressed in the quantum judgment that the costs awarded against Vawdrey in relation to the liability phase of the proceedings should be made on an indemnity rather than a party-party basis. I should make it clear that, having reached this conclusion, it is unnecessary for me to consider Krueger's alternate basis for an award of indemnity costs (i.e. Vawdrey's rejection of its settlement offers). Moreover, although Krueger's claimed gross profit margin of 40% was rejected, it was not an arbitrary figure. Krueger produced two witnesses, Messrs Bridgman and Rankin, who gave evidence in support of that figure backed by detailed calculations and data. Indeed, the factual basis for Krueger's damages claim was not seriously disputed by Vawdrey; rather, the question ultimately came down to one of methodology, as I explained in the quantum judgment: [2008] FCA 1493 at [47] - [52] . As the experts themselves agreed, and as I explicitly found (at [48]), there was nothing inappropriate per se in either side's approach. In those circumstances, it cannot be said that Krueger's claimed amount was unreasonable. Vawdrey's second submission is that, due to the fault of Krueger in not promptly providing necessary documents, it incurred additional costs in the preparation of its expert evidence on damages which it should be entitled to recover. To support this submission, Vawdrey seeks leave to file the Holdstock affidavit referred to earlier. That affidavit exhibits a series of letters and emails relating to requests for, and the provision of, information from Krueger to Vawdrey's experts. Most pertinent among the documents exhibited to the affidavit in relation to the Vawdrey costs claim is a letter from its experts, Ferrier Hodgson, dated 10 September 2008. In the letter, Ferrier Hodgson states that its fees, estimated prior to commencement of work to be $19,000, were in fact in excess of $76,000 as at 1 September 2008, notwithstanding that the scope of the engagement had not changed. Ferrier Hodgson provided three reasons for the increased costs. First, it cited the nature of the financial information which Krueger maintained - while Ferrier Hodgson had anticipated that Krueger had and would provide records of actual costings for trailers it manufactured during the relevant period, it turned out that, for whatever reason, Krueger at that time did not maintain such records in the ordinary course of its business. The result was that it "changed the type of investigations and verification work which were required."


case_text: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 177, the Court said: Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. [1978] V.R. 431 , at p. 440; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. (1952) 77 W.N. (N.S.W.) 143 , at p. 146. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) (1946) 46 S.R. (N.S.W.) 318 , at p. 323: "... I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." See also, Brambles Holdings Ltd. v. Trade Practices Commission [1979] FCA 80 ; (1979) 40 F.L.R. 364 , at p. 365; 28 A.L.R. 191 , at p. 193; Dougherty v. Chandler (1946) 46 S.R. (N.S.W.) 370 , at p. 374. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. The proceeding is listed for hearing on 27 March 2009. The Federal Magistrates Court has now advised that the applicant can appear by video should this Court entertain the applicant's application and appeal. It does not seem that there was any good reason to reject the applicant's application to transfer the proceeding to the Victorian Registry. The proceeding had only recently been commenced. Because of the provisions of s 477 of the Migration Act 1958 (Cth) the applicant could not delay the commencement until she moved to Victoria.


case_text: first respondent also submitted that the Court should not grant leave to appeal without identifying an error of the type described in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504-5 or find that the exercise of the discretion by the Federal Magistrate had miscarried. The first respondent indicated, however, that if the Court were of the opinion that an extension of time should be granted and leave to appeal be given, then the first respondent would consent to an order for transfer of the proceeding. I think, with respect, that the Minister was right to adopt the attitude to which I have referred which, in my opinion, was entirely reasonable. In House v The King [1936] HCA 40 ; 55 CLR 499 at 504-505, Dixon, Evatt and McTiernan JJ said: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.


case_text: In the case of a literary work, copyright is the exclusive right, amongst other things, to reproduce the work in a material form and to communicate the work to the public: see s 31(1)(a)(i) and (iv). In s 10 , the word "communicate" is defined as "make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter". Hence, in making the 800 questions and answers available on line over the Internet, RMC and Dallas Gibson communicated the works to the public. These 800 questions and answers were also reproduced in a material form when Dallas Gibson converted them from files stored on Mr Van Tran's compact disks into files stored on Dallas Gibson's laptop and ultimately converted into the practice exams files made available to students through the Icarus College learning management system: see s 21(1A). Pursuant to s 10 , as applicable at the relevant time, "material form", in relation to a work, included "any form (whether visible or not) of storage from which the work ... or a substantial part of the work ... can be reproduced". In the present case, the difficulties discussed in Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 ; (2005) 224 CLR 193 do not arise. 26 Section 14(1)(b) of the Copyright Act provides that, unless the contrary intention appears: [A] reference to a reproduction, adaptation or copy of a work shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, as the case may be. 27 In May 2004, the applicants discovered that Dallas Gibson and RMC, trading as Icarus College, were providing the 800 questions and answers in sections 1 and 2 of MedEntry's practice exams to Icarus College students over the Icarus College website. Icarus College had 45 practice exams that it provided over the Internet to students who paid for UMAT preparation courses. MedEntry's 800 questions and answers were contained in these 45 practice exams. The gist of the applicants' complaint in these proceedings was that their copyright had been infringed by the respondents' reproduction, via the Icarus College website, of the 800 questions and answers principally created by Ann Boyapati for sections 1 and 2 of MedEntry's practice exams.


case_text: In order to attract copyright protection, a literary work that is a compilation must be original. As Dixon J said in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45 ; (1937) 58 CLR 479 at 511: No doubt the expression 'literary work' includes compilation. The definition section says so ... But some original result must be produced. This does not mean that new or inventive ideas must be contributed. The work need show no literary or other skill or judgment. But it must originate with the author and be more than a copy of other material. In that case, the High Court held that copyright did not exist in information posted by the race-course proprietors inside the course as to the name and numbers of the starting and scratched horses and the numbers of the winners.


case_text: Whether or not a compilation has sufficient originality to attract copyright depends on the degree of skill, judgment or labour involved in producing it. The Full Court of this Court in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112 ; (2002) 119 FCR 491 (" Desktop ") discussed the concept of originality. Lindgren J, with whom Black CJ agreed, summarised the principles concerning originality (at 532-534) where, amongst other things, his Honour said: 5. One must apply the test of originality to the literary work, including a compilation, in which copyright is claimed to exist, as a whole, rather than dissecting it and applying the test to the individual parts ... 6. The test of originality is whether the work was not copied, but originated from the putative author ... 7. The test is not an 'all or nothing' one but raises a question of fact and degree as to the extent of the putative author's contribution to the making of the particular literary work in questions, in the present case, a compilation ... 8. For this purpose, no particular kind of antecedent work contributed by the putative author is, a priori, to be left out of account, except, perhaps, antecedent work which was undertaken for a purpose or purposes which did not include the making of the literary work at all ... ... 10. ... [T]here is no principle that the labour and expense of collecting, verifying, recording and assembling (albeit routinely) data to be compiled are irrelevant to, or are incapable of themselves establishing, origination, and therefore originality; on the contrary, the authorities strongly suggest that labour of that kind may do so... See also Desktop at 591 per Sackville J, with whom Black CJ also agreed. 43 Sackville J's summary of the relevant principles (at 593) included the following statements: (i) A compilation will ordinarily be an original literary work for copyright purposes if the compiler has exercised skill, judgment or knowledge in selecting the material for inclusion in the compilation ... or in presenting or arranging the material ... (ii) In addition, a compilation of factual information will ordinarily be an original literary work for copyright purposes if the compiler has undertaken substantial labour or incurred substantial expense in collecting the information recorded in the compilation.


case_text: Where the skill, judgment and labour involved in making a compilation is trivial or insubstantial, there may be no originality sufficient to attract copyright: see Desktop at 535 per Lindgren J and Acohs Pty Ltd v RA Bashford Consulting Pty Ltd (1997) 37 IPR 542 at 556 per Merkel J. This is not the case here. The evidence disclosed that the Boyapatis had contributed a sufficient amount of independent skill, judgment and labour to satisfy the requirement for originality.