case_title: Foakes v Beer [1884] 9 App Case 605

case_text: It is well established that mere forbearance by one party to a contract in requiring performance of obligations by the other does not effect a variation of the contract unless supported by consideration or recorded in a deed under seal. In Foakes v Beer [1884] 9 App Cas 605 the House of Lords held an agreement between judgment debtor and creditor that the creditor would not take proceedings on the judgment in consideration of the debtor paying part of it and the residue by instalments, was nudum pactum as without consideration. It did not prevent the creditor after payment of the whole debt and costs from enforcing payment of interest on the judgment. Lord Selborne LC said (at 613): 'If the question be ... whether consideration is, or is not, given in a case of this kind, by the debtor who pays down part of the debt presently due from him, for a promise by the creditor to relinquish, after certain further payments on account, the residue of the debt, I cannot say that I think consideration is given, in the sense in which I have always understood that word as used in our law.' Vanbergen v St Edmunds Properties Ltd (1933) 2 KB 223 involved an indulgence solely for the benefit of one party to a creditor/debtor relationship. Lord Hanworth MR, after citing Foakes v Beer, quoted from Smith's Leading Cases, and said (at 232): '... a creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained debt of larger amount, such an agreement being nudum pactum . But if there be any benefit, or even any legal possibility of benefit to the creditor thrown in, that additional weight will turn the scale and render the consideration sufficient to support the agreement.' In Australia & New Zealand Banking Group Ltd (ACN 005 357 522) v Ringrong Pty Ltd (ACN 005 496 855) [1995] FCA 722 , Ryan J held (at p 37) that forgiveness of a debt not embodied in a deed and unsupported by consideration was 'ineffectual at law or in equity'.


case_outcome: cited

case_title: Vanbergen v St Edmunds Properties Ltd (1933) 2 KB 223


case_title: Australia & New Zealand Banking Group Ltd (ACN 005 357 522) v Ringrong Pty Ltd (ACN 005 496 855) [1995] FCA 722


case_text: Quite apart from the problem that the alleged variation lacked consideration there was uncertainty about its terms. A reduction in fees for an unspecified but temporary period apparently to be determined at the will of one party, does not import certainty of obligation. In answering that question it is necessary not to demand unrealistic precision. As McHugh JA said in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 (at 11,118): '... in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.' See Brambles Nationwide Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 177 (Heydon JA) and Nationwide Produce Holdings Pty Ltd v Linknarf Limited (2005) Aust Contract Reports 90-424 at 88,509 (Tamberlin J). In Vroon BV v Fosters Brewing Group Ltd (1994) 2 VR 32, Ormiston J accepted that: '... in commercial transactions the court should strive to give effect to the expressed arrangements and expectations of those engaged in business notwithstanding that there are areas of uncertainty and notwithstanding that particular terms have been omitted or not fully worked out.'


case_title: Brambles Nationwide Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153


case_title: Nationwide Produce Holdings Pty Ltd v Linknarf Limited (2005) Aust Contract Reports 90-424


case_title: Vroon BV v Fosters Brewing Group Ltd (1994) 2 VR 32


case_title: British and Beningtons, Limited v North Western Cachar Tea Co Ltd [19232] AC 48

case_text: A longstanding distinction exists in English law between rescission and variation of contracts by subsequent agreements. It has been applied particularly in cases of contracts required by law to be evidenced in writing. A parol variation of a written agreement would, in such a case, be unenforceable. On the other hand where the subsequent parol agreement discharges the earlier agreement it is not affected by the requirement that the original agreement be in writing. In British and Beningtons, Limited v North Western Cachar Tea Co Ltd [1923] AC 48, which concerned a contract required by the Statute of Frauds to be in writing, Lord Atkinson said (at 62): 'A written contract may be rescinded by parol either expressly or by the parties entering into a parol contract entirely inconsistent with the written one, or, if not entirely inconsistent with it, inconsistent with it to an extent that goes to the very root of it.' The earlier decision of the House of Lords in Morris v Baron & Co [1918] AC 1, also a Statute of Frauds case, was relied upon.


case_title: Morris v Baron & Co [1918] AC 1

case_text: A longstanding distinction exists in English law between rescission and variation of contracts by subsequent agreements. It has been applied particularly in cases of contracts required by law to be evidenced in writing. A parol variation of a written agreement would, in such a case, be unenforceable. On the other hand where the subsequent parol agreement discharges the earlier agreement it is not affected by the requirement that the original agreement be in writing. In British and Beningtons, Limited v North Western Cachar Tea Co Ltd [1923] AC 48, which concerned a contract required by the Statute of Frauds to be in writing, Lord Atkinson said (at 62): 'A written contract may be rescinded by parol either expressly or by the parties entering into a parol contract entirely inconsistent with the written one, or, if not entirely inconsistent with it, inconsistent with it to an extent that goes to the very root of it.' The earlier decision of the House of Lords in Morris v Baron & Co [1918] AC 1, also a Statute of Frauds case, was relied upon. 154 It has been said, as a general proposition, that the result of varying the terms of an existing contract is to produce not the original contract with a variation but a new and different contract Williams v Moss Empires [1915] 3 KB 242 at 247 (Sankey J). That approach was adopted by the Court of Appeal in Morris v Baron . Lord Sumner referred to it in British and Beningtons, Ltd (at 68) as possibly correct 'as a matter of formal logic'. However in United Dominions Corporation (Jamaica) Ltd v Shoucair [1969] 1 AC 340, which was a case involving money lenders' legislation in Jamaica, Lord Devlin, delivering the judgment of the House of Lords, said (at 348): 'The disadvantage of this view is that a minor variation may destroy the effect of the whole of the transaction between the parties. The alternative view, adopted by the House of Lords in Morris v Baron and again in British and Benningtons (sic) Ltd v NW Cachar Tea Company Ltd ... is based on the intention of the parties. They cannot have that which presumably they wanted, that is, the old agreement as amended; so the court has to make up its mind which comes nearer to their intention to leave them with an unamended agreement or without any agreement at all. The House answered this question by rejecting the strict view propounded by Sankey J and distinguishing between rescission and variation. If the new agreement reveals an intention to rescind the old, the old goes; and if it does not, the old remains in force and unamended. It seems that this distinction was developed in order to address the difficulties generated by requirements for contracts to be in writing, imposed by the Statute of Frauds, and in the United Dominions Corporation case by the Money Lending law of Jamaica. 155 In Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd [1957] HCA 10 ; (1957) 98 CLR 93, Dixon CJ and Fullagar J described the distinction made between 'rescission' and 'variation' in the two House of Lords decisions as '... not a satisfactory distinction'. It appeared to be 'a matter of degree' (at 113). Taylor J said (at 144): 'It is firmly established by a long line of cases commencing at least as early as Goss v Lord Nugent [(1833) 5 B & Ad 58] and ending with cases such as Morris v Baron & Co and British & Beningtons Ltd v North Western Cachar Tea Co Ltd and, indeed, including Goss v Lord Nugent itself that the parties to an agreement may vary some of its terms by a subsequent agreement. They may, of course, rescind the earlier agreement altogether, and this may be done either expressly or by implication, but the determining factor must always be the intention of the parties as disclosed by the later agreement.' 156 Taylor J acknowledged that variation might involve partial rescission and cited Salmond and Williams on Contract , 2 nd ed (1945) at 488 and 489: 'Partial rescission ... does not completely destroy the contractual relation between the parties. It merely modifies that relation by cutting out part of the rights and obligations involved therein, with or without the substitution of new rights and obligations in their place. Partial rescission is not the extinction of the contract but the variation of it.' And further (at 144): 'A contract may be varied (1) by way of partial rescission without the substitution of new terms in place of those rescinded, or (2) by way of partial rescission with the substitution of new terms for those rescinded or (3) by the addition of new terms without any partial rescission at all.' Taylor J observed that those passages correctly stated the accepted view of the manner in which an agreement by way of variation operates. 157 The distinction between rescission and variation of contracts was indirectly an issue in Dan v Barclays Australia Ltd (1983) 46 ALR 437 (57 ALJR 442). The case concerned the construction of the terms of a guarantee of the payment of up to $500,000 owing under a bill acceptance facility which allowed for a maximum advance of $2 million. The maximum of the bill acceptance facility was increased sometime after its execution. It was held by Mason, Brennan and Deane JJ that the initial bill acceptance facility was significantly different from that subsequently granted and the guarantors were therefore not liable for interest and charges resulting from default under the later facility although, as a matter of construction of the guarantee, they were liable for the principal up to the figure specified in the guarantee. Wilson and Dawson JJ dissented. In their dissent they observed that cases dealing with the circumstances in which variation of a contract would amount to rescission did not necessarily provide the answer to the question of the construction of the guarantee in its application to 'the facility'. However they said (at 448): 'The distinction between rescission and variation is discussed in such cases as Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10 ; (1957) 98 CLR 93; Morris v Baron and Co [1918] AC 1 and British and Beningtons Ltd v NW Cachar Tea Co [1923] AC 48. Variation of an existing contract, whilst it in one sense always gives rise to a new contract, does not always result in a substituted contract which, in order to operate, must necessarily rescind the contract which is varied. Variation may take the form of rescission of some of the terms of an existing contract but if that is to have the effect of rescission of the whole contract, the rescission must be express or by necessary implication and the determining factor must always be the intention of the parties as disclosed by contract when varied: see Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd, supra, per Taylor J at 143-4.' Owen J in Permanent Building Society (In Liquidation) v Wheeler (1993) 10 WAR 109 observed that although the statement in Dan was in a dissenting judgment, the dissent related to the application of the test. There was no reason to doubt the authoritative force of the statement of principle (at 127): 'Many of the cases arise in the area of unenforceability due to non-compliance with a formal requirement such as writing. ... However, the authorities show that the task is to ascertain the intention of the parties as embodied in the contracts.' It was permissible, in searching for the intention of the parties, 'to look at the extent and completeness of the changes involved in the variation' (127). His Honour said further (at 128): 'That there may be "as a matter of formal logic" a new contract ... is true to a limited extent only.' In the Permanent Building Society case the parties had expressly confirmed the original agreement and made minor changes. The varied contract was therefore a 'new' contract only to the extent that it contained terms which were not present in the original agreement.


case_title: Williams v Moss Empires [1915] 3 KB 242

case_text: It has been said, as a general proposition, that the result of varying the terms of an existing contract is to produce not the original contract with a variation but a new and different contract Williams v Moss Empires [1915] 3 KB 242 at 247 (Sankey J). That approach was adopted by the Court of Appeal in Morris v Baron . Lord Sumner referred to it in British and Beningtons, Ltd (at 68) as possibly correct 'as a matter of formal logic'. However in United Dominions Corporation (Jamaica) Ltd v Shoucair [1969] 1 AC 340, which was a case involving money lenders' legislation in Jamaica, Lord Devlin, delivering the judgment of the House of Lords, said (at 348): 'The disadvantage of this view is that a minor variation may destroy the effect of the whole of the transaction between the parties. The alternative view, adopted by the House of Lords in Morris v Baron and again in British and Benningtons (sic) Ltd v NW Cachar Tea Company Ltd ... is based on the intention of the parties. They cannot have that which presumably they wanted, that is, the old agreement as amended; so the court has to make up its mind which comes nearer to their intention to leave them with an unamended agreement or without any agreement at all. The House answered this question by rejecting the strict view propounded by Sankey J and distinguishing between rescission and variation. If the new agreement reveals an intention to rescind the old, the old goes; and if it does not, the old remains in force and unamended. It seems that this distinction was developed in order to address the difficulties generated by requirements for contracts to be in writing, imposed by the Statute of Frauds, and in the United Dominions Corporation case by the Money Lending law of Jamaica.


case_title: United Dominions Corporation (Jamaica) Ltd v Shoucair [1969] 1 AC 340


case_title: Tallerman & Co Pty ltd v Nathan's Merchandise (Victoria) Pty Ltd [1957] HCA 10 ; (1957) 98 CLR 93

case_text: In Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd [1957] HCA 10 ; (1957) 98 CLR 93, Dixon CJ and Fullagar J described the distinction made between 'rescission' and 'variation' in the two House of Lords decisions as '... not a satisfactory distinction'. It appeared to be 'a matter of degree' (at 113). Taylor J said (at 144): 'It is firmly established by a long line of cases commencing at least as early as Goss v Lord Nugent [(1833) 5 B & Ad 58] and ending with cases such as Morris v Baron & Co and British & Beningtons Ltd v North Western Cachar Tea Co Ltd and, indeed, including Goss v Lord Nugent itself that the parties to an agreement may vary some of its terms by a subsequent agreement. They may, of course, rescind the earlier agreement altogether, and this may be done either expressly or by implication, but the determining factor must always be the intention of the parties as disclosed by the later agreement.' 157 The distinction between rescission and variation of contracts was indirectly an issue in Dan v Barclays Australia Ltd (1983) 46 ALR 437 (57 ALJR 442). The case concerned the construction of the terms of a guarantee of the payment of up to $500,000 owing under a bill acceptance facility which allowed for a maximum advance of $2 million. The maximum of the bill acceptance facility was increased sometime after its execution. It was held by Mason, Brennan and Deane JJ that the initial bill acceptance facility was significantly different from that subsequently granted and the guarantors were therefore not liable for interest and charges resulting from default under the later facility although, as a matter of construction of the guarantee, they were liable for the principal up to the figure specified in the guarantee. Wilson and Dawson JJ dissented. In their dissent they observed that cases dealing with the circumstances in which variation of a contract would amount to rescission did not necessarily provide the answer to the question of the construction of the guarantee in its application to 'the facility'. However they said (at 448): 'The distinction between rescission and variation is discussed in such cases as Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10 ; (1957) 98 CLR 93; Morris v Baron and Co [1918] AC 1 and British and Beningtons Ltd v NW Cachar Tea Co [1923] AC 48. Variation of an existing contract, whilst it in one sense always gives rise to a new contract, does not always result in a substituted contract which, in order to operate, must necessarily rescind the contract which is varied. Variation may take the form of rescission of some of the terms of an existing contract but if that is to have the effect of rescission of the whole contract, the rescission must be express or by necessary implication and the determining factor must always be the intention of the parties as disclosed by contract when varied: see Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd, supra, per Taylor J at 143-4.' Owen J in Permanent Building Society (In Liquidation) v Wheeler (1993) 10 WAR 109 observed that although the statement in Dan was in a dissenting judgment, the dissent related to the application of the test. There was no reason to doubt the authoritative force of the statement of principle (at 127): 'Many of the cases arise in the area of unenforceability due to non-compliance with a formal requirement such as writing. ... However, the authorities show that the task is to ascertain the intention of the parties as embodied in the contracts.' It was permissible, in searching for the intention of the parties, 'to look at the extent and completeness of the changes involved in the variation' (127). His Honour said further (at 128): 'That there may be "as a matter of formal logic" a new contract ... is true to a limited extent only.' In the Permanent Building Society case the parties had expressly confirmed the original agreement and made minor changes. The varied contract was therefore a 'new' contract only to the extent that it contained terms which were not present in the original agreement. 158 In Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35 ; (2000) 201 CLR 520 at 534 reference was made in the joint judgment of Gleeson CJ, Gaudron, McHugh and Hayne JJ to the passage from the judgment of Taylor J in Tallerman and its approval by Wilson and Dawson JJ in Dan . The joint judgment in Sara Lee said, in relation to the passage from the judgment of Taylor J, (at 534 [24]): 'It accords with principle and with authority.' Callinan J also acknowledged that there may be cases in which what is expressed to be a variation of an earlier agreement as a matter of construction cannot be so regarded. 162 A contract under which a person is employed, whether directly or through a corporate entity controlled by that person, may be discharged by sufficiently significant changes to the duties and/or the remuneration of the person so employed. A discharge will occur when the changes are significant, not able to be accommodated by the terms of the original contract and not contemplated by the parties when the original contract was made. Whether there has been a discharge or a variation of the original agreement depends upon the intention of the parties discerned by reference to the terms of their second agreement. It is as Dixon CJ and Fullagar J said in Tallerman 'a matter of degree'. 163 In my opinion, Mr Elliott's appointment as managing director and chief executive officer of Energy on 29 September 2000 and Mr Brand's relinquishment of that office was of itself sufficient to constitute a discharge of the Agreement of May 1999. There was a very substantial difference between the office of managing director and executive director which supports the contention that objectively judged it was the intention of both parties to discharge the Agreement. The complete terms upon which Mr Brand provided his services as an executive director thereafter were never expressly agreed between Martech and Energy. Those terms and conditions would have to be considered in the context of the evolving commercial relationship between Mr Brand and Energy and their respective conduct. Mr Brand played a significant part in defining them himself, not least by unilaterally varying downwards his annual fee. 164 I do not accept the submission by Martech that Mr Brand was 'removed' from office by Energy on 29 September 2000. While the circumstances at the time made the course that he adopted the only practical course to take, that was a judgment he made for himself and to which he assented. I find that the Agreement was discharged consensually.


case_text: The distinction between rescission and variation of contracts was indirectly an issue in Dan v Barclays Australia Ltd (1983) 46 ALR 437 (57 ALJR 442). The case concerned the construction of the terms of a guarantee of the payment of up to $500,000 owing under a bill acceptance facility which allowed for a maximum advance of $2 million. The maximum of the bill acceptance facility was increased sometime after its execution. It was held by Mason, Brennan and Deane JJ that the initial bill acceptance facility was significantly different from that subsequently granted and the guarantors were therefore not liable for interest and charges resulting from default under the later facility although, as a matter of construction of the guarantee, they were liable for the principal up to the figure specified in the guarantee. Wilson and Dawson JJ dissented. In their dissent they observed that cases dealing with the circumstances in which variation of a contract would amount to rescission did not necessarily provide the answer to the question of the construction of the guarantee in its application to 'the facility'. However they said (at 448): 'The distinction between rescission and variation is discussed in such cases as Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10 ; (1957) 98 CLR 93; Morris v Baron and Co [1918] AC 1 and British and Beningtons Ltd v NW Cachar Tea Co [1923] AC 48. Variation of an existing contract, whilst it in one sense always gives rise to a new contract, does not always result in a substituted contract which, in order to operate, must necessarily rescind the contract which is varied. Variation may take the form of rescission of some of the terms of an existing contract but if that is to have the effect of rescission of the whole contract, the rescission must be express or by necessary implication and the determining factor must always be the intention of the parties as disclosed by contract when varied: see Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd, supra, per Taylor J at 143-4.' Owen J in Permanent Building Society (In Liquidation) v Wheeler (1993) 10 WAR 109 observed that although the statement in Dan was in a dissenting judgment, the dissent related to the application of the test. There was no reason to doubt the authoritative force of the statement of principle (at 127): 'Many of the cases arise in the area of unenforceability due to non-compliance with a formal requirement such as writing. ... However, the authorities show that the task is to ascertain the intention of the parties as embodied in the contracts.' It was permissible, in searching for the intention of the parties, 'to look at the extent and completeness of the changes involved in the variation' (127). His Honour said further (at 128): 'That there may be "as a matter of formal logic" a new contract ... is true to a limited extent only.' In the Permanent Building Society case the parties had expressly confirmed the original agreement and made minor changes. The varied contract was therefore a 'new' contract only to the extent that it contained terms which were not present in the original agreement. 158 In Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35 ; (2000) 201 CLR 520 at 534 reference was made in the joint judgment of Gleeson CJ, Gaudron, McHugh and Hayne JJ to the passage from the judgment of Taylor J in Tallerman and its approval by Wilson and Dawson JJ in Dan . The joint judgment in Sara Lee said, in relation to the passage from the judgment of Taylor J, (at 534 [24]): 'It accords with principle and with authority.' Callinan J also acknowledged that there may be cases in which what is expressed to be a variation of an earlier agreement as a matter of construction cannot be so regarded.


case_text: The distinction between rescission and variation of contracts was indirectly an issue in Dan v Barclays Australia Ltd (1983) 46 ALR 437 (57 ALJR 442). The case concerned the construction of the terms of a guarantee of the payment of up to $500,000 owing under a bill acceptance facility which allowed for a maximum advance of $2 million. The maximum of the bill acceptance facility was increased sometime after its execution. It was held by Mason, Brennan and Deane JJ that the initial bill acceptance facility was significantly different from that subsequently granted and the guarantors were therefore not liable for interest and charges resulting from default under the later facility although, as a matter of construction of the guarantee, they were liable for the principal up to the figure specified in the guarantee. Wilson and Dawson JJ dissented. In their dissent they observed that cases dealing with the circumstances in which variation of a contract would amount to rescission did not necessarily provide the answer to the question of the construction of the guarantee in its application to 'the facility'. However they said (at 448): 'The distinction between rescission and variation is discussed in such cases as Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10 ; (1957) 98 CLR 93; Morris v Baron and Co [1918] AC 1 and British and Beningtons Ltd v NW Cachar Tea Co [1923] AC 48. Variation of an existing contract, whilst it in one sense always gives rise to a new contract, does not always result in a substituted contract which, in order to operate, must necessarily rescind the contract which is varied. Variation may take the form of rescission of some of the terms of an existing contract but if that is to have the effect of rescission of the whole contract, the rescission must be express or by necessary implication and the determining factor must always be the intention of the parties as disclosed by contract when varied: see Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd, supra, per Taylor J at 143-4.' Owen J in Permanent Building Society (In Liquidation) v Wheeler (1993) 10 WAR 109 observed that although the statement in Dan was in a dissenting judgment, the dissent related to the application of the test. There was no reason to doubt the authoritative force of the statement of principle (at 127): 'Many of the cases arise in the area of unenforceability due to non-compliance with a formal requirement such as writing. ... However, the authorities show that the task is to ascertain the intention of the parties as embodied in the contracts.' It was permissible, in searching for the intention of the parties, 'to look at the extent and completeness of the changes involved in the variation' (127). His Honour said further (at 128): 'That there may be "as a matter of formal logic" a new contract ... is true to a limited extent only.' In the Permanent Building Society case the parties had expressly confirmed the original agreement and made minor changes. The varied contract was therefore a 'new' contract only to the extent that it contained terms which were not present in the original agreement.


case_text: In Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35 ; (2000) 201 CLR 520 at 534 reference was made in the joint judgment of Gleeson CJ, Gaudron, McHugh and Hayne JJ to the passage from the judgment of Taylor J in Tallerman and its approval by Wilson and Dawson JJ in Dan . The joint judgment in Sara Lee said, in relation to the passage from the judgment of Taylor J, (at 534 [24]): 'It accords with principle and with authority.' Callinan J also acknowledged that there may be cases in which what is expressed to be a variation of an earlier agreement as a matter of construction cannot be so regarded.


case_text: In Quinn v Jack Chia (Australia) Ltd [2000] VSCA 75 ; [1992] 1 VR 567, Ashley J reviewed a number of authorities relating to changes to the terms of employment and when such changes would amount to discharge of a subsisting employment agreement. He accepted, at 576, the proposition in Federated Mutual Insurance Co of Australia Ltd v Sabine [1920] SALR 284 that: '... where employer and employee agree to an alteration in the employee's duties and responsibilities which is profound, a court should be more ready to hold (unless the original contract of employment provided for the contingency) that a new contract has replaced the old; or at least that the old contract as varied, contained terms objectively appropriate to the new relationship created.'


case_title: Federated Mutual Insurance Co of Australia Ltd v Sabine [1920] SALR 284


case_text: Martech submitted that it was entitled to the Termination Payment if the Agreement were terminated for any reason other than one of those set out in sub cls 8.1.1, 8.1.3, 8.1.4 and 8.1.5 or cl 8.5. Termination having occurred on 29 September 2000 for none of those reasons it says it was entitled. Energy submitted that, on its proper construction, cl 8.6 did not apply where Martech wished to terminate its services and agreed to termination. The benefit of the notice provision in cl 8.5 could be waived Perri v Coolangatta Investments Pty Ltd [1982] HCA 29 ; (1982) 149 CLR 537 at 543, 552, 560 and 565. 166 The critical question in considering the Martech submission is whether, on the proper construction of cl 8.6, the entitlement which it creates in a case in which the 'Agreement is terminated for any other reason ...' arises where there is a consensual discharge of the Agreement. That constructional question depends upon a consideration of the words of cl 8.6 and the context in which they appear both within that clause and within other parts of cl 8 and the Agreement as a whole. 167 The Shorter Oxford English Dictionary definition of 'termination' is equivocal. It defines termination relevantly as a transitive verb meaning: 'bring to an end, put an end to, cause to cease; finish, end (an action, condition etc).' It is also defined as an intransitive verb meaning, inter alia: 'come to an end (in time); end, cease, conclude ...'


case_text: Lord Radcliffe said in Bridge v Campbell Discount Co Ltd [1962] AC 600 (at 620): '"Terminate" is an ambiguous word, since it may refer to a termination by a right under the agreement or by a condition incorporated in it or by a deliberate breach by one party amounting to a repudiation of the whole contract.' Lord Denning also adverted to the uncertain scope of 'termination' in the terms and conditions of National Health Service staff contracts: 'terminate or termination is by itself ambiguous. It can refer to either of two things either to termination by notice or termination by effluxion of time. It is often used in that dual sense in landlord and tenant and master and servant cases.' In context, he found it to refer only to termination by notice R v Social Services Secretary, Ex parte Khan [1973] 1 WLR 187 at 189. Karminski and Buckley LJJ agreed. Buckley LJ added (at 191): 'As Mr Slynn has pointed out, the verb "terminate" can be used either transitively or intransitively. A contract may be said to terminate when it comes to an end by effluxion of time, or it may be terminated when it is determined by notice or otherwise by some act of one of the parties.'


case_title: R v Social Services Secretary, Ex parte Khan [1973] 1 WLR 189


case_text: A contract may be abandoned by agreement extinguishing all unperformed primary obligations. It may be abandoned by conduct where the conduct of one party acted on by the other leads to the inference of an implied agreement between them to abandon the contract. In the alternative, the conduct of one party towards another and the other's action upon that conduct to its detriment may result in the first party being estopped from denying that the contract has been abandoned Paal Wilson & Co v Partenreederei Hannah Blumenthal [1983] 1 AC 854 at 914 (Lord Brandon), 915 (Lord Diplock), 924 (Lord Brightman). 172 In summary the word 'termination' when referring to the discharge of a contract has a variety of possible meanings. It may be limited to non-consensual termination by the action of one or other party to the contract. It may extend to discharge of the contract by effluxion of time. That is a consensual termination in the limited sense that it is part of the agreement from the outset. The word may also be construed as applying to a discharge of a contract by agreement or by abandonment which may be taken to amount to the same thing. Its meaning in cl 8.6 depends upon the language of that clause and related clauses of the Agreement. It is also to be construed by reference to the context of the Agreement as a whole. 173 Clause 8.1 of the Agreement concerned the circumstances in which Energy could terminate summarily Martech's services. None of those circumstances applied in this case. Clause 8.2 allowed Martech to terminate the Agreement in the event of Energy suspending payment or compounding with its creditors or assigning its estate for their benefit. That circumstance did not exist either. Clause 8.3 limited the power of both Energy and Martech to terminate for breach of obligation by requiring that the party in breach be served with a notice requiring rectification and allowing 30 days for that to occur. Clause 8.5 allowed Martech to 'terminate its services' on three months' written notice. 174 If the Board of Energy had resolved to dismiss Mr Brand as managing director other than for any of the reasons set out in cl 8.1 that could be taken as a repudiation of the Agreement and, if accepted by Martech, a termination of the Agreement giving rise to the entitlement to a payment under cl 8.6. If Energy declined to renew the term of the Agreement at its expiry, that too would give rise to an entitlement to the fee under cl 8.6. In each of these cases cl 8.6 had work to do. Each involved termination by Energy of its relationship with Martech. 175 The question arises whether by cl 8.6 Martech was entitled to a termination payment in the event of a discharge by agreement. Absent clear words, I do not construe cl 8.6 as extending to such a case. The bases and terms upon which parties to an agreement may agree to discharge it are many and various. The extension of cl 8.6 to mandate a very substantial payment in the event of an agreed discharge of the parties' contractual obligations would impose a requirement on the parties as to the terms on which they may so agree. Even if cl 8.6 expressly applied to a discharge by agreement, it would be open to the parties by agreement to discharge that obligation along with all the others. Indeed so to construe cl 8.6 is to give it, in its application to an agreed discharge, an operation rather like that of an agreement to agree. Such an agreement is not a contract. I accept in so saying that it may theoretically be possible to create an entitlement to a termination payment which vests, pursuant to the Agreement, upon the external event of a later agreement to discharge. I do not accept, however, that cl 8.6 so operated.


case_title: Re HIH Insurance Limited (In Prov Liq); Australian Securities Commission v Adler and Others [2002] NSWSC 171 ; (2002) 41 ACSR 72

case_text: It may be accepted for present purposes that Martech and Mr Brand owed Energy and AEE the various duties alleged in the cross-claim. Although the formulations of those contractual, common law, fiduciary and statutory duties vary from one to the other, they are for practical purposes, subsumed in the one standard of reasonable care. As was submitted on behalf of Martech and Mr Brand, the duties which were imposed on directors by s 232(4) of the Corporations Law, which was in force at the relevant time, are essentially the same as the duties of directors under the common law and, a fortiori, in equity. The submission referred to authorities cited by Santow J in Re HIH Insurance Limited (In Prov Liq); Australian Securities and Investments Commission v Adler and Others [2002] NSWSC 171 ; (2002) 41 ACSR 72 at [372] . Plainly enough a director and, a fortiori , a managing director, may rely on the advice and information of officers of a company whose task it is to provide such advice and information. Reliance may also be placed upon judgments made by officers of the company which fall within their sphere of responsibility. That reliance would, of course, not be reasonable if a director or managing director knew, or by the exercise of ordinary care should have known, any facts which would raise a question about the judgment, information or advice offered. 342 The question whether reliance by a director upon an officer of the company or delegation of a function to such an officer is reasonable falls to be determined in the circumstances of each case. In Re HIH Insurance, Santow J listed, non-exhaustively, factors which may be important in determining reasonableness: '1. [whether] the function that has been delegated is such that "it may properly be left to such officers"; 2. the extent to which the director is put on inquiry, or given the facts of a case, should have been put on inquiry; 3. [whether] the relationship between the director and the delegate, must be such that the director honestly holds the belief that the delegate is trustworthy, competent and someone on whom reliance can be placed...; 4. the risk involved in the transaction and the nature of the transaction. 5. the extent of steps taken by the director, for example, inquiries made or other circumstances engendering "trust"; 6. whether the position of the director is executive or non-executive.' (Citation of authorities omitted)


case_text: It was further submitted on behalf of Martech and Mr Brand that Mr Brand's decision to make the reduced milestone payment was an aspect of a wider agreement to vary the terms of the milestone schedule to the Vypeen agreement. This, it was said, was a 'business decision' which involved the balancing of a range of circumstances and factors. It was Energy and AEE which wished, for their own reasons, to revise the milestone schedule and which had to reach a compromise acceptable to Prenergy. It was submitted that courts properly refrain from assuming the management of corporations and substituting their own decisions and assessments for those of directors. Directors can be expected to have much greater knowledge and more time and expertise at their disposal to evaluate the best interests of the corporation, rather than the court Darvall v North Sydney Brick and Tile Co Ltd (1989) 16 NSWLR 260 at 281. 344 In their submissions, Energy and AEE relied upon the formulation of the condition for the making of the milestone payment, namely the satisfaction of 'All applicable State and Central Government of India approvals for alternative fuel for the Vypeen Project'. They submitted that Mr Brand accepted that the law of India effectively prohibited the import of condensate for use in the Vypeen Project and that the way to address that situation was to seek to persuade the Indian Government to change the law. What was necessary was a change in the law generally not just a facilitation for the purpose of the Vypeen Project. The law in relation to importation of condensate did not change between 1998 and 1999 and for that reason applicable approvals had not been obtained. It was also emphasised that no application for approval was ever made. On that ground, it was submitted, that objectively speaking there was no basis upon which the milestone payment should be made. 345 Energy and AEE relied upon Mr Brand's understanding of certain important facts. He knew that the supply of condensate fuel was the most critical component and the key to financing the project. This appeared from the memorandum dated 27 February 1998 which he had received. He also knew from a fax dated 26 March 1998 from Mr Bridgwood that condensate was not then permitted to be imported into India. Of course that fax added that the Ministry of Petroleum and Natural Gas would recommend to the Ministry of Power that condensate be approved for importation under the Open General Licence (In fact the position seems to have been the other way round). He was aware of the proposed lobbying of the Ministry of Power and the Ministry for Petroleum and Natural Gas. The text of the brief to the relevant Ministers has been set out earlier in these reasons.


case_outcome: followed

case_text: This argument is misconceived. Order 58 rule 31 does not confer a power to permit or refuse experiments. Bayer can conduct any experiment it likes. As Lindgren J pointed out in Lucent Technologies Inc v Krone Aktiengesellschaft (No 2) [1999] FCA 1462 ; (1999) 94 FCR 124 at [8] , the purpose of the rule is to (a) ensure that the other party has an adequate opportunity to challenge the validity of the experiment or test, and (b) to avoid wasteful duplication by that party of an experiment that can be seen to be valid. Compliance with directions given under O 58 r 31 is a precondition of admissibility at trial of evidence as to the results of the experiment: sub-rule 3(a). Even if conditions have not been complied with, or no application has been made at all, results of an experiment may still be admitted by leave: sub-rule 3(b). 11 Patent cases are no different from other litigation, civil or criminal. A party is entitled, as of right, to tender evidence it believes will assist its case. The opposing party can object that the evidence is irrelevant or inadmissible, or should be excluded on discretionary grounds because it might be unfairly prejudicial or misleading or confusing or cause undue waste of time: Evidence Act 1995 (Cth) s 135. When such objections are taken, the trial judge will rule and the evidence will be admitted or rejected. 12 In the present case Bayer does not seek the Court's "indulgence". It is entitled to conduct such experiments it thinks may help to make out its case. To have the results of such experiments admitted into evidence it needs to comply with directions which will give Deltapine a fair opportunity to observe them. Deltapine's complaints as to the merits or usefulness of the proposed experiments may turn out to be valid. Bayer takes the risk that this may be so. The trial is the time and place where such questions will be resolved. 13 Bayer proposes that the purification experiments start in early January 2007. These will take a few weeks and be followed by the binding experiments which will take four months. However, Deltapine's main witness Professor Gill has heavy teaching commitments in January and February and is not available until 15 March. Deltapine therefore asks that the purification experiments start on 15 March, to be followed by the binding experiments. 14 Upon obtaining instructions after the hearing of this application, Bayer's solicitors have advised that Bayer's main witness Professor Ferré and his colleague Dr Hernandez, who will conduct the binding experiments, are not available beyond the end of May 2007. If those restraints are to be accommodated, Professor Gill could attend for some two-thirds of the binding experiments (i.e. from 15 March onwards) but he would not be able to attend at all for the purification experiments. When Professor Gill is unable to attend, some other suitable independent scientific observer could act as his alternate. This is admittedly a less than perfect solution, but seems to be the only practicable one, especially since, as Deltapine emphasises, this case has been dragging on for some time. The role of an expert attending the experiments on Deltapine's behalf is to observe and report, not to participate, or express opinions, or give advice at the time. So there is to that extent less compelling need for Deltapine's principal witness to attend all the time. Moreover, the binding experiments consist of two similar exercises which will be conducted sequentially, so Professor Gill could be present for at least the entirety of one. 15 I will therefore direct that the purification experiments begin on or about 8 January 2007 and the binding experiments on or about 1 February 2007. 16 Bayer's proposed protocol includes a timeline detailing various stages and the time each will take (1 week, 1.5 weeks etc): see exhibit RBJ-8 to the affidavit of Richard Barry Jarvis sworn 7 December 2006. I agree with Deltapine that it would be more convenient and less subject to confusion if the various stages were identified by actual dates. Any variations to the timetable should be notified to Deltapine as soon as possible.


case_outcome: considered

case_text: There is Full Bench authority in the New South Wales Industrial Commission, in Court Session, which would support an argument that "the making of representations known to be acted upon by a person in considering entry into a contractual relationship and on the basis of which representations an agent as the representor intends the person to act may well, quite apart from any other connection with the contract subsequently made, be itself an arrangement whereby work is performed in an industry, or, at the least, a collateral arrangement to such a contract or arrangement": Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420, at 432, [28]. Contrary to the submission of the BoQ parties, it is thus not impossible for a representation to constitute an "arrangement". Further, if it is one, as the amended summons apparently alleges, and the submissions of the BoQ parties seem to ignore, whereby a person performs work in an industry, that arrangement, if unfair, may, all other things being equal, be the subject of relief under s 106 of the NSW Act. The Independent Contractors Act may or may not intrude on the ability to grant that relief, but that is not a matter for summary resolution. 22 The vice in these paragraphs is not, as the BoQ parties would have it, that of "labelling representations as arrangements". As Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 demonstrates, if a representation becomes one whereby a person performs work in an industry, it is possible for that to fall within the expansive definition of "contract" in the NSW Act and to become a subject for the granting of relief under s 106 of the NSW Act in the event of unfairness being demonstrated. Rather, as the BoQ parties would also have it, the vice in these paragraphs is that they are directed to the end of making controversial in this Court whether what are termed in these paragraphs "the Meeting Arrangements" were false or misleading and therefore unfair at the time when they were made or became unfair for the purposes of s 106 of the NSW Act. 23 In the earlier interlocutory appeal the Full Court observed (at [16]) that, "Whether the Bank was capable of misleading the OMB parties seems to us to be irrelevant to the question of whether the OMB parties were independent contractors. Whether it did mislead is clearly irrelevant." At one level, there is a certain tension between these observations and the BoQ parties' submission with regard to para 52(c) and paras 57 to 63 of the amended defence. In part, that submission did more than take the case as pleaded in the amended summons as a given and sought to strike it so much of it as was predicated upon the proposition that a representation could amount to an arrangement. 24 Be that as it may, paras 70 to 83 as presently cast do more than detail the nature of the case for the OMB parties before the New South Wales Industrial Court. Instead, these paragraphs are directed to the end of creating a controversy in this Court as to whether particular representations alleged in the amended summons were false or misleading and whether what are termed "the Meeting Arrangements" were or became unfair see paras 72, 73, 75, 76 and 83 of the amended defence. In this Court, as the Full Court has observed, the merits of that particular controversy are irrelevant.


case_text: Paragraphs 110 to 116 of the amended defence make allegations as to the effect of particular clauses within an OMB Agreement either alone or, as the case may be, when read with what is described as "the Fit-out Loan" and then plead that the clause or clauses concerned do not constitute a contract for services. In an earlier interlocutory judgment in respect of the then defence, Bank of Queensland Ltd v Industrial Court of New South Wales [2008] FCA 324 at [92] to [94] Greenwood J ordered to be struck out particular paragraphs which did no more than set out a contended construction of an OMB Agreement to be struck out. In the subsequent interlocutory appeal, Rossmick No 1 Pty Ltd v Bank of Queensland Ltd [2008] FCAFC 81 at [12] [13], the Full Court expressed agreement with the "general thrust" of this approach. 37 Two features of the pleading rules found in O 11 of the Federal Court Rules might be noted: (a) a pleading should state material facts O 11 r 2; and (b) it is nonetheless permissible to raise a point of law in a pleading O 11 r 9. As Greenwood J emphasised in his interlocutory judgment (at [92]), the relevant fact is the entry into the OMB Agreement. It would, in my opinion, be permissible, for example, to raise in a defence a consequential point of law namely, that, on its true construction, the OMB Agreement was not a "services contract" for the purposes of the Independent Contractors Act . The paragraphs concerned do more than that and instead offer a series of contended for constructions of the agreement or parts thereof. My understanding of the Full Court's agreement with the "broad thrust" of the approach taken by Greenwood J is that such contentions were a matter for submissions at trial, not pleading. 38 There was debate before me as to whether paras 110 to 116 of the amended defence fell within or outside the type of pleading that Greenwood J had ordered to be struck out. It seems to me that the paragraphs fall within the type which his Honour considered ought to be struck out. 39 These paragraphs of the amended defence are directed to the subject of an alleged inability on the part of those who became parties to an OMB Agreement independently to assess the viability of the business governed by that agreement because the Bank did not make available the requisite information. The end to which they are directed is the drawing of a conclusion that those parties were not "independent contractors" for the purposes of the Independent Contractors Act . 40 The point taken for the BoQ parties is that these allegations are not relevant to the drawing of that conclusion. 57 In my opinion, a more accurate critique is offered by the BoQ parties. Their contention is that the paragraphs plead characterisations of the OMB Agreements in a similar way to that which Greenwood J found in his interlocutory judgment and later the Full Court found to be inappropriate in a pleading. I have already referred to his Honour's and the Full Court's views in my consideration above of paras 110 to 116 of the amended defence. 58 Another feature of the allegations in paras 137 to 148 of the amended defence is highlighted by the BoQ parties in their submissions, namely allegations concerning the subjective intention or purpose of the Bank. The submission is advanced, with which I agree, that the Bank's subjective intention or purpose is not relevant to whether a respondent who is a party to an OMB Agreement ought to be characterised as an "independent contractor" for the purposes of the Independent Contractors Act . The task is one of objective characterisation having regard to the terms of an agreement and the way it was carried out. The existence or otherwise of goodwill vested in a non-bank party to an OMB Agreement may also be relevant. The subjective intentions or purposes of either such a party or the Bank, except insofar as they may manifest themselves in the way an agreement was carried out, are not facts relevant to that characterisation task. 59 Paragraphs 137 to 148 of the amended defence should be struck out. 60 The BoQ parties advance the submission that paras 162, 163(a) and 163(c) of the amended defence are founded upon the premise that this Court is precluded from adjudicating upon the issues raised by the amended application by reason of a privative clause found in s 179 of the NSW Act. The response of the OMB parties is that these paragraphs are replications of paragraphs in the defence as originally filed the striking out of which was sought before but declined by Greenwood J. Regard to his Honour's interlocutory judgment at [101], [102] and [104] bears out the correctness of the OMB parties' response. As the OMB parties further contend, the declining to strike out these paragraphs was not challenged in the interlocutory appeal. 61 The proposition that a State Parliament can by a privative clause in its legislation preclude this Court from exercising a jurisdiction with which it is invested by s 39B of the Judiciary Act 1903 (Cth) is certainly startlingly. However, given that there has already been a failed attempt to strike out the paragraphs which was not pursued in the interlocutory appeal, it seems to me that the better course is not to strike out the paragraphs concerned but to leave the issues of law which they raise for determination at trial. The BoQ parties are not in any way precluded by that course from then pursuing their submission that there is no merit in the issues raised by those paragraphs. Assuming that the OMB parties chose to press those issues, I doubt that their consideration will much add to the length of the trial. 62 Paragraph 163(f) of the amended defence advances a contention that the determination of the issues raised by the amended defence require a trial of the facts. Even allowing for the reduction in the number of issues which will be a consequence of my ordering the striking out of various paragraphs, it is still the case that a trial of the facts is required. I note that Greenwood J declined in his interlocutory judgment (at [104]) to strike out an earlier formulation in the defence of what is now sub-para 163(f). I decline to strike out sub-para 163(f). 63 Sub-paragraph 163(g) of the amended defence, properly understood, pleads a proposition that the passage from its reasons for judgment which I have quoted above demonstrates the Full Court accepted in its interlocutory judgment namely, that the determination of whether the Independent Contractors Act operates to the exclusion of s 106 of the NSW Act is a matter that will require an examination of more than just the terms of the OMB Agreement. I note that Greenwood J (at [104]) declined to strike out an earlier formulation of this sub-paragraph and that this was not challenged on the interlocutory appeal. I likewise decline to strike out sub-paragraph 163(g). 64 I will hear the parties as to whether, given the extent to which paragraphs of the amended defence have been ordered to be struck out, leave to file and serve a further amended defence ought to be granted and in respect of the costs of the notice of motion. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 19 September 2008 Counsel for the Applicants: Mr S Couper QC Counsel for the Applicants: Mr A Moses Solicitor for the Applicants: HWL Ebsworth Lawyers Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth Respondents: Mr J Peden 18 July 2008 Mr J Sweeney 22 July 2008 Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth Respondents: McCabe Terrell Lawyers Date of Hearing: 18 & 22 July 2008 Date of Judgment: 19 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1435.html


case_text: This justification for para 108 is, with respect, misdirected. The OMB parties are on firmer ground in their further submission that whether or not there may be goodwill vested in an OMB party to an OMB Agreement is, or at least is arguably, relevant to a conclusion that that party is an "independent contractor" for the purposes of the Independent Contractors Act . One of the factors to which Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ adverted in Hollis v Vabu Pty Ltd (at 42, [48]) in determining that the bicycle couriers were not independent contractors at common law was that they were unable to generate "goodwill" as a bicycle courier. It is settled that goodwill cannot be assigned in gross but rather passes with the transfer of rights to conduct a business in substantially the same manner and by substantially the same means as before: Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605 at 615, [23] and 617-618, [30] and [31]. It is not impossible in these circumstances to see how, for the purposes of the Independent Contractors Act and irrespective of a technical ability to assign the benefit of an OMB Agreement, it might be relevant in deciding whether a party to such an agreement was to be characterised as an "independent contractor" that either no "goodwill" vested in that party or in any event that none would pass on an assignment.


case_title: Daly v Egan (1886) 12 VLR 81

case_text: Well over a century ago, in Daly v Egan (1886) 12 VLR 81 , at 84, a Full Court of the Supreme Court of Victoria observed of the jurisdiction to give summary judgment that: This summary jurisdiction is not intended to be exercised where the defendant has any plausible defence, or disputes any of the material facts. A Judge in chambers is not to try a case on affidavit where the facts are in dispute. See also to like effect in that same year observations made by Holroyd J in White v Johnston (1886) 8 ALT 53. Thus, when in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 105 , at 129-130 Barwick CJ cited with approval the following observation of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 , at 91 that: The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious, But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process, he was not promoting any novel approach to the disposal of an application like the present. The approach described had been evident since colonial times. Real questions of law and fact are raised by para 52(c) and paras 57 to 63 of the amended defence. It is not appropriate to deal with them summarily. Further, that there are presently hypothetical qualities to the questions of law sought to be agitated by the BoQ parties is an added reason, in the exercise of federal jurisdiction, for this Court not to answer them at this stage. The courts created by the Commonwealth Parliament under Chapter III of the Constitution do not give advisory opinions: In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257.


case_title: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62


case_text: For the BoQ parties, emphasis was given to the jurisprudence which had developed in respect of s 106 of the NSW Act and its predecessors to the effect that the jurisdiction was engaged so long as the "contract" led "directly" to the performance of work in an industry: Fish v Solutions 6 Holdings Ltd (2006) 225 CLR 180 at 192, [27] and Stevenson v Barham [1977] HCA 4 ; (1976-1977) 136 CLR 190 at 200-201. In their joint judgment in the more recent of these cases, Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ noted (at [28]) that "the description of a contract as 'one which leads directly to a person performing work in any industry' is not without its difficulty" (emphasis in original). Their Honours cautioned (ibid) that this and other glosses on the language of s 106 ought not to be permitted to divert argument away from the language of the section. Later in that case (at [42]) their Honours observed: It is the arrangements (contractual and non-contractual) whereby a person performs work in an industry that the Commission may avoid or vary. That is, it is the arrangements (contractual and non-contractual) according to which a person performs the work (or in consequence of which or in fulfilment of which a person performs that work) which may be avoided or varied. And although the notion of 'avoiding' an arrangement that is not enforceable may be awkward, determining that some new arrangement will obtain for the future (thus 'varying' the arrangement) presents no such awkward juxtaposition of ideas. Further, to focus attention upon the arrangements whereby a person performs work in an industry, no matter whether the arrangement is found in the contract the parties have made or only in some related condition or collateral arrangement, sufficiently meets the need, identified by Barwick CJ in Brown v Rezitis, to recognise that these provisions of the Act have, as one important purpose, dealing with subterfuges which take workers outside the operation of industrial instruments intended to protect workers in an industry. At the same time, to read s 106 as hinged about performance of work in any industry and empowering the Commission to deal only with such of the arrangements between parties as can be described as a contract whereby a person performs work in any industry confines the jurisdiction of the Commission to declare a contract void or to vary it within bounds that leave intact the jurisdiction of the Supreme Court over other kinds of contractual obligations. (Internal footnote references omitted)


case_outcome: applied

case_text: The BoQ parties have applied, pursuant to O 11 r 16 of the Federal Court Rules , to strike out those paragraphs of the amended defence identified in the notice of motion by which the application was brought. They expressly eschew reliance upon s 31A of the Federal Court of Australia Act 1976 (Cth). That means that the application falls for determination having regard to the circumspection in relation to the striking out of a pleading counselled by authorities such as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. 6 In the substantive proceeding the case advanced by the BoQ parties may be summarised as follows: (a) each of the OMB parties who entered into an OMB Agreement was an "independent contractor"; (b) each respective OMB Agreement related to the performance of work by that party as an independent contractor; (c) there exists in each respective case the requisite constitutional connection specified in s 5(2) of the Independent Contractors Act 2006 (Cth); (d) accordingly, each respective OMB Agreement is a "services contract" as defined by s 5(1) of the Independent Contractors Act ; (e) s 106 of the NSW Act is a law of a State which expressly provides for a court to make an order or determination in relation to a "services contract" on an unfairness ground setting aside, declaring void or amending or varying that contract; (f) the effect of s 7(1)(c) of the Independent Contractors Act and s 109 of the Constitution is that the OMB Agreements are not affected by s 106 of the NSW Act; (g) accordingly, the Industrial Court of New South Wales has no jurisdiction to make an order under s 106 of the NSW Act in respect of the OMB Agreements. 20 Well over a century ago, in Daly v Egan (1886) 12 VLR 81 , at 84, a Full Court of the Supreme Court of Victoria observed of the jurisdiction to give summary judgment that: This summary jurisdiction is not intended to be exercised where the defendant has any plausible defence, or disputes any of the material facts. A Judge in chambers is not to try a case on affidavit where the facts are in dispute. See also to like effect in that same year observations made by Holroyd J in White v Johnston (1886) 8 ALT 53. Thus, when in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 105 , at 129-130 Barwick CJ cited with approval the following observation of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 , at 91 that: The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious, But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process, he was not promoting any novel approach to the disposal of an application like the present. The approach described had been evident since colonial times. Real questions of law and fact are raised by para 52(c) and paras 57 to 63 of the amended defence. It is not appropriate to deal with them summarily. Further, that there are presently hypothetical qualities to the questions of law sought to be agitated by the BoQ parties is an added reason, in the exercise of federal jurisdiction, for this Court not to answer them at this stage. The courts created by the Commonwealth Parliament under Chapter III of the Constitution do not give advisory opinions: In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257.


case_text: A major legal and factual premise of the BoQ parties' case is that each of the OMB parties who are parties to an OMB Agreement should be classified as an "independent contractor" for the purposes of the Independent Contractors Act . That term is defined by s 4 of that Act but only in a way that declares that an "independent contractor" is not limited to a natural person. It is neither necessary nor appropriate for the purposes of this interlocutory application to reach a concluded view as to meaning of the term. It is enough to observe that, subject the declaration in the definition, the question of whether a party to a contract, corporate or individual, is or is not an "independent contractor" for the purposes of the Independent Contractors Act has been seemingly left by the Parliament to be determined having regard by analogy to principles of the common law developed in modern times by cases such as Hollis v Vabu Pty Ltd [2001] HCA 44 ; (2001) 207 CLR 21 and Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16. 8 On the pleadings, whether it should be concluded that each of the OMB parties who is a party to an OMB Agreement should be classified as an "independent contractor" for the purposes of the Independent Contractors Act is controversial. In an earlier interlocutory appeal in this proceeding, Rossmick No 1 Pty Ltd v Bank of Queensland Ltd [2008] FCAFC 81 at [9] , the Full Court observed: The question of what are the terms of the written agreement between the OMB parties and the Bank parties and their effect does not necessarily determine the legal issue of whether the OMB parties are independent contractors for the purposes of s 5 of the Commonwealth Act. While it is unnecessary for us to express a concluded view on this question, it may well be that the expression 'independent contractor' in that section is intended to reflect the common law concept of what is an independent contractor as it applies in relation to natural persons, though we note that an independent contractor, as defined, is not limited to a natural person. If this is correct then the issue might be determined not only by reference to the terms of the contract between the principal and the alleged independent contractor but also by reference to the way in which the parties carry out or give effect to the contract between them: see Hollis v Vabu Pty Ltd [2001] HCA 44 ; (2001) 207 CLR 21 particularly at 40-41. As noted earlier, the OMB parties contended they are not independent contractors and the Bank parties contended they are. That being so, the OMB parties are entitled to plead and prove facts (unless admitted by the Bank parties) concerning the way in which the contractual arrangements have been carried out as part of proving that they are not independent contractors. This is so even if, ultimately, the issue falls to be decided primarily or solely by reference to the written agreements between the parties, and this now appears to be conceded now by the Bank parties. 33 This justification for para 108 is, with respect, misdirected. The OMB parties are on firmer ground in their further submission that whether or not there may be goodwill vested in an OMB party to an OMB Agreement is, or at least is arguably, relevant to a conclusion that that party is an "independent contractor" for the purposes of the Independent Contractors Act . One of the factors to which Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ adverted in Hollis v Vabu Pty Ltd (at 42, [48]) in determining that the bicycle couriers were not independent contractors at common law was that they were unable to generate "goodwill" as a bicycle courier. It is settled that goodwill cannot be assigned in gross but rather passes with the transfer of rights to conduct a business in substantially the same manner and by substantially the same means as before: Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605 at 615, [23] and 617-618, [30] and [31]. It is not impossible in these circumstances to see how, for the purposes of the Independent Contractors Act and irrespective of a technical ability to assign the benefit of an OMB Agreement, it might be relevant in deciding whether a party to such an agreement was to be characterised as an "independent contractor" that either no "goodwill" vested in that party or in any event that none would pass on an assignment. 48 The BoQ parties' point is certainly not clear to demonstration. In the face of a statutory definition of "independent contractor" which provides that an "independent contractor" is not limited to a natural person, recourse to an Explanatory Memorandum which seeks to promote the notion that the Act is concerned with an independent contractor/ employee distinction may be nothing more than a distraction from giving attention to the language of the definition in the Act itself in the context in which it appears. If nothing else, and given that a corporation cannot be an employee at common law, the way that the definition of "independent contractor" is cast gives pause for thought about whether it might be possible to have a corporate contractor whom one would not conclude was an independent contactor, applying by analogy tests laid down in Hollis v Vabu Pty Ltd , supra and Stevens v Brodribb Sawmilling Co Pty Ltd , supra. I expressly refrain from reaching a concluded view on that subject at an interlocutory stage.


case_text: While one might question whether, for example, the consensual premature extinguishment of an OMB Agreement at the initiative of the Bank could strictly yield a transfer of goodwill to the Bank: McDonald's Australia Holdings Ltd v Commissioner of State Revenue (Qld) 2004 ATC 4970 ; (2004) 57 ATR 395 (Chesterman J), another way of viewing this aspect of the allegations made in paragraph 108 of the amended defence is that such goodwill as may exist is inherently personal and unlikely to command value other than if the Bank for one reason or another wanted to be liberated from being bound by the OMB Agreement. It is neither necessary or appropriate for the purposes of this application to do anything other than conclude that the existence or otherwise of goodwill, the identification of the sources of any such goodwill and consideration of whether any goodwill would pass on an assignment such as cl 33,1 of the OMB Agreement permits is conceivably relevant to the question of whether a non-Bank party to an OMB Agreement is to be characterised as an "independent contractor" for the purposes of the Independent Contractors Act and raises triable issues of law and fact. The application to strike out paragraph 108 fails.


case_title: Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257


case_text: On the pleadings, whether it should be concluded that each of the OMB parties who is a party to an OMB Agreement should be classified as an "independent contractor" for the purposes of the Independent Contractors Act is controversial. In an earlier interlocutory appeal in this proceeding, Rossmick No 1 Pty Ltd v Bank of Queensland Ltd [2008] FCAFC 81 at [9] , the Full Court observed: The question of what are the terms of the written agreement between the OMB parties and the Bank parties and their effect does not necessarily determine the legal issue of whether the OMB parties are independent contractors for the purposes of s 5 of the Commonwealth Act. While it is unnecessary for us to express a concluded view on this question, it may well be that the expression 'independent contractor' in that section is intended to reflect the common law concept of what is an independent contractor as it applies in relation to natural persons, though we note that an independent contractor, as defined, is not limited to a natural person. If this is correct then the issue might be determined not only by reference to the terms of the contract between the principal and the alleged independent contractor but also by reference to the way in which the parties carry out or give effect to the contract between them: see Hollis v Vabu Pty Ltd [2001] HCA 44 ; (2001) 207 CLR 21 particularly at 40-41. As noted earlier, the OMB parties contended they are not independent contractors and the Bank parties contended they are. That being so, the OMB parties are entitled to plead and prove facts (unless admitted by the Bank parties) concerning the way in which the contractual arrangements have been carried out as part of proving that they are not independent contractors. This is so even if, ultimately, the issue falls to be decided primarily or solely by reference to the written agreements between the parties, and this now appears to be conceded now by the Bank parties. 36 Paragraphs 110 to 116 of the amended defence make allegations as to the effect of particular clauses within an OMB Agreement either alone or, as the case may be, when read with what is described as "the Fit-out Loan" and then plead that the clause or clauses concerned do not constitute a contract for services. In an earlier interlocutory judgment in respect of the then defence, Bank of Queensland Ltd v Industrial Court of New South Wales [2008] FCA 324 at [92] to [94] Greenwood J ordered to be struck out particular paragraphs which did no more than set out a contended construction of an OMB Agreement to be struck out. In the subsequent interlocutory appeal, Rossmick No 1 Pty Ltd v Bank of Queensland Ltd [2008] FCAFC 81 at [12] [13], the Full Court expressed agreement with the "general thrust" of this approach.


case_text: A major legal and factual premise of the BoQ parties' case is that each of the OMB parties who are parties to an OMB Agreement should be classified as an "independent contractor" for the purposes of the Independent Contractors Act . That term is defined by s 4 of that Act but only in a way that declares that an "independent contractor" is not limited to a natural person. It is neither necessary nor appropriate for the purposes of this interlocutory application to reach a concluded view as to meaning of the term. It is enough to observe that, subject the declaration in the definition, the question of whether a party to a contract, corporate or individual, is or is not an "independent contractor" for the purposes of the Independent Contractors Act has been seemingly left by the Parliament to be determined having regard by analogy to principles of the common law developed in modern times by cases such as Hollis v Vabu Pty Ltd [2001] HCA 44 ; (2001) 207 CLR 21 and Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16. 48 The BoQ parties' point is certainly not clear to demonstration. In the face of a statutory definition of "independent contractor" which provides that an "independent contractor" is not limited to a natural person, recourse to an Explanatory Memorandum which seeks to promote the notion that the Act is concerned with an independent contractor/ employee distinction may be nothing more than a distraction from giving attention to the language of the definition in the Act itself in the context in which it appears. If nothing else, and given that a corporation cannot be an employee at common law, the way that the definition of "independent contractor" is cast gives pause for thought about whether it might be possible to have a corporate contractor whom one would not conclude was an independent contactor, applying by analogy tests laid down in Hollis v Vabu Pty Ltd , supra and Stevens v Brodribb Sawmilling Co Pty Ltd , supra. I expressly refrain from reaching a concluded view on that subject at an interlocutory stage.


case_title: White v Johnston (1886) 8 ALT 53


case_text: Order 15A is premised upon the proposition that the discovery sought, whether it be identity discovery under r 3 or discovery to enable the applicant to decide whether it has the right to obtain relief, relates to the prospective invocation of the jurisdiction of the Court in a claim for relief against an identified or yet to be identified respondent. Finn J put it thus in Air Services Australia v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200 (at 208): 27. Ordinarily a court's jurisdiction is enlivened by an initiating process seeking a determination of the substantive claim one party alleges it has against another. But ... such need not necessarily be the case. Necessity may require otherwise if a person's right is to be vindicated in a substantive claim. Preliminary discovery of the types provided in O 15A rr 3 and 6 have long been accepted as a proper and appropriate precursor to the making of a substantive claim and appropriate because it assists in the administration of justice in relation to the making of the claim itself. There is no reason for present purposes to distinguish between the two types of discovery. Each reflects a different necessity. 28. Though in form a discrete proceeding (as was the old bill of discovery: see the quotation from Story ) preliminary discovery is, as a matter of substance, properly to be regarded as interlocutory in character in that it does not, nor is it intended to, determine finally the rights inter se of the parties to the substantive application: cf Malouf v Malouf [(1999) [1999] FCA 284 ; 86 FCR 134]. Its function rather is to assist in that determination when or if the substantive application is brought consequent upon what is revealed in the preliminary discovery itself. 29. In consequence I consider an O 15A order for preliminary discovery to be an unexceptionable exercise of judicial power when made in relation to the matter necessitating the making of the order.


case_text: Tamberlin J, like Finn J, had been confronted with a challenge to the validity of O 15A in Kirella Pty Ltd v Hooper [1999] FCA 169 ; (1999) 92 FCR 90. He held that the rule did not purport to confer jurisdiction on the Court. Rather it was "... an exercise of the rule making power by the judges in accordance with s 59 of the Federal Court Act ". And further (at 99 [46]): The Court has the necessary jurisdiction because, at the time when preliminary discovery is sought in the present case, there is a matter in existence and the grant of preliminary discovery is an exercise of power with respect to that matter. The Full Court dismissed an appeal against the decision of Tamberlin J in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 167 ALR 358.


case_title: Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 167 ALR 358


case_title: Re Sherlock (1991) 102 ALR 156

case_text: There is no authority to which I have been taken or which I have been able to find directly on the point whether an application for preliminary discovery is an originating process in a proceeding. There is analogous authority in relation to like processes. In Re Sherlock (1991) 102 ALR 156 Lockhart J held that an application for orders that persons be directed to attend before the Court for examination under the provisions of the Corporations Law was not an originating process. In this his Honour followed Re Austral Oil Estates Ltd (in liq) (1986) 86 FLR 247 at 248, a decision of McLelland J of the Supreme Court of New South Wales in relation to an examination order under s 541 of the Companies (NSW) Code which was the predecessor of s 597 of the Corporations Law. In neither of those judgments was there any elaboration of the characterisation of an application for examination as falling outside the concept of "originating process". 51 In Fiorentino v Irons (1997) 79 FCR 327, Foster J declined to follow what he characterised as the obiter observations of Lockhart J in Re Sherlock 102 ALR 156. He noted that the decision in the New South Wales Supreme Court turned upon the precise meaning of the Supreme Court Rules . He made the point that they were not framed in the same way as the Federal Court Rules were at that time. In particular, there was then no definition of "originating process" in either the Federal Court Rules or the Federal Court Act. His Honour relied upon the definition of "proceeding" in the Act. He said it was a very wide definition and he was satisfied that the issue of summons for examination was a proceeding. As to the width of the term "proceeding" his Honour referred to Re Interchase Corporation Ltd (1996) 68 FCR 481 at 487 (Kiefel J) and Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 at 448 (Finn J). In the latter case Finn J said: The definition of 'proceeding' in the Federal Court of Australia Act s 3 [sic], for example, in its reference to 'an incidental proceeding in the course of, or in connexion with, a proceeding', is apt to encompass a motion for security for costs.


case_text: There is no authority to which I have been taken or which I have been able to find directly on the point whether an application for preliminary discovery is an originating process in a proceeding. There is analogous authority in relation to like processes. In Re Sherlock (1991) 102 ALR 156 Lockhart J held that an application for orders that persons be directed to attend before the Court for examination under the provisions of the Corporations Law was not an originating process. In this his Honour followed Re Austral Oil Estates Ltd (in liq) (1986) 86 FLR 247 at 248, a decision of McLelland J of the Supreme Court of New South Wales in relation to an examination order under s 541 of the Companies (NSW) Code which was the predecessor of s 597 of the Corporations Law. In neither of those judgments was there any elaboration of the characterisation of an application for examination as falling outside the concept of "originating process".


case_title: Fiorentino v Irons (1997) 79 FCR 327

case_text: In Fiorentino v Irons (1997) 79 FCR 327, Foster J declined to follow what he characterised as the obiter observations of Lockhart J in Re Sherlock 102 ALR 156. He noted that the decision in the New South Wales Supreme Court turned upon the precise meaning of the Supreme Court Rules . He made the point that they were not framed in the same way as the Federal Court Rules were at that time. In particular, there was then no definition of "originating process" in either the Federal Court Rules or the Federal Court Act. His Honour relied upon the definition of "proceeding" in the Act. He said it was a very wide definition and he was satisfied that the issue of summons for examination was a proceeding. As to the width of the term "proceeding" his Honour referred to Re Interchase Corporation Ltd (1996) 68 FCR 481 at 487 (Kiefel J) and Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 at 448 (Finn J). In the latter case Finn J said: The definition of 'proceeding' in the Federal Court of Australia Act s 3 [sic], for example, in its reference to 'an incidental proceeding in the course of, or in connexion with, a proceeding', is apt to encompass a motion for security for costs. 52 More recently in Re Strarch International Ltd (in liq) [2005] FCA 829 , Jacobson J held that an examination summons under s 596A of the Corporations Act 2001 was "originating process" within O 8 r 1. It may be noted that at the time his Honour made that decision O 8 r 1 did not define originating process but simply listed the kinds of proceedings in which originating process could be served on a person outside Australia. His Honour followed the reasoning of Foster J in Fiorentino 79 FCR 327 that the different approach which applied in the Supreme Court of New South Wales turned upon the different wording of the rules of that court. He granted leave to the liquidator of the relevant company in that case to serve examination summonses outside the Commonwealth in Malaysia on four named former directors of the company.


case_text: In Fiorentino v Irons (1997) 79 FCR 327, Foster J declined to follow what he characterised as the obiter observations of Lockhart J in Re Sherlock 102 ALR 156. He noted that the decision in the New South Wales Supreme Court turned upon the precise meaning of the Supreme Court Rules . He made the point that they were not framed in the same way as the Federal Court Rules were at that time. In particular, there was then no definition of "originating process" in either the Federal Court Rules or the Federal Court Act. His Honour relied upon the definition of "proceeding" in the Act. He said it was a very wide definition and he was satisfied that the issue of summons for examination was a proceeding. As to the width of the term "proceeding" his Honour referred to Re Interchase Corporation Ltd (1996) 68 FCR 481 at 487 (Kiefel J) and Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 at 448 (Finn J). In the latter case Finn J said: The definition of 'proceeding' in the Federal Court of Australia Act s 3 [sic], for example, in its reference to 'an incidental proceeding in the course of, or in connexion with, a proceeding', is apt to encompass a motion for security for costs.


case_title: Pasadale Pty Ltd v Concrete Constructions (1995) 59 FCR 446


case_text: More recently in Re Strarch International Ltd (in liq) [2005] FCA 829 , Jacobson J held that an examination summons under s 596A of the Corporations Act 2001 was "originating process" within O 8 r 1. It may be noted that at the time his Honour made that decision O 8 r 1 did not define originating process but simply listed the kinds of proceedings in which originating process could be served on a person outside Australia. His Honour followed the reasoning of Foster J in Fiorentino 79 FCR 327 that the different approach which applied in the Supreme Court of New South Wales turned upon the different wording of the rules of that court. He granted leave to the liquidator of the relevant company in that case to serve examination summonses outside the Commonwealth in Malaysia on four named former directors of the company.


case_title: Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCA 503


case_text: Regulation 1.21 is a definition for the purposes of Div 1.5 of the Regulations, which relates to domestic violence. The effect of Div 1.5 is to institute a mechanical form of proof of domestic violence, a serious allegation, which absolves an applicant from the need to prove domestic violence in the ordinary course. It is therefore appropriate that every element of that mode of proof be satisfied ( Cakmak v Minister for Immigration & Multicultural Affairs [2005] FCA 503 at [40] per Gray J, not the subject of comment on dismissal of the appeal in Cakmak v Minister for Immigration & Multicultural Affairs [2003] FCAFC 257 ; (2003) 135 FCR 183). The specification of a Commonwealth declaration also absolves the decision-maker from having to ascertain whether a statutory declaration meets the requirements of the varied State laws. Perhaps, as a matter of less significance, a single form of declaration exposes a person making a statutory declaration to uniform penalties for a false declaration. 16 The appellant submits that a declaration sworn under State legislation is no less effective or efficacious than a declaration under the Commonwealth Act. In his submission, it has the same effect of imposing on the deponent an awareness of the consequences of a false declaration and the penalties for perjury. That may be the case for awareness but not necessarily for the consequences. 17 The parties referred the Court to reg 1.27 of the Regulations after the hearing, without further comment or submission. That regulation provides that a statutory declaration made under the relevant provisions of Div 1.5 is not admissible in evidence before a court or tribunal otherwise than in an application for judicial review or merits review of a decision to refuse to grant a visa or in a prosecution "under section 11 of the Commonwealth Act" for the making of a false declaration. There is no reference in reg 1.27 to admissibility in prosecutions under relevant State legislation. If State declarations were intended to be included within the meaning of reg 1.21, such a reference would be expected.


case_text: In the context of the Act and Div 1.5 of the Regulations, reg 1.21 refers to a statutory declaration "under", in the ordinary sense of ' in accordance with ' ( Macquarie Dictionary , 4 th ed, 2005, 16) or ' pursuant to ' the Commonwealth Act ( Energy Resources of Aust Ltd v Commissioner of Taxation (2003) 52 ATR 120 at [37] per Lindgren J and the cases there cited), that is a s 8 statutory declaration. The fact that the expression used is "under" rather than "made under" does not mean that statutory declarations made in accordance with legislation other than the Commonwealth Act are or were intended to be included for the purposes of Div 1.5. The appellant contends that Parliament could have stated its intention more explicitly by referring in reg 1.21 to a statutory declaration "made under" or "in a manner prescribed by" the Commonwealth Act. That may be so but it does not mean that the intention was the opposite, to include State declarations. 14 The appellant submits that, if the intention were to specify only Commonwealth declarations in reg 1.21, the intention was not executed. I do not accept that this is so. A statutory declaration under or in accordance with the Commonwealth Act is a Commonwealth declaration which complies with s 8 of the Commonwealth Act.


case_text: For the purposes of Div 1.5 of the Regulations, it was necessary for the appellant to provide a Commonwealth declaration; that is, a statutory declaration in the form prescribed by the Commonwealth Act (s 8). He did not do so. The task of the Tribunal was to determine ' whether the evidence presented to it satisfie [d] the description called for in the delegated legislation ' ( Cakmak 132 FCR 183 at [52] per the Full Court; Minister for Immigration and Citizenship v Ejueyitsi [2007] FCAFC 89 at [24] ). For the reasons given, the evidence did not satisfy that description. The Federal Magistrate was not in error in finding that the Tribunal had correctly concluded that the appellant had not satisfied the requirements of reg 1.24 of the Regulations in relation to his claims of domestic violence. I agree with Hill J in Morgan v Minister for Immigration & Multicultural Affairs [1999] FCA 1059 at [11] that the fact that a declaration was not made under the Commonwealth Act but under a Victorian Act means that, were the matter to go back to the Tribunal, the Tribunal would have to find against the appellant for this reason. Such referral is, therefore, futile.


case_title: Morgan v Minister for Immigration & Multicultural Affairs [1999] FCA 1059


case_text: There is no definition of "statutory declaration" in the Act to provide a contrary intention. There is, however, the 1.21 definition in the Regulations. There would be no purpose in defining "statutory declaration" in reg 1.21 merely to include a Commonwealth declaration because that has already been provided for by s 27 of the Acts Interpretation Act and s 7 of the Commonwealth Act ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [71] ). 23 Section 27 applies subject to a contrary intention. A contrary intention is evidenced by the 1.21 definition, which purports to exclude a State declaration. There is no other apparent reason for defining "statutory declaration" in reg 1.21. Accordingly, s 27 does not apply to "statutory declaration" in Div 1.5 to include a State declaration.


case_text: This appeal from the decision of Jarrett FM was set down for hearing on 7 November 2007. On that occasion the appellant made an application that I disqualify myself from hearing the matter. No proper basis was made out as to why I should disqualify myself ( BRGAB of 2007 v Minister for Immigration & Citizenship [2007] FCA 1748 at [12] ). 9 The appellant then applied for an adjournment. 10 For the reasons in BRGAB [2007] FCA 1748 at [18] [25], the oral hearing continued as scheduled on 7 November 2007. The appellant chose not to make oral submissions on this occasion or to sit in the Court to hear the oral submissions made on behalf of the Minister ( BRGAB [2007] FCA 1748 at [22] ) to which she could later respond in writing. 11 I granted the appellant an extension of time in which to file and serve her written submissions after the hearing. The appellant subsequently made two requests that this time be extended on the basis of her incapacity to prepare those submissions because of her mental state. One of those requests was accompanied by a medical certificate. I granted the appellant extensions of time on both occasions. On the occasion of the last extension which was not as lengthy as that sought, the Court notified the appellant that no further extensions of time would be granted. No written submissions have been received from the appellant. On the extended day on which those submissions were due, the appellant sought a further extension. She now says that she now wishes to forward the Federal Magistrate's judgment to counsel who may be interested in her case and requests that the Court makes an Order 80 referral to that counsel. 12 The matter was set down for hearing and orders were made to file submissions on 2 August 2007. The appellant's submissions were due to be filed by 30 October 2007. The hearing was scheduled for 7 November 2007. Since the hearing, the appellant has had over one month in which to file written submissions, being submissions that should have been filed prior to the hearing. That is, the appellant has had four months in which to prepare and file her submissions. 15 The appellant appeared in person before the Federal Magistrate. She prepared and relied upon detailed written submissions in relation to that application. Those detailed contentions of fact and law are before me. The appellant drafted the notice of appeal herself and, as she acknowledged at the hearing, the grounds of that notice reflect the grounds of the application that had been advanced before his Honour ( BRGAB [2007] FCA 1748 at [19] ). 16 At the hearing before the Tribunal, the appellant abandoned the grounds set out in her application for the protection visa that were based on her ability to continue then current litigation in Australia. She advanced two new claims with which the Tribunal dealt: • A media release issued by the Australian Federal Police on 31 July 2006 in relation to charges brought against the appellant had been reported in Japan ('the AFP media release'). The Japanese authorities were aware of the fact that the appellant had been charged with criminal offences. The appellant was concerned about the effect of this media release in Japan where 99.8% of defendants who appeared before a judge in criminal cases were found guilty. • There had been entries posted on an Internet bulletin board in Japan ('the bulletin board') that said that the appellant must be a Korean or that she should be a Korean. She feared persecution based on the statement that she was of Korean nationality. She also told the Tribunal that the bulletin board was not the cause of persecution but evidence of it. 17 The Convention ground relied upon by the appellant was nationality: a Japanese who had been charged with a criminal offence. The appellant said that the Japanese government would not be interested if she were a national of another country. The Tribunal rejected this as a basis for Convention-based persecution. It concluded that, if she were stopped or interviewed at the airport on return to Japan as the appellant said she feared, or if she were subsequently required to report to the authorities, the essential and significant reason would not be her nationality but the fact that she had been charged with criminal offences in Australia. This would also be the reason for any impact on her access to employment as a scholar in Japan and on her ability to travel overseas.