case_title: Ramsden v Dyson [1866] 1 LRHL 129

case_text: The last mentioned words appear to be a reference to the form of estoppel stated in Ramsden v Dyson [1866] 1 LRHL 129 (" Ramsden v Dyson ") at 170. That is to say, it refers to an equitable estoppel arising from an expectation created or encouraged by the words or conduct of the party against whom the estoppel is raised. This form of estoppel includes failure to disabuse a party where the person estopped has knowledge of the other party's intention to act upon the expectation: see Crabb v Arun District Council [1976] 1 Ch 179 (" Crabb") per Lord Denning MR at 189. 668 I will enumerate the propositions as follows:- (1) The object of estoppel in pais is to prevent an unjust or unconscionable departure by one person from an assumption adopted by another as the basis of an act or omission which, unless the assumption is adhered to, would operate to the other's detriment: Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 (" Thompson ") at 547 per Dixon J; Grundt v Great Boulder Pty Limited (1937) 59 CLR 640 (" Grundt ") at 674 per Dixon J; Legione at 430 431; Waltons at 413 per Brennan J; Verwayen at 409 per Mason CJ and at 500 per McHugh J. (2) Whether a departure from an assumption is unjust depends upon the part taken by the person sought to be estopped in occasioning the adoption by the other party of the assumption: Thompson at 547 per Dixon J; Grundt at 675-676; Legione at 431 432; Waltons at 404 per Mason CJ, Wilson J; Verwayen at 444 per Deane J and at 500 per McHugh J. (3) Accordingly, the reference to an "unjust" departure is not a charter for idiosyncratic concepts of justice and fairness: Legione at 431. That is to say, it requires the party asserting the estoppel to prove that the other party caused him or her to adopt the assumption. (4) The party asserting an estoppel must establish that he or she has relied upon the assumption and that detriment flows from the reliance; that is to say, if the assumption were not adhered to: Grundt at 674 675; Waltons at 413 and Verwayen at 415. (5) It may be possible to divide detriment into the "narrower" and "broader" sense, although this approach, which was stated by Mason CJ in Verwayen at 415, really points to the distinction between reliance and detriment. The narrower sense is reliance on the assumption, whilst the broader sense is the detriment which flows from reliance on the deserted assumption. It is avoidance of the broader or "real detriment" flowing from reliance, from which the law seeks to protect the party who has changed his or her position: Grundt at 674 per Dixon J; Verwayen at 415 per Mason CJ. (6) It is only when the party sought to be estopped wishes to disavow the assumption that an estoppel arises and the question of detriment then falls to be considered: see P Feltham et al (2004) Spencer Bower's Law Relating to Estoppel by Representation (4 th ed) Butterworths, London at [V5.9] and Grundt at 674-675. (7) Although detriment in the broad sense is required to found an estoppel, the remedy the law provides will often be closer in scope to the detriment suffered in the narrower sense, that is to say, reliance: Verwayen at 415 416 per Mason CJ. (8) Avoidance of the detriment may require the party estopped to make good the assumption but this will depend on all the circumstances including the consideration that no more may be required than is necessary to avoid the detriment: see the discussion of Verwayen in Giumelli at [40] [48]. (9) The burden of proof of reliance and detriment lies upon the person asserting an estoppel: Thompson at 549 per Dixon CJ and Verwayen at 416 per Mason CJ. Dixon J's reference in Thompson at 549 to the shift of the burden of proof cannot have been intended to negate the principle stated by his Honour later in that paragraph, ie that the burden lies with the plaintiff. It can only have been intended to be a reference to the shifting evidentiary burden once some evidence of detriment is established: see J D Heydon (2004) Cross on Evidence (7 th ed) LexisNexis Butterworth, Sydney at [7205], [7225]. (10) Estoppel by convention requires proof of an assumption adopted by the parties as the conventional basis of their relationship: Thompson at 547; Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14 ; (1986) 160 CLR 226 (" Con-Stan ") at 244. (11) The proposition that the necessary foundation for an estoppel by convention must be an assumed state of facts presently in existence, as stated by the High Court in Con-Stan at 244 245, has been qualified by later authority. The assumed state of affairs may extend to an assumption of law: Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 186-189 per Samuels JA; Waltons at 415 and Verwayen at 413 per Dixon J, 445 per Deane J, and at 501 per McHugh J. (12) An estoppel by convention, unlike estoppel by representation, depends upon mutual assumptions. It is consensual in nature and is founded upon an agreed or mutually assumed state of facts (or law): Con-Stan at 244. (13) Conventional estoppel does not extend to assumptions concerning future matters. But an assumption as to a future right may found an equitable estoppel, in particular a promissory estoppel: Waltons at 398 399 per Mason CJ and Wilson J and 459 per Gaudron J and Verwayen at 499 500 per McHugh J. (14) The necessary elements of equitable or promissory estoppel are stated in the following passage from the judgment of Brennan J in Waltons at 428 429:- "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." (15) In order to found an estoppel between parties who are in contractual negotiations, it is necessary for the party asserting the estoppel to prove that the other party induced him or her to believe that the other's freedom to withdraw has gone; that is to say, there must be an expectation that the other party is bound to proceed. This is reflected in the first of the six principles stated by Brennan J above and in the decision of the Privy Council in Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Limited [1987] 1 AC 114 (" Humphreys "). (16) The adoption of any assumption or expectation by the party asserting the estoppel must be reasonable in all the circumstances: Waltons at 406 per Mason CJ and Wilson J, Verwayen at 414 per Mason CJ and at 445 per Deane J and Standard Chartered Bank Aust Limited v Bank of China (1991) 23 NSWLR 164 at 180 per Giles J. (17) A representation or conduct relied upon as founding an estoppel must be clear and unambiguous: Legione at 435 437, Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 410 411 per Mason J, and Mobil Oil Australia Limited v Wellcome International Pty Limited (1998) 81 FCR 475 (" Mobil Oil ") at 513 per Lockhart, Lindgren and Tamberlin JJ; see also Spencer Bower's Law Relating to Estoppel by Representation at [V111.4.1]. (18) A corollary of the requirement of certainty is that it is a necessary element of the principle that the defendant has created or encouraged an assumption that "a particular legal relationship" or "interest" would arise or be granted: Mobil Oil at 513. (19) A pre-existing contractual relationship is not, under Australian law, a prerequisite to the application of the doctrine of promissory estoppel: Waltons at 399 403 per Mason CJ and Wilson J and 428 429 per Brennan J and Verwayen at 455 per Dawson J. (20) A person who is led to believe that he or she will be granted an interest in land and who acts to his or her detriment in that belief will be entitled to an interest in the land in accordance with the following statement of principle enunciated by Lord Kingsdown in his dissenting judgment in Ramsden v Dyson at 170:- "If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." (21) Lord Kingsdown's statement of principle was approved by the Privy Council in Plimmer v Mayor of Wellington (1884) 9 AC 699 (" Plimmer") at 710 and again in Humphreys at 121: see also the analysis of the authorities by Priestley JA in Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582 (" Austotel ") at 604 610. Priestley JA's distillation of the principles has been accepted as cogent: Mobil Oil at 512. (22) Subject to a qualification stated below, it is not necessary that the interest to the secured under the Ramsden v Dyson or Plimmer principle be expressly stated or that the terms of the arrangement or understanding to secure that interest be sufficiently certain to be enforceable as a contract. The Court must look at the circumstances of each case to determine the form of relief: Plimmer at 713 714, Inwards v Baker [1965] 2 QB 29 at 37, and Austotel at 607 610 per Priestley JA. (23) The qualification is that where the parties have not reached agreement as to the contractual terms necessary to establish the interest in the land, the Court will exercise caution in coming to a conclusion that it would be unconscionable to prevent a party from insisting upon its strict legal rights: Austotel at 585 586 per Kirby JA and at 620 621 per Rogers AJA.


case_outcome: referred to

case_text: The following ten principles emerge from Queensland Wire and the trilogy of cases which have explained the proper approach to construction:- (1) what is involved in answering the question of whether a firm has taken advantage of market power is the sufficiency of the connection between the market power and the conduct complained of: Melway at [44] and [67]; Boral [120] and [170]; Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 (" Rural Press ") at [51]. McHugh J has said that a causal connection is required: Boral at [279]. (2) if the impugned conduct has a rational business explanation, that is a factor which points against the existence of a relevant connection between the market power and the conduct: Melway at [67]; Boral at [170]. (3) the words "take advantage" do not encompass conduct which has the purpose of protecting market power but no other connection: Rural Press at [51]. (4) in deciding whether a firm has taken advantage, is it relevant to ask how it would have behaved if it lacked power and whether it could have behaved in the way it did in a competitive market: Melway at [52] and [61]; Rural Press at [52]. (5) it may be proper to conclude that a firm is taking advantage of market power where it does something that is materially facilitated by the existence of the power: Melway at [51]; Rural Press at [53]. (6) McHugh J has said that the conduct must have given the firm an advantage it would not have had in the absence of market power: Boral at [279]. (7) the test may be whether the conduct was necessarily an exercise of market power: Melway at [68]. (8) one of the difficulties in determining what constitutes taking advantage stems from the need to distinguish between monopolistic practices and vigorous competition: Queensland Wire at 202. (9) the purpose of s 46 is the promotion of competition; it is concerned with the protection of competition, not competitors: Queensland Wire at 191 and 194; Boral at [87], [160], [164] and [260]; Melway at [17]. (10) it is dangerous to proceed from a finding of proscribed purpose to a conclusion of the existence of a substantial degree of market power, which can be taken advantage of; to do so will ordinarily be to invert the reasoning process: Boral at [123], [194]. 1092 Moreover, the suggestion that QR took advantage of market power is at odds with three further principles which emerge from the authorities. First, I do not see how it can be said that to obtain possession with a view to converting the AR terminal to a common user facility as was sought in 1997-98 or a multi-user facility in 2003, was facilitated by the existence of the power: Melway at [51] and Rural Press at [53]. 1194 Nor am I satisfied that NRC's purpose in failing to grant the access applications was a proscribed purpose in contravention of s 46. Its purpose was the protection of the integrity of its national network. The position is not entirely analogous with that which arose in Rural Press . Nevertheless, in my view, so long as NRC gave proper consideration to the access applications, which in my opinion it did, its purpose cannot be said to be to have been to prevent QR from engaging in competitive conduct in the relevant market. 1195 It follows from my rejection of PN's estoppel claim and from my rejection of the claims of misleading conduct, unconscionability and breach of s 46, that QR is entitled to an order for possession. There is to be a stay of the order in accordance with the undertaking given by QR to the Court. 1196 It also follows that QR is entitled to an order for payment by NRC of additional rent pursuant to s 139 of the Property Law Act .


case_text: It follows that I am not satisfied that the statements made in the relevant letters were incorrect. Moreover, I am not satisfied that the statements were made otherwise than honestly in good faith. It is true that Mr Smith was not called to give evidence, although a belated attempt was made to re-open to rely on his affidavit. But it is unnecessary for me to make a finding that his evidence would not have assisted; cf Sebben v Partridge (unreported Supreme of South Australia, Lander J, 20 December 1994). In that case, Lander J was of the view that a Jones v Dunkel inference was available where a defendant was not called, an unsuccessful attempt having been made to reopen after close of the defendant's case.


case_text: Three clauses call for consideration. Clause 3 deals with the term of the amended Terminal Services Agreement. The initial term is for approximately two and a half years, to 5 October 2008. Renewal for a period of five years is conditional upon the existence of a Corridor Access Agreement for the full renewal period. Since QR owns the rail track from the border to the AR terminal, it would be under an implied duty to cooperate with PN in the grant of a Corridor Access Agreement: Secured Income Real Estate (Australia) Limited v St Martins Investments Pty Limited [1979] HCA 51 ; (1979) 144 CLR 596 at 607. 874 It is true that, under cl 3.2, extensions beyond the Renewal Term are in the discretion of QR. But there is nothing to suggest that QR would refuse to extend the agreement to PN which would, at least on the existing evidence, be its largest customer. Moreover, a refusal may trigger a claim of contravention of s 46 of the Act, although, of course, that would depend upon the factual circumstances at the time of any refusal.


case_text: QR submitted that the EA was a political agreement not intended to create legal relations: see eg South Australia v Commonwealth [1962] HCA 10 ; (1962) 108 CLR 130 ("Railways Standardisation Case") at 140, 148, 149, 150 and 153-154. There is considerable force in this submission. Mr Hanscomb acknowledged that the EA was a mixture of commercial arrangements and political imperatives. However, PN does not seek to enforce the EA. Rather, PN contends that the EA engendered assumptions founding an estoppel. 701 It is unnecessary for me to decide whether a political agreement is capable of providing the foundation for a claim in estoppel. I consider it unlikely to be so capable in the absence of a representation or other conduct which could have been relied upon. But even if the terms of the EA could give rise to an estoppel, the claim fails because PN's evidence of the assumptions said to arise from a reading of the EA rests upon two misconceptions. 702 First, "access" in cl 5(6)(a) is not to be given a meaning equivalent to "control" or "exclusive possession". To do so would be to construe "access" as conferring rights equivalent to a lease. That cannot be correct because cl 5(6)(a) specifically distinguishes between ownership, lease and access. It follows that "access" must import something different from the rights which would flow from a lease.


case_text: I will enumerate the propositions as follows:- (1) The object of estoppel in pais is to prevent an unjust or unconscionable departure by one person from an assumption adopted by another as the basis of an act or omission which, unless the assumption is adhered to, would operate to the other's detriment: Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 (" Thompson ") at 547 per Dixon J; Grundt v Great Boulder Pty Limited (1937) 59 CLR 640 (" Grundt ") at 674 per Dixon J; Legione at 430 431; Waltons at 413 per Brennan J; Verwayen at 409 per Mason CJ and at 500 per McHugh J. (2) Whether a departure from an assumption is unjust depends upon the part taken by the person sought to be estopped in occasioning the adoption by the other party of the assumption: Thompson at 547 per Dixon J; Grundt at 675-676; Legione at 431 432; Waltons at 404 per Mason CJ, Wilson J; Verwayen at 444 per Deane J and at 500 per McHugh J. (3) Accordingly, the reference to an "unjust" departure is not a charter for idiosyncratic concepts of justice and fairness: Legione at 431. That is to say, it requires the party asserting the estoppel to prove that the other party caused him or her to adopt the assumption. (4) The party asserting an estoppel must establish that he or she has relied upon the assumption and that detriment flows from the reliance; that is to say, if the assumption were not adhered to: Grundt at 674 675; Waltons at 413 and Verwayen at 415. (5) It may be possible to divide detriment into the "narrower" and "broader" sense, although this approach, which was stated by Mason CJ in Verwayen at 415, really points to the distinction between reliance and detriment. The narrower sense is reliance on the assumption, whilst the broader sense is the detriment which flows from reliance on the deserted assumption. It is avoidance of the broader or "real detriment" flowing from reliance, from which the law seeks to protect the party who has changed his or her position: Grundt at 674 per Dixon J; Verwayen at 415 per Mason CJ. (6) It is only when the party sought to be estopped wishes to disavow the assumption that an estoppel arises and the question of detriment then falls to be considered: see P Feltham et al (2004) Spencer Bower's Law Relating to Estoppel by Representation (4 th ed) Butterworths, London at [V5.9] and Grundt at 674-675. (7) Although detriment in the broad sense is required to found an estoppel, the remedy the law provides will often be closer in scope to the detriment suffered in the narrower sense, that is to say, reliance: Verwayen at 415 416 per Mason CJ. (8) Avoidance of the detriment may require the party estopped to make good the assumption but this will depend on all the circumstances including the consideration that no more may be required than is necessary to avoid the detriment: see the discussion of Verwayen in Giumelli at [40] [48]. (9) The burden of proof of reliance and detriment lies upon the person asserting an estoppel: Thompson at 549 per Dixon CJ and Verwayen at 416 per Mason CJ. Dixon J's reference in Thompson at 549 to the shift of the burden of proof cannot have been intended to negate the principle stated by his Honour later in that paragraph, ie that the burden lies with the plaintiff. It can only have been intended to be a reference to the shifting evidentiary burden once some evidence of detriment is established: see J D Heydon (2004) Cross on Evidence (7 th ed) LexisNexis Butterworth, Sydney at [7205], [7225]. (10) Estoppel by convention requires proof of an assumption adopted by the parties as the conventional basis of their relationship: Thompson at 547; Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14 ; (1986) 160 CLR 226 (" Con-Stan ") at 244. (11) The proposition that the necessary foundation for an estoppel by convention must be an assumed state of facts presently in existence, as stated by the High Court in Con-Stan at 244 245, has been qualified by later authority. The assumed state of affairs may extend to an assumption of law: Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 186-189 per Samuels JA; Waltons at 415 and Verwayen at 413 per Dixon J, 445 per Deane J, and at 501 per McHugh J. (12) An estoppel by convention, unlike estoppel by representation, depends upon mutual assumptions. It is consensual in nature and is founded upon an agreed or mutually assumed state of facts (or law): Con-Stan at 244. (13) Conventional estoppel does not extend to assumptions concerning future matters. But an assumption as to a future right may found an equitable estoppel, in particular a promissory estoppel: Waltons at 398 399 per Mason CJ and Wilson J and 459 per Gaudron J and Verwayen at 499 500 per McHugh J. (14) The necessary elements of equitable or promissory estoppel are stated in the following passage from the judgment of Brennan J in Waltons at 428 429:- "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." (15) In order to found an estoppel between parties who are in contractual negotiations, it is necessary for the party asserting the estoppel to prove that the other party induced him or her to believe that the other's freedom to withdraw has gone; that is to say, there must be an expectation that the other party is bound to proceed. This is reflected in the first of the six principles stated by Brennan J above and in the decision of the Privy Council in Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Limited [1987] 1 AC 114 (" Humphreys "). (16) The adoption of any assumption or expectation by the party asserting the estoppel must be reasonable in all the circumstances: Waltons at 406 per Mason CJ and Wilson J, Verwayen at 414 per Mason CJ and at 445 per Deane J and Standard Chartered Bank Aust Limited v Bank of China (1991) 23 NSWLR 164 at 180 per Giles J. (17) A representation or conduct relied upon as founding an estoppel must be clear and unambiguous: Legione at 435 437, Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 410 411 per Mason J, and Mobil Oil Australia Limited v Wellcome International Pty Limited (1998) 81 FCR 475 (" Mobil Oil ") at 513 per Lockhart, Lindgren and Tamberlin JJ; see also Spencer Bower's Law Relating to Estoppel by Representation at [V111.4.1]. (18) A corollary of the requirement of certainty is that it is a necessary element of the principle that the defendant has created or encouraged an assumption that "a particular legal relationship" or "interest" would arise or be granted: Mobil Oil at 513. (19) A pre-existing contractual relationship is not, under Australian law, a prerequisite to the application of the doctrine of promissory estoppel: Waltons at 399 403 per Mason CJ and Wilson J and 428 429 per Brennan J and Verwayen at 455 per Dawson J. (20) A person who is led to believe that he or she will be granted an interest in land and who acts to his or her detriment in that belief will be entitled to an interest in the land in accordance with the following statement of principle enunciated by Lord Kingsdown in his dissenting judgment in Ramsden v Dyson at 170:- "If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." (21) Lord Kingsdown's statement of principle was approved by the Privy Council in Plimmer v Mayor of Wellington (1884) 9 AC 699 (" Plimmer") at 710 and again in Humphreys at 121: see also the analysis of the authorities by Priestley JA in Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582 (" Austotel ") at 604 610. Priestley JA's distillation of the principles has been accepted as cogent: Mobil Oil at 512. (22) Subject to a qualification stated below, it is not necessary that the interest to the secured under the Ramsden v Dyson or Plimmer principle be expressly stated or that the terms of the arrangement or understanding to secure that interest be sufficiently certain to be enforceable as a contract. The Court must look at the circumstances of each case to determine the form of relief: Plimmer at 713 714, Inwards v Baker [1965] 2 QB 29 at 37, and Austotel at 607 610 per Priestley JA. (23) The qualification is that where the parties have not reached agreement as to the contractual terms necessary to establish the interest in the land, the Court will exercise caution in coming to a conclusion that it would be unconscionable to prevent a party from insisting upon its strict legal rights: Austotel at 585 586 per Kirby JA and at 620 621 per Rogers AJA.


case_text: Quite apart from the fact that Mr Lonergan's third report adopted a completely different approach and methodology to his previous report, there are a number of serious difficulties with his evidence which cause me to reject it. First, Mr Lonergan did not identify which costs were fixed and which were variable. Second, PN failed to discharge the onus of adducing evidence of all the costs of operations on the East Coast corridor. I could not be satisfied that Mr Lonergan's evidence matched the whole of PN's expenditure with the whole of its revenue. This criticism is directed at PN rather than Mr Lonergan. PN carried the evidentiary onus on this issue: Swain v Waverley Municipal Council (2005) 213 ALR 249 at [17], [151] [155]. 855 The evidence of QR's witness, Mr Bryant, is to be preferred, notwithstanding that both experts are well qualified. 856 The short answer to Mr Lonergan's attempt to offer a different approach to interest costs is that his first report was based on actual interest costs whereas his third report looked at interest in the nature of opportunity costs. A calculation of whether expenditure has been recouped is not concerned with lost opportunity costs. Accordingly, Mr Lonergan's approach to this issue in his third report was irrelevant to the issue at hand.


case_text: Whether conduct amounts to a representation is a question of fact to be determined against the background of all the surrounding circumstances: Taco Company of Australia Inc v Taco Bell Pty Limited (1982) 42 ALR 177 at 202; Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at [100] . The conduct must be considered as a whole: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at [39] .


case_text: This of course is not a case in which a party seeks to impose liability upon PN for the civil wrongs of its servants or agents. In those cases the law is concerned with the search for the "directing mind and will" of the company: Tesco Supermarkets Limited v Nattrass [1971] UKHL 1 ; [1972] AC 153 (" Tesco ") at 170 171. In Tesco , Lord Reid said that normally the board of directors, the managing director and perhaps other senior officers speak and act as the company; see also per Viscount Dilhorne at 187 and see Federal Commissioner of Taxation v Whitfords Beach Pty Limited [1982] HCA 8 ; (1982) 150 CLR 355 at 370.


case_outcome: cited

case_text: I will enumerate the propositions as follows:- (1) The object of estoppel in pais is to prevent an unjust or unconscionable departure by one person from an assumption adopted by another as the basis of an act or omission which, unless the assumption is adhered to, would operate to the other's detriment: Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 (" Thompson ") at 547 per Dixon J; Grundt v Great Boulder Pty Limited (1937) 59 CLR 640 (" Grundt ") at 674 per Dixon J; Legione at 430 431; Waltons at 413 per Brennan J; Verwayen at 409 per Mason CJ and at 500 per McHugh J. (2) Whether a departure from an assumption is unjust depends upon the part taken by the person sought to be estopped in occasioning the adoption by the other party of the assumption: Thompson at 547 per Dixon J; Grundt at 675-676; Legione at 431 432; Waltons at 404 per Mason CJ, Wilson J; Verwayen at 444 per Deane J and at 500 per McHugh J. (3) Accordingly, the reference to an "unjust" departure is not a charter for idiosyncratic concepts of justice and fairness: Legione at 431. That is to say, it requires the party asserting the estoppel to prove that the other party caused him or her to adopt the assumption. (4) The party asserting an estoppel must establish that he or she has relied upon the assumption and that detriment flows from the reliance; that is to say, if the assumption were not adhered to: Grundt at 674 675; Waltons at 413 and Verwayen at 415. (5) It may be possible to divide detriment into the "narrower" and "broader" sense, although this approach, which was stated by Mason CJ in Verwayen at 415, really points to the distinction between reliance and detriment. The narrower sense is reliance on the assumption, whilst the broader sense is the detriment which flows from reliance on the deserted assumption. It is avoidance of the broader or "real detriment" flowing from reliance, from which the law seeks to protect the party who has changed his or her position: Grundt at 674 per Dixon J; Verwayen at 415 per Mason CJ. (6) It is only when the party sought to be estopped wishes to disavow the assumption that an estoppel arises and the question of detriment then falls to be considered: see P Feltham et al (2004) Spencer Bower's Law Relating to Estoppel by Representation (4 th ed) Butterworths, London at [V5.9] and Grundt at 674-675. (7) Although detriment in the broad sense is required to found an estoppel, the remedy the law provides will often be closer in scope to the detriment suffered in the narrower sense, that is to say, reliance: Verwayen at 415 416 per Mason CJ. (8) Avoidance of the detriment may require the party estopped to make good the assumption but this will depend on all the circumstances including the consideration that no more may be required than is necessary to avoid the detriment: see the discussion of Verwayen in Giumelli at [40] [48]. (9) The burden of proof of reliance and detriment lies upon the person asserting an estoppel: Thompson at 549 per Dixon CJ and Verwayen at 416 per Mason CJ. Dixon J's reference in Thompson at 549 to the shift of the burden of proof cannot have been intended to negate the principle stated by his Honour later in that paragraph, ie that the burden lies with the plaintiff. It can only have been intended to be a reference to the shifting evidentiary burden once some evidence of detriment is established: see J D Heydon (2004) Cross on Evidence (7 th ed) LexisNexis Butterworth, Sydney at [7205], [7225]. (10) Estoppel by convention requires proof of an assumption adopted by the parties as the conventional basis of their relationship: Thompson at 547; Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14 ; (1986) 160 CLR 226 (" Con-Stan ") at 244. (11) The proposition that the necessary foundation for an estoppel by convention must be an assumed state of facts presently in existence, as stated by the High Court in Con-Stan at 244 245, has been qualified by later authority. The assumed state of affairs may extend to an assumption of law: Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 186-189 per Samuels JA; Waltons at 415 and Verwayen at 413 per Dixon J, 445 per Deane J, and at 501 per McHugh J. (12) An estoppel by convention, unlike estoppel by representation, depends upon mutual assumptions. It is consensual in nature and is founded upon an agreed or mutually assumed state of facts (or law): Con-Stan at 244. (13) Conventional estoppel does not extend to assumptions concerning future matters. But an assumption as to a future right may found an equitable estoppel, in particular a promissory estoppel: Waltons at 398 399 per Mason CJ and Wilson J and 459 per Gaudron J and Verwayen at 499 500 per McHugh J. (14) The necessary elements of equitable or promissory estoppel are stated in the following passage from the judgment of Brennan J in Waltons at 428 429:- "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." (15) In order to found an estoppel between parties who are in contractual negotiations, it is necessary for the party asserting the estoppel to prove that the other party induced him or her to believe that the other's freedom to withdraw has gone; that is to say, there must be an expectation that the other party is bound to proceed. This is reflected in the first of the six principles stated by Brennan J above and in the decision of the Privy Council in Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Limited [1987] 1 AC 114 (" Humphreys "). (16) The adoption of any assumption or expectation by the party asserting the estoppel must be reasonable in all the circumstances: Waltons at 406 per Mason CJ and Wilson J, Verwayen at 414 per Mason CJ and at 445 per Deane J and Standard Chartered Bank Aust Limited v Bank of China (1991) 23 NSWLR 164 at 180 per Giles J. (17) A representation or conduct relied upon as founding an estoppel must be clear and unambiguous: Legione at 435 437, Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 410 411 per Mason J, and Mobil Oil Australia Limited v Wellcome International Pty Limited (1998) 81 FCR 475 (" Mobil Oil ") at 513 per Lockhart, Lindgren and Tamberlin JJ; see also Spencer Bower's Law Relating to Estoppel by Representation at [V111.4.1]. (18) A corollary of the requirement of certainty is that it is a necessary element of the principle that the defendant has created or encouraged an assumption that "a particular legal relationship" or "interest" would arise or be granted: Mobil Oil at 513. (19) A pre-existing contractual relationship is not, under Australian law, a prerequisite to the application of the doctrine of promissory estoppel: Waltons at 399 403 per Mason CJ and Wilson J and 428 429 per Brennan J and Verwayen at 455 per Dawson J. (20) A person who is led to believe that he or she will be granted an interest in land and who acts to his or her detriment in that belief will be entitled to an interest in the land in accordance with the following statement of principle enunciated by Lord Kingsdown in his dissenting judgment in Ramsden v Dyson at 170:- "If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." (21) Lord Kingsdown's statement of principle was approved by the Privy Council in Plimmer v Mayor of Wellington (1884) 9 AC 699 (" Plimmer") at 710 and again in Humphreys at 121: see also the analysis of the authorities by Priestley JA in Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582 (" Austotel ") at 604 610. Priestley JA's distillation of the principles has been accepted as cogent: Mobil Oil at 512. (22) Subject to a qualification stated below, it is not necessary that the interest to the secured under the Ramsden v Dyson or Plimmer principle be expressly stated or that the terms of the arrangement or understanding to secure that interest be sufficiently certain to be enforceable as a contract. The Court must look at the circumstances of each case to determine the form of relief: Plimmer at 713 714, Inwards v Baker [1965] 2 QB 29 at 37, and Austotel at 607 610 per Priestley JA. (23) The qualification is that where the parties have not reached agreement as to the contractual terms necessary to establish the interest in the land, the Court will exercise caution in coming to a conclusion that it would be unconscionable to prevent a party from insisting upon its strict legal rights: Austotel at 585 586 per Kirby JA and at 620 621 per Rogers AJA. 672 Here the question is whether there has been an unjust departure by one person, that is to say QR, "from an assumption adopted by another [ie NRC]" as the basis for NRC's decision to make the investment decisions to which I have referred: see Thompson at 547. 673 Thus, although as I have said at [62], Messrs Butcher, Moore-Wilton and Stanko and Mrs Yeoh gave evidence in general terms that they relied on Mr Graham, it seems to me to be necessary to look at the evidence of their deliberations to see whether this was consistent with the approach taken by Mr Graham. I do not consider that reliance in general terms can be sufficient in circumstances where the individual directors gave evidence of their own approaches to the matter. 693 It follows that of the four pleaded assumptions, only the second assumption finds any support in the evidence. But the only evidence to support it was that of Mr Graham and his approach was inconsistent with that of the other directors. In my opinion this does not establish that NRC adopted the assumption as the basis for the relevant actions within the principle stated by Dixon J in Thompson . 744 As Dixon J said in Thompson at 547, whether a departure from an assumption is unjust depends upon the part taken by the person sought to be estopped in occasioning the adoption by the other party of the assumption. 745 Even if the assumptions propounded by PN are capable in their terms of giving rise to an estoppel, the claim fails because QR did nothing to occasion or cause the adoption of the assumption. 746 Mr Graham formed his assumptions based upon his reading of the EA. He did not put forward any positive statement or conduct by Mr O'Rourke or, to the extent that Mr Hamill's conduct is, or may, be relevant, any positive statement or conduct of Mr Hamill. Instead he emphasised that nothing said by either of those persons in the period from 1992 to March 1997 was inconsistent with Mr Graham's understanding of the EA. 865 The claim of lost opportunity to apply political pressure is, to borrow from the words of Starke J in Thompson at 528, at best "wholly speculative and conjectural" and affords "no solid basis" for concluding that NRC acted to its detriment. 866 The same may be said of the suggestion that NRC lost the opportunity to avail itself of the alternative dispute resolution provisions of cl 7 of the EA. Not only did NRC fail to invoke the clause, but as I have already said, the clause did not provide a mechanism for determination of the form or the terms of the rights to be accorded to NRC. 867 There were three species of operational detriment identified by PN. The first was generalised evidence of the adverse effect on future operating conditions at the AR terminal given, in particular, by Mr Fullerton. The second was said to be the comparison between PN's existing cost of operations and the price to be charged by QR under the Terminal Services Agreement. This proposition was put to QR's CEO, Mr Scheuber, in cross-examination.


case_title: Trade Practices Commission v Pioneer Concrete (Qld) Pty Limited (1994) 52 FCR 164 Eastern Express Pty Limited v General Newspapers Pty Limited (1992) 35 FCR 43 Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389

case_text: The circumstances which may give rise to the absence of competitive constraint on a corporation are diverse. They are not confined to the matters identified in s 46(3): see Trade Practices Commission v Pioneer Concrete (Qld) Pty Limited (1994) 52 FCR 164 (" Pioneer Concrete ") at 172-173 and 176; see also Boral at [168] per Gaudron, Gummow and Hayne JJ. 970 The primary consideration in determining market power is whether there are barriers to entry into the relevant market: Pioneer Concrete at 173, citing Eastern Express Pty Limited v General Newspapers Pty Limited (1992) 35 FCR 43 (" Eastern Express ") at 62-63 per Lockhart and Gummow JJ. 971 A corporation will have a substantial degree of power in the market if it has a considerable or large degree of power: Eastern Express at 63. 972 In JD Heydon, Trade Practices Law : Restrictive Trade Practices, Deceptive Conduct and Consumer Protection, LBC, Vol 1, Sydney at [5.40], the learned author observes that s 46(1) is not concerned with a firm moving toward possession of a substantial degree of power in a market but only with a firm which has already gained possession of a substantial degree of power. This is because abuse of monopoly power consists of a corporation with the requisite degree of power taking advantage of it for a proscribed purpose. Unless the power presently exists there is nothing of which it can be said the corporation has taken advantage. 979 Alternatively, any power arising from QR's ownership of the AR terminal was constrained by the grant of exclusive possession to NRC: Melway at [43], Boral at [121], and Pioneer Concrete at 172-173 and 176. 1020 Mr Ergas' opinion is that QR has market power by reason of its ownership of the track but that the declaration and the undertaking go to the question of whether it has taken advantage of the power. However, that view seems to me to be contrary to the authorities referred to above, in particular Melway at [43], Boral at [121], and Pioneer Concrete at 172 -173 and 176.


case_text: PN will lose some flexibility in its ability to handle late trains. The wording of cl 6.7(a)(i) of the amended Draft Terminal Services Agreement is awkward, but in my opinion it imposes a positive obligation upon the Terminal Manager to do what is reasonable in the circumstances to provide services: Transfield Pty Limited v Arlo International Limited [1980] HCA 15 ; (1980) 144 CLR 83 (" Transfield ") at 101. In my view, the alteration to the clause in the draft of 6 July 2005 to replace "reasonable endeavours" with "best endeavours" does not affect the scope or content of the obligation prescribed by the clause. 876 Clause 7.5 and Schedule 2 of the amended Draft Terminal Services Agreement make provision for the allocation of capacity to PN for increases in the allocated monthly TEU. Schedule 4 lists the allocated monthly TEU which varies according to seasonal use. The total annual allocation is approximately 235,000 TEU, which is equal to PN's throughput for the year ended 30 June 2004, as stated in Mr Lawrence's evidence. However, Mr Lawrence said that he expected throughput of 270,000 to 280,000 TEU for the year ending 30 June 2005. 877 Schedule 2 provides for an automatic and permanent increase of 10% in the allocated monthly TEU upon notice to the Rail Operator. This would enable PN to come close to the anticipated 2005 throughput. 1105 The proper construction of cl 6.7 seems to me to impose an obligation on QR to use reasonable endeavours to provide services for late trains: see Transfield at 101. The proper construction of the clause is not controlled by the heading. The clause is not clearly expressed but the agreement to use "best endeavours" must be seen as a proviso to the opening words of cl 6.7(a)(i) which appear on their face to deny such an obligation. 1106 The business rationale for the clause is the efficient operation of the AR terminal, whilst at the same time making provision for QR to use reasonable endeavours to service PN's late trains. 1107 In summary, it is my opinion that even if QR had a substantial degree of power in the market at the time of the impugned conduct, it did not take advantage of the power.


case_text: The first assumption is that QR would grant a lease or access "for so long as NRC carried on the business of interstate rail freight operations in Queensland" on a commercial basis, or for at least 30 years. The extent of any such business and the degree of repetition or continuity of the requisite activity are not spelled out: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 8 and United Dominions Corporation Limited v Brian Pty Limited [1985] HCA 49 ; (1985) 157 CLR 1 at 15. Although the period of the lease or access was said to be for 30 years, the terms were to be on a commercial basis. That expression cannot have the requisite degree of certainty absent the agreement of the parties as to the content of the terms.


case_text: In Waltons Stores (Interstate) Limited v Maher [1988] HCA 7 ; (1988) 164 CLR 387 (" Waltons") at 423, Brennan J pointed to the difficulty of contending for an estoppel against a party's freedom to withdraw from contractual negotiations. His Honour said that it is only if the first party induces the other to believe that the inducer, ie the first party, is already bound and that there is no freedom to withdraw, that it could be unconscionable for the first party to assert an entitlement to withdraw from the negotiations. 2 Notwithstanding this difficulty, the applicant contends that the respondent is estopped from interfering with its occupation, management and control of a parcel of land comprising about 202,000 square metres and known as the Acacia Ridge Interstate Container Terminal ("the AR terminal") near Brisbane in circumstances in which the respondent withdrew from negotiations for a 30 year lease. The respondent owns an adjoining parcel of land comprising about 86,000 square metres. This is known as the Q-link Terminal. I will describe its location at [194]. The respondent conducts rail freight services from the Q-link terminal. The applicant makes no claim to that terminal. These proceedings are concerned solely with the applicant's claim in respect of the AR terminal. 3 The respondent owns the AR terminal, which is an intermodal terminal enabling the transfer of containers between trains and trucks which service the Brisbane area. The applicant went into possession, and assumed the management and operational control, of the AR terminal on 5 April 1993. It has remained in occupation, management and control ever since. It occupied the AR terminal as a monthly tenant under an expired lease from April 1996 until its tenancy was purportedly terminated in May 2003. It remained in occupation thereafter as explained below. 668 I will enumerate the propositions as follows:- (1) The object of estoppel in pais is to prevent an unjust or unconscionable departure by one person from an assumption adopted by another as the basis of an act or omission which, unless the assumption is adhered to, would operate to the other's detriment: Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 (" Thompson ") at 547 per Dixon J; Grundt v Great Boulder Pty Limited (1937) 59 CLR 640 (" Grundt ") at 674 per Dixon J; Legione at 430 431; Waltons at 413 per Brennan J; Verwayen at 409 per Mason CJ and at 500 per McHugh J. (2) Whether a departure from an assumption is unjust depends upon the part taken by the person sought to be estopped in occasioning the adoption by the other party of the assumption: Thompson at 547 per Dixon J; Grundt at 675-676; Legione at 431 432; Waltons at 404 per Mason CJ, Wilson J; Verwayen at 444 per Deane J and at 500 per McHugh J. (3) Accordingly, the reference to an "unjust" departure is not a charter for idiosyncratic concepts of justice and fairness: Legione at 431. That is to say, it requires the party asserting the estoppel to prove that the other party caused him or her to adopt the assumption. (4) The party asserting an estoppel must establish that he or she has relied upon the assumption and that detriment flows from the reliance; that is to say, if the assumption were not adhered to: Grundt at 674 675; Waltons at 413 and Verwayen at 415. (5) It may be possible to divide detriment into the "narrower" and "broader" sense, although this approach, which was stated by Mason CJ in Verwayen at 415, really points to the distinction between reliance and detriment. The narrower sense is reliance on the assumption, whilst the broader sense is the detriment which flows from reliance on the deserted assumption. It is avoidance of the broader or "real detriment" flowing from reliance, from which the law seeks to protect the party who has changed his or her position: Grundt at 674 per Dixon J; Verwayen at 415 per Mason CJ. (6) It is only when the party sought to be estopped wishes to disavow the assumption that an estoppel arises and the question of detriment then falls to be considered: see P Feltham et al (2004) Spencer Bower's Law Relating to Estoppel by Representation (4 th ed) Butterworths, London at [V5.9] and Grundt at 674-675. (7) Although detriment in the broad sense is required to found an estoppel, the remedy the law provides will often be closer in scope to the detriment suffered in the narrower sense, that is to say, reliance: Verwayen at 415 416 per Mason CJ. (8) Avoidance of the detriment may require the party estopped to make good the assumption but this will depend on all the circumstances including the consideration that no more may be required than is necessary to avoid the detriment: see the discussion of Verwayen in Giumelli at [40] [48]. (9) The burden of proof of reliance and detriment lies upon the person asserting an estoppel: Thompson at 549 per Dixon CJ and Verwayen at 416 per Mason CJ. Dixon J's reference in Thompson at 549 to the shift of the burden of proof cannot have been intended to negate the principle stated by his Honour later in that paragraph, ie that the burden lies with the plaintiff. It can only have been intended to be a reference to the shifting evidentiary burden once some evidence of detriment is established: see J D Heydon (2004) Cross on Evidence (7 th ed) LexisNexis Butterworth, Sydney at [7205], [7225]. (10) Estoppel by convention requires proof of an assumption adopted by the parties as the conventional basis of their relationship: Thompson at 547; Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14 ; (1986) 160 CLR 226 (" Con-Stan ") at 244. (11) The proposition that the necessary foundation for an estoppel by convention must be an assumed state of facts presently in existence, as stated by the High Court in Con-Stan at 244 245, has been qualified by later authority. The assumed state of affairs may extend to an assumption of law: Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 186-189 per Samuels JA; Waltons at 415 and Verwayen at 413 per Dixon J, 445 per Deane J, and at 501 per McHugh J. (12) An estoppel by convention, unlike estoppel by representation, depends upon mutual assumptions. It is consensual in nature and is founded upon an agreed or mutually assumed state of facts (or law): Con-Stan at 244. (13) Conventional estoppel does not extend to assumptions concerning future matters. But an assumption as to a future right may found an equitable estoppel, in particular a promissory estoppel: Waltons at 398 399 per Mason CJ and Wilson J and 459 per Gaudron J and Verwayen at 499 500 per McHugh J. (14) The necessary elements of equitable or promissory estoppel are stated in the following passage from the judgment of Brennan J in Waltons at 428 429:- "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." (15) In order to found an estoppel between parties who are in contractual negotiations, it is necessary for the party asserting the estoppel to prove that the other party induced him or her to believe that the other's freedom to withdraw has gone; that is to say, there must be an expectation that the other party is bound to proceed. This is reflected in the first of the six principles stated by Brennan J above and in the decision of the Privy Council in Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Limited [1987] 1 AC 114 (" Humphreys "). (16) The adoption of any assumption or expectation by the party asserting the estoppel must be reasonable in all the circumstances: Waltons at 406 per Mason CJ and Wilson J, Verwayen at 414 per Mason CJ and at 445 per Deane J and Standard Chartered Bank Aust Limited v Bank of China (1991) 23 NSWLR 164 at 180 per Giles J. (17) A representation or conduct relied upon as founding an estoppel must be clear and unambiguous: Legione at 435 437, Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 410 411 per Mason J, and Mobil Oil Australia Limited v Wellcome International Pty Limited (1998) 81 FCR 475 (" Mobil Oil ") at 513 per Lockhart, Lindgren and Tamberlin JJ; see also Spencer Bower's Law Relating to Estoppel by Representation at [V111.4.1]. (18) A corollary of the requirement of certainty is that it is a necessary element of the principle that the defendant has created or encouraged an assumption that "a particular legal relationship" or "interest" would arise or be granted: Mobil Oil at 513. (19) A pre-existing contractual relationship is not, under Australian law, a prerequisite to the application of the doctrine of promissory estoppel: Waltons at 399 403 per Mason CJ and Wilson J and 428 429 per Brennan J and Verwayen at 455 per Dawson J. (20) A person who is led to believe that he or she will be granted an interest in land and who acts to his or her detriment in that belief will be entitled to an interest in the land in accordance with the following statement of principle enunciated by Lord Kingsdown in his dissenting judgment in Ramsden v Dyson at 170:- "If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." (21) Lord Kingsdown's statement of principle was approved by the Privy Council in Plimmer v Mayor of Wellington (1884) 9 AC 699 (" Plimmer") at 710 and again in Humphreys at 121: see also the analysis of the authorities by Priestley JA in Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582 (" Austotel ") at 604 610. Priestley JA's distillation of the principles has been accepted as cogent: Mobil Oil at 512. (22) Subject to a qualification stated below, it is not necessary that the interest to the secured under the Ramsden v Dyson or Plimmer principle be expressly stated or that the terms of the arrangement or understanding to secure that interest be sufficiently certain to be enforceable as a contract. The Court must look at the circumstances of each case to determine the form of relief: Plimmer at 713 714, Inwards v Baker [1965] 2 QB 29 at 37, and Austotel at 607 610 per Priestley JA. (23) The qualification is that where the parties have not reached agreement as to the contractual terms necessary to establish the interest in the land, the Court will exercise caution in coming to a conclusion that it would be unconscionable to prevent a party from insisting upon its strict legal rights: Austotel at 585 586 per Kirby JA and at 620 621 per Rogers AJA. 719 The short answer to the status of documents such as the Task Force Report and the Heads of Government Agreement is that they were superseded by the EA. In an estoppel case, it is possible to put forward an understanding based on communications which preceded the execution of a written agreement: cf Hoyts' Pty Limited v Spencer [1919] HCA 64 ; (1919) 27 CLR 133; see Waltons at 399 403. But it seems to me that here any understandings or assumptions based on pre-contractual reports or heads could not be reasonable. 765 At its highest, Mr O'Rourke's concession, and my view that Messrs Graham and Butcher held a similar assumption, establishes no more than a belief by all concerned that there would be negotiations. That claim runs headlong into the difficulty raised by the Privy Council in Humphreys and reiterated by Brennan J in Waltons . A hope or expectation that an agreement will be reached is not enough. The party asserting an estoppel must go further. 766 The principles are summed up in the following passage from the judgment of Brennan J in Waltons at 423:- "Parties who are negotiating a contract may proceed in the expectation that the terms will be agreed and a contract made but, so long as both parties recognize that either party is at liberty to withdraw from the negotiations at any time before the contract is made, it cannot be unconscionable for one party to do so. Of course, the freedom to withdraw may be fettered or extinguished by agreement but, in the absence of agreement, either party ordinarily retains his freedom to withdraw. It is only if a party induces the other party to believe that he, the former party, is already bound and his freedom to withdraw has gone that it could be unconscionable for him subsequently to assert that he is legally free to withdraw." 767 As I understand PN's claim under this head, it is that QR was under a duty to inform NRC that it did not intend to proceed with the negotiations. The argument is built upon QR's knowledge that NRC was spending large sums on, or in relation to, the AR terminal. 768 However, I cannot see that this claim has any foundation. PN fairly and properly conceded that the negotiations for a new lease in 1996 were conducted in good faith by QR. The position might have been different if QR had not negotiated in good faith because an argument would then have been available that QR had resiled from an assumption which might, at least on one view, have been created by it. But that is not the case here. The assumption was that QR would negotiate in good faith for a 30 year lease. That was what took place, albeit the parties were still at odds on a number of fundamental issues when QR had a change of heart. 777 Priestley JA was there applying, although distinguishing on the facts, the principle stated by the Privy Council in Humphreys . His Honour's approach also reflects the principle stated by Brennan J in Waltons which I have set out at [766] above.


case_text: The fundamental right given by a lease is a right of exclusive possession: Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR 209 at 222. The nature of access contemplated by cl 5(6)(a), in order to distinguish it from a lease, must be a right of non-exclusive possession. But what is plain from the clause is that the grant of access is to be on commercial terms and conditions agreed between the parties. The extent of the rights of access would be a matter of construction of those terms, as agreed: Winter Garden Theatre (London) Limited v Millennium Productions Limited [1948] AC 173.


case_text: That is not to say that the state of mind to be attributed to a corporation must always be the state of mind of one particular officer: Brambles at 275 per Bray CJ; see also Wood v City of Melbourne (1979) 26 ALR 430 at 447.


case_text: In this particular case, there is no persuasive conduct on the part of the officers of the company which would suggest that there has been insolvent trading although, of course, there simply is no evidence of any of these conduct questions because the voluntary administrators have not had sufficient time to examine the various matters. Although the observations in the authorities to which I have been referred, including Creevy & Anor v Deputy Commissioner of Taxation (1996) 19 ACSR 456 ; First Netcom Pty Ltd v Deputy Commissioner of Taxation (2000) 35 ACSR 615 ; and Lemery Holdings Pty Ltd v Reliance Financial Services BC200804142 , emphasise the importance of probative and persuasive evidence that the interests of creditors will be served by enabling the company to continue in voluntary administration, it seems to me that the circumstance that the voluntary administrators have been in office for merely a day (notwithstanding inferences which might arise from the appointment of administrators the day before the return date for the hearing) emphasises that the question to be addressed is whether, in the limited time available to the voluntary administrators to forensically examine the affairs of the company, the interests of the company's creditors are better served by enabling the company to continue in voluntary administration during the period of the adjournment, so that all relevant matters identified by the administrators might be examined. It seems to me that it is in the interests of creditors to enable some forensic assessment to be made by professional voluntary administrators, of facts and circumstances which might demonstrate that the entity can continue to trade as a going concern and is capable of being sold.


case_title: First Netcom Pty Ltd v Deputy Commissioner of Taxation (2000) 35 ACSR 615


case_title: Lemery Holdings Pty Ltd v Reliance Financial Services BC200804142


case_outcome: considered

case_text: The reasons for judgment addressed both issues ( Military Rehabilitation & Compensation Commission v Perry [2007] FCA 1586). The applicant ('the Commission') was successful on the retrospectivity issue but unsuccessful on the construction issue (at [59]-[60]). It was therefore unsuccessful in its challenge to the decision under review in the Tribunal. Accordingly, the application was dismissed (at [61]). 5 The parties were given the opportunity to provide submissions on costs. The Commission submits that there should be no order as to the costs of the application or, alternatively, that the Commission pay no more than half of what would otherwise have been Mr Perry's party-party costs. It also submits that the Tribunal's decision, in so far as it relates to costs, should be set aside. The Commission submits that the argument put at the hearing on behalf of Mr Perry was misconceived and that the Tribunal would not have exercised its discretion to award him costs. 6 Mr Perry submits that the Commission should pay all of his costs of the proceedings. Mr Perry recognises that the Court has a wide discretion to award costs but submits that there are no special circumstances to preclude costs following the event. In particular, Mr Perry says that there should be no apportionment by reference to the issues in the proceedings. In any event, he submits, the construction of s 8(9B) of the SRC Act was not separate and distinct from the issue on which he succeeded. Mr Perry says that the consideration by the Court of the retrospectivity issue, the issue before the Tribunal, was not necessary to the decision concerning his entitlements, determined by s 8(6) and its relationship to s 8(9B) of the SRC Act. Mr Perry also submits that his approach before the Tribunal was not unreasonable, given the history of the matter and the basis of the decisions taken by the delegates of the Commission.


case_text: The Australian Competition and Consumer Commission brought these proceedings for injunctive orders under s 80 and other relief under s 86C of the Act against Terania and ARE for contraventions by each of them of s 52 of the Act, and for costs. The Court may make such orders only if the alleged contraventions are made out: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150. 3 The parties are agreed upon the orders which are sought, and upon the facts upon which those orders are sought. They have presented a statement of agreed facts, and proposed orders. The statement of agreed facts includes reference to allegations in the application which are admitted, and to specified paragraphs of the amended statement of claim which are also admitted. Indeed, Terania and ARE by the proposed agreed orders seek to withdraw their defence. 4 I am prepared to make findings on the foundation of that material. The following represents my findings of fact. 18 Clearly, by the admission of facts contained in the agreed statement of facts (including by reference to allegations in the statement of claim which are admitted), it is within power for the Court to make the orders which are sought: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 164. In my view, having regard to the nature and the present status of Terania and ARE, and the fact that the parties have agreed upon the nature of the conduct engaged in, and its contravention of the Act, it is also appropriate for the Court in the public interest and to encourage agreed resolution of enforcement proceedings to make the orders which are sought: see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79.


case_text: Clearly, by the admission of facts contained in the agreed statement of facts (including by reference to allegations in the statement of claim which are admitted), it is within power for the Court to make the orders which are sought: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 164. In my view, having regard to the nature and the present status of Terania and ARE, and the fact that the parties have agreed upon the nature of the conduct engaged in, and its contravention of the Act, it is also appropriate for the Court in the public interest and to encourage agreed resolution of enforcement proceedings to make the orders which are sought: see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79.


case_outcome: applied

case_text: I have had regard to the types of conduct which have been admitted and to the findings which I have made as to its character. It is appropriate in a matter such as this to have regard to all the conduct which has been alleged and acknowledged. Clearly, misleading representations as to price are highly likely to mislead consumers and constitute a significant contravention of s 52 of the Act. It is acknowledged that the was price was simply created by the respondents and had no proper foundation. Consumers were likely to have been mislead into believing that the goods in question had previously been offered for sale at the was price, so that the sale price represented a significant reduction from the normal retail price. That may induce consumers to buy those products when they would not otherwise do so. As O'Loughlin J said in Trade Practices Commission v Cue Design Pty Ltd (1996) ATPR 41-475 , where a clothing retailer was using dual-priced tags: [T]he natural and probable consequence of a dual-priced swing tag is that members of the buying public would assume that the garment had previously been offered for sale at the higher of the two prices and was now available at the lower price. ... It was conduct that preyed on the gullibility of the public. Indeed, such conduct may do more than prey on the gullibility of the public. Members of the public do not routinely know the normal retail price of particular goods. And retail price may depend on the quality of the particular goods. The quality of particular goods may also not be readily apparent to some members of the public. It is not merely the gullible who may regard a was price as a real indication of the normal retail price of particular products, at least as offered by and sold by that retailer. 21 I am a little more troubled about the duration representations. However, in my view, their combination with the pricing tags was likely to mislead the public. It was likely to mislead the public, or at least some members of the public, into the belief that sale prices at which they may be able to procure the particular goods will end at a specific time and so induce purchasing at or by that specific time rather than making a purchasing decision after reflection. It may induce purchases within or by the specified time because the "sale" also misleadingly presented particular goods as being available at a price significantly reduced from that at which they were normally on offer so that they would not be on offer at that "sale" price after the imminent end of the sale. 22 The clearance representations do not present so obvious a contravention of s 52 of the Act, even when taken together with the duration representations and the was price/sale price representations.


case_outcome: discussed

case_text: In Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987 ; (2004) 208 ALR 459 , Gyles J said at 467: Reading the numerous cases in this field makes it perfectly apparent that individual judges vary considerably in their assessments of the effect of advertising. Some take a robust view and credit consumers with a fair amount of cynicism about advertisements and a fair amount of ability to make their own judgments. Others are convinced of the power of advertisements and are protective of the consumer. Neither side is right or wrong it is a matter of opinion. Those comments recognise that what is called "puffery" or exaggeration in advertising is not unexpected. There have been cases where advertising overstatement has not involved a contravention of s 52: see e.g. Petty v Penfold Wines Pty Ltd [1994] FCA 1095 ; (1994) 49 FCR 282. In that case, the decision turned upon the applicant failing to prove he had in fact relied on the representation. But each case must be decided on its own facts and in the context of the words used: Telstra Corporation Ltd v Optus Communications Pty Ltd (1997) ATPR 41-541.


case_title: Petty v Penfold Wines Pty Ltd [1994] FCA 1095 ; (1994) 49 FCR 282


case_title: Telstra Corporation Ltd v Optus Communications Pty Ltd (1997) ATPR 41-541


case_text: It is clear that I have power to make the injunctive orders sought if I consider it in the public interest to do so: Australian Consumer and Competition Commission v 4WD Systems Pty Ltd [2003] FCA 850 ; (2003) 200 ALR 491 at [212] and [216]. I have considered the proposed injunctions. They are clear, they relate to the conduct which I have found to have been engaged in in contravention of s 52 of the Act; and there is no feature of them which, in my view, makes it inappropriate to make those orders. 27 Similarly, I have considered the proposed compliance program. I had previously raised some issues about its terms, but they have been addressed. 28 I am therefore prepared to make the proposed consent orders. The proposed orders are in the nature of injunctive relief, restraining the respondents from engaging in conduct of the nature which they have admitted they have engaged in in the past and which has contravened s 52 of the Act, and for costs. I have been informed by the parties that since the hearing of submissions, both Terania and ARE have ceased trading and the assets of Terania have been sold, including the sale of the business name "Gouger Rugs" and "Barry Solomon's Gouger Rugs", its stock and various fittings and fixtures. Bookings of venues for scheduled sale events to be conducted by Terania and ARE have been cancelled. Consequently, although it is not now appropriate for Terania and ARE to undertake a trade practices compliance program, the proposed orders contemplate that in the event that they resume similar trading activities in the future, they should undertake a trade practices compliance program. I think that is appropriate. It is also intended that Mr Solomon will give an undertaking that he will in any event undertake a Trade Practices Compliance Program seminar relating to the provisions of Pt 5 of the Act. He is prepared to do so and the ACCC is prepared to accept that undertaking. I will note his undertaking.


case_text: justice is administered in public, judges and their decisions are open to public scrutiny. Over 70 years ago Lord Atkin said that committal for contempt of court by scandalising the Court had become obsolete: Ambard v Attorney General for Trinidad and Tobago [1936] AC 322 at 335. But this should not obscure the distinction between baseless attacks on judges or courts that undermine public confidence and the administration of justice and the right of the public to criticise the administration of justice and those who are involved in that endeavour. The right to criticise is wide. Critics can make outspoken comments about the exercise of judicial power provided that they do so in good faith: Ambard [1936] AC at 335. A fair-minded and informed lay observer will be robust about criticism of judges, courts and their decisions because he or she will know the latitude afforded to commentators in our free society. And, he or she would know that if a public complaint had been made that, say, a judge was corrupt, it would almost certainly be investigated by the relevant authorities and be the subject of vigorous examination in the media. A fair minded observer would also be aware that disgruntled litigants, cranks and others may make unsubstantiated or false allegations against judges or courts which are either investigated and found to be baseless or so obviously baseless that they ought not be taken seriously.


case_text: mere fact that a judge before his or her appointment was instructed by a solicitor, or firm of solicitors, or acted or appeared for a client, is incapable of being a reasonable basis on which a fair minded and informed lay person could form a reasonable apprehension of bias: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 232 [33] per McHugh, Kirby and Callinan JJ. Everyone knows that most judges have been appointed from private practice, and indeed that most of them have been barristers. Barristers, as a matter of professional practice, obey the cab rank rule, namely that they must accept instructions to appear where they are available and practice in the field, unless they have some proper basis to refuse the instructions. At the bar, barristers frequently appear in unrelated cases for and against the same clients, and barristers frequently are instructed by a firm of solicitors one day, and appear the next day in another case where that firm acts for or instructs the barrister's opponent, or his or her former client. Upon assuming judicial office, those past dealings are at an end for the judge. The judge is, and must be, independent of the past associations. That is the essence of judicial independence. It is not tenable to suggest that any mere association Ms Luck has raised provides any possible ground for a reasonable apprehension of bias by the fair-minded and informed lay observer: Bienstein 195 ALR at 232 [33]. I need say no more than there is no substance in any of the assertions that Ms Luck relies upon to claim an apprehension of bias. A fair-minded and informed lay observer would not reasonably apprehend, on the bases relied on by Ms Luck, that I might not bring an impartial mind to the resolution of her matter. For these reasons, I reject Ms Luck's application that I disqualify myself from hearing her matter. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 20 May 2009 Appellant: Appeared in person Counsel for the Respondent: JD Pizer Solicitor for the Respondent: Clayton Utz Date of Hearing: 7 May 2009 Date of Judgment: 7 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/521.html


case_text: fair minded lay observer will also be a person who is informed: Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41 at 51-52, 55 per Mason CJ and McHugh J, 57 per Brennan J agreeing on this point, 87-88 per Toohey J, see too at 76 per Deane J; see also Concrete Pty Limited v Parramatta Design & Developments Pty Limited [2006] HCA 55 ; (2006) 229 CLR 577 at 609-619 [110] - [112] per Kirby and Crennan JJ, 635 636 [177] per Callinan J, 582 [4] per Gummow ACJ and 612 [120] per Hayne J agreeing.


case_text: principle upon which a judge will be disqualified from participating in judicial proceedings on the ground of apprehended bias was explained by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344 [6] . Their Honours said: "... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide." Significantly, their Honours went on to explain ( Ebner 205 CLR at 345 [8]) how the principle is applied in two steps, namely: "First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." The procedures laid down in s 72 of the Constitution assure that, relevantly, a judge of a court established by the Parliament can only be removed from office by the Governor-General, on an address by both Houses of the Parliament, on the ground of proved misbehaviour or incapacity. Mere untested and unsubstantiated allegations cannot ordinarily provide a reasonable basis for disquiet in the community that a judge may or may not perform his or her constitutional functions. Such allegations ordinarily cannot be a reasonable, proper or legitimate basis for any litigant to ask a judge to disqualify himself or herself. The more this is so when the allegations are not said to relate to anything to do with the case of the litigant seeking the judge's disqualification, or to lead to any connection between the allegations and the judge's performance of his or her function to hear and determine that or any other matter in accordance with the judicial oath: see Ebner 205 CLR at 348 [19]-[20]. Indeed, as Gleeson CJ, McHugh, Gummow and Haynes JJ said in Ebner 205 CLR at 348 [20]: "... if the mere making of an insubstantial objection was sufficient to lead to a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable." The bare assertion that someone has published a complaint about a judge on the internet or elsewhere does not provide a logical connection between the matters to which Ms Luck has referred, and my ability, constitutional function and duty to decide her matter impartially, in accordance with its legal and factual merits. Nor has Ms Luck articulated any such logical connection.


case_text: in Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at 493 [12] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ emphasised that the hypothetical reasonable observer of a judge's conduct is an objective person who is taken to be reasonable and the judge being observed is a professional judge whose training tradition and oath or affirmation require the judge to discard the irrelevant, the immaterial and the prejudicial.


case_text: a judge's duty is to hear and determine the litigation before him or her. In Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288 at 294, Mason, Murphy, Brennan, Deane and Dawson JJ said that: "... it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court." see too Kartinyeri v Commonwealth (1998) 156 ALR 300 at 302-303 [16]-[18] per Callinan J.


case_outcome: followed

case_title: Livesey v New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288


case_outcome: affirmed


case_text: power available to the Court under s 48 is unfettered. Relevant factors for consideration include the residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court. The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155. Mr Garrett recently moved to Western Australia in order to gain employment. Apart from the fact that Mr Garrett now resides in Western Australia there is no connection between this proceeding and Western Australia. However, the issues arising in this proceeding have a significant connection with South Australia as set out in the affidavit of Mr Macks sworn on 15 December 2008 in support of this application. They are in summary as follows: (a) Mr Macks was appointed trustee of Mr Garrett's bankrupt estate in South Australia on 27 September 2004 pursuant to s 156A(3) of the Act. (b) Mr Macks has administered the Estate from his offices in Adelaide, where all of the books and records relevant to the administration are located. These comprise some 33 archive boxes and about 20-30 arch lever files. (c) Mr Garrett's business and personal affairs that have been the subject of Mr Macks' investigations took place primarily in South Australia. (d) All of the debts the subject of the proofs of debt, which Mr Garrett seeks to challenge, arose in South Australia. (e) The decisions of Mr Macks which Mr Garrett seeks to review, being the principal subject matter of this proceeding, were made by Mr Macks in Adelaide. (f) The National Australia Bank affidavits which Mr Garrett seeks to challenge were sworn in Adelaide and the deponent resides there. There are additional considerations. Mr Macks and Mr Garrett are involved, as opponents, in two separate but related proceedings in the South Australian District Registry of this Court. Following the trial in respect of the first action, SAD29 of 2005, judgment was reserved on 7 March 2006 by Lander J. Judgment remains reserved in that matter pending determination of the second action, SAD5 of 2006 (the SA Proceedings). The trial of the SA Proceedings is listed before Lander J for four days to commence on 10 March 2009. The cross-claim filed by Mr Macks in the SA Proceedings seeks a declaration from the Court as to his entitlement to an equitable charge over assets of the Andrew Garrett Family Trust constituted by Deed of Trust dated 31 May 1993 to secure a right of indemnity in respect of liabilities of Mr Garrett. These are the same liabilities for which proofs of debt have been lodged and admitted in Mr Garrett's bankruptcy, and which, subject to the correction of the stated amount of two of those debts, are the subject of the relief sought in this proceeding by Mr Garrett.


case_text: This is an appeal from orders made by Scarlett FM on 17 September 2007 dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT"): see SZHFX v Minister for Immigration & Citizenship [2007] FMCA 1575. On 10 August 2005 the RRT had affirmed a decision by a delegate of the then Minister of Immigration and Multicultural and Indigenous Affairs refusing the appellants a protection visa. 2 The appellants, a mother and her three sons, are Bangladeshi citizens. The second appellant made independent claims for protection, although they were based on the same facts as those relied upon by his mother. The third and fourth appellants made no independent protection claims. They relied solely instead upon the claims made by their mother. 3 The appellants arrived in Australia on 30 July 2004. Within a month, they applied for protection visas. On 20 October 2004 the Minister's delegate refused their application.


case_text: The Minister referred to the recent decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 in support of that conclusion. In that case, the Court held that s 424A was not engaged in circumstances where there was a discrepancy between what the appellant had said in a statutory declaration and his evidence given orally before the RRT. That was because the relevant parts of the statutory declaration were not "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". 37 The Minister submitted that, as a result of SZBYR, the scope formerly given to the term "information" in s 424A had narrowed. Moreover, by expressly approving the reasoning in the joint judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 , the High Court made it clear that disbelief of a claimant's evidence arising from inconsistencies therein could hardly be characterised as constituting "information". In the words of their Honours in VAF (at 477), the word "information": "... does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc ..." 38 The Minister submitted, by reference to SZBYR, that the Federal Magistrate did not err in finding that the "independent reports" to which the RRT referred were not part of its reasons for decision. 39 The Minister submitted that if contrary to its primary submission, the independent reports did form part of the RRT's reasons for decision, the substance of what was contained in those reports was in fact provided to the appellants by the RRT in its s 424A letter. 40 In my opinion, the RRT's finding that the behaviour, which the first appellant attributed to Jahangir in her claims and which bore no resemblance to the "cunning and ruthless" behaviour ascribed to him in independent reports, was not "information" of a kind that had to be provided in writing pursuant to s 424A(1). The reference to "independent reports", in context, was not intended to suggest that Jahangir's reputation for being "cunning and ruthless" came solely from those reports. Indeed, a fair reading of the material before the RRT in its entirety suggests quite the reverse.


case_text: In a joint judgment, five members of the Court stated at [15]-[19]: "This then requires close attention to the circumstances in which s 424A is engaged. Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. Rather, the tribunal's obligation is limited to the written provision of 'particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review'. What, then, was the 'information' that the appellants say the tribunal should have provided? In their written submissions, the appellants appeared to focus on the requisite 'information' as being the 'inconsistencies' between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise. Four points must be noted about this submission. First, while questions might remain about the scope of para (b) of s 424A(3) , it was accepted by both sides that information 'that the applicant gave for the purpose of the application' did not refer back to the application for the protection visa itself, and thus did not encompass the appellants' statutory declaration. In this regard, the parties were content to assume the correctness of the Full Federal Court decisions in Minister for Immigration and Multicultural Affairs v Al Shamry and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs . Accordingly, no occasion now arises for this court to determine whether that assumption was correct. Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration 'would be the reason, or a part of the reason, for affirming the decision that is under review'. The statutory criterion does not, for example, turn on 'the reasoning process of the tribunal', or 'the tribunal's published reasons'. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance -- and independently -- of the tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The 'reason, or a part of the reason, for affirming the decision that is under review' was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute 'information'. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word 'information': ... does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc ... If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. Fourthly, and regardless of the matters discussed above, the appellants' argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant's evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing, no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants' case, it seems odd that its effect would be to preclude the tribunal from dealing with such matters during the hearing itself." [Footnote omitted.] 37 The Minister submitted that, as a result of SZBYR, the scope formerly given to the term "information" in s 424A had narrowed. Moreover, by expressly approving the reasoning in the joint judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 , the High Court made it clear that disbelief of a claimant's evidence arising from inconsistencies therein could hardly be characterised as constituting "information". In the words of their Honours in VAF (at 477), the word "information": "... does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc ..."


case_text: Finally, there is a wholly independent basis for the RRT's decision. See generally VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 965 at [32] - [33] . The RRT found that any threats made by Jahangir were in the nature of criminal acts unrelated to any political motivation. That finding does not turn upon questions of credibility and would inevitably lead to the rejection of the appellants' claim. There is nothing to controvert such a finding, which was open on the material before the RRT. That being so, the appeal must in any event fail. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 23 May 2008 Counsel for the Appellants : Mr L.J. Karp Solicitor for the Appellants: Parish Patience Immigration Counsel for the First Respondent: Mr J. Knackstredt Solicitor for the First Respondent: Clayton Utz Date of Hearing: 19 May 2008 Date of Judgment: 23 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/726.html