case_title: Mills v Cooper [1967] 2 QB 459

case_text: Various authorities are cited in support of the proposition. It is necessary to refer to only three of them. In Mills v Cooper [1967] 2 QB 459 at 470, a divisional court considered a prosecution in which it was alleged that a particular person was a gypsy, that term being taken to mean, not a person of the Romany race, but a person leading a nomadic life with no fixed employment and with no fixed abode. At 470, Diplock LJ said: 'Once it is recognized that being a gipsy [sic] is not an unalterable status but depends upon the way of life which a person is leading at any particular time, it is plain that the incorrectness of the assertion made in the previous proceedings is not inconsistent with the correctness of the assertion made in the proceedings now under appeal. The justices accordingly would not have been right in holding that the prosecution were not entitled to, or were estopped from asserting that the defendant was a gipsy [sic] on March 13, 1966, and from proving it if they can.'


case_outcome: considered

case_text: Similarly, in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] AC 853, the House of Lords was concerned with the question of whether a local authority (the council of Gera) was the legal representative of a German corporation at a particular date. In earlier proceedings in West Germany it had been held that the council was not authorized to represent the corporation. At 913, Lord Reid observed: 'The second requirement for res judicata is identity of subject-matter. As to this, it has become common to distinguish between cause of action estoppel and issue estoppel. There is certainly no cause of action estoppel here. The question before the German court was whether the Council of Gera were the legal representatives of the Stiftung at one date. The question here is whether at a different date the solicitors had the authority of the Stiftung to raise this action. An answer, yes or no, to the first question does not necessarily imply a similar answer to the second.'


case_text: The present motion depends solely upon a plea of res judicata. Issue estoppel is not raised. The difference between the two defences was addressed in the reasons of the majority of the High Court (Gibbs CJ, Mason and Aickin JJ) in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 597 as follows: 'The distinction between res judicata (in England called "cause of action estoppel") and issue estoppel was expressed by Dixon J. in Blair v. Curran ... in these terms: "In the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order." The distinction was restated by Fullagar J. in his dissenting judgment in Jackson v. Goldsmith ... . His Honour expressed the rule as to res judicata by saying: "where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa.' " His Honour went on to discuss issue estoppel, citing the comment of Dixon J. in Blair v. Curran ...: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or other privies." ' 45 Finally, the learned author refers to the decision of the High Court in O'Donel v Commissioner for Road Transport and Tramways [1938] HCA 15 ; (1938) 59 CLR 744 at 763, where Evatt J said: 'The argument involves and is based upon the fallacy that, where an issue between A and B relates to a state of things which is capable of subsequent alteration, the conclusive determination in A's favour of that state of things as at one day plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A's favour as against B and estoppel as to the state of things existing at the later day. ...' 46 At 578-579, Latham CJ said: 'Now it cannot possibly be said that the Supreme Court, by a judgment relating only to a period which ended on 15th February, thereby made any direct or actual decision or determination as to any matter or state of affairs whatever which existed at a later date. That judgment did create an estoppel as to one proposition but that estoppel cannot operate to establish by estoppel another proposition which follows from the former proposition only when that proposition is combined with others the establishment of which depends upon evidence or assumption.' 47 Whilst the language of estoppel is used, those considerations should lead to a similar conclusion in the case of res judicata. In the present case the finding that GST was not entitled to remuneration for exploitation at the time of the previous proceedings did not preclude the possibility that it might, at some later stage, derive such a right. This it did by obtaining the current patents. 48 In the circumstances the motion must be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 7 March 2007 Counsel for the Applicant: Mr A Vasta QC Mr D Eliades Solicitor for the Applicant: Fraser Power Counsel for the Respondent: Mr R Bain QC Mr A Duffy Solicitor for the Respondent: Brisbane City Council Legal Practice Date of Hearing: 13 November 2006 Date of Judgment: 7 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/279.html


case_outcome: cited

case_text: I accept that I should not depart from the ratio decidendi of the Hamersley decision unless I am satisfied it is 'clearly wrong' or 'plainly wrong': see Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2003] FCA 1263 ; (2003) 133 FCR 190 (' Nezovic ') at 206, [52]; Marr v Australian Telecommunications Corp (1991) 34 FCR 82; Upperedge v Bailey (1994) 13 ACSR 541 at 543; Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. It would not be sufficient for a judge to merely reach one view, which he or she may prefer over that of an earlier decision, and upon that basis not follow the strong persuasive authority that has already pronounced on the same legislative provision. Before a judge refuses to follow an earlier decision regarding the construction of the same legislative provision he or she must come to the view the earlier decision is 'clearly wrong' or 'plainly wrong'.


case_text: The Council, however, submitted that the economic evidence was admissible in order to provide context to the task of interpreting Part IIIA of the Act. It submitted that since Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 67 CLR 77, the courts have approached the Act as an economic statute designed to address economic activity. It was submitted that, critically, the courts have understood that the character of the Act as an economic statute must be taken into account in construing the words of the Act and, in this regard, economic theory and writings may be considered: see Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 (' Boral Besser ') at 454, [247] per McHugh J. Like the High Court, the Tribunal recognised the importance of economic concepts in the consideration and understanding of the purpose of Part IIIA: see Re Australian Union of Students (1997) 147 ALR 458 at 462-463. 172 In the process of my reasoning, reliance has been placed upon relevant legitimate extrinsic material (referred to by the parties), including the Hilmer Report. However, I have found helpful the discussion of the economic experts as to the nature and the context in which Part IIIA is to operate, although in this regard this has been no more than an elaboration of the relevant legitimate extrinsic material referred to me by the parties. I see nothing inappropriate in the court having regard to and admitting into evidence expert evidence to inform itself as to the nature of and the context in which Part IIIA is to operate, just as it would be appropriate for the court to consider any economic writings on the subject: see Boral Besser at 454, [247] per McHugh J. By admitting the expert evidence for this purpose, the material is presented in evidentiary form and all the parties know precisely the extent of the material that is before the court and that which is to be considered by the court.


case_title: Cabell v Markham (1945) 148 F (2d) 737

case_text: Nevertheless, context is important. The significance of context was articulated well by Learned Hand J, first in Helvering v Gregory (1934) 69 F (2d) 809 at 810: It is quite true...that as the articulation of a statute increases, the room for interpretation must contract; but the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create. And also in Cabell v Markham (1945) 148 F (2d) 737 at 739: ...of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.


case_text: Nevertheless, one must recall the statement of Kirby J in Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 80 ALJR 1509 at 1528, [84] : Where the law in issue is expressed in the form of an Act of an Australian legislature, it is in the words of that statute that the content of the legal obligation is to be found, not in judicial synonyms, restatements or approximations. 101 This is a statement of principle which, as Kirby J indicated has been repeated and emphasised on many occasions: (see the cases referred to by his Honour in fn 64).


case_text: The process of construction of the definition of 'service' and the expression 'use of a production process' must begin by examining the context in which the definition appears and giving the words 'presumptively the most natural and ordinary meaning which is appropriate in the circumstances': Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 398 (' Agfa '), applying Maunsell v Olins [1975] AC 373 at 391. That is, the court must give the words a meaning which is consistent with the language and purpose of Part IIIA and the Act as a whole. It is important to remember that whilst for the purpose of these proceedings one focuses upon the definition of 'service', it is just that, a definition. One must consider the operative provision that incorporates that definition, and determine the purpose and ambit of the operative provisions. 168 The general rule of statutory interpretation is that words used in a statute are given their most natural and ordinary meaning which is appropriate in the circumstances. Consistent with a purposive approach to the interpretation of the expression 'use of a production process', the court would be entitled to receive expert economic evidence to assist in the interpretation of that phrase if it had a technical or specialised meaning: see, e.g. Agfa at 401; Pepsi Seven-Up Bottlers Perth Pty Limited v Commissioner of Taxation (1995) 62 FCR 289 at 297-8; Re Michael ; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 (' Re Michael ') at 543-544, [107]. Whether the words of a statute are to be given their ordinary meaning or a technical or specialised meaning is a question of law for the court: see Agfa at 396-398.


case_title: Helvering v Gregory (1934) 69 F (2d) 809


case_outcome: distinguished

case_text: Apart from the decision in Hamersley , BHPBIO relied upon the case of Hematite Petroleum Pty Ltd v Victoria [1983] HCA 23 ; (1982) 151 CLR 599 (' Pipeline Tax Case') in the consideration of the question of what is encompassed by the concept of production process. The question in that case was whether the Pipelines (Fees) Act 1981 (Vic) purported to impose a duty of excise, contrary to s 90 of the Constitution , and accordingly was invalid. By majority (Mason, Murphy, Brennan and Deane JJ, Gibbs CJ and Wilson dissenting), the High Court so held.


case_text: I should also mention two other matters which are relevant to my deliberation. First, one should be mindful of the well-recognised limit to the use to be made of dictionary definitions of words. In House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44 ; (2000) 48 NSWLR 498 at 505, [28] , Mason P (with whom Stein and Gyles JJ agreed) observed, in relation to the role of a dictionary meaning of a word in the task of statutory interpretation, that: They can illustrate usage in context, but can never enter the particular interpretive task confronting a person required to construe a particular document for a particular purpose.


case_title: Marr v Australian Telecommunications Corp (1991) 34 FCR 82


case_text: In Mills v Meeking [1990] HCA 6 ; (1989) 169 CLR 214 at 235 Dawson J clearly explains this principle, stating: However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 [of the Interpretation of Legislation Act 1984 (Vic)] requires a court to construe an Act, not rewrite it, in the light of its purposes.


case_text: In Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273 the High Court restated a number of the key principles of statutory interpretation. In doing so, the Court cited with approval (at 280, [11]) the following extract from the judgment of the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 (footnotes omitted): Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd , if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonable open and more closely conforms to the legislative intent. 91 Furthermore, s 15AA of the Acts Interpretation Act 1901 (Cth) requires that a construction which promotes the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. This is so even if the meaning of the words, interpreted in the context of the rest of the Act, is clear. When the purpose or object is brought into account, an alternative interpretation of the words may become apparent. However, I accept that if the words of a legislative provision are capable of only one construction, taking into account the purpose and context of the provision, then a court cannot ignore them and substitute a different construction because the court considers it somehow furthers the object of the legislation.


case_text: Justice McHugh made the same observation in Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85 at 109: ...in applying a purposive construction, "the function of the court remains one of construction and not legislation". When the express words of a legislative provision are reasonably capable of only one construction and neither the purpose of the provision nor any other provision in the legislation throws doubt on that construction, a court cannot ignore it and substitute a different construction because it furthers the objects of the legislation.


case_text: I accept that I should not depart from the ratio decidendi of the Hamersley decision unless I am satisfied it is 'clearly wrong' or 'plainly wrong': see Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2003] FCA 1263 ; (2003) 133 FCR 190 (' Nezovic ') at 206, [52]; Marr v Australian Telecommunications Corp (1991) 34 FCR 82; Upperedge v Bailey (1994) 13 ACSR 541 at 543; Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. It would not be sufficient for a judge to merely reach one view, which he or she may prefer over that of an earlier decision, and upon that basis not follow the strong persuasive authority that has already pronounced on the same legislative provision. Before a judge refuses to follow an earlier decision regarding the construction of the same legislative provision he or she must come to the view the earlier decision is 'clearly wrong' or 'plainly wrong'. 99 Justice French in Nezovic noted that the rule that one judge of the same or co-ordinate jurisdiction should follow another has greater significance in the area of statutory construction. His Honour said (at 206, [52]): The judgment of Hely J in Tuncok is a carefully considered and recent judgment on the same issue as is before me in the present proceedings. Unless I was satisfied that his Honour was plainly wrong, I would not be justified in departing from the ratio of his decision on that point. In that respect I refer to what I said in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757. Judicial comity does not merely advance mutual politeness between judges of the same or co-ordinate jurisdictions. It supports the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. Where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is "clearly wrong" is not lightly to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction.


case_text: The general rule of statutory interpretation is that words used in a statute are given their most natural and ordinary meaning which is appropriate in the circumstances. Consistent with a purposive approach to the interpretation of the expression 'use of a production process', the court would be entitled to receive expert economic evidence to assist in the interpretation of that phrase if it had a technical or specialised meaning: see, e.g. Agfa at 401; Pepsi Seven-Up Bottlers Perth Pty Limited v Commissioner of Taxation (1995) 62 FCR 289 at 297-8; Re Michael ; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 (' Re Michael ') at 543-544, [107]. Whether the words of a statute are to be given their ordinary meaning or a technical or specialised meaning is a question of law for the court: see Agfa at 396-398.


case_title: R v Bradbourn [1985] Crim LR 682

case_text: It is tempting to say that in any particular case a court may well be able to recognise a 'service' just as it can recognise an elephant when it sees one, but may not find it necessary to define it (see, e.g. R v Bradbourn [1985] Crim LR 682). The difficulty with this approach is that it provides little, if any, guidance on the considerations that need to be considered in arriving at a reasoned decision.


case_text: The Full Court confirmed the distinction between 'above rail' (transportation) and 'below rail' (infrastructure) services in its decision in Rail Access Corporation v New South Wales Minerals Council Ltd (1998) 87 FCR 517 (' Rail Access Case '). The Rail Access Case concerned the question of whether the NSW Rail Access Corporation provided a 'government coal-carrying service' within the meaning of Part IIIA of the Competition Policy Reform Act 1995 (Cth) which could therefore not be a 'service' within the meaning of Part IIIA of the Act. Rail Access Corporation did not carry coal itself or offer the service of carrying coal, but it owned the railway line which Freight Rail Corporation used to carry coal and provided a below rail service to third parties seeking to run trains to transport coal on its tracks and related infrastructure. 85 In considering the definition of 'service' in s 44B, the Full Court held, at 524: The definition of "service" in s 44B of the Act makes clear that a service is something separate and distinct from a facility. It may, however, consist merely of the use of a facility. The definition of "service" distinguishes between the use of an infrastructure facility, such as a road or railway line, and the handling or transporting of things, such as goods or people, by the use of a road or railway line. The fact that one service provider, such as Freight Rail Corporation, is using the railway line infrastructure facility made available to it by Rail Access Corporation for the purposes of carrying coal by rail does not mean Rail Access Corporation is carrying on, or is the provider of, a service of carrying coal by rail. There is a clear distinction, enshrined in the Transport Administration Act and confirmed by the NSW Rail Access Regime, between the service provided by Rail Access Corporation and the service provided by Freight Rail Corporation. Freight Rail Corporation provides the service of transporting coal. Rail Access Corporation provides to Freight Rail Corporation the different service of making available the infrastructure facility which is necessary to enable Freight Rail Corporation to provide the transportation service. The respondent is seeking access to the service provided by Rail Access Corporation, not the service provided by Freight Rail Corporation. 86 The Full Court concluded that the provider of a rail network or permanent way provides a different service to an entity that provides the service of carrying or transporting the coal using the rail network.


case_text: Part IIIA of the Act is to be interpreted as part of an economic statute designed to address economic activity. This does not mean that each and every word or expression found in Part IIIA of the Act is to be interpreted as an economic word or expression, just that the economic context of Part IIIA of the Act provides the setting within which to interpret words and expressions. The importance of the economic context was recognised by the Australian Competition Tribunal ('the Tribunal') in Re Australian Union of Students (1997) 147 ALR 458 at 462: Part IIIA is based on the notion that competition, efficiency and public interest are increased by overriding the exclusive rights of the owners of "monopoly" facilities to determine the terms and conditions on which they will supply their services. 165 The Council, however, submitted that the economic evidence was admissible in order to provide context to the task of interpreting Part IIIA of the Act. It submitted that since Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 67 CLR 77, the courts have approached the Act as an economic statute designed to address economic activity. It was submitted that, critically, the courts have understood that the character of the Act as an economic statute must be taken into account in construing the words of the Act and, in this regard, economic theory and writings may be considered: see Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 (' Boral Besser ') at 454, [247] per McHugh J. Like the High Court, the Tribunal recognised the importance of economic concepts in the consideration and understanding of the purpose of Part IIIA: see Re Australian Union of Students (1997) 147 ALR 458 at 462-463.


case_text: The general rule of statutory interpretation is that words used in a statute are given their most natural and ordinary meaning which is appropriate in the circumstances. Consistent with a purposive approach to the interpretation of the expression 'use of a production process', the court would be entitled to receive expert economic evidence to assist in the interpretation of that phrase if it had a technical or specialised meaning: see, e.g. Agfa at 401; Pepsi Seven-Up Bottlers Perth Pty Limited v Commissioner of Taxation (1995) 62 FCR 289 at 297-8; Re Michael ; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 (' Re Michael ') at 543-544, [107]. Whether the words of a statute are to be given their ordinary meaning or a technical or specialised meaning is a question of law for the court: see Agfa at 396-398. 173 In Re Michael, Parker J (with whom Malcolm CJ and Anderson J agreed) discussed the relevance of economic expert evidence in informing the court of the specialised usage of particular words or phrases. Importantly, his Honour continued (at 544, [107]): Further, the expert evidence provides an appreciation of the nature and objectives of competition policy in the field of economics and, in particular, of the regulation of essential infrastructure, so that the policy and objectives of the Act can be discerned with a greater and more reliable appreciation of the possibilities. In addition, the potential relevance of some concepts and provisions in the Act and Code can be more readily understood. 174 In Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300, Tamberlin J made the following observation in relation to Re Michael and other cases involving admissibility of expert economic evidence (at 439, [665]): The emphasis in these cases is on informing and assisting the court with a view to illuminating an understanding of the terms used in relation to the issues raised.


case_text: It is important that the courts look at the relevant statutory provisions (in their context), and not give priority to judicial exposition of legislation over the meaning to be derived from the actual legislation itself (see Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49 ; (2001) 207 CLR 72 at 89, [46] per Kirby J). The Court has an obligation and duty to give effect to relevant provisions of any legislative provision upon determining the correct interpretation to be placed upon them.


case_text: No party asserted that the term 'production process' has a technical or specialised meaning in economics. On that basis, it is not possible for the Court to construe those words other than in accordance with their most ordinary and natural meaning. It is therefore not permissible to receive the views of witnesses, expert or lay, as to their preferred interpretation or to explain how the words of a statute would be expected to be applied to the circumstances of the case: Royal Insurance Australia Ltd v Government Insurance Office (NSW) [1994] 1 VR 123 at 133-4. Such evidence is nothing more than submission and argument and indeed an attempt to usurp the judicial function. 170 Accordingly, each of the tests proposed by the experts, and the application of the facts of this case, is irrelevant. I therefore accept BHPBIO's submission and reject the expert evidence to the extent that it is directed to the meaning to be given by the Court to the term 'production process'. 171 However, BHPBIO also submitted that the economic evidence is not relevant to any other issue in the proceeding. BHPBIO submitted that the evidence cannot assist the court in understanding the purposes of the legislation or the 'production process' exclusion. It was contended that to the extent that Professor Rey gave evidence about the purpose of Part IIIA generally, his observations are derived from extrinsic materials available to the Court, which do not require expert explanation.


case_outcome: applied

case_text: In order to understand the economic theory underpinning Part IIIA of the Act, it is useful to consider its origins and purpose. The Full Court recently set out the background and context to Part IIIA in its decision in Sydney Airport Corporation Ltd v Australian Competition Tribunal [2006] FCAFC 146 (' Sydney Airport') , to which I will briefly return. 39 Part IIIA of the Act was introduced by the Competition Policy Reform Act 1995 (Cth) and had its genesis in the recommendations of the report entitled 'National Competition Policy Report by the Independent Committee of Inquiry, August 1993' by F Hilmer, M Rayner & G Taperell. The report is more commonly known as the 'Hilmer Report'. Of course, one must recall that not all the recommendations of the Hilmer Report were adopted by Parliament. Nevertheless, it provides an insight into the purpose of the access regime in Part IIIA of the Act. 40 The Hilmer Report made a number of recommendations as to how concerns over access to 'essential facilities' could be dealt with under a national competition policy. The Hilmer Report recognised that in some markets the introduction of effective competition requires competitors to have access to facilities which exhibit natural monopoly characteristics and therefore cannot be duplicated economically. 44 The concept is not complex, as the Full Court in Sydney Airport said (at [36]): ...the background material does not reveal any complexity in the concepts behind what the access regime is directed to: essential facilities that cannot be duplicated economically (to use the words of the Hilmer Report) and services being provided by means of significant infrastructure facilities in circumstances set out in cl 6(1)(a)-(d) of the Competition Principles Agreement of 11 April 1995... Further, as the Full Court went on to say (at [37]): ...in none of the various materials was there any discussion of any complexity of notion or anticipated complexity of assessment involved in respect of the consideration contained in cl 6(1)(b) of the Competition Principles Agreement: that access to the service is necessary in order to permit effective competition in a downstream or upstream market. Rather, the essential notion to be derived from the Hilmer Report, the outline of legislation issued by COAG, the Explanatory Memorandum and the Competition Principles Agreement is that it is necessary for the fact of access (in its ordinary meaning) to be relevant to effective competition in another market (upstream or downstream). 45 The Hilmer Report itself makes it clear that notions of access and the circumstances in which access rights should arise are separate from whether in any given situation vertical integration exists. Vertical integration in itself cannot be a basis to exclude the operation of Part IIIA. The notion of shared access within the context of a vertically integrated operation is part of the scenario the Hilmer Report was seeking to address. That is, it is the very prevention of a vertically integrated organisation using its control over access to an essential facility to limit effective competition in dependent markets that is a key activity that the access regime seeks to deal. Hence, it was envisaged certainly by the Hilmer Report that the access regime would be applied to require vertically integrated organisations to provide access to services provided over some of their infrastructure. 46 This is not to say, however, that the Hilmer Report envisaged the automatic and indifferent application of the access regime to vertically integrated operations. In this regard, the Hilmer Report cautioned that a legislative right of access to private property and facilities may have undesirable economic consequences, and that competition policy needed to strike a balance between protecting private property and freedom of contract on the one hand, and requiring access to essential facilities on the other (at p 242): As a general rule, the law imposes no duty on one firm to do business with another. The efficient operation of a market economy relies on the general freedom of an owner of property and/or supplier of services to choose when and with whom to conduct business dealings and on what terms and conditions. This is an important and fundamental principle based on notions of private property and freedom to contract, and one not to be disturbed lightly. And at p 248: The Committee is conscious of the need to carefully limit the circumstances in which one business is required by law to make its facilities available to another. Failure to provide appropriate protection to the owners of such facilities has the potential to undermine incentives for investment. 53 However, it is to be recalled that even if there be an opportunity for access to a particular service should the exclusion in para (f) not apply, Part IIIA provides for a two-stage process as described by the Full Court in Sydney Airport (see [25]-[34]). Even a declaration of the service under the first part of the process does not necessarily ensure access to the service, but rather confers a right on the access-seeker to negotiate with the provider. Whether access occurs and on what terms will involve questions of 'an economic, commercial and social character' (see Sydney Airport at [35]). It seems to me this is an important consideration in determining the interpretation to be given to the exclusion in para (f). Protection of the viability of certain investments is not just found in the interpretation to be given to the exclusion in para (f), but is also found in the two-stage process that is to be undertaken even if the exclusion is inapplicable. 54 BHPBIO's business in the Pilbara consists of three main operations: (a) A mining operation which extracts the iron ore from the various mines; (b) A rail operation that transports ores from the different mines to port facilities at Port Hedland, using either, or a combination of, the Mt Newman Railway Line and Goldsworthy Railway Line and associated facilities; and (c) A port operation at Port Hedland (with infrastructure located at both Nelson Point and Finucane Island) at which ore is crushed and screened (in some instances), blended in stockpiles (in most instances), reclaimed and loaded onto ships (where in some instances further blending occurs) for transportation to customers. 55 BHPBIO uses a Continuous Stockpile Management System ('CSMS') as a production and grade control system that involves its mining, rail and port operations. The CSMS is part of the production and grade control system that is involved in BHPBIO's operations from mine to ship loading at the port. It assists in the development of the daily blend for each mining area, and determines the required sequence of trains necessary for BHPBIO's operation and requirements for finished iron ore products. Essentially the CSMS was intended to be a more efficient and effective form of the 'batch system' which was employed prior to the introduction of the CSMS. 148 The Hilmer Report itself does not set the specific boundaries in which the access regime would apply. Other than giving guidance as to the aims and potential parameters of the access regime, the Hilmer Report (and for that matter other extrinsic material referred to in the Sydney Airport case) provides little guidance as to the ambit of the exclusion found in para (f) of the definition of 'service'. In view of the general application of the access regime this is not surprising. Part IIIA is not referable to any particular industry. This is to be contrasted with similar regimes in other jurisdictions, such as New Zealand, where access regimes are introduced in the context of a particular industry, such as the telecommunications, gas or electricity industries. Similarly, Part XIC of the Act specifically deals with a telecommunications access regime. However, Part IIIA applies generally to a wide range of potential industries and circumstances. Therefore, the court must apply Part IIIA to a range of services and this will be done on a case by case basis. 149 It can be accepted that the use of rail infrastructure generally is the type of essential facility infrastructure which was intended to be included within the scope of Part IIIA. The services provided by a railway line would be obvious candidates for declaration given that they would often be prohibitively expensive to duplicate. The width of exception in para (f) must balance the desire to preserve the viability of investment in production facilities whilst at the same time preserving the aims of the access regime. Whether or not access to a particular railway line should be declared would need to be determined following the two-stage process set out in Part IIIA and referred to in the Sydney Airport case. So much is clear from the legislative scheme and by reference to the Hilmer Report to the extent adopted by Parliament.


case_title: Upperedge v Bailey (1994) 13 ACSR 541

case_text: I accept that I should not depart from the ratio decidendi of the Hamersley decision unless I am satisfied it is 'clearly wrong' or 'plainly wrong': see Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2003] FCA 1263 ; (2003) 133 FCR 190 (' Nezovic ') at 206, [52]; Marr v Australian Telecommunications Corp (1991) 34 FCR 82; Upperedge v Bailey (1994) 13 ACSR 541 at 543; Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. It would not be sufficient for a judge to merely reach one view, which he or she may prefer over that of an earlier decision, and upon that basis not follow the strong persuasive authority that has already pronounced on the same legislative provision. Before a judge refuses to follow an earlier decision regarding the construction of the same legislative provision he or she must come to the view the earlier decision is 'clearly wrong' or 'plainly wrong'.


case_text: In Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300, Tamberlin J made the following observation in relation to Re Michael and other cases involving admissibility of expert economic evidence (at 439, [665]): The emphasis in these cases is on informing and assisting the court with a view to illuminating an understanding of the terms used in relation to the issues raised.


case_text: A similar approach, with which I agree was taken at an interlocutory level in Woodside Energy Ltd v Commissioner of Taxation for the Commonwealth of Australia [2006] FCA 1303 at [52] - [55] per French J (affirmed in [2006] FCA 1375 per Nicholson J). 176 Accordingly, I rule that the economic evidence is admissible.


case_text: The prejudice to the bank of not my making a sequestration order today is that it may be affected by a dissipation of assets by the debtor after today including a dissipation in the pursuit of the litigation against Mr Cleary. I have been referred to the decision of the Full Court of this court in Ling v Enrobook Pty Limited (1997) 74 FCR 19 and in particular the court's statement of the test to be applied for the purposes of determining whether, pursuant to s 52(2) of the Bankruptcy Act 1966 (Cth), I could be satisfied by the debtor that 'for other sufficient cause a sequestration order ought not to be made' and that therefore I might in my discretion dismiss the petition. The court said (74 FCR at 26D-E): 'The authorities also show that satisfaction that the debtor is well advanced with litigation likely to result in the debtor being in a position to pay his or her debts may well provide a basis for a finding that there is a " sufficient cause " for a sequestration order not to be made (see, for example, Maddestra v Penfolds Wines Pty Ltd (1993) 44 FCR 303 ). But the authorities do not suggest that it is in the public interest to allow insolvent debtors to prosecute litigation generally. They only recognise that it is not in the public interest for a debtor to be forced into bankruptcy by reason of a state of insolvency likely to be of only short duration' 12 Mr Ireland QC, who appears for the debtor, has asked for an adjournment to permit, if it is at all possible, that the consideration of whether sufficient cause has been made out occur once the outcome of the Supreme Court proceedings is known. Mr Bell points out that if the petition remains undetermined prior to its expiry on 9 July 2006 the bank will lose the benefit of any relation back period based on the occurrence of the act of bankruptcy which founds the petition. If I were to grant an adjournment there would be a very tight time frame within which, ultimately, a Supreme Court judge would have to give a reasoned final judgment, if that were to happen prior to the expiry date of the petition. 13 On the other hand if I were to refuse to grant an adjournment of the petition, a case which clearly has a triable issue as found by the Court of Appeal, and which has a number of very difficult factual and legal issues may never be able to be determined since the overwhelming quantum of the debtor's creditors consist of the bank by reason of the size of the judgment debt.


case_title: Rose and Frank Company v J. R. Crompton and Brothers, Limited [1923] 2 KB 261

case_text: It is quite possible for parties to come to an agreement by accepting a proposal with the result that the agreement concluded does not give rise to legal relations. The reason for this is that the parties do not intend that their agreement should give rise to legal relations. This intention may be implied from the subject matter of the agreement, but it may also be expressed by the parties. In social and family relations such an intention is readily implied, while in business matters the opposite result would ordinarily follow. However, even in business matters, there can be no reason why the parties should not intend to simply rely on each other's good faith and honour. If they clearly express such an intention, there can be no reason in public policy why effect should not be given to it (per Scrutton LJ in Rose and Frank Company v J. R. Crompton and Brothers, Limited ('Rose and Frank') [1923] 2 KB 261 at 288). 39 In Rose and Frank the English Court of Appeal was considering a signed memorandum purporting to set out the understanding between two English firms supplying carbon paper of various kinds and the American firm which was importing such carbon paper. The document included the following: 'This arrangement is not entered into, nor is this memorandum written, as a formal or legal agreement, and shall not be subject to legal jurisdiction in the Law Courts either of the United States or England, but it is only a definite expression and record of the purpose and intention of the three parties concerned to which they each honourably pledge themselves with the fullest confidence, based on past business with each other, that it will be carried through by each of the three parties with mutual loyalty and friendly co-operation.' The American firm sued the English firms for breach of the contract said to have arisen from the relevant memorandum. It was held that the document did not constitute a binding agreement.


case_title: Eccles v Bryant (1947) 2 All ER 865

case_text: An executed document becomes an agreement when and in the manner the parties intend that it should do so (see per Lord Greene, MR in Eccles v Bryant (1947) 2 All ER 865 at 869.3). At 866.9 Lord Greene said: 'When parties are proposing to enter into a contract, the manner in which the contract is to be created so as to bind them must be gathered from the intentions of the parties, express or implied.' (See also Sindel v Georgiou [1984] HCA 58 ; (1984) 154 CLR 661 at 667-8).


case_outcome: referred to

case_title: Sindel v Georgiou [1984] HCA 58 ; (1984) 154 CLR 661


case_text: The relevant principles in relation to the formation of a contract are conveniently summarised by Kaye J in his leading judgment in Australian (sic) and New Zealand Banking Group Ltd. v Frost Holdings Pty Ltd. (1989) VR 695 at 700-701 as follows: ' "It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least its essential or critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future agreement of the parties"; per Sugarman J. (sic) in the Full Court of the Supreme Court of New South Wales, quoted on appeal with approval by Menzies J. in Thorby v. Goldberg [1964] HCA 41 ; (1964) 112 C.L.R. 597, at p.607. See also May and Butcher Ltd v. R. (H.L.) [1934] 2 K.B. 17, at p.20, per Lord Buckmaster and, at p.22, per Lord Warrington. An agreement by a term of which a relevant or critical term will be the subject of future agreement between the parties is not enforceable. This general principle of the law of contract was stated by Viscount Dunedin in May and Butcher Ltd. v. R. , at p.21 in the following passage: "To be a good contract there must be a concluded bargain, and a concluded contract is one which settles everything that is necessary to be settled and leaves nothing to be settled by agreement between the parties. Of course it may leave something which still has to be determined, but then that determination must be a determination which does not depend upon the agreement between the parties. In the system of law in which I was brought up, that was expressed by one of those brocards of which perhaps we have been too fond, but which often express very neatly what is wanted: 'Certum est quod certum reddi potest.' Therefore, you may very well agree that a certain part of the contract of sale, such as price, may be settled by someone else. As a matter of the general law of contract all the essentials have to be settled. What are the essentials may vary according to the particular contract under consideration. We are here dealing with sale, and undoubtedly price is one of the essentials of sale, and if it is left still to be agreed between the parties, then there is no contract." Referring to the same principle of law, Lord Wright in Scammell and Nephew Ltd. v. Ouston [1941] A.C. 251, at pp. 268-9 stated: "There are many cases in the books of what are called illusory contracts, that is, where the parties may have thought they were making a contract but failed to arrive at a definite bargain. It is a necessary requirement that an agreement in order to be binding must be sufficiently definite to enable a court to give it a practical meaning. Its terms must be so definite, or capable of being made definite without further agreement of the parties, that the promises and performances to be rendered by each party are reasonably certain." No doubt the principle is founded on recognition that the parties might subsequently fail to agree upon the undecided term, and that in such event the agreement would fail for want of agreement concerning a relevant term. The situation is distinguished from a contract made by parties leaving an essential term to be agreed upon by them, and if they fail to agree the disputed term is to be determined by a third party or by arbitration. ...'


case_text: It is also useful to have regard to the statement of principle contained in the judgment of Bray CJ in Powell and Berry v Jones and Jones (1968) SASR 394 at 397 as follows: 'It seems to me that there are four relevant categories of case where what at first sight looks like an enforceable contract subsequently turns out not to be one. No doubt these categories may and frequently do overlap and many cases fall within more than one of them. 1. The parties may have only agreed to agree. They may have left terms to be fixed by subsequent negotiation between them, their intention being that the provisions already agreed and those yet to be agreed shall operate together as one contract. Thorby v. Goldberg . 2. The parties may have made their agreement subject not only to the preparation but also to the execution of a formal document. In such a case, then, even though everything has in fact been agreed, either party may withdraw before the execution of such a document; e.g. Coope v. Ridout . Their intention must be taken to be that until such execution each of them has a locus poenitentiae . Many cases falling under this head also fall under the first. 3. The agreement may have left to the option of one party not only the mode of performance but whether there shall be any performance at all; e.g. Taylor v. Brewer . 4. There remains a residual class of case outside the first three categories where the agreement reached is so vague and uncertain that the court cannot give it any definite meaning at all. Cf. per Lord Wright in Scammell (G.) & Nephew Ltd. v. Ouston (H. C. & J. G.). ' (footnotes omitted)


case_text: In Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 at 150-151, McHugh JA, as his Honour then was, said under the heading 'Was the consideration illusory?': 'A contract made for a consideration which is illusory is unenforceable: Placer Development Ltd v The Commonwealth [1969] HCA 29 ; (1969) 121 CLR 353 at 356, 360-361 and Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571 at 581. A consideration is illusory if its payment or fulfilment depends upon an unfettered discretion vested in the promisor.' To like effect Mr Justice Hope said at 143: 'All these decisions show how far courts are prepared to go in order to find that there is an enforceable contractual promise where that is what the parties have intended. There are of course limitations. I have already referred to the case where the promisor has a discretion, not only as to what he shall do, but also as to whether he shall do anything. Such a promise is illusory. Furthermore it appears that the promise will not be enforceable if the manner of performance, including the amount of money to be paid or, if relevant, the number of shares to be offered, is a matter entirely in the discretion of the promisor and no criteria by which the performance required of the promisor can be measured, or the minimum of that performance can be measured, is expressed or can be found to be implied.'


case_text: The use of language which, as a matter of construction and not mere speculation, cannot be given any one meaning rather than another will defeat any intention of the parties to make a binding contract (per Menzies J in The Council of the Upper Hunter County District v Australian Chilling and Freezing Co. Limited [1968] HCA 8 ; (1968) 118 CLR 429 at 441). 45 Cases may arise where a vague, uncertain, or meaningless clause in a contract can simply be ignored. Other like clauses may be waived by a party if inserted solely for the benefit of that party. However, a clause which is definitive of the ultimate rights which it is contemplated that a party will get under his contract is incapable of being so treated. 46 However, not all ambiguous contracts are to be found void for uncertainty. In The Council of the Upper Hunter County District v Australian Chilling and Freezing Co. Limited , Barwick CJ said at 436-7: '... a contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty. As long as it is capable of a meaning, it will ultimately bear that meaning which the courts, or in an appropriate case, an arbitrator, decides is its proper construction: and the court or arbitrator will decide its application. The question becomes one of construction, of ascertaining the intention of the parties, and of applying it. Lord Tomlin's words in this connexion in Hillas & Co. Ltd. v. Arcos Ltd. ought to be kept in mind. So long as the language employed by the parties, to use Lord Wright's words in Scammell (G.) & Nephew Ltd. v. Ouston is not "so obscure and so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention", the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved.' (footnotes omitted) 51 The primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, 'even though the construction adopted is not the most obvious, or the most grammatically accurate', to use the words from earlier authority cited in Locke v. Dunlop ((1888) 39 Ch D 387 at 393), which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley's Case ((1880) 16 Ch D 681 at 686). Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument. Finally, the statement of Lord Wright in Hillas and Co. Limited. v Arcos Limited. ((1932) 147 LT 503 at 514) that the court should construe commercial contracts 'fairly and broadly, without being too astute or subtle in finding defects', should not be understood as limited to documents drawn by businessmen for themselves and without legal assistance (cf. Upper Hunter County District Council v Australian Chilling and Freezing Co. Ltd . [1968] HCA 8 ; (1968) 118 CLR 429 at 437) (per Gibbs J, as his Honour then was, in Australian Broadcasting Commission v Australasian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99 at 109-110) .


case_text: In Whitlock v Brew [1968] HCA 71 ; (1968) 118 CLR 445 the High Court held that a clause concerning the grant of a lease was uncertain for it did not prescribe either the term of the lease or the rent; and further that the provision for arbitration "as to the interpretation and operation" of the clause did not authorise an arbitrator to fix either the rent or the term. It was further held that since the uncertain term was a material and inseverable part of the contract, there was no concluded agreement between the parties. Kitto J at 456 said: '... the document does not record a consensus ad idem as to the duration of the term, the rent, or anything else except the commencing date and the premises intended to be let.' Taylor, Menzies and Owen JJ said at 460-1: 'We are firmly of opinion that the expression "upon such reasonable terms as govern such a lease" is not, in the context in which it appears, apt to refer to either the period for which the contemplated lease is to subsist or to the rent to be payable thereunder. Nor do we think that the further expression "as to the interpretation or operation" of this clause covers a dispute as to either of those matters. We, therefore, are of opinion that the clause is uncertain in that it neither specifies nor provides a means for the determination as between the parties of the period for which the contemplated lease shall be granted or the rent which shall be payable thereunder.' Their Honours proceeded to deal with the question of severability referring to the judgment of Knox CJ in Life Insurance Co. of Australia Ltd. v. Phillips [1925] HCA 18 ; (1925) 36 CLR 60 at 72 where his Honour said: 'When a contract contains a number of stipulations one of which is void for uncertainty, the question whether the whole contract is void depends on the intention of the parties to be gathered from the instrument as a whole. If the contract be divisible, the part which is void may be separated from the rest and does not affect its validity.' 54 In seeking to ascertain the intention of the parties to a written contract extrinsic evidence may not be resorted to except where such evidence may be called in aid in the interpretation of the written instrument. Clearly enough, it is not to the point to make an independent examination of extrinsic facts, even if they were within the knowledge of both parties, and upon such evidence to conclude that a particular provision was or was not of importance to the parties or to either of them. The question for determination is the intention of the parties as disclosed by the contract into which they have entered (per Taylor, Menzies and Owen JJ in Whitlock v Brew at 461).


case_title: Life Insurance Co of Australia Ltd. v. Phillips [1925] HCA 18 ; (1925) 36 CLR 60

case_text: In Whitlock v Brew [1968] HCA 71 ; (1968) 118 CLR 445 the High Court held that a clause concerning the grant of a lease was uncertain for it did not prescribe either the term of the lease or the rent; and further that the provision for arbitration "as to the interpretation and operation" of the clause did not authorise an arbitrator to fix either the rent or the term. It was further held that since the uncertain term was a material and inseverable part of the contract, there was no concluded agreement between the parties. Kitto J at 456 said: '... the document does not record a consensus ad idem as to the duration of the term, the rent, or anything else except the commencing date and the premises intended to be let.' Taylor, Menzies and Owen JJ said at 460-1: 'We are firmly of opinion that the expression "upon such reasonable terms as govern such a lease" is not, in the context in which it appears, apt to refer to either the period for which the contemplated lease is to subsist or to the rent to be payable thereunder. Nor do we think that the further expression "as to the interpretation or operation" of this clause covers a dispute as to either of those matters. We, therefore, are of opinion that the clause is uncertain in that it neither specifies nor provides a means for the determination as between the parties of the period for which the contemplated lease shall be granted or the rent which shall be payable thereunder.' Their Honours proceeded to deal with the question of severability referring to the judgment of Knox CJ in Life Insurance Co. of Australia Ltd. v. Phillips [1925] HCA 18 ; (1925) 36 CLR 60 at 72 where his Honour said: 'When a contract contains a number of stipulations one of which is void for uncertainty, the question whether the whole contract is void depends on the intention of the parties to be gathered from the instrument as a whole. If the contract be divisible, the part which is void may be separated from the rest and does not affect its validity.'


case_text: Another illustration of a contract which was held to be void for uncertainty is to be found in Bishop v. Taylor [1968] HCA 68 ; (1968) 118 CLR 518 where a contract for the sale of land included a condition which provided, inter alia, for 'one-third share of crops ... until end of peanut crop in 1968 or end of harvesting period ...' to be paid. The Court held that the condition was void for uncertainty because, upon construing it, one was unable to determine the term of the relevant sub-lease, the type of crop, or what 'one-third share of crops' meant. McTiernan and Taylor JJ said at 523: '... if it was intended that the lease should continue to subsist after the first year it is impossible to say with any degree of certainty for what period it was to subsist. The condition did not specify the nature of the crop or crops which the respondent might plant although, no doubt, it was contemplated that they would be peanuts. But the condition does not restrict him in his choice of crops and it may well be that it was for this reason that the condition provided, in effect, that the lease should subsist "until the end of peanut crop in 1968 or end of harvesting period or as otherwise agreed upon". The duration of the lease, therefore, it seems to us, was to depend upon what sort of crops had been sown for harvesting in 1968 and any agreement to grant a lease with the term so defined, or undefined, is void.' Menzies J said at 525: '... the condition of the contract for a sub-lease from the purchaser to the vendor of some part of the land, the subject of the contract, is one to which it is not possible by a process of construction to give any particular meaning. I agree entirely with what has been said about this condition being void for uncertainty.'


case_text: It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction (per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] ).


case_text: Actual beliefs and intentions are, generally speaking, irrelevant in the determination of the legal rights and obligations flowing from a written agreement (see per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ in Equuscorp Pty Ltd v HGT Investments Pty Ltd [2004] HCA 55 ; (2005) 218 CLR 471 at 483 [34] ).


case_text: The primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, 'even though the construction adopted is not the most obvious, or the most grammatically accurate', to use the words from earlier authority cited in Locke v. Dunlop ((1888) 39 Ch D 387 at 393), which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley's Case ((1880) 16 Ch D 681 at 686). Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument. Finally, the statement of Lord Wright in Hillas and Co. Limited. v Arcos Limited. ((1932) 147 LT 503 at 514) that the court should construe commercial contracts 'fairly and broadly, without being too astute or subtle in finding defects', should not be understood as limited to documents drawn by businessmen for themselves and without legal assistance (cf. Upper Hunter County District Council v Australian Chilling and Freezing Co. Ltd . [1968] HCA 8 ; (1968) 118 CLR 429 at 437) (per Gibbs J, as his Honour then was, in Australian Broadcasting Commission v Australasian Performing Right Association Limited [1973] HCA 36 ; (1973) 129 CLR 99 at 109-110) .


case_title: Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337

case_text: Where the language of a contract has a plain meaning evidence of surrounding circumstances is not admissible to assist in the interpretation of the contract (per Mason J in Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales ('Codelfa') [1982] HCA 24 ; (1982) 149 CLR 337 at 352). 55 The relevant principle in relation to resort being had on matters of construction to extrinsic evidence is to be found in the judgment of Mason J, as his Honour then was, in Codelfa at 352 as follows: 'The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification. Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.' 56 Terms may be implied in one of four ways (per Heydon JA, as his Honour then was, in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 164 [28] ). These were summarised by Hodgson J in Carlton & United Breweries Ltd v Tooth & Co Ltd (unreported, Supreme Court of New South Wales, 11 June 1985) as follows: '(i) Implications contained in the express words of the contract: see Marcus Clarke (Vic) Ltd v Brown [1928] HCA 12 ; (1928) 40 CLR 540 at 553-4. (ii) Implications from the "nature of the contract itself" as expressed in the words of the contract: see Liverpool City Council v Irwin [1976] UKHL 1 ; [1977] AC 239. (iii) Implications from usage (for example, mercantile contracts). (iv) Implications from considerations of business efficacy: see BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 at 26; Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337.' 57 In relation to the fourth mentioned type of implied term the classic test is identified in the advice of Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel in B.P. Refinery (Westernport) Pty. Limited v President, Councillors and Ratepayers of the Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 283 as follows: '... for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract .' The test promulgated by the Privy Council was approved by Mason J in Codelfa .


case_text: Subsequent conduct is not admissible as an aid to construction of a contract. As Lord Reid said in Whitworth Street Estates Limited v Miller (1970) AC 583 at 603E (see also 615A): 'Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later.' (See also Port Sudan Cotton Co v Govinda Swami Chettiar & Sons (1977) 2 Lloyd's LR 5 at 11).


case_title: Port Sudan Cotton Co v Govinda Swami Chettiar & Sons (1977) 2 Lloyd's LR 5


case_text: Terms may be implied in one of four ways (per Heydon JA, as his Honour then was, in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 164 [28] ). These were summarised by Hodgson J in Carlton & United Breweries Ltd v Tooth & Co Ltd (unreported, Supreme Court of New South Wales, 11 June 1985) as follows: '(i) Implications contained in the express words of the contract: see Marcus Clarke (Vic) Ltd v Brown [1928] HCA 12 ; (1928) 40 CLR 540 at 553-4. (ii) Implications from the "nature of the contract itself" as expressed in the words of the contract: see Liverpool City Council v Irwin [1976] UKHL 1 ; [1977] AC 239. (iii) Implications from usage (for example, mercantile contracts). (iv) Implications from considerations of business efficacy: see BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20 at 26; Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337.'


case_text: In relation to the fourth mentioned type of implied term the classic test is identified in the advice of Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel in B.P. Refinery (Westernport) Pty. Limited v President, Councillors and Ratepayers of the Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 283 as follows: '... for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract .' The test promulgated by the Privy Council was approved by Mason J in Codelfa .


case_text: A distinct collateral agreement, whether oral or in writing, and whether prior to or contemporaneous with the main agreement, will be valid and enforceable even though the main agreement be in writing, provided that the two may consistently stand together so that the provisions of the main agreement remain in full force and effect notwithstanding the collateral agreement. The collateral agreement cannot impinge on the main agreement. The consideration for a collateral agreement may be the making of the main agreement (per Knox CJ in Hoyt's Proprietary Limited v Spencer [1919] HCA 64 ; (1919) 27 CLR 133 at 139 and per Isaacs J at 147-8; see also Chapman v Chapman [1983] 2 NSWLR 420 at 432-5 and Gates v The City Mutual Life Assurance Society Limited [1986] HCA 3 ; (1986) 160 CLR 1 at 11).


case_title: Chapman v Chapman [1983] 2 NSWLR 420


case_title: Gates v The City Mutual Life Assurance Society Limited [1986] HCA 3 ; (1986) 160 CLR 1


case_text: The presumption of a resulting trust that arises when property is transferred without consideration into the name of a person who is neither the child, adopted child or wife of the transferor, does no more than call for proof of an intention to confer beneficial ownership. Prima facie there is a resulting trust but where satisfactory proof is forthcoming that a purpose of the transaction was to confer beneficial ownership, the presumption is rebutted (see Russell v Scott ('Russell v Scott') [1936] HCA 34 ; (1936) 55 CLR 440 the case of an aunt who put money into a joint bank account in her name and that of her nephew on the basis that it would be held in trust for the aunt during her lifetime but thereafter the beneficial interest would pass to the nephew). 131 Given Mr Ku's evidence that he prepared the 'Change to company details' form, a copy of which is reproduced in Schedule 1, before his meeting with Luke Song on 25 October, that it bears the date 23 October and was handed by Mr Ku to Mr Kim on 24 October with the request that Mr Kim forward it to ASIC in the express post envelope which Mr Ku provided, I have great difficulty in accepting that, when he was speaking with Luke Song on 25 October 2006, he said: 'I will transfer all my shares of Kjun International Pty Ltd to your son first as good gesture if you sign this agreement.' It is unlikely that he would have used the words mentioned and in particular the word 'if' in circumstances where the 'Change to company details' form had already been prepared, signed and handed to his solicitor Mr Kim for transmission to ASIC in Melbourne. I would place greater emphasis upon the words 'Everyone will say I am the most stupid person doing this but I value more our trust than who is got what and who has the right'. Equally, I have difficulty in accepting that the conversation included the words 'If anything goes wrong I didn't get a single dollar so I can get the shares back'. This is not a case where a resulting trust should be implied if it be found that the shares were duly transferred by Mr Ku to Ji Song. As was said in Russell v Scott there will be no resulting trust where satisfactory proof is forthcoming that a purpose of the transaction was to confer beneficial ownership. In my opinion such a transfer was intended in respect of the shares but not perfected, there being no duly executed share transfer form which was delivered to Ji Song or another person on his behalf. 132 Mr Ku says that, at the meeting on 25 October, he and Luke Song addressed the longer form of agreement which he had prepared on 24 October 2006. He said in relation to the consideration of the longer form of agreement: 'We ran through all the clauses in the agreement one by one.' 133 Luke Song deposed to the production by Mr Ku of a document with clauses 'A' to 'G' on it. This is hardly illuminating. There was no form of agreement which included clauses A, B, C, D, E, F and G. There were, however, two different forms of agreement which began with 'A' and ended with 'G'. The longer form of agreement included clauses A, B, C, D, D (a second D), F and G. The shorter form of agreement contained clauses A, B, D, F and G.


case_text: There is no jurisdiction in an Australian court of equity to declare an owner of property to be a trustee of that property for another merely on the ground that, having regard to all the circumstances, it would be fair so to declare: Wirth v Wirth [1956] HCA 71 ; (1956) 98 CLR 228 at 232 ; Hepworth v Hepworth [1963] HCA 49 ; (1963) 110 CLR 309 at 318 ; Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 at 400; Muschinski v Dodds ('Muschinski') [1985] HCA 78 ; (1985) 160 CLR 583 at 594-5, 608 and 615-6.


case_title: Hepworth v Hepworth [1963] HCA 49 ; (1963) 110 CLR 309


case_title: Muschinski v Dodds [1985] HCA 78 ; (1985) 160 CLR 583

case_text: There is no jurisdiction in an Australian court of equity to declare an owner of property to be a trustee of that property for another merely on the ground that, having regard to all the circumstances, it would be fair so to declare: Wirth v Wirth [1956] HCA 71 ; (1956) 98 CLR 228 at 232 ; Hepworth v Hepworth [1963] HCA 49 ; (1963) 110 CLR 309 at 318 ; Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 at 400; Muschinski v Dodds ('Muschinski') [1985] HCA 78 ; (1985) 160 CLR 583 at 594-5, 608 and 615-6. 64 In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair Deane J in Muschinski acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust. His Honour pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle (see per Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner ('Baumgartner') [1987] HCA 59 ; (1987) 164 CLR 137 at 148. 65 In relation to the general equitable principle, which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy the benefit of them, to which Mason CJ, Wilson and Deane JJ referred in Baumgartner at 148, it was noted that Deane J had said in Muschinski : '... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf. Atwood v. Maude , and per Jessel M.R., Lyon v. Tweddell .' (footnotes omitted)


case_title: Baumgartner v Baumgartner [1987] HCA 59 ; (1987) 164 CLR 137

case_text: In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair Deane J in Muschinski acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust. His Honour pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle (see per Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner ('Baumgartner') [1987] HCA 59 ; (1987) 164 CLR 137 at 148. 65 In relation to the general equitable principle, which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy the benefit of them, to which Mason CJ, Wilson and Deane JJ referred in Baumgartner at 148, it was noted that Deane J had said in Muschinski : '... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: cf. Atwood v. Maude , and per Jessel M.R., Lyon v. Tweddell .' (footnotes omitted)


case_text: In Carreras Rothmans Ltd. v. Freeman Mathews Treasure Ltd. [1985] 1 Ch 207 it was found that moneys paid by a company to an advertising agency, which were placed in a special account after the agency experienced financial difficulties, to be paid out to media interests with whom advertising had been placed for the company was held in trust by the agency for the payment over of the monies to the third party media interests. In that case Peter Gibson J explained the principle applied in Quistclose at 222 as follows: 'In my judgment the principle in all these cases is that equity fastens on the conscience of the person who receives from another property transferred for a specific purpose only and not therefore for the recipient's own purposes, so that such person will not be permitted to treat the property as his own or to use it for other than the stated purpose. Most of the cases in this line are cases where there has been an agreement for consideration so that in one sense each party has contributed to providing the property. But if the common intention is that property is transferred for a specific purpose and not so as to become the property of the transferee, the transferee cannot keep the property if for any reason that purpose cannot be fulfilled.'


case_title: Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia (1991) 30 FCR 491

case_text: In Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia ('Elizabethan Theatre Trust') (1991) 30 FCR 491 Gummow J held that moneys donated by third parties to the Australian Elizabethan Theatre Trust, with a view to securing tax deductibility for the donations so made, with a request that preference be given by the Australian Elizabethan Theatre Trust to the allocation of the moneys so donated to specific arts bodies associated with the Trust, did not result in the Australian Elizabethan Theatre Trust, which had entered into provisional liquidation, becoming the trustee of the monies so donated for the preferred arts bodies. At 502 Gummow J observed: 'The striking feature of the Quistclose litigation was that, whilst previously it might have been thought that debt and trust were distinct and disparate norms, it was thereafter clear that in a given case the transaction under analysis might bear a dual character.' 71 In Elizabethan Theatre Trust Gummow J observed that the debate in Quistclose had been confined to whether the material disclosed a trust in the terms which his Honour had described or merely a loan. His Honour then continued by saying at 503: '... But the facts in such cases are susceptible of infinite variation and the trust is a supple instrument. Hence the suggestion by Professor Finn that if the facts disclosed no contractual obligation by the borrower to the lender to pay the creditors, there could hardly be present a concurrent intention to create a trust in their favour; rather, the borrower would hold the moneys borrowed as trustee of an express trust for the lender, subject to a mandate for the lender (sic) to use the fund to pay the creditors. On that footing, there would be but one trust, created to give the lender security for its rescue operation of the financially unhealthy borrower, but not to render the creditors beneficiaries under any trust. ...'


case_text: Notwithstanding the suggestion by both sides that the conversation between Luke Song and Mr Ku on 19 October 2006 led to an 'agreement', I am not satisfied that the participants intended to enter into a legally binding contract on that day, even as between themselves (in this regard see Damberg v Damberg [2001] NSWCA 87 ; (2001) 52 NSWLR 492 at [148] - [157] per Heydon JA). Furthermore, I am not satisfied that there was any promise on the part of Mr Ku to transfer the shares to Ji Song or that any such promise formed part of an agreement reached between Mr Ku and Luke Song in accordance with the principles enunciated above, for which there was any consideration. Luke Song did not want to make a commitment that would bind his wife without her authority and Mr Ku was going away to prepare a settlement agreement in documentary form for the parties to consider. 109 In my opinion, Mr Ku's proposal that he transfer the shares to Ji Song was simply an exercise undertaken at his instigation, directed at rebuilding a relationship of trust with the Songs. It was not directed at constituting Ji Song a trustee of the shares for Mr Ku. Rather, it was an act of faith, uninfluenced by any representations made by Luke Song or Sue Song. He was prepared to put his interest in Kjun International Pty Limited at risk, relying on Ji Song's beneficence to allow him to enjoy or share in it again. 110 The next meeting between Luke Song and Mr Ku took place on Wednesday 25 October, that is to say the day after Mr Ku prepared the shorter form of agreement, the longer form of agreement and the form of share transfer back from Ji Song to Mr Ku of shares in Kjun International Pty Limited.


case_text: For a gift inter vivos to be effective, it must be established that the donor intended to make an immediate gift and that he has 'done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him', (referring to the principle applied in Milroy v Lord (1862) 4 DeGF & J 264 [45 ER 1185]) (per Taylor J in Cope v Keene [1968] HCA 53 ; (1968) 118 CLR 1 at 12; see also per Kitto J at 6 7).


case_title: Brunker v Perpetual Trustee Company (Limited) [1937] HCA 29 ; (1937) 57 CLR 555

case_text: An intended donee cannot obtain equitable remedies against the donor compelling him to give legal effect to his intention to give (per Dixon J, as his Honour then was, in Brunker v Perpetual Trustee Company (Limited) ('Brunker') [1937] HCA 29 ; (1937) 57 CLR 555 at 599). 118 In relation to a transfer of real estate Dixon J said in Brunker at 602-3: 'Further, I think that the donee must obtain property in the piece of paper itself and property in the paper could pass only by delivery ( Cochrane v Moore ). If property in the transfer remained in the transferor, his power of recalling it must also remain. For he would be entitled to possession of the paper, he could refuse to present it for registration and he could destroy it.' (footnote omitted) 119 As has already been observed no instrument of transfer of the shares was brought into existence, executed by Mr Ku or delivered to Ji Song or any agent for him. 120 In his affidavit sworn 28 June 2007 (sic) at paragraph 15 Mr Ku said: '15 Prior to going to the meeting with Luke Song [on 25 October 2006] I had been with a solicitor ... Mr Y Kim. ... I gave to Mr Kim the original transfer in the express post envelope and asked him to send it. ... Later I became aware ... that the share transfer had not gone through and I said I would check what had happened. ... Later when I checked with Mr Kim and realised he had not sent the transfer I did phone Luke Song and say I would do the transfer on the internet. ...' The so-called 'original transfer' was plainly the original of the 'Change to company details' form , a copy of which is reproduced in Schedule 1.


case_text: In respect of the requirement that for a gift to be effective the donor must have done all that was 'necessary to be done', 'necessary' means 'necessary for the purpose of passing the property'. The word is not used in an obligatory sense. The donor is under no necessity, no obligation. What the Courts look at is what the donor might have done to perfect the gift (per Higgins J in Anning v Anning ('Anning') [1907] HCA 13 ; (1907) 4 CLR 1049 at 1082). 116 There is nothing unconscientious in a donor refusing at any stage to perfect a mere bounty (per Isaacs J in Anning at 1063). In Anning Griffith CJ opined at 1057: '... in the case of shares in a company which are only transferable by an instrument of transfer lodged with the company, I think that the donor has done all that is necessary on his part as soon as he has executed the transfer' 117 It seems to me that not only would execution of a transfer be necessary, but also delivery of that transfer to the donee and whatever else may be necessary to enable the donee to secure registration of the transfer.