case_title: Watson v Foxman (1995) 49 NSWLR 315

case_text: Watson v Foxman (1995) 49 NSWLR 315 at 318-319 McLelland CJ in Eq said: 'Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen [1940] HCA 20 ; (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act ), in the absence of some reliable contemporaneous record or other satisfactory corroboration.' His Honour's observations as to the frailty of human memory are, of course, not to be taken as limited simply to cases invoking claims under the Trade Practices Act or its analogues. They are just as apposite in a case such as this where the question arises of what oral terms of the contract were agreed in the course of negotiations. The franchise agreement recited that Allphones had developed a system of doing business in association with its intellectual property and distinctive method and style for operating the franchised businesses. Clauses 1 and 2 of the franchise agreement provided that Allphones had granted Hoy Mobile the right, and the latter accepted, the obligation to operate a franchise business: 'Right to conduct franchise 1. ... within the Territory referred to in the Schedule hereto (hereafter called "the Territory") in accordance with the terms and conditions of this Agreement. Exclusivity The Franchisor must not itself operate or licence another to operate a Franchised Business in the Territory. The Franchisee must not canvass sales outside of the Territory.' The franchise agreement was to commence in August 2003 and run for a period of five years with an option to renew for a further term of five years (cl 3). Allphones was entitled to develop and change the system and intellectual property which it used in the conduct of its overall franchise business (cl 4). Hoy Mobile, among other obligations, agreed not to do or permit anything during the term of the franchise agreement or thereafter which might detract from Allphones' reputation or goodwill or be misleading or deceptive or otherwise cause confusion (cl 5.8). The franchise agreement provided that Allphones had sole and absolute discretions: Importantly, cl 6.5(ii) provided: 'Stock supplied by [Allphones] to [Hoy Mobile] in terms hereof is supplied on consignment, and at the cost of delivery of [Hoy Mobile], and shall at all times be subject to the control of Allphones Point-of-Sale and inventory computer system ...' (sic)


case_outcome: cited

case_text: is a balance of deductions from Hoy Mobile's commissions that comes to $3,581.49, which the experts agreed related to the credit charge fees, EFTPOS fees, IT fees, or late banking fees. However, they were unable to allocate that sum among the individual categories. In my opinion, it was for Allphones to justify its deductions. Hoy Mobile has established that Allphones made substantial deductions from commission amounts it was paid without a contractual basis. Mr Nicoll could have given evidence as to any basis for reducing the unallocated balance but did not. And, in their reports neither Mr Nicoll nor the two expert accountants could allocate the sums involved. Hoy Mobile has discharged any onus on it: Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 64; [1774] EngR 2 ; 98 ER 969 at 970; Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ and see too at 233 per Brennan and Toohey JJ; R v Burdett (1820) 4 B & Ald 95 at 161-162 per Abbott LCJ at 140 per Holroyd J; 106 ER 873 at 898 and 890. Since Allphones did not justify any portion of this balance as a fee payable by Hoy Mobile, the whole amount claimed by it should be paid by Allphones.. 25.5 Retention canvassing


case_text: also argued that cll 15 and 16 operated to prevent Hoy Mobile relying on any election, by Allphones to keep the franchise agreement on foot, which was not in writing. Because of my findings above it is not necessary to consider the application of R v Paulson [1921] 1 AC 271 at 282-283 to cll 15 and 16 on which Hoy Mobile relied. However, their Lordships indicated that the issue depends on the facts for they said, as Owen J pointed out in Owendale Pty Ltd v Anthony [1967] HCA 52 ; (1967) 117 CLR 539 at 610, that '[i]t may well be that many cases may occur to which the clause as to waiver would be applicable' before saying that, in that case, it was not: see too Owendale 117 CLR at 590 per Taylor J with whom Barwick CJ agreed on this issue at 569; per McTiernan J at 581; per Kitto J at 581-582. And, in any event, contractual provisions like cll 15 and 16 are strictly construed: Craine 28 CLR at 325-326; affirmed in Yorkshire Insurance Co Ltd v Craine [1922] 2 AC 541 at 546; (1922) 31 CLR 27 ; see too Melbourne Harbour Trust Commissioners v Hancock [1927] HCA 26 ; (1927) 39 CLR 570 at 584 per Knox CJ and Gavan Duffy J; 589 per Isaacs J; 590 per Rich J; and 594 per Starke J.


case_title: Zhu v Treasurer of NSW (2004) 218 CLR 53

case_text: is necessary to construe an agreement so as to avoid making it commercial nonsense or working commercial inconvenience: Zhu v Treasurer of NSW [2004] HCA 56 ; (2004) 218 CLR 530 at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ. In Australasian Performing Rights Association Ltd v Monster Communications Pty Ltd (2006) 71 IPR 212 at 235-237 [103]-[108] I referred to the principles applicable to the construction of contracts. I am of opinion that the genesis of the franchise agreement, the background context and market in which the parties were operating were all relevant, as known to both of them, for the purpose of construing what was intended to be referred to by the use of 'N/A' in describing the territory. There is no evidence that the terms of the franchise agreement as settled between the parties was the subject of drafting, before execution, by lawyers. Of course, at common law the courts cannot make a contract for the parties which they did not make for themselves (cp: s 87(2) of the Trade Practices Act ). But commercial contracts '... ought to be construed fairly and liberally for the purpose of carrying out the object of the parties': Duncan v Koster; The Teutonia (1872) LR 4 PC 171 per Mellish LJ at 182, applied by Isaacs J in Cohen & Co v Ockerby & Co Ltd [1917] HCA 58 ; (1917) 24 CLR 288 at 300. Isaacs J went on to hold that expressions in a mercantile contract are not to be read narrowly, but as the Court would suppose two honest business people would understand the words they actually used with reference to their subject matter and the surrounding circumstances: Cohen & Co 24 CLR at 300. And the Court construes a commercial contract to avoid it making commercial nonsense or working commercial inconvenience: Zhu 218 CLR at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ.


case_outcome: followed

case_text: It is not considered that the present proceeding exposes any sufficient reason to depart from the " general policy " set forth in s 39 of the 1976 Act. The only legislative limitation on the exercise of the discretion conferred by s 40 is one directing attention to whether " the ends of justice appear to render it expedient to do so ": Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172 at 181. Relevant to the exercise of the discretion is a recognition of the important role that juries have long played in English and Australian law and the circumstances in which juries have traditionally been employed. Although the scarcity of the population was a reason why in colonial New South Wales the number of jurors was confined to 4 and not 12 persons (see: Henchman P, ' The New South Wales Jury of Four Persons ' (1959) 33 ALJ 235), the importance of juries in the administration of justice was acknowledged from the outset: Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482 at 488 92 per Else-Mitchell J. " It is the fundamental institution in our traditional system of administering criminal justice ": Brown v The Queen [1986] HCA 11 ; (1985) 160 CLR 171 at 197 per Brennan J.


case_outcome: considered

case_title: Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482


case_text: But it must now to be accepted -- at least in this Court -- that s 80 is confined to a " trial on indictment ": Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264 at 276 7; Cheng v The Queen [2000] HCA 53 , 203 CLR 248.


case_text: The Bankruptcy Act , it must nevertheless be accepted, confers no entitlement to trial by jury: Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 , 88 FCR 445. Cooper, Kiefel and Tamberlin JJ were there addressing s 30(3) of the 1966 Act, and not s 30(1)(i), but relevantly concluded: Jury [27] Mr and Mrs Hubner also say that the bankruptcy proceedings should be heard with a jury pursuant to s30(3) of the Act. That provision reads: "(3) If in a proceeding before the Court under this Act a question of fact arises that a party desires to have trial before a jury, the Court may, if it thinks fit, direct the trial to that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trail of an issue of fact in an action." [28] The appellants say that it is a civil right of all Queenslanders to have a trial by jury under s30(3). [29] In view of the approach taken by his Honour, which we consider to be correct, the question of a jury trial does not arise; so we do not accept the applicants' submissions in relation to this matter. Moreover, there was no relevant question of fact raised for a jury to determine. The Court under s30(3) has a wide discretion and there is no entitlement to a jury trial given by the section. We are not persuaded, given the necessity for a clear case of error to be shown on a matter of principle that there is any justification for ordering a jury trial in the present case. We see no error on the part of his Honour. Section 30(3) is not beyond the legislative competence of Commonwealth Parliament and is not invalid because of any unfounded assertion that it " undermines or perverts " the Constitution : Commonwealth Bank of Australia v Heinrich [2000] FCA 1255 at [18] [25] per Mansfield J. Nor is there any entitlement to trial by jury arising by reason of either some " unwritten law " such as natural justice or by reason of Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth): Hubner v ANZ Banking Group Ltd [2000] FCA 140 at [9] [10], [2000] FCA 140 ; 101 FCR 71 at 73 per Drummond, Dowsett and Katz JJ.


case_text: This Court unquestionably has a discretionary power to direct that a trial be by jury. The relevant source of that power is said by the Applicant to be ss 30(3) and 31 of the Bankruptcy Act . Those sections relevantly provide as follows: 30 General powers of Courts in bankruptcy ... (3) If in a proceeding before the Federal Court under this Act a question of fact arises that a party desires to have tried before a jury, the Federal Court may, if it thinks fit, direct the trial of that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trial of an issue of fact in an action. ... 31 Exercise of jurisdiction (1) In exercising jurisdiction under this Act, the Court shall hear and determine the following matters in open Court: ... (i) applications for the trial of questions of fact with a jury and the trial of those questions; ... (2) All other matters under this Act may, in the discretion of the Court, be heard in open Court or in Chambers. Section 30(3) is a provision which " specifically provides for a discretion to order trial by jury in a bankruptcy matter " : Commonwealth Bank of Australia v Rigg [2001] FCA 590 at [8] per Beaumont J. 28 Also to be noted, however, are ss 39 and 40 of the Federal Court of Australia Act , which provide as follows: 39 Trial without jury In every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury. 40 Power of Court to direct trial of issues with a jury The Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact, and may for that purpose make all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires. 29 It was understood that Counsel for the Applicant quite properly did not contend that the Applicant had any entitlement to a trial by jury -- whichever Act was invoked. It was understood that Counsel for the Applicant accepted that the question as to whether or not there should be a trial with a jury was ultimately a matter -- not of entitlement -- but a matter for the discretion of this Court. 54 Moreover, and although there may be trial by jury in bankruptcy proceedings, it is the exception rather than the rule: Re Shields; Ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308. Einfeld J there observed (at 309): ... in bankruptcy proceedings jury trials will be the exception rather than the rule. ... A jury trial involves a great deal of expense and time both to the parties and the Court, as well as considerable inconvenience to the members of the community who constitute the jury. The use of juries in civil matters has steadily declined during this century and is now largely reserved for those areas where serious imputations are to be made against the character of a party. Like divorce, bankruptcy is no longer regarded as such a matter. In the absence of some very compelling special circumstance, the intention of Parliament is clearly that bankruptcy proceedings be heard by a judge. See also: Re Allen (1905) 5 SR (NSW) 55 at 57; Draper v Official Receiver [2004] FCA 1379 at [5] per Mansfield J. Some " special reason " must be shown for a departure from the normal mode of trial: Commonwealth Bank of Australia v Rigg [2001] FCA 590. Section 30(3) only applies where " a question of fact arises ". See: Ray v Perrett [2007] FCA 1672. " While fraud generally is some ground for giving the parties or one of the parties a right to trial by jury, this fact is not conclusive ": Stapleton v Brady [1952] QWN 15 per Clyne J.


case_text: Sections 39 and 40 of the Federal Court of Australia Act , it may further be noted, are in substantially the same form as ss 12 and 13 of the High Court Procedure Act 1903 (Cth). Those latter provisions were considered by Fullagar J in McDermott v Collien [1953] HCA 44 ; (1953) 87 CLR 154. His Honour there formulated the " general policy " as follows (at 157): Two things ... seem clear enough. The first is that with the merits and demerits of trial by jury as a means of determining civil causes I have nothing whatever to do. ... [S]o far as any question of general policy is involved, it is settled for me by the High Court Procedure Act. Trial without a jury is the normal mode of trial of actions in this Court, and some special reason must be shown for a departure in any particular case from that normal mode. The second thing that seems clear is that it is not enough to show that the cause of action is of a kind which could quite properly be tried with a jury and which was normally tried with a jury in England before the Judicature Act 1873 (36 & 37 Vict. c. 66). The decisions of Hodges J. and of Isaacs J. perhaps suggest that the nature of the cause of action is not even a relevant consideration. I would not be prepared to assent to that as a general proposition: indeed I would rather have thought that it might in some cases be a potent consideration. But it is clear that it is not enough to say: "This is a kind of action which is quite suitable for trial with a jury, and I would like to have it tried with a jury." Appl'd: Dinnison v Commonwealth [2000] FCA 1841 , 106 FCR 418.


case_text: Moreover, and although there may be trial by jury in bankruptcy proceedings, it is the exception rather than the rule: Re Shields; Ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308. Einfeld J there observed (at 309): ... in bankruptcy proceedings jury trials will be the exception rather than the rule. ... A jury trial involves a great deal of expense and time both to the parties and the Court, as well as considerable inconvenience to the members of the community who constitute the jury. The use of juries in civil matters has steadily declined during this century and is now largely reserved for those areas where serious imputations are to be made against the character of a party. Like divorce, bankruptcy is no longer regarded as such a matter. In the absence of some very compelling special circumstance, the intention of Parliament is clearly that bankruptcy proceedings be heard by a judge. See also: Re Allen (1905) 5 SR (NSW) 55 at 57; Draper v Official Receiver [2004] FCA 1379 at [5] per Mansfield J. Some " special reason " must be shown for a departure from the normal mode of trial: Commonwealth Bank of Australia v Rigg [2001] FCA 590. Section 30(3) only applies where " a question of fact arises ". See: Ray v Perrett [2007] FCA 1672. " While fraud generally is some ground for giving the parties or one of the parties a right to trial by jury, this fact is not conclusive ": Stapleton v Brady [1952] QWN 15 per Clyne J.


case_text: The normal method or mode of trial in this Court is by judge alone: Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172 at 182. " Substantial reason ", it has been said, must be shown for a departure from the usual mode of trial: Gargan v Commonwealth Bank of Australia [2004] FCA 641 at [6] per Hely J.


case_title: Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 , 66 ATR 225

case_text: Albeit in a different context, applications made pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) may allege in an appropriate case that statutory powers have been exercised for an " improper purpose ". Indeed, the 1977 Act expressly contemplates that a ground upon which an administrative decision may be sought to be impugned is " bad faith ": s 5(2)(d). It may be considered that an allegation of " bad faith " is a more serious allegation than one of pursuing an " improper purpose ". Both are serious allegations. But such applications have long been heard and determined by Judges of this Court without a jury. Although it must readily be recognised that an allegation of " bad faith " is a " very serious allegation " to make, it is an allegation that has in fact been made in other proceedings against both a Deputy Commissioner of Taxation (eg, Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32] , [2007] FCA 394 ; 66 ATR 225) and against others exercising statutory power (eg, SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 at [19] ; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 , 194 ALR 749). " Fraud " or " equitable fraud " is likewise a very serious allegation. Public confidence in the administration of justice by this Court, it is considered, has only been enhanced by this Court entertaining and resolving such " serious " allegations. Such allegations have been made in the past and presumably will continue to be made. And when made they will be resolved. It may be that a case will arise where a Judge of this Court orders a jury. But this proceeding is not that case.


case_title: Hubner v ANZ Banking Group Ltd [2000] FCA 140 , 101 FCR 71


case_text: Section 30(3) employs the language of this Court being empowered to " direct the trial " of a question of fact " if it thinks fit ". The sub-section confers a " wide discretion ": Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 at [29] , [1999] FCA 385 ; 88 FCR 445 at 450. This language, it was submitted in oral submissions, places a " gloss " upon the language employed in s 40 of the 1976 Act. Section 30(3), it was submitted, is the more specific test to be applied by this Court when considering an application for trial by jury in bankruptcy proceedings. 50 Whether or not s 30(3) does in fact place any such " gloss " upon the statutory test as formulated in s 40 may also be left to one side. Even if attention is confined to the language of ss 30 and/or 31 of the 1966 Act, it is not considered that any different conclusion should be reached in respect to the Applicant's Motion . Sections 30(3) and 31, it is again considered, support a conclusion contrary to that now advanced on behalf of the Applicant. 51 Neither section confers any entitlement to a trial by jury; indeed, it was understood that Counsel for the Applicant again properly accepted that conclusion. 53 The Bankruptcy Act , it must nevertheless be accepted, confers no entitlement to trial by jury: Hubner v Australia and New Zealand Banking Group Ltd [1999] FCA 385 , 88 FCR 445. Cooper, Kiefel and Tamberlin JJ were there addressing s 30(3) of the 1966 Act, and not s 30(1)(i), but relevantly concluded: Jury [27] Mr and Mrs Hubner also say that the bankruptcy proceedings should be heard with a jury pursuant to s30(3) of the Act. That provision reads: "(3) If in a proceeding before the Court under this Act a question of fact arises that a party desires to have trial before a jury, the Court may, if it thinks fit, direct the trial to that question to be had before a jury, and the trial may be had accordingly in the same manner as if it were the trail of an issue of fact in an action." [28] The appellants say that it is a civil right of all Queenslanders to have a trial by jury under s30(3). [29] In view of the approach taken by his Honour, which we consider to be correct, the question of a jury trial does not arise; so we do not accept the applicants' submissions in relation to this matter. Moreover, there was no relevant question of fact raised for a jury to determine. The Court under s30(3) has a wide discretion and there is no entitlement to a jury trial given by the section. We are not persuaded, given the necessity for a clear case of error to be shown on a matter of principle that there is any justification for ordering a jury trial in the present case. We see no error on the part of his Honour. Section 30(3) is not beyond the legislative competence of Commonwealth Parliament and is not invalid because of any unfounded assertion that it " undermines or perverts " the Constitution : Commonwealth Bank of Australia v Heinrich [2000] FCA 1255 at [18] [25] per Mansfield J. Nor is there any entitlement to trial by jury arising by reason of either some " unwritten law " such as natural justice or by reason of Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth): Hubner v ANZ Banking Group Ltd [2000] FCA 140 at [9] [10], [2000] FCA 140 ; 101 FCR 71 at 73 per Drummond, Dowsett and Katz JJ.


case_text: The normal method or mode of trial in this Court is by judge alone: Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172 at 182. " Substantial reason ", it has been said, must be shown for a departure from the usual mode of trial: Gargan v Commonwealth Bank of Australia [2004] FCA 641 at [6] per Hely J. 39 It is not considered that the present proceeding exposes any sufficient reason to depart from the " general policy " set forth in s 39 of the 1976 Act. The only legislative limitation on the exercise of the discretion conferred by s 40 is one directing attention to whether " the ends of justice appear to render it expedient to do so ": Insurance Commissioner v Australian Associated Motor Insurers Ltd (1982) 65 FLR 172 at 181. Relevant to the exercise of the discretion is a recognition of the important role that juries have long played in English and Australian law and the circumstances in which juries have traditionally been employed. Although the scarcity of the population was a reason why in colonial New South Wales the number of jurors was confined to 4 and not 12 persons (see: Henchman P, ' The New South Wales Jury of Four Persons ' (1959) 33 ALJ 235), the importance of juries in the administration of justice was acknowledged from the outset: Caledonian Collieries Ltd v Fenwick (1959) 76 WN (NSW) 482 at 488 92 per Else-Mitchell J. " It is the fundamental institution in our traditional system of administering criminal justice ": Brown v The Queen [1986] HCA 11 ; (1985) 160 CLR 171 at 197 per Brennan J.


case_title: Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264


case_title: Li Chia Hsing v Rankin [1978] HCA 56 ; (1978) 141 CLR 182 , 23 ALR 151

case_text: The difficulty, however, which would have inevitably confronted the Applicant -- even had it not been abandoned -- is the simple fact that s 80 is confined to a " trial on indictment ". It is Parliament, and not this Court or the High Court, which determines whether proceedings are to be commenced by way of indictment. It is not for this Court to determine that proceedings are sufficiently " serious " that they should be commenced by indictment: Li Chia Hsing v Rankin [1978] HCA 56 ; (1978) 141 CLR 182 at 189 90. Barwick CJ there concluded: Further, if in truth from s 80 you could derive the conclusion that, constitutionally, all "serious" offences must be tried on indictment by a jury, it would be for the Court and not for the Parliament to determine whether any given offence was relevantly a "serious" offence. The limited submission of the applicant that, for the reasons given on his behalf, the present offence was a "serious" offence, in my opinion, fails. ... Further, to so reduce the universality of the language of the section would be insufficient to create a constitutional guarantee that those offences must be treated as indictable offences. The applicant's submission in reality is that s 80 postulates that some offences are of their nature, or of their nature and circumstances, "indictable" offences, ie offences which may not be prosecuted except on indictment. The applicant describes these offences as "serious" offences. Section 80 , however, only operates on indictment. Its language was chosen in the knowledge of Art 3 of the Constitution of the United States and of the experience of that country with the construction and operation of that article over the considerable period of time which had elapsed before the terms of s 80 were accepted. ... [I]t is, in my opinion, not possible to conclude, apart of course from the expressed intention of the Parliament in the relevant statute, that an offence is of its nature "indictable". Summary prosecution for a wide variety of offences has a long history, though punishment upon summary conviction is generally limited so far as imprisonment is provided to a term of twelve months or less. It was unanimously decided in R v Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18 ; [(1928) 41 CLR 128] that the section placed no impediment in the way of the Parliament providing for the summary prosecution of an offence.


case_title: McDermott v Collien [1953] HCA 44 ; (1953) 87 CLR 154


case_text: Confined in this way, it has been said of s 80 that "[w] hat might have been thought to be a great constitutional guarantee has been discovered to be a mere procedural provision ": Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226 at 244 per Barwick CJ. Early judgments of the High Court were strongly critical of a narrow construction of s 80: eg, R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10 ; (1937) 59 CLR 556 at 581 2 per Dixon and Evatt JJ (dissenting). Writing extra-judicially, Justice Kirby has commented that the " significance of the Australian guarantee has been diminished by the narrow interpretation applied to its language ": ' The High Court of Australia and the Supreme Court of the United States -- A Centenary Reflection ' (2003) 31 UWAL Rev 171 at 180. See also: Re Aird; Ex parte Alpert [2004] HCA 44 at [112] , [2004] HCA 44 ; 220 CLR 308 at 343 4 per Kirby J.


case_text: Section 80 , it may readily be accepted, " lays down ... a fundamental law of the Commonwealth ": R v Snow [1915] HCA 90 ; (1915) 20 CLR 315 at 323 per Griffith CJ. The entitlement conferred by that provision " is an important constitutional privilege ": Weininger v The Queen [2003] HCA 14 at [54] , [2003] HCA 14 ; 212 CLR 629 at 646.


case_title: Ray v Perrett [2007] FCA 1672


case_title: Re Aird; Ex parte Alpert [2004] HCA 44 , 220 CLR 308


case_title: Re Allen (1905) 5 SR (NSW) 55


case_title: Re Shields; Ex parte Australia and New Zealand Banking Group Ltd (1994) 51 FCR 308


case_text: Although this Court has expressed greater reluctance to order indemnity costs against an unrepresented litigant, it may do so: Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537 at [20] and [26] per Kenny J. In Salfinger v Niugini Mining (Australia) Pty Ltd (No 4) [2007] FCA 1594 Heerey J relevantly observed: [7] In Spalla v St George Motor Finance Ltd [2006] FCA 1537 Kenny J at [26] recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians [2002] FCAFC 51 and Ogawa v The University of Melbourne (No 2) [2004] FCA 1275. Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person's ability to get redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the Court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion (at [28]) and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds. see Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ. ... See also: Vink v Tuckwell (No 3) [2008] VSC 316 at [103] [108] per Robson J.


case_title: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 , 194 ALR 749


case_title: SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397


case_title: Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537


case_title: Stapleton v Brady [1952] QWN 15


case_text: Each application for a trial by jury must necessarily depend on the facts upon which such an order is sought and the individual judgment of the legal practitioners making the application. Subject to that qualification, the decision of the Full Court in Taylor v Deputy Commissioner of Taxation [1999] FCA 195 , 99 ATC 4268 provides some limited assistance. The Deputy Commissioner had there obtained judgment, a bankruptcy notice and a sequestration order. The trial judge had declined to appoint a jury. As in the present case, Constitutional rights were there also sought to be invoked; unlike the present case, the scope for disputed facts was apparently more confined. Cooper, Kiefel and Tamberlin JJ there concluded: [40] The appellants advance an additional argument on the appeal as to their entitlement to have a jury trial on the hearing of the petitions. They submit that the power to make a sequestration order is a power to acquire property of a person which falls within s51(xxxi) of the Constitution . The constitutional guarantee that the power may only be exercised upon the provision of just terms to the person from whom the property is acquired gives rise, they submit, to the jury issue of whether the taking of their property is upon just terms. The submission misunderstands the administration of the property of a bankrupt for the benefit of the bankrupt's creditors. There is no acquisition of property within the operation of s51(xxxi) of the Constitution when the property of a bankrupt is sequestrated and vested in a trustee in bankruptcy. S51(xxxi) has no bearing on the matter: Re Dohnert Muller Schmidt and Co; Attorney-General of the Commonwealth v Schmidt [1961] HCA 21 ; (1961) 105 CLR 361 at 372. [41] The appellants' submission as to the right to trial by jury on a trial on indictment of an offence against a law of the Commonwealth (s80 of the Constitution ) and to the requirements of full faith and credit being given to the laws of every State (s118 of the Constitution ) do not advance their case to a right to a trial by jury on the hearing of the bankruptcy petitions. [42] In these circumstances there were no issues of fact in dispute on the hearing of the bankruptcy petitions or on the hearing of the review of the District Registrar's decisions, which were capable of, or appropriate for, resolution by the verdict of a jury. ... As in the present case, it is not considered that any such questions of fact which may require resolution are appropriate for resolution by the verdict of a jury. 47 A submission that public confidence in this Court would be affected if a jury were not appointed in this case is, with respect, without substance. 48 The manner in which provisions such as ss 39 and 40 of the Federal Court of Australia Act have been interpreted and applied was, presumably, the reason why the Applicant placed greater -- if not exclusive -- reliance upon ss 30(3) and 31 of the Bankruptcy Act .


case_text: Proceedings against a Deputy Commissioner of Taxation are not relevantly different for present purposes to proceedings against other Commonwealth office holders or decision-makers. But Deputy Commissioners have attracted in the past allegations of serious wrongdoing. Thus, for example, in Thurecht v Deputy Commissioner of Taxation (1984) 3 FCR 570 ; 84 ATC 4480 ; 15 ATR 822 there was an allegation that a statutory power had been exercised in " bad faith " by reason of the Deputy Commissioner seeking to make an example of the applicants. Sheppard J referred to the evidence and summarised the allegations as follows (at 587): ... it is capable of suggesting that there had in fact been decided upon at a high level in Canberra, a policy designed to disadvantage -- really to punish -- those who had had the temerity to force the Commissioner's hand by making applications for writs of mandamus. That policy was designed to ensure that anybody else minded to make such an application would be discouraged from doing so. That is the applicants' case. The question is whether I should accept it. The allegation was rejected. There was no suggestion, however, in that case that public confidence in this Court would have been enhanced if those facts relevant to the resolution of such an allegation had been resolved by a jury. 45 The conferral by the Commonwealth legislature of such jurisdiction as that conferred by the 1976 Act upon this Court is only consistent with a legislative recognition that this Court will impartially and independently determine each case which comes before it, including litigation in which the Commonwealth or its instrumentalities may be respondents. No submission was advanced, nor could it be advanced, that there is any lack of public confidence in the manner in which this Court resolves contentious disputes involving allegations of misconduct or the pursuit of improper purposes by the Commonwealth or its instrumentalities; nor is it considered that public confidence in the administration of justice by this Court would be enhanced if such applications were to be heard by Judge and jury.


case_title: Vink v Tuckwell (No 3) [2008] VSC 316


case_title: Weininger v The Queen [2003] HCA 14 , 212 CLR 629


case_text: The rejection of this contention of the Applicant -- even had it been advanced -- is not only dictated by the terms of s 80 itself, as it has been interpreted; it is further dictated by the rejection of the same argument by the High Court: Wilson v Deputy Commissioner of Taxation [2003] HCA Trans 403. 26 Consistent with the abandonment of reliance upon s 80 of the Constitution as the source of any entitlement to have this Court hear the Application before it by Judge and jury, the relief as sought in the Notice of Motion as filed on 8 September 2008 sought to place reliance upon ss 30 and 31 of the Bankruptcy Act . Reference was also made to ss 39 and 40 of the Federal Court of Australia Act -- but those provisions, it was contended by the Applicant, were " qualified or not determinative of jury usage to decide factual questions in bankruptcy cases ".


case_outcome: distinguished

case_text: Finally, I wish to say a brief word about an authority cited by the appellant during the hearing. Appearing on her own behalf, the appellant referred to one case in support of her argument. The case, Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 , is one where the Full Court allowed an appeal on multiple grounds, including failure of the tribunal to comply with the requirements of s 424A. Unfortunately for the appellant, the case does not significantly advance her claims in the matter before me now. 14 In M164 , the tribunal had noted and relied on inconsistencies between direct oral testimony of the applicant and conflicting testimony by the applicant's husband. Though the husband's testimony was given at the hearing and in the presence of the applicant, the Full Court found that, under a strict reading of s 424A , the applicant was to be given notice, in writing, of the tribunal's intended reliance on discrepancies between the husband's testimony and the applicant's testimony: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [97] - [100] . 15 In the instant case, the hearing-testimony relied upon by the tribunal came directly from the appellant, herself, and was therefore exempted under s 424A(3)(b) as information that "the applicant gave." There was no third party testimony cited or relied upon by the tribunal in reaching its decision. 16 The appeal will be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 2 June 2006 First appellant in person. Counsel for the First Respondent: Ms S Burchell Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 3 May 2006 Date of Judgment: 2 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/728.html


case_outcome: discussed

case_text: In fact it is not the appellant but the first respondent who has raised the possibility that the tribunal decision may have been based on information not provided to the appellant under s 424A. The first respondent's counsel referred to decisions in the High Court to the effect that the tribunal must strictly comply with s 424A (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162). Thus, any finding that information was not properly provided would be a jurisdictional error and the tribunal's decision would necessarily be vacated by this Court. 6 The first instance involves the dates on which the Sri Lanka Provincial Council elections occurred. The tribunal states in its Findings and Reasons: "[t]he applicant had submitted in her protection visa application lodged in July 1999 that she had been recently involved in the Provincial Council election campaigns but stated at the hearing that she assisted with the 1996 Provincial Council elections. There were, however, no such elections in 1996; rather these occurred in 1999, in the months before her departure for Australia." The tribunal then went on to explain that this inconsistency was one consideration that led the tribunal to doubt the truth of the appellant's story. 12 Since I have determined that the "information" in question all qualifies under the statutory exemption in s 424A(3) , it is not necessary to examine the specifics of whether and how the information was relayed to the appellant. I do note, however, that the High Court's ruling in SAAP makes it clear that any information required under s 424A must be given to an applicant in writing : see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 183 per McHugh J; at 196 per Gummow J; at 205 per Hayne J. This would be necessary even in a situation where the tribunal discusses adverse information with an applicant during the hearing and gives the applicant an opportunity to comment. Thus, were any of the information at issue in this case not subject to exemption under s 424A(3) , the appellant might very well have succeeded in her appeal.


case_text: At first blush, it might appear that the tribunal was comparing written information from the appellant's visa application with the appellant's testimony at the hearing. In its reasons, however, the tribunal explained that the appellant's visa application was merely the medium that raised the issue for the tribunal: see eg SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [49] - [50] per Moore J; at [244] per Allsop J. The inconsistency itself arose between the appellant's testimony that she participated in 1996 Provincial Council elections, and the independent country information stating that the scheduled 1996 elections never occurred and were, instead, postponed until nearly 1999: see ibid. Thus, the information which is relevant for the purposes of s 424A is the independent country information and the appellant's hearing testimony. 8 Section 424A(3)(b) provides that information given by an applicant for the purpose of the application is exempted from the disclosure requirements of s 424A. While some cases might call into question when, specifically, information is given "for the purpose of the application", I think it is beyond question that testimony given by an applicant in a statutory hearing pursuant to s 425 of the Migration Act is given in support of, and therefore "for the purpose of", the application.


case_text: Similarly, with regard to independent country information, s 424A(3)(a) exempts such general information from the requirements of s 424A when it is not specifically about the applicant or another person. This is established by numerous Full Court authorities: see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 ; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALD 559 at 562-563 per Gyles and Conti JJ, at 564 per Allsop J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168. Thus, with regard to the first instance of possible error, I find no violation of s 424A by the tribunal.


case_title: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALD 559


case_title: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178


case_text: Magistrate Raphael said that, in his opinion, this was not a case where the need for further inquiry was so obvious and no impediment to the conduct of the inquiry was apparent, so that the failure of the Tribunal to proceed without making enquiries constituted unreasonable conduct within Prasad . His Honour noted that it was the appellant's responsibility to make his own case and to provide sufficient information to the Tribunal that would enable the Tribunal to come to the requisite state of satisfaction ( Abebe v Commonwealth of Australia (1999) 197 CLR 510). Finally, it is for the appellant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims ( Abebe at [187] per Gummow and Hayne JJ). It is not for the Tribunal to make the appellant's case for him. The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give or to act as his "nursemaid" ( Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at [199] [200] per Allsop and Graham JJ appeal allowed by the High Court but not on this point).


case_outcome: referred to

case_text: Magistrate Raphael characterised the gravamen of the appellant's submission as the Tribunal's failure to contact the lawyer even though the appellant had the lawyer's contact details and could have provided them to the Tribunal ( SZNBX v Minister for Immigration and Citizenship [2001] FMCA 103 at [12] ). His Honour considered the obligation of the Tribunal to make enquiries, as discussed in Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 by Kenny J and in SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893 by Perram J. Federal Magistrate Raphael referred to Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 , which may provide the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries ( SZHUH at [11] per Perram J). His Honour noted that in SZHUH , Perram J suggested that that principle may not have survived the enactment of s 422B of the Act, notwithstanding later decisions such as Le and SZMCE v Minister for Immigration and Citizenship (2008) 105 ALD 508 ; [2008] FCA 1803.


case_text: it is for the appellant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims ( Abebe at [187] per Gummow and Hayne JJ). It is not for the Tribunal to make the appellant's case for him. The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give or to act as his "nursemaid" ( Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at [199] [200] per Allsop and Graham JJ appeal allowed by the High Court but not on this point).


case_outcome: applied

case_text: scope of the "duty to inquire" on the part of the Tribunal was recently considered in Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 ; (2009) 259 ALR 429. The High Court stated at [24] that it is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law, even apart from s 422B of the Act. As the High Court pointed out at [25], considerations of a failure to make obvious inquiries or a duty to inquire direct consideration away from the question of whether the decision of the Tribunal is vitiated by jurisdictional error. However, the High Court continued in [25]: It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. This raises a number of considerations, namely: The existence of a court case in Latvia was a critical fact in the appellants' claim. The lack of information concerning the claimed Latvian case was critical to the Tribunal's conclusion that there had been no such case. However, it is necessary to examine the basis of the Tribunal's conclusion at [61] that it was not satisfied as to the appellants' general credibility and finding that they fabricated their core claims relating to the alleged court case. The Tribunal said at [62]: The Tribunal has formed the view that if indeed the applicants had initiated court proceedings as they claim, even if that court case no longer exists, they would have had some documents relating to the case and more information regarding the court where the case was allegedly filed. The applicants claim that it was too dangerous for them to have or transport documents relating to the case. However, the Tribunal has formed the view that the applicants have no documents, and only vague information regarding the court where the alleged court case was filed, because there was no court case and they did not instigate any legal action in Latvia against the police, the authorities, or the government. The Tribunal finds that these claims were fabricated by the applicants to enhance their protection visa applications and it does not accept as credible the applicants' claim that they instigated any action against individual police officers, government officials, the authorities, or the government of Latvia. The question is not what was in the minds of the appellants but whether there was jurisdictional error on the part of the Tribunal that vitiates its decision ( SZIAI ). It may well be the case, as the appellants contend in their submissions on the appeal, that the appellants were awaiting a response from the Tribunal to ask for the details of the lawyer which, according to the appellants, they had proferred to the Tribunal and which the Tribunal had refused to accept. The appellants say that after that refusal they assumed that they could not force the Tribunal to accept the details. They assumed that if the Tribunal thought that they were important, the Tribunal would ask them to submit those details. There is no evidence from the appellants, who appeared in person assisted by an interpreter, but a reading of the transcript does support the appellants' case in this regard. However, as the Tribunal noted in its reasons, in the further submissions sent by the appellants to the Tribunal after the hearing, they again asked the Tribunal to contact the lawyer but did not actually provide the lawyer's contact details. The Tribunal would be forgiven for thinking that if the appellants really did have those details, they would have provided them at that stage. The appellants say that they were not given the opportunity to provide the lawyer's details. While that may have been the case at the Tribunal hearing, that contention cannot stand in view of the opportunity given by the Tribunal to the appellants to give any further information to it in writing after the Tribunal hearing. The failure by the Tribunal to press the appellants to provide the lawyer's contact details could not, in the circumstances, be said to be so unreasonable as to support a finding that the Tribunal decision was affected by jurisdictional error ( SZIAI at [26]). As it was the responsibility of the appellants to make out their own case and in the context of the failure to provide any documents or details of the court case, it was reasonable for the Tribunal to leave the onus on the appellants to provide the contact details of the lawyer to the Tribunal if they wished the Tribunal to make further inquiries. Given the two opportunities the appellants had to provide more information, in particular in the further written submissions sent after they had been provided with the tapes of the hearing, it was not unreasonable for the Tribunal to find that the appellants did not provide any real information because the court case did not exist and they had no useful information to provide. The appellants have not established jurisdictional error by lack of compliance with s 420 or s 425. Section 424A


case_text: Magistrate Raphael characterised the gravamen of the appellant's submission as the Tribunal's failure to contact the lawyer even though the appellant had the lawyer's contact details and could have provided them to the Tribunal ( SZNBX v Minister for Immigration and Citizenship [2001] FMCA 103 at [12] ). His Honour considered the obligation of the Tribunal to make enquiries, as discussed in Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151 by Kenny J and in SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893 by Perram J. Federal Magistrate Raphael referred to Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 , which may provide the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries ( SZHUH at [11] per Perram J). His Honour noted that in SZHUH , Perram J suggested that that principle may not have survived the enactment of s 422B of the Act, notwithstanding later decisions such as Le and SZMCE v Minister for Immigration and Citizenship (2008) 105 ALD 508 ; [2008] FCA 1803. Federal Magistrate Raphael said that, in his opinion, this was not a case where the need for further inquiry was so obvious and no impediment to the conduct of the inquiry was apparent, so that the failure of the Tribunal to proceed without making enquiries constituted unreasonable conduct within Prasad . His Honour noted that it was the appellant's responsibility to make his own case and to provide sufficient information to the Tribunal that would enable the Tribunal to come to the requisite state of satisfaction ( Abebe v Commonwealth of Australia (1999) 197 CLR 510).


case_title: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609

case_text: the hearing, the Tribunal commented to the appellants that the deficiencies in the evidence relating to court case raised questions about the credibility of all the appellants' claims. The failure on the part of the appellants to provide details about the lawyer or the courts in Latvia constituted a defect in the material given to the Tribunal by the appellants. The lack of provision of those details formed part of the reasoning process of the Tribunal as it weighed the evidence as to the existence of the court case by reference to the available information. Neither the lawyer's contact details nor the fact that they were not given by the appellants to the Tribunal constitute information for the purposes of s 424A(1) of the [2007] HCA 26 ; Act ( SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] ). In any event, the existence or otherwise of the lawyer's details and the fact that the appellant did or did not have such details would have been information given to the Tribunal by the appellants within the meaning of s 424A(3)(b). The Tribunal did not contravene s 424A of the Act. Good faith


case_title: SZHUH v Minister for Immigration and Citizenship [2008] FCA 1893


case_title: SZMCE v Minister for Immigration and Citizenship (2008) 105 ALD 508


case_outcome: affirmed

case_title: SZNBX v Minister for Immigration and Citizenship [2001] FMCA 103


case_text: that the respondent be committed to prison or otherwise punished for contempt of Court in respect of his breach of the undertaking provided by him to the Honourable Justice Kenny on 8 October 2001 that he would not be involved in the management of a company in any form at all in the future.' 2 The notice of motion was accompanied by a statement of charge under O 40 r 6 of the Federal Court Rules : 'The applicant alleges that the respondent, Maxwell John Reid is guilty of contempt of Court and further that such contempt is wilful and contumacious in so far as: 1. in breach of paragraph 1 of the order of the Honourable Justice Jenkinson of this Court, made on 10 March 1992, wherein the respondent was prohibited from managing corporations until 10 August 2036, the respondent has been involved in the management of the following corporations: 1.1 Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and 1.2 Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003; and 2. in breach of an oral undertaking provided to the Honourable Justice Kenny on 8 October 2001 that he would not be involved in the management of a company in any form at all in the future, the respondent has been involved in the management of the following corporations: 2.1 Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and 2.2 Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003.' 3 The parties asked me to first determine whether I was satisfied that the respondent was guilty of contempt before considering the question of sentence if so satisfied. On 13 September 2005 I published reasons ( Australian Securities and Investments Commission v Reid [2005] FCA 1274) ('the principal reasons') in which I concluded that the applicant had established that the respondent was guilty of contempt as alleged in the statement of charge. I did not at that time determine whether the respondent's contempt should be categorised as technical, wilful or contumacious: Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited [1986] HCA 46 ; (1986) 161 CLR 98. The matter was adjourned to enable submissions to be made in relation to the categorisation of the contempt and sentence.


case_title: Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited [1986] HCA 46 ; (1986) 161 CLR 98


case_text: In Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530, the High Court said: 'In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal offence if it involves deliberate defiance, or as it is sometimes said, if it is contumacious.' 18 The respondent's conduct must be described as wilful disobedience of Jenkinson J's order and the undertaking given to Kenny J. It was contumacious. It made the contempt a criminal contempt. I will expand on this a little later but Mr Reid's contumacy is evidenced by a number of statements which he made to a psychologist whose report was tendered to this Court. 19 The applicant seeks an order that Mr Reid only be punished for the breach of Jenkinson J's order made on 10 March 1992 and not for the further breach of the undertaking given to Kenny J on 8 October 2001. That seems to me appropriate. The undertaking given to Kenny J was in similar terms to the order made by Jenkinson J. In those circumstances, it would not be appropriate, as the applicant has recognised, that the respondent be punished for the same conduct which contravenes the order and the undertaking. He should only be punished for breach of the order.


case_text: There is no doubt that I have power to order imprisonment. The Court's wide range of penalties were summarised in Australian Competition and Consumer Commission v Info4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 by Nicholson J at 54. He said: ' The Federal Court has a wide range of penalties open to it ( Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404 at 411 ( ASIC v Matthews ) per Sackville J) and includes the power to: (a) commit a contemnor to prison for an indefinite period of time ( Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238; Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1985) 5 FCR 169 at 178 per Wilcox J); (b) to impose a fine for a wilful breach of an order or undertaking ( Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd at 109-113; Flamingo Park Pty Ltd at 178 per Wilcox J); (c) to impose a daily fine ( Australasian Meat Industry Employees' Union at 113-115); (d) to order the sequestration of the assets of a contemnor ( Australasian Meat Industry Employees' Union at 115-116); and (e) to suspend on condition any sentence of imprisonment that it might impose in respect to contempt ( Australian Competition and Consumer Commission v Goldstar Corp Pty Ltd [1998] FCA 1441 ; ASIC v Matthews at 411). It is important that the seriousness of a contempt is brought home to the contemnor and that the contemnor realise that their perceptions do not constitute a licence to ignore court orders or legislation directed to the prohibition of deceptive conduct ( Hughes at [24]). In determining what is an appropriate penalty, the intent of the contemnor is important ( Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 at 217-218; Hughes ). A sentence for contempt is punitive, to vindicate the authority of the court ( Australasian Meat Industry Employee' Union at 107). The underlying rationale for every exercise of the contempt power was the necessity to uphold and protect the effective administration of justice. Gibbs CJ, Mason, Wilson and Deane JJ said: "Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the courts orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt (2 nd ed, 1983) say, at p 3: 'if a court lacked the means to enforce its orders, and its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.'"' 26 In Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537 at 540, Spender J listed a number of indicia that were relevant in deciding on the appropriate penalty. He said: 'Considerations which are relevant in deciding what is the appropriate penalty include: (a) The relative seriousness of the contempt, which is determined by the extent to which the contemnor appreciated that a contempt was being committed: ACCC v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at [144] ( Info4PCCom ). (b) Whether the contemnor subjectively intended to disobey the order: Attorney-General v Times Newspapers Ltd [1992] 1 AC 191; [1991] 2 All ER 398 at AC 218; ACCC v Hughes (2001) ATPR 41-807 at [20] ( Hughes ); and Info4PC.Com . (c) The importance of bringing home to the contemnor the seriousness of the contempt: Hughes at [24]; Info4PC.Com at [139]. (d) Whether the contemnor has offered any explanation or apology for his conduct: Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238; 45 ALR 53 at CLR 245 per Gibbs CJ, Mason, Wilson and Brennan JJ. (e) An acknowledgment by the contemnor that a contempt was committed may be a mitigating factor: Matthews at [25] and [29].'


case_text: In Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537 at 540, Spender J listed a number of indicia that were relevant in deciding on the appropriate penalty. He said: 'Considerations which are relevant in deciding what is the appropriate penalty include: (a) The relative seriousness of the contempt, which is determined by the extent to which the contemnor appreciated that a contempt was being committed: ACCC v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at [144] ( Info4PCCom ). (b) Whether the contemnor subjectively intended to disobey the order: Attorney-General v Times Newspapers Ltd [1992] 1 AC 191; [1991] 2 All ER 398 at AC 218; ACCC v Hughes (2001) ATPR 41-807 at [20] ( Hughes ); and Info4PC.Com . (c) The importance of bringing home to the contemnor the seriousness of the contempt: Hughes at [24]; Info4PC.Com at [139]. (d) Whether the contemnor has offered any explanation or apology for his conduct: Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238; 45 ALR 53 at CLR 245 per Gibbs CJ, Mason, Wilson and Brennan JJ. (e) An acknowledgment by the contemnor that a contempt was committed may be a mitigating factor: Matthews at [25] and [29].' 28 As the principal reasons show, a consideration of each of the indicia mentioned by Spender J must lead to a conclusion that this was a very serious contempt committed in full knowledge of the existence of the order and undertaking which were contravened, and in circumstances where the respondent has shown not the slightest indication of remorse or contrition or, indeed, even an acknowledgement of the commission of the contempt. 29 I am satisfied, unless the applicant's personal circumstances require otherwise, that the respondent must be sentenced to imprisonment in respect of his contempt. 30 The respondent was born in Tasmania on 10 August 1944 and thus, is nearly 62 years of age.


case_text: There is no rule which requires that a respondent in contempt proceedings pay costs on a solicitor and client basis: McIntyre v Perkes & Another [1987] 15 NSWLR 417. However, the respondent's conduct which gave rise to these proceedings and the civil proceedings, and his conduct in these proceedings, make such an order appropriate. 48 There will be an order that the respondent pay the applicant's costs on a solicitor and client basis. I will make the declaration that the respondent has committed the contempts alleged in the Statement of Charge. 49 Mr Reid has indicated that he intends to appeal from this decision.


case_text: I find that ordinary reasonable numbers of the public would read new condition 6 in conformity with Ms McBeath's intention. That is a natural and ordinary meaning. Even if, the true contractual construction were as Creative's counsel submitted, the way in which new condition 6 is expressed leaves it open to other reasonable constructions: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at 85 [103] . As Lord Devlin said about conveying meanings, albeit in the case of a defamatory publication, ( Lewis v Daily Telegraph Ltd [1964] AC 234 at 285): '... it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that.'


case_text: Next, Creative argued that the ticket constituted an offer of a licence on conditions of entry which included the right, in condition of entry 1, to refuse entry to the holder for any reason. The ticket gave no proprietary right to a ticket holder to attend the venue. Since Cowell v Rosehill Racecourse Company Ltd [1937] HCA 17 ; (1937) 56 CLR 605, it is clear that a ticket to attend an event such as Big Day Out 2007 simply gives the holder a licence which is revocable by the licensor. Revocation of the licence so given may be effective, even if the licensor is in breach of the contract by the act of revocation: Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39 ; (1977) 137 CLR 487 at 506 per Aickin J. The position may be different under the s 87 of Trade Practices Act 1974 (Cth) which is not confined to common law or equitable remedies. And, consideration may need to be given to the effect of terms implied by s 74 of Trade Practices Act 1974 (Cth). It is not necessary for the determination of these proceedings to enter into that field.


case_text: I am of opinion that the condition of entry 1 read together with the other conditions of entry in light of the terms of the ticket as a whole, and having regard to the objective circumstances in which the contract for entry to the venue is entered into, does not give an unlimited right to Creative to refuse a person entry regardless of whether the original purchaser from Creative breached new condition 6 ( Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 ; (1986) 161 CLR 500 at 510-511).


case_text: In Gange v Sullivan [1966] HCA 55 ; (1966) 116 CLR 418 at 441, Taylor, Menzies and Owen JJ noted that the first step to deciding the question of construction in the case like the present was to understand the condition and its significance to the parties. They continued: ' Suttor v. Gundowda Pty. Ltd. ((1950) [1950] HCA 35 ; 81 CLR 418), together with other cases, was relied upon to support the conclusion that non-fulfilment of the condition did not of itself bring the contract to an end but did no more than render the contract voidable at the instance of a party not responsible for the non-fulfilment of the condition. Whilst the effect of a condition must in every case depend upon the language in which it is expressed and a decision upon the meaning of one condition cannot determine the meaning of a different condition, the authorities cited do show a disposition on the part of courts to treat non-fulfilment of a condition such as that here under consideration as rendering a contract voidable rather than void in order to forestall a party to a contract from gaining some advantage from his own conduct in securing, or contributing to, the non-fulfilment of a condition bringing the contract to an end.'


case_title: Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39 ; (1977) 137 CLR 487


case_text: The ticket gave a right of admission to a Big Day Out 2007 festival, subject to the conditions of entry. Obviously, new condition 6 forms part of the conditions of entry, because it is directed to the right to enter of a holder of a cancelled ticket. The wording of new condition 6 is capable of being construed, as Hill and Finkelstein JJ said of a similar condition in Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at 183 [98] (Emmett J agreeing on this point at 197 [164]), as one of: • a contractual promise not to sell for profit, breach of which gives rise to a claim for damages but might or might not justify rescission; • a condition precedent to performance by Creative of its obligation to procure admission to the festival, which it could waive; • a delimitation of the licence granted by the ticket so that a failure to comply with it extinguishes the licence. Hill and Finkelstein JJ found that contract there involved a promise in the form of a condition of the contract by the original purchaser not to resell the ticket at a premium ( Hospitality 110 FCR at 184 [104]-[105]). 37 The language of new condition 6 is quite different to that of the condition considered by the Full Court. I am of opinion that it is a delimitation of the licence. This is because it provides, in imperative language, that the ticket will be cancelled if the proscribed event occurs. The contractual intention is that the licence which presentation of the ticket at the door or place of entry into the Big Day Out 2007 festival would be given ordinarily will not be available if the ticket has been resold for profit. Even if I am wrong so to construe new condition 6, I am of opinion that an ordinary reasonable member of the class of holders and intending purchasers or holders of tickets would understand new condition 6 in this way.


case_title: Lewis v Daily Telegraph Ltd [1964] AC 234


case_text: Where a ticket or other document is intended by the issuer to contain terms of the contract such as an exemption clause or a foreign jurisdiction clause or other special condition, the issuer cannot rely on those terms unless, at the time of contract, it did all that was reasonably necessary to bring the terms to the other party's attention: Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 228-229 per Brennan J; MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55 ; (1975) 133 CLR 125 at 137 per Stephen J, 143 per Jacobs J; Sydney Corporation v West [1965] HCA 68 ; (1965) 114 CLR 481 at 485 per Barwick CJ and Taylor J; see too at 503 per Windeyer J. 79 eBay responded that if Creative's argument that the unlimited scope of its power to refuse entry under condition of entry 1 were correct, then the arrangement entered into between Creative and a 'purchaser' could not, in law, amount to a contract because there was no consideration at all. eBay said that this would show that Creative was free to perform or not without having any liability or obligation if it refused entry for no reason whatsoever, referring to MacRobertson [1975] HCA 55 ; 133 CLR 125. eBay argued that, on this premise, there was no contract unless and until the ticket was presented for entry to the venue and Creative acted on the presentation to admit the presenter to the event. At that point a contract was entered into on the analysis above for the admission into the venue and for the governing of the relationship between the relevant ticket holder and Creative while the event was in progress. It is unnecessary to determine the correctness of these contentions 80 I am of opinion that the existence of the numerous potential contractual relationships between Creative and its purchasers overlaid with the uncertainty as to the application and operation of new or old condition 6 in the circumstances I have described demonstrates that by seeking to claim that new condition 6 is enforceable, Creative has engaged in conduct which is, or is likely to be misleading and deceptive conduct towards members of the public. Moreover, for the reasons I have given new condition 6 conveys a representation that falsely asserts that tickets resold for profit will invariably be cancelled. 81 I am of opinion that eBay is entitled to a declaration, and an injunction to prevent Creative from engaging in the contraventions of s 52 of the Act which I have found. The parties asked for the opportunity to address on the form of relief. I will hear them and then make final orders.


case_text: Where a ticket or other document is intended by the issuer to contain terms of the contract such as an exemption clause or a foreign jurisdiction clause or other special condition, the issuer cannot rely on those terms unless, at the time of contract, it did all that was reasonably necessary to bring the terms to the other party's attention: Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 228-229 per Brennan J; MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55 ; (1975) 133 CLR 125 at 137 per Stephen J, 143 per Jacobs J; Sydney Corporation v West [1965] HCA 68 ; (1965) 114 CLR 481 at 485 per Barwick CJ and Taylor J; see too at 503 per Windeyer J. 20 In Fay 165 CLR at 228 Brennan J (with whom Gaudron J agreed on this contractual issue at 165 CLR at 261) considered arrangements which had been made for passengers to pay the fare in Australia for a cruise in Grecian waters. They received an exchange order in Australia that would be handed over in Greece for the actual ticket. The exchange order was expressed in contractual language and reserved to the carrier the right to cancel any cruise. Brennan J considered that the contract was made when the fare was paid and that nothing in the wording of the ticket could affect the terms of the antecedent contract (165 CLR at 227). As he said, if no contract came into existence until the ticket was issued and accepted in Greece, there would be no consideration to support the carrier's right asserted in the exchange order to refuse to refund the passage money if the passenger cancelled. Brennan J referred to the consequence of forfeiture of the fare as a reason to find that (165 CLR at 228): 'The better analysis of the transaction is that the defendant was bound to issue a ticket in exchange for the exchange order in performance of a contract of carriage already made, but the defendant was given no right to introduce new conditions of carriage by printing them on the ticket. The payment of the fare may rightly be regarded as the price of an option to acquire a ticket, but the option was not to acquire a mere piece of paper. It was an option to acquire a voucher or certificate of entitlement to be carried on terms already agreed -- not on terms which the parties had yet to agree on. It was too late after the original contract was made to add conditions which were not incorporated in it.' 21 And Wilson and Toohey JJ (with whom Deane J agreed on this issue at 165 CLR at 256) said (165 CLR at 206): 'If a contract of carriage was not concluded before the respondent left Australia then it must follow that, notwithstanding that the entire passage money had been paid and that a particular cabin on a particular vessel had been allocated to him for a specified cruise and that although nothing remained for him to do except to present himself in Athens with the exchange order, the appellant came under no obligation to carry him until he did so. Such a construction of the circumstances flies in the face of common sense and cannot be accepted. When he left Australia the respondent had a contractual right to receive from the appellant on presentation of the exchange order in Athens a passage ticket which enabled him to board the vessel and occupy the specified cabin for the duration of the cruise subject only to such conditions as are found to form part of the contract.' 22 Here, new condition 6 imposed, if it were contractual and enforceable, substantial limitations on the ability of an original purchaser or a holder of a ticket in dealing with it. Many online purchasers were given no notice of this; indeed all online purchasers of the Sydney and Gold Coast concerts knew nothing of it; and those purchasing from the Big Day Out website were informed only of old condition 6, but later received tickets with the new one. It is necessary to look at each of the 4 methods of sale to appreciate their potentially differing legal consequences. 50 When the purchaser received the ticket, the terms themselves precluded any opportunity to seek a refund (see condition of sale 3) because he or she was informed that tickets would not be exchanged or replaced, nor money refunded 'after purchase'. That is, the very transaction which had been confirmed by the series of webpages and the confirmation email generated by a Ticketmaster online transaction, could not be undone if the conditions of sale were part of the transaction. Creative's argument is similar to that rejected by Wilson, Toohey, Brennan and Gaudron JJ in Fay 165 CLR at 206, 228, 261. I reject it. 51 Because these conditions were not brought to the attention of the purchaser and were not available to the purchaser, perhaps for more than six weeks after the transaction was effected and the purchaser paid the price, I am of opinion that it is quite unrealistic to regard this ordinary consumer transaction as one in which the purchaser would have been free to return the ticket thereafter and receive a refund. The ordinary reasonable member of the public would be confronted with a representation on the reverse side of the ticket that the contract denied him or her the ability to return the ticket or get a refund on ascertaining that the conditions were unsatisfactory. 52 I am of opinion that condition of sale 3 is calculated to convey to a person who bought online from Ticketmaster that the transaction was completed online at the time of the webpage transactions. It follows that it did not contain any terms on the ticket. The vague and general reference in Ticketmaster's purchaser policy to terms being on tickets, cannot substitute for the necessity to draw specifically to someone's attention unusual or significant terms affecting the proposed relationship, if it is sought to claim that the contract contains those terms. This is the more so when a term like new condition 6 is not otherwise available to a purchaser and their attention is not directed to it clearly or, as in this case, at all. 54 Creative argued that the purchaser could somehow return the ticket if, when it was ultimately received, it contained terms that were not to the purchaser's satisfaction. I am of opinion that this is unrealistic. Creative for its own commercial purposes offered facilities to the public for instantaneous online ticket sales including through the Ticketmaster web facility. If Creative wanted to impose a condition of contract in the Ticketmaster online sales such as is in the old or new condition 6, it had to bring notice of such a condition to the attention of the purchaser online at the time of the purchase ( Fay 165 CLR at 206, 228, 261). 55 Creative intends to sell over 220,000 tickets at $120 each, thereby generating revenue in the order of about $26 million. It is not unreasonable to expect it to get its contractual documents (including those online) right if it wants to rely on terms that have strict and perhaps drastic consequences for freedom of contract of purchasers from it . I am of opinion that a reasonable person considering the steps to purchase from Ticketmaster online would have considered them to amount to a contract between the purchaser and Creative, through the agency of Ticketmaster on the terms and conditions that were then and there available online. There was no incorporation by reference of provisions on the ticket. 56 When a purchaser approached a Ticketmaster over the counter office, the employee would begin entering details on a computer behind the counter. A purchaser would have to supply his or her name, work phone number, work address or some other phone number and address for the employee to continue. There were some conditions posted on a notice on the back wall of Ticketmaster offices behind the counter which may have been too small to read. Another notice entitled 'Conditions' was available for perusal. That notice stated that Ticketmaster was an agent of the seller and that all complaints were the seller's responsibility. It said that tickets were subject to the seller's conditions of sale 'a copy of which is available at the time of collection of the ticket'. Here, this must be a reference to the actual provisions printed on the back of the ticket, because it is common ground that Ticketmaster had no other material available at its direct booking offices which set out terms of the contract which Creative proposed to enter with an intending over the counter purchaser.


case_text: In Quinn Villages Pty Ltd v Mulherin [2006] QCA 433 at [44] Cullinane J (with whom McMurdo P and Holmes JA agreed) said that a court would give effect to a clause bringing a contract to an end in the eventualities for which it provides if the language was sufficiently explicit. Nonetheless, he noted that there was a plain disposition to treat such a clause as rendering the contract voidable not void: see also Havenbar Pty Ltd v Butterfield [1974] HCA 24 ; (1974) 133 CLR 449 at 456 per Menzies, Stephen and Jacobs JJ. Here, new condition 6, is designed to bring about automatic termination because of the breach by the purchaser. Such a breach is not rationally capable of being taken advantage of by the purchaser so as to call for the implication that the innocent party may elect to avoid the contract, because he or she has paid the money, obtained a ticket which is sought to be passed on, and then ceases to have any real interest in the subject matter. Rather, the clause is directed to preventing the purchaser in engaging in that very activity. There is no benefit to the vendor, Creative, in giving it an election in such circumstances as to whether to treat the contract as at an end. The wording of this new condition 6 suggests that it should operate to avoid tickets automatically. It was not suggested by Creative in argument how the application of the principle that a party is not entitled to rely upon his or her own default, should enliven the construction of new condition 6 that it be voidable rather than void.


case_text: Creative asserted that the ordinary reasonable person would read new condition 6 as simply meaning that it would be applied if the purchaser who sought to sell on eBay or otherwise was caught. It may be that, as a matter of practicality, that is how the condition operates. But the threat which new condition 6 conveys on an ordinary reasonable reading by a member of the public is that the person who sells a ticket having obtained it from Creative, whether by direct purchase or donation or otherwise, will be discovered: RAIA Insurance Brokers Ltd v FAI General Insurance Ltd (1993) 41 FCR 164 at 172-175 per Beaumont and Spender JJ. The implication conveyed by new condition 6 is quite clear. It is that Creative has the means of detecting a sale, will discover it, and will cancel the relevant ticket. Moreover, that is just what Ms McBeath and Mr Lees did with Ms Row's ticket, without the slightest enquiry as to whether she fell within what Creative's senior counsel later submitted was the proper construction of this condition. I am satisfied that the way in which Creative, through Ms McBeath and Mr Lees, interpreted new condition 6 is the natural and ordinary meaning of that condition which an ordinary reasonable member of the public would understand. Moreover, it was the construction on which Creative has acted. 73 Here, Creative has purported to use new condition 6 in a way it says ordinary reasonable members of the public would not understand it to operate. I reject Creative's argument. It is seeking to have its cake and eat it too. By its conduct in choosing the wording and distributing new condition 6 on the tickets for the Big Day Out 2007, Creative has conveyed, in substance, a representation that Creative is legally entitled to and will detect and cancel any ticket for any Big Day Out 2007 festival which is resold by anyone for profit. And the effect of that conduct is also to convey a representation that the holder of any ticket which is resold for profit will be refused entry to the Big Day Out 2007 festival for which it was issued. 74 Creative accepted, by its 'if we catch you' argument, that it could not detect all resales at a profit. Indeed, Ms McBeath's evidence was that Creative could not cancel tickets which had been sold on eBay unless it could identify the ticket number. She said that was '... because we can't trace every ticket'. It follows that Creative did not have reasonable grounds, to make the representation that every ticket resold for profit would be cancelled.


case_text: Old condition 6 operated to confer upon Creative an election to avoid a ticket, if it were resold or transferred for profit or commercial gain. The ticket remained valid unless and until Creative acted by making its election: Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418. Moreover, old condition 6 indicated that the holder 'may be refused entry or rejected', again suggesting that Creative had first to exercise its election before that consequence would be asserted by it. 30 In contrast, new condition 6 is worded to operate upon the happening of an event, namely a resale for profit. On the occurrence of the event the ticket 'will be cancelled and the holder will be refused entry'. Creative says that the same contractual principles of construction apply and that the cancellation of the ticket, despite the imperative wording, is not a contractually automatic consequence of the occurrence of the event of resale for profit. That is because the purchaser is not entitled to rely upon his or her own default in adhering to the contractual requirements, but the innocent party, Creative, is entitled to elect whether to keep the contract alive and, if this is the true construction of the contract, it says that there is nothing misleading or deceptive about its use of words in new condition 6 to convey that meaning. 31 In Suttor 81 CLR at 441 Latham CJ, Williams and Fullagar JJ said that where the event in question was one which could not occur without default on the part of one party to the contract, the position was clear: 'The provision is then construed as making the contract not void but voidable: only the party who is not in default can avoid it, and he may please himself whether he does so or not.' The context of the principle which their Honours were discussing was one in which the party in default would be advantaged if termination occurred automatically. The principle to be applied in such a case is that a party should not be entitled to rely upon his or her own default in respect of the occurrence which the contract provides will bring about its end. 32 In the present situation the intention of the parties is that new condition 6 is to benefit only Creative. The purchaser gains nothing from a termination arising from his or her being in default. Thus the purchaser has no relevant motivation to be in default under new condition 6 so as to render the ticket void. This is quite different from the situation in, say, a conveyancing contract which provides for the contract to be avoided on happening of an event which one or other party or both can bring about. In such a case the implication of a term which denies to the party in default the facility of engineering the end of his or her contractual obligation is necessary. The innocent party should not be put into the position that the party in default can escape from his or her obligation by breaching, rather than adhering to, the contract. 33 The purchaser of a ticket to Big Day Out 2007 has no relevant obligation the breach of which will benefit him or her in a way that it would be to his or her advantage for an automatic cancellation of the ticket to occur. Quite the contrary, the purchaser wishes no such thing to occur by his or her default. The natural and ordinary meaning of new condition 6 suggests that the evident purpose of it is to prevent the purchaser selling the ticket for profit on pain of it being cancelled if he or she did. In that context, the purchaser could not rely on his or her own default in making such a sale so as to escape from an obligation under the contract and thereby render that which he or she seeks to resell valueless. 34 In Gange v Sullivan [1966] HCA 55 ; (1966) 116 CLR 418 at 441, Taylor, Menzies and Owen JJ noted that the first step to deciding the question of construction in the case like the present was to understand the condition and its significance to the parties. They continued: ' Suttor v. Gundowda Pty. Ltd. ((1950) [1950] HCA 35 ; 81 CLR 418), together with other cases, was relied upon to support the conclusion that non-fulfilment of the condition did not of itself bring the contract to an end but did no more than render the contract voidable at the instance of a party not responsible for the non-fulfilment of the condition. Whilst the effect of a condition must in every case depend upon the language in which it is expressed and a decision upon the meaning of one condition cannot determine the meaning of a different condition, the authorities cited do show a disposition on the part of courts to treat non-fulfilment of a condition such as that here under consideration as rendering a contract voidable rather than void in order to forestall a party to a contract from gaining some advantage from his own conduct in securing, or contributing to, the non-fulfilment of a condition bringing the contract to an end.'


case_text: Where a ticket or other document is intended by the issuer to contain terms of the contract such as an exemption clause or a foreign jurisdiction clause or other special condition, the issuer cannot rely on those terms unless, at the time of contract, it did all that was reasonably necessary to bring the terms to the other party's attention: Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 228-229 per Brennan J; MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55 ; (1975) 133 CLR 125 at 137 per Stephen J, 143 per Jacobs J; Sydney Corporation v West [1965] HCA 68 ; (1965) 114 CLR 481 at 485 per Barwick CJ and Taylor J; see too at 503 per Windeyer J.


case_text: In Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 at 170D, Lord Denning MR gave his well known example of the need for a prominent prompt such as a red hand pointing to an exemption clause, which would draw a purchaser's attention to it. If the Ticketmaster online contract was entered into in writing on the webpages, it is impossible to incorporate the terms on the ticket by reference because the purchasers are told that the ticket would be sent to them some time later. Thus, in the case of the many thousands of people who purchased tickets through Ticketmaster online on 13 October 2006 for the Sydney concert, the tickets would only be sent to them over six weeks later in circumstances where there was no suggestion on Ticketmaster's webpages that there would be any contractual restriction on the capacity of a purchaser to sell the ticket. 61 After 16 November 2006, following complaints brought by eBay in these proceedings, Creative sought to have all its selling agents at retail premises other than Ticketmaster, display a notice which, among other things, set out either on A4 or A3 pages the conditions of sale which were on the back of the ticket. There, new condition 6 was printed in red type, mindful of what Lord Denning MR had said in Thornton [1971] 2 QB at 170D. This device was effective for tickets purchased after 16 November 2006, as a matter of contractual analysis, to bring to a purchaser's attention the existence of the limitation in the condition of sale which was sought to be imposed as a contractual term. There is no evidence as to how many people since 16 November 2006 bought tickets over the counter at retailers in circumstances where the notice will have been effective to make the seven conditions of sale actual conditions of the contract of purchase of the ticket. 62 It is, however, still a feature of Creative's argument, that new condition 6 bound only the actual purchaser, not the person or persons who may have had tickets bought for them by that purchaser, unless the purchaser could be characterised as an agent of the others for the purchaser. 63 The four different principal methods of sale involved the creation of a number of different types of contract, with different incidents at different times. In the example just given of an over the counter sale by a retailer, a sale on 15 November may have brought about a different contract to one which was made on 16 November. Nonetheless, the ticket that is purchased in either transaction will look exactly the same to third parties into whose hands it may come.


case_text: eBay contends that a contract in writing was made on the terms displayed on the Online Fulfilment website. eBay argues the contract was, in effect, signed electronically by the purchaser through his or her clicking on the relevant buttons agreeing to the terms and conditions, making payment and receiving the webpage and email confirmations of the order. On this analysis the contract was signed and completed after the payment and nominated purchaser details were accepted. The terms of the signed contract were those set out in the webpages detailing the terms and conditions in accordance with Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165. 25 eBay argues that, objectively, a reasonable person in the position of the parties would have concluded that terms and conditions upon which the ticket was sold to the purchaser were those repeated five times throughout the process on the different webpages. These incorporated old condition 6. The ticket that was delivered in consequence of a transaction occurring online before 8 November 2006, however, contained new condition 6 which eBay says can have no contractual force or effect because it had been added without agreement after the contract was made. Thus, eBay says, in addition to the other inaccuracies it claims, the ticket in such cases is misleading because of its different terms and it conveys a false representation that new condition 6 is a part of the contract. 26 Creative contends that new condition 6 is merely a statement in different language to the same force and effect of old condition 6 and has no difference in substance. 49 The Ticketmaster online purchase was a contract in writing signed by the parties. By clicking on the relevant buttons and, by the computer bringing up all terms needed to purchase a ticket, on behalf of Ticketmaster as agent for Creative, the whole transaction was in writing, signed and agreed by the parties. A reasonable person in the position of the parties would have regarded the transaction completed on Ticketmasters' webpage as the contract: Toll (FCGT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165.