case_text: There is yet another basis upon which an administrative decision-maker might still deal with a matter that appears to have been finalised. In Chandler v Alberta Association of Architects [1989] 2 SCR 848 Sopinka J, who delivered the decision of the Supreme Court of Canada, said (at 862): "If the Tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task." 42 In my view the Panel is entitled to proceed with Mr Hoff's application. Contrary to the Panel's stated view, the undertaking proffered by Pendant does not in fact dispose of all the matters raised by the application. I mean by this that the undertaking, which has the limited effect I have given it, did not create a situation where there could be competitive bidding for the shares in Tower, and this may be the only appropriate remedy if Mr Hoff can make out some of his complaints. 43 In any event, it is clear that the Panel has made an important mistake in the effect of the undertaking. It is not necessary to determine whether the mistake is one of fact (the meaning of words in the undertaking) or one of law (how the undertaking is to be applied to the known facts). It is enough for me to hold (as I do) that the mistake is of such importance that it warrants the Tribunal pressing ahead with the application.


case_outcome: cited

case_text: It is not, however, only in the case of jurisdictional error that an administrative decision-maker can correct error. For example in the Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 103 ALR 661 Beaumont J said (at 667) that "where it appears to a decision-maker that his or her decision has preceded upon a wrong factual basis, it is appropriate, proper and necessary that the decision-maker withdraw his or her decision."


case_outcome: applied

case_text: Similar statements appear in the judgment of Gillard J in Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493. There the Medical Practitioners Board of Victoria, a statutory body, conducted an informal hearing into the professional conduct of a doctor and made a finding about that conduct but, by mistake, had overlooked some evidence. There was no express provision in the relevant statute allowing the board to set aside its finding. Nevertheless, Gillard J said at [48] that "if a decision made by a statutory body, which was clearly made in error or as a result of some obvious mistake, it is an offence to common sense to suggest that the only avenue open to correct the error is to appeal, state a case, or seek judicial review." He went on to say that an administrative decision-maker should be entitled "to correct an obvious error by revisiting the process". Gillard J accepted that if the statute under which the administrative decision-maker was acting prevented the decision from being re-opened then of course it could not be.


case_text: In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 it was held that if an administrative decision-maker commits a jurisdictional error in reaching his decision, the decision is liable to be set aside but, whether set aside or not, the decision-maker can correct the error in a later decision. So, if the Panel committed a jurisdictional error in arriving at its decision that the undertaking proffered by Pendant rendered it inappropriate to make a declaration of unacceptable circumstances, it could still deal with the application. It would, of course, be necessary, if it went ahead, for the Panel to release Pendant from the earlier undertaking. 40 There is a passage in the speech of Lord Reid in Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40, 79 which is to a like effect. Lord Reid said: "I do not doubt that if an officer or body realises it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid." In Bhardwaj Gleeson CJ referred (at 603) to this passage with apparent approval but noted that the general proposition stated by Lord Reid "must yield to the legislation under which a decision-maker is acting". To a like effect are the comments of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211, 218-219. See also Steward v Director of Public Prosecutions [2004] 1 WLR 592.


case_outcome: considered

case_text: There is a passage in the speech of Lord Reid in Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40, 79 which is to a like effect. Lord Reid said: "I do not doubt that if an officer or body realises it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid." In Bhardwaj Gleeson CJ referred (at 603) to this passage with apparent approval but noted that the general proposition stated by Lord Reid "must yield to the legislation under which a decision-maker is acting". To a like effect are the comments of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211, 218-219. See also Steward v Director of Public Prosecutions [2004] 1 WLR 592.


case_title: Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40


case_text: Fourth, if an undertaking is of doubtful meaning and it is possible to give the undertaking a meaning that will avoid unintended consequences or consequences that are unreasonable, that meaning should be adopted. If that results in a construction that it is not necessarily grammatically accurate, so be it. But this approach will not permit a meaning to be given to an undertaking which is different from its clear meaning. In this connection it was not suggested that I should apply by analogy the approach developed for the construction of statutes under which it is permissible to modify the literal meaning of words in order to avoid absurd or unreasonable results: see for example: Saraswati v The Queen [1991] HCA 21 ; (1991) 172 CLR 1, 21-23. 27 Turning now to the undertaking itself, relevantly, Pendant's undertaking in the case of a "Superior bid" (a defined expression) is to increase its offer so that it is "at least equal to that offered under the Superior bid" (cl D(c)) or, if the Superior bid is not made by a member of Tower, to give a notice under r 120.2 offering to sell the Equity Partners' parcel "to shareholders at a price per share not higher than the price offered in the Superior bid" and if they are not taken up by shareholders to accept the Superior bid (cl D(d)). The question in each case is how does one determine the price of the Superior bid? 28 It is common ground that Quadrant's off-market bid is a Superior bid. It is a Superior bid because the offer made under the bid was for a cash price of more than $1.45 per share, the offer was sent to shareholders on 14 July 2006 and the offer became free of all conditions before 28 July 2006. That is, all the conditions specified in cl D(a) and (b) were satisfied.


case_title: Steward v Director of Public Prosecutions [2004] 1 WLR 592


case_text: Third, in deciding what is meant by the words of an undertaking it is permissible to have regard to the reasons given by the Panel for requiring the undertaking and what the Panel perceived to be its effect. This is the position in the case of orders made by a court (as to which see Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78) and it should be the same in relation to an undertaking given under s 201A , especially if the undertaking was required by the Panel. Put another way, the meaning of an undertaking is to be determined having regard to its stated purpose.


case_outcome: discussed

case_text: In Banque Bruxelles Lambert v Australian National Industries Ltd (unreported, New South Wales Court of Appeal, 26 February 1997) the issue was whether a particular costs order was released by the deed in question. The sole point argued on the appeal was whether the principles enunciated in Grant v John Grant applied, so as to exclude the costs order from the release. After an extensive analysis of the surrounding circumstances, Beazley JA (with whom Meagher and Cole JJA agreed) concluded: "In this matter the terms of the instrument quite clearly included a release of the costs order. The surrounding circumstances included negotiations leading up to the final entering into of the Major Creditor's Deed of Release on 22 September 1992. At one stage in those negotiations, as was clearly evidenced by the letter of 17 December 1992, BBL would have liked to have reserved the costs order made by Rogers CJ Comm D at first instance. There is no evidence and indeed the evidence is to the contrary, that ANI ever agreed to that. There is no evidence that BBL between 17 December and the time of the execution of the Deed, did not decide in the interests of the overall commercial settlement, to forego its right to that costs order. In those circumstances I cannot see how the principle in Grant v John Grant & Sons Pty Ltd applies."


case_text: More recently in Commonwealth Development Bank of Australia Ltd v Kok, in the matter of Kok [2003] FCA 90 Beaumont J stated (at [34]): "In the first place, it is a settled principle of interpretation that general words in an instrument of release are limited always to that thing, or those things, which were specially in the contemplation of the parties at the time when the release was given". See also Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581 at 599 600.


case_text: In Grant v John Grant & Sons Pty Ltd [1954] HCA 23 ; (1954) 91 CLR 112 Dixon CJ, Fullagar, Kitto and Taylor JJ accepted that a release expressed in general words will usually be read down by reference to what was in the contemplation of the parties at the time of the execution of the release. Their Honours expressly adopted (at 123 124) the reasoning of Lord Westbury in London & South Western Railway Co v Blackmore (1870) LR 4 HL 610 at 623 that: "The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given". 45 In McCarthy v McIntyre [1999] FCA 784 a Full Court of this Court stated (at [106]): "In Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 123, the joint reasons for judgment (Dixon CJ and Fullagar, Kitto and Taylor JJ) approved two related principles. First, the general words of a release should be restrained by the particular occasion (at 123). Thus, the general words of a release are to be construed by reference to the recitals in the particular deed. Secondly, the general words in a release are limited to those things which were specially in the contemplation of the parties at the time when the release was given (at 123-124)." 47 In Banque Bruxelles Lambert v Australian National Industries Ltd (unreported, New South Wales Court of Appeal, 26 February 1997) the issue was whether a particular costs order was released by the deed in question. The sole point argued on the appeal was whether the principles enunciated in Grant v John Grant applied, so as to exclude the costs order from the release. After an extensive analysis of the surrounding circumstances, Beazley JA (with whom Meagher and Cole JJA agreed) concluded: "In this matter the terms of the instrument quite clearly included a release of the costs order. The surrounding circumstances included negotiations leading up to the final entering into of the Major Creditor's Deed of Release on 22 September 1992. At one stage in those negotiations, as was clearly evidenced by the letter of 17 December 1992, BBL would have liked to have reserved the costs order made by Rogers CJ Comm D at first instance. There is no evidence and indeed the evidence is to the contrary, that ANI ever agreed to that. There is no evidence that BBL between 17 December and the time of the execution of the Deed, did not decide in the interests of the overall commercial settlement, to forego its right to that costs order. In those circumstances I cannot see how the principle in Grant v John Grant & Sons Pty Ltd applies." 50 Having regard to the plain language of the Deed of Release, and the surrounding circumstances, I am of the view that the principles expressed in Grant v John Grant cannot be invoked to exclude any of the Smolles' claims in relation to the Bond from the settlement. 51 It was on this basis that I indicated that I would summarily dismiss the Smolles' claim against the bank, and provide reasons at a later date. However, I made it plain that I would do so solely on the basis of the Deed of Release, and not by reason of any of the other matters upon which Ms Loughnan relied.


case_outcome: referred to

case_text: In Grant v John Grant & Sons Pty Ltd [1954] HCA 23 ; (1954) 91 CLR 112 Dixon CJ, Fullagar, Kitto and Taylor JJ accepted that a release expressed in general words will usually be read down by reference to what was in the contemplation of the parties at the time of the execution of the release. Their Honours expressly adopted (at 123 124) the reasoning of Lord Westbury in London & South Western Railway Co v Blackmore (1870) LR 4 HL 610 at 623 that: "The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given".


case_title: McCarthy v McIntyre [1999] FCA 784

case_text: In McCarthy v McIntyre [1999] FCA 784 a Full Court of this Court stated (at [106]): "In Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 123, the joint reasons for judgment (Dixon CJ and Fullagar, Kitto and Taylor JJ) approved two related principles. First, the general words of a release should be restrained by the particular occasion (at 123). Thus, the general words of a release are to be construed by reference to the recitals in the particular deed. Secondly, the general words in a release are limited to those things which were specially in the contemplation of the parties at the time when the release was given (at 123-124)."


case_text: Mr Williams' submission also seemed to me to be inconsistent with the "surrounding circumstances". The bank clearly intended that any settlement should apply to all claims made by the Smolles, including their claims in relation to the Bond. Notably it had rejected the amended version of the Deed of Release, executed by the Smolles on 16 August 2001, which sought to exclude certain transaction costs in relation to the switch from the balanced trust to the Bond. Reynolds Lawyers' letter of 11 March 2002 stated that the variations to the Deed of Release were "unacceptable" to the bank. As finally executed on 25 March 2002, the Deed of Release dealt specifically with the Smolles' claim against the bank for "compensation in relation to" their investment in the balanced trust and the Bond. 52 I also indicated, on 18 October 2007, that I would not dismiss the Smolles' claim against Reynolds Lawyers on the basis of want of prosecution, despite the many failures on their part to comply with directions and orders of the Court. In part, I did so in reliance upon the principles laid down by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. The Smolles had been required to pay indemnity costs for each earlier breach of my orders, and that seemed to me to ameliorate to some degree any prejudice that Reynolds Lawyers had suffered. Bearing in mind the difficulties under which the Smolles laboured, having regard to their particular circumstances, and also taking into account the fact that they were now competently represented, I concluded that it would not be appropriate to prevent them from prosecuting their case. 53 That leaves the position as follows. The claim against the bank is dismissed. However, Reynolds Lawyers still face claims for failure to carry out instructions, breach of retainer, negligence and misleading or deceptive conduct. Reynolds Lawyers have cross-claimed against the bank, in the event that they are found liable to the Smolles. The status of that cross-claim will need to be considered at some future time. 54 On any view, if the Smolles are to succeed against their former solicitors they will have to prove not merely that the breaches alleged occurred, but also that they suffered loss or damage as a consequence.


case_title: Torrens Aloha Pty Ltd v Citibank NA (1997) 72 FCR 581


case_text: In her reasons for judgment, which are designated as Anthony James Pitt v OneSteel Reinforcing & Anor [2003] FMCA 609 , at [11] and [12], there appears the substance of the federal magistrate's reasoning: The affidavit prepared by the applicant does not show any reasonable cause of action, save to refer to the existence of an internal memorandum in paragraph 8 of that affidavit. There is no memorandum annexed to the affidavit. The basis of complaint in the affidavit appears to be what occurred around the hearing before HREOC in December 1997. Further, the affidavit does not simply fail to adequately address or justify the reasons for this unreasonable delay, it fails, in my view, to address this issue at all. Further, the affidavit of the applicant fails to address the issue of prejudice, such a very central question in these proceedings that might be occasioned to the first-named respondent. There is a complete absence of any address of that ground by the applicant. The application does not reveal on its face any action against the first respondent. The complaint is stale and I accept counsel for the first respondent's submission that the ability of the first respondent to defend itself is severely limited by the unavailability of the majority of the witnesses and the unreliability of any witnesses' recollections after so much time has lapsed. The applicant puts before the court no reasons for this unreasonable delay. 7 Although that judgment was delivered on 7 November 2003, it was not until 14 April 2008 that the applicant filed an application for leave to appeal. This application is by way of handwritten completions to a typewritten form. One of the handwritten completions is to describe the respondent as "B.H.P North Altona Melb". Obviously it will be necessary to amend the title to the proceeding to show the correct name of the respondent. Counsel for the respondent applied for such an amendment. 8 Because the judgment of the Federal Magistrates Court is an interlocutory judgment, the applicant needs an extension of time to apply for leave to appeal, pursuant to O 52 r 5(2) of the Federal Court Rules , where the period fixed by that rule is 21 days. Accordingly, the applicant is well beyond four years late in making his application. 9 Along with the application the applicant provided a draft notice of appeal. The only ground of appeal specified is a complaint that the federal magistrate described his claim as frivolous. I have endeavoured to explain to the applicant today that the word "frivolous", especially when coupled with "vexatious", is a technical legal term, in substance meaning the absence of a cause of action. The federal magistrate was certainly not describing the applicant as having acted frivolously in making his claim. 10 On 14 April 2008, the applicant also filed an affidavit. In that affidavit he says as follows: The nature of the case is that I was groped on the genitals by a co-worker while working at B.H.P North Altona in April 1995. The issues involved are that I was treated by a B.H.P representative and he said that I instigated the behaviour, and I didn't even receive so much as a sorry for the incident. The reasons why leave should be granted are that I suffer with depression and other psychological illnesses. I felt that there was nothing I could do about the situation, but I can't give up on the matter because it has affected me so deeply. I also could not find a solicitor to act for me, so I have to try to do it myself. The matter was heard on 10th September 2003 by Judge Hartnett in the Federal Court Melbourne, to which Judge Hartnett said the matter was frivolous. I wish to appeal Judge Hartnett's ruling.


case_outcome: followed

case_text: Counsel for the respondent was able to refer me to Newcastle City Council v Batistatos [2005] NSWCA 20 (2005) 43 MVR 381, in which the New South Wales Court of Appeal upheld the dismissal of a proceeding simply because of excessive delay before it was instituted, even though there appears to have been no difficulty about statutory limitation periods. The delay in that case was gross, as were the physical injuries suffered by the person who had commenced the proceeding. Nonetheless, the New South Wales Court of Appeal took the view that the proceeding should be dismissed as an abuse of the court's processes. In the course of the reasons for judgment of Bryson JA, with whom Mason P and Giles JA agreed, at [56] and [57], there appear the following remarks: The observations in Walton v Gardiner confirm the availability of the court's power in civil proceedings, and its availability in cases where there is not, as well as where there is intended abuse of the powers and procedures of the court. My researches suggest that the use of this power on the basis of delay in instituting proceedings in civil cases must be rare. Norman v Howarth (2003) 180 FLR 1; [2003] FamCA 1284 is an instance. A circumstance which has probably restricted applications for and exercise of the power in civil cases, is the availability of statutory time limits for the institution of civil proceedings. Such statutes typically do not operate by conferring authorisation to delay, but simply prevent effectual institution of proceedings, irrespective of merits, after a period determined by the legislature, and they appear to give an authorisation of a kind to allow most of whatever period the statute allows to pass, so long as proceedings are instituted within that period. Observations of McHugh JA in Herron v McGregor at 253 illustrate the difficulty of concluding that there has been an abuse of process where this apparent authorisation exists. A similar difficulty presents itself in a different context where the court is asked to dismiss proceedings which have been commenced in due time but have not been conducted in accordance with time scales prescribed by Rules of Court; there has been a strong general reluctance to dismiss proceedings in such circumstances where the statutory time limits have not expired and it remains open to a plaintiff to commence fresh proceedings: see Birkett v James [1978] AC 297 ; [1977] 2 All ER 801 and Stollznow v Calvert [1980] 2 NSWLR 749. However, I am unable to see any reason in principle why the power should not be exercised in a proper case. The existence of apparent authorisation in a statute of limitation is not in principle a reason why great delay may not be an abuse of process, or a reason why the power of the court may not be exercised. 14 On the basis of that authority, I am not able to say that the federal magistrate in the present case could not have concluded that there was an abuse of process in bringing the proceeding in the Federal Magistrates Court, even though it fell within the statutory time limit. Her Honour took into account the very long delays that had occurred in finalising the latest proceeding in the Human Rights and Equal Opportunity Commission and it appears that she was justified in doing so. Her Honour also took into account material placed before her by the respondent, to the effect that a number of possible witnesses, who might have been called in any proceeding commenced earlier, were no longer available to the respondent as witnesses. Accordingly, it seems to me that there would be no basis on appeal for overturning her Honour's judgment that the filing of the application in the Federal Magistrates Court amounted to an abuse of the process of that court. 15 Having reached this conclusion now, I ought to conclude that I would not grant leave to appeal and therefore that I would not grant to the applicant the extension of time that he requires to seek such leave. In doing so, I do take into account both what was said in the applicant's affidavit in this Court and what he has told me in more expanded terms about his situation. I consider that, to a significant extent, the delay of more than four years in making the application for leave to appeal was explained by the applicant's situation. The applicant is serving a sentence of imprisonment and does suffer mental illness. He told me, and I accept, that his mental illness causes him to put his head in the sand and hope that things will go away and this is in part an explanation for the sporadic nature of the efforts he has made to pursue his claim of sexual discrimination over the years. I also accept that he has had great difficulty in finding legal representation in relation to this matter, representation that he did have at the time when the Federal Magistrates Court proceeding was on foot, but that he has not been able to obtain since. 16 It is not for the reason of unreasonable delay that I dismiss his application for an extension of time. It is because I regard the grant of leave to appeal, and the institution of any appeal, as futile for the reasons that I have given. 17 Accordingly, the orders that I make are as follows: 1. The title to the proceeding be amended by substituting "OneSteel Reinforcing Pty Limited" for "B.H.P North Altona Melb" as the name of the respondent. 2. The application for leave to appeal be dismissed. 3. The applicant pay the respondent's costs of the proceeding. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 18 June 2008 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: J Firkin Solicitor for the Respondent: Blake Dawson Date of Hearing: 3 June 2008 Date of Judgment: 3 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/923.html


case_text: is authority for the proposition that the verification required in the affidavit supporting an application to wind the company up under s 459Q is not extensive. The same statutory formula is used in relation to an affidavit verifying the existence of a debt for the purpose of an originating application as is used in relation to the affidavit backing a statutory demand. In the case of an affidavit backing a statutory demand, what is required is formal affirmation on oath that a certain amount of money is due and payable - Azed Developments Pty Ltd v Frederick and Co Limited (1994) 12 ACLC 949; Hamilhall Pty Ltd (In Liq) v AT Phillips Pty Ltd (1994) 54 FCR 173; Carb Royale Pty Ltd v Tonkin (2000) 18 ACLC 803. In Hamilhall , Branson J discussed the requirements of an affidavit verifying the existence of debt for the purpose of s 459E(3) in relation to a statutory demand. Her Honour noted that in Azed Developments Hayne J of the Supreme Court of Victoria, as he then was, held that s 459E(3) uses the expression 'verify' in the sense of 'a formal affirmation'. Her Honour went on to say (at 174): also am of the view that in the context of Pt 5.4 of the Corporations Law , the expression "verify" is used in the sense of "a formal affirmation". The affidavit in this case did contain a formal affirmation that the total of the amount of the debts was due and payable by the respondent.'


case_title: Hamilhall Pty Ltd (In Liq)v AT Phillips Pty Ltd (1994) 54 FCR 173


case_text: is authority for the proposition that the verification required in the affidavit supporting an application to wind the company up under s 459Q is not extensive. The same statutory formula is used in relation to an affidavit verifying the existence of a debt for the purpose of an originating application as is used in relation to the affidavit backing a statutory demand. In the case of an affidavit backing a statutory demand, what is required is formal affirmation on oath that a certain amount of money is due and payable - Azed Developments Pty Ltd v Frederick and Co Limited (1994) 12 ACLC 949; Hamilhall Pty Ltd (In Liq) v AT Phillips Pty Ltd (1994) 54 FCR 173; Carb Royale Pty Ltd v Tonkin (2000) 18 ACLC 803.


case_outcome: affirmed

case_text: A coronial inquiry found that Mr Byrne had died in a ' tragic accident ' and that the cause of his death was drowning. That conclusion was adopted by the Repatriation Commission, which refused Mrs Byrne's claim for a pension, upon being satisfied that the veteran's death was not service related. The Veterans' Review Board affirmed the Commission's decision, which was later affirmed by the Administrative Appeals Tribunal ( Byrne v Repatriation Commission [2006] AATA 416). Mrs Byrne appeals the Tribunal's decision. 3 Mrs Byrne put to the Tribunal that her husband suffered from ischaemic heart disease ('IHD') and coronary artery disease ('CAD'), each said to be war-caused conditions. It was accepted by the Tribunal that Mr Byrne did suffer from CAD (at [66]). The issue in this appeal concerns the Tribunal's finding that it was satisfied beyond reasonable doubt that CAD was not a contributing factor to the death of Mr Byrne by drowning. Two grounds of appeal are pressed. The Tribunal's finding that it was not satisfied that Mr Byrne suffered from IHD is not challenged and those parts of the notice of appeal which refer to IHD are not pressed. It is convenient to deal with the second ground of appeal first.


case_text: Mrs Byrne relevantly posited to the Tribunal that her husband's ability to survive in the waters of Tantangara Dam when his boat overturned was impaired by war-caused CAD. The Tribunal accepted that hypothesis to be reasonable (at [89]). By s 120(1) of the Act, the applicant's claim was then required to succeed unless: • one or more of the facts necessary to support that hypothesis were disproved beyond reasonable doubt; or • the truth of another fact in the material, inconsistent with the hypothesis, was proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the accepted hypothesis. ( Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571; Repatriation Commission v Deledio (1998) 83 FCR 82 at 91). 6 Mrs Byrne submits that, as a matter of construction, the Tribunal's satisfaction beyond reasonable doubt only applied to his death by drowning and that the Tribunal failed to apply the test as enunciated in Byrnes to the contribution of, relevantly, CAD to the death. 7 That submission is rejected. The Tribunal had already determined that the kind of death was drowning (at [57]). That was not in issue. It is clear that the Tribunal understood that the question for determination was whether it was satisfied that the hypothesis that CAD had contributed to his death had been disproved beyond reasonable doubt. The Tribunal set out the test as enunciated in Byrnes at [90]. In that context and as a matter of construction, the requisite satisfaction expressed at [93] of the Tribunal's decision related directly to the contribution of CAD. 8 The first and primary ground of appeal is that the Tribunal failed to refer to the evidence or other material that was the basis for its finding that CAD did not contribute to Mr Byrne's death. Mrs Byrne submits that the Tribunal gave no reasons or no sufficient reasons for that conclusion as required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). 9 It is necessary to have some understanding of the context of the Tribunal's conclusion and the structure of the Tribunal's decision. The Tribunal considered the whole of the evidence before it, then gave its reasons and consideration under consecutive headings. 15 The Tribunal acknowledged (at [90]) that, having found a reasonable hypothesis, Mrs Byrne's claim would succeed unless the hypothesis was disproved beyond reasonable doubt in accordance with the principles enunciated in Byrnes at 571 and noted in the Tribunal's decision. It then stated at [91]: 'Having considered all the evidence, we are satisfied beyond reasonable doubt that Mr Byrne's death did not arise out of and was not attributable to a cardiac event of a kind described by Associate Professor Richards, Dr Craig, Dr Freeman or Dr Burn, that is, a cardiac event that was a consequence of IHD or CAD.' That was the evidence considered in detail under the heading "consideration of the kind of death". 16 The Tribunal expanded on that conclusion with respect to IHD at [92] and, at [93] said: 'The opinions relating death to IHD and CAD were based essentially on there being no water in Mr Byrne's lungs and his "inability" to save himself. Those opinions concluded that death was caused by such a cardiac event rather than by drowning. On the evidence, we are satisfied beyond reasonable doubt that Mr Byrne drowned, and that neither IHD nor CAD contributed to his death.' '[T] he evidence ', as referred to in that paragraph, clearly refers back to the detailed discussion of the evidence earlier in the Tribunal's reasons. It was that evidence which disproved the hypothesis that Mr Byrne's ability to survive in the water was impaired by war-caused CAD. 17 There was detailed consideration of the evidence in the Tribunal's reasons. The Tribunal cited that evidence as the basis for its conclusion. The reasons explain how and why the Tribunal came to its conclusion. It rejected the premises on which the hypothesis of CAD as a cause of death was based. Once those premises were rejected, the hypothesis that CAD impaired Mr Byrne's ability to survive once in the water could not stand. In context, it cannot be said that the Tribunal failed to give reasons for its satisfaction, beyond reasonable doubt, that the cause of death was drowning, to which CAD made no contribution.


case_text: Mrs Byrne relevantly posited to the Tribunal that her husband's ability to survive in the waters of Tantangara Dam when his boat overturned was impaired by war-caused CAD. The Tribunal accepted that hypothesis to be reasonable (at [89]). By s 120(1) of the Act, the applicant's claim was then required to succeed unless: • one or more of the facts necessary to support that hypothesis were disproved beyond reasonable doubt; or • the truth of another fact in the material, inconsistent with the hypothesis, was proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the accepted hypothesis. ( Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571; Repatriation Commission v Deledio (1998) 83 FCR 82 at 91).


case_text: And the Court notes the agreement of the parties that orders 12, 12B, 12C, 13 and 13A will be made by the Court but will not be entered and sealed under Federal Court Rules Order 36 unless there is default on the part of the First or Second Respondents. Proposed Orders the Court's approach 7 The parties concede that it is for the Court to determine whether a pecuniary penalty should be ordered, as well as the quantum of such penalty. This position is clarified by s 570(1) of the Act which provides: (1) If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate. 8 Notwithstanding the discretion vested in the Court by s 570(1) it is also clear that the Court should be aided by any negotiated agreement reached by the parties, and should not depart from an agreed penalty merely because it might have determined another amount to be appropriate, except in a clear case. This principle was explained by the Full Court in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290, 298, and confirmed by the Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) FCAFC 72. In Mobil Oil the Full Court reiterated that: • judges can, in appropriate circumstances, make an order departing from an agreed penalty (for example Australian Competition and Consumer Commission v FFE Building Services [2003] FCA 1542) (at [70]); • in applying the principles in NW Frozen Foods the Court is not acting as a "rubber stamp" the Court must form its own view about the appropriate range of penalties, on the basis of the agreed facts or evidence (at [71]); • the Court should be satisfied that it is being given accurate, reliable and complete information on critical questions (at [79]); • in making a joint submission, it is appropriate for parties to nominate a precise figure as a pecuniary penalty rather than limiting themselves to a range of pecuniary penalties (at [79]). 9 In this case the respondents were not legally represented. The applicant has however made submissions on penalty and other orders. The submissions of the applicant in relation to these issues are well-researched and helpful, and I understand from the directions hearing at which the parties last appeared that, while the respondents were not a party to the applicant's submissions, they did not demur from them. Pecuniary Penalties Relevant factors to take into consideration 10 Section 570(2) of the Act provides that, in determining a pecuniary penalty, the Court must have regard to all relevant matters including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered as a result of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct. 11 The Act prescribes a cap on pecuniary penalties, namely: • in relation to a body corporate; o in the case of a contravention of subs 68(1) or (2) or 101(1) or (2) $10 million for each contravention; o in any other case $250,000 for each contravention (s 570(3)); • in relation to a person other than a body corporate not more than $50,000 for each contravention (s 570 (4)). 12 In addition to the factors prescribed by s 570(2), factors the Courts have taken into account in imposing pecuniary penalties include: • the deliberateness of the contravention and the period over which it extended; • whether the contravention arose out of the conduct of senior management or at a lower level; • whether the company has a corporate culture conducive to compliance with the Act; • whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention; • the financial position of the contravenor and the capacity to pay; • the penalty imposed must be substantial enough that the relevant party realises the seriousness of its conduct and is not inclined to repeat it; • although the penalty should achieve the object of general deterrence, it must not be so high as to be oppressive. ( Australian Communications and Media Authority v Clarity1 Pty Ltd [2006] FCA 1399 ; (2006) 155 FCR 377 , NW Frozen Food [1996] FCA 1134 ; (1996) 71 FCR 285 , Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 ; (2005) 215 ALR 281 , Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301.) Pecuniary Penalties application of principles 13 Considering the facts of this case in light of factors which should be taken into consideration, I make the following observations: • The conduct of the first respondent as described earlier in this judgment represents multiple breaches of the service provider rules under the Act, including improper imposition of fees, failures to comply with the TIO scheme, and failures to comply with specified directions of the applicant. It is not in dispute that the second respondent, in his role as sole director, shareholder and Chief Executive Officer of the first respondent, was knowingly concerned in or party to the conduct of the first respondent and aided, abetted, counselled or procured the contravening conduct of the first respondent. This conduct of both respondents represented deliberate contravention of the Act over several years. • The applicant makes no claim that any substantive loss or damage was suffered as a result of the relevant contraventions, or that monetary amounts to which the relevant conduct related were substantial. However I consider that the matter is significant because of the four separate types of conduct pleaded, and that it is appropriate to order relief to ensure that the particular conduct does not recur. • It is not in dispute that the respondents have not previously been found by the Court in proceedings under the Act to have engaged in similar conduct. • The contravention of the legislation by the first respondent arose from conduct of the second respondent, who was clearly in a senior management role in the first respondent. • It is common ground that the first respondent does not presently operate as an internet service provider, with the result that the issue whether its corporate culture is conducive to compliance with the Act is of minimal relevance. Of more relevance in this context is the fact that the proposed injunctions are framed to apply should the first respondent resume operations as an internet service provider within a two year period. • Both respondents have co-operated with the applicant in seeking resolution of these proceedings. • Material before the Court indicates that the first respondent has no or very limited assets (Notice of Defence filed 22 July 2008 para 5, TS 24 June 2008 p 2 ll 40-41, TS 12 August 2008 p 2 ll 13-18) and that the second respondent is similarly financially disadvantaged (Notice of Defence filed 22 July 2008 para 4). The applicant accepted in its written submissions that the respondents had limited financial capacity. In my view: o it is appropriate that the proposed orders contemplate payment of the proposed amounts (both penalties and costs) by instalments over a defined period; o while well below the maximum penalty, the penalties are appropriate, and not oppressive, in light of the small business operations of the respondents and the nature of the contraventions; o in the circumstances of this case the penalties are sufficiently substantial that the respondents would not be inclined to repeat the contraventions. 14 Accordingly I consider that the penalties and other orders jointly proposed by the applicant and the respondents are appropriate and should be made by the Court. In doing so I note however the agreement of the parties that orders 12, 12B, 12C, 13 and 13A will be made by the Court but will not be entered and sealed under Order 36 Federal Court Rules unless there is default on the part of the First or Second Respondents. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 15 October 2008 Counsel for the Applicant: Ms M Brennan Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: The First Respondent was not represented Counsel for the Second Respondent: The Second Respondent appeared in person Date of Hearing: 7 October 2008 Date of Judgment: 15 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1530.html


case_title: Australian Competition and Consumer Commission v FFE Building Services [2003] FCA 1542


case_title: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 ; (2005) 215 ALR 281


case_title: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301


case_title: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) FCAFC 72


case_title: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285


case_text: Hillig made no submissions on Mr Dates' entitlement to amend the application to change the identity of the claim group as a matter of procedure. Consistent with the observations in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [22] I will proceed on the basis that there is no procedural impediment to such an amendment. Certain preliminary issues have arisen: The Port Stephens land was granted to the Land Council under s 36 of the ALR Act on 16 March 1998. Mr Hillig was appointed Administrator of the Land Council pursuant to s 222 of the ALR Act on 13 April 2004. The ALR Act provides for procedures whereby land vested in a Local Aboriginal Land Council may be sold. Section 40D(1)(a) provides that a meeting of the Council specifically called for the purpose must be held at which not less than 80 per cent of the members of the Council present and voting have determined that the land is not of cultural significance to Aborigines of the area and should be disposed of. The New South Wales Aboriginal Land Council must approve the proposed disposal (s 40D(1)(b)) and certain Ministers must be notified (s 40D(1)(d)).


case_text: M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) conclude at [15.1380] that the expression "native title claim group" in s 61(1) of the Act refers to ' the whole group of persons who hold native title over an area and cannot comprise a subgroup which accepts that it is part only of a larger group of native title holders '. A native title claim group may comprise a sub-group of a community that share a set of traditional laws and customs where that sub-group alone possesses rights and interests in the particular area ( Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138 at [52] [53]). However, where a small family group or a sub-group is only part of the group who claim to hold native title it is not the group who hold the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Dieri at [55]; McKenzie at [41]; Landers at [32] [33]). An exception to this principle was Colbung v Western Australia [2003] FCA 774 where a smaller family group was not included in the larger claim group but claimed particular rights and interests which may not have been established by the larger group. The issue was raised again at first instance by Wilcox J in Bodney v Western Australia [2003] FCA 890 in the context of inappropriate veto rights where not all the members authorise the claim.


case_title: Colbung v Western Australia [2003] FCA 774


case_text: Hillig contends that the claim group has not been properly identified and, as it is not properly constituted, the claim cannot proceed. Mr Hillig refers to McKenzie v State Government of South Australia (2005) 214 ALR 214 and Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 in support of that proposition. Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) conclude at [15.1380] that the expression "native title claim group" in s 61(1) of the Act refers to ' the whole group of persons who hold native title over an area and cannot comprise a subgroup which accepts that it is part only of a larger group of native title holders '. A native title claim group may comprise a sub-group of a community that share a set of traditional laws and customs where that sub-group alone possesses rights and interests in the particular area ( Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138 at [52] [53]). However, where a small family group or a sub-group is only part of the group who claim to hold native title it is not the group who hold the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Dieri at [55]; McKenzie at [41]; Landers at [32] [33]). An exception to this principle was Colbung v Western Australia [2003] FCA 774 where a smaller family group was not included in the larger claim group but claimed particular rights and interests which may not have been established by the larger group. The issue was raised again at first instance by Wilcox J in Bodney v Western Australia [2003] FCA 890 in the context of inappropriate veto rights where not all the members authorise the claim.


case_title: Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138


case_text: I refused an application by Mr and Mrs Parkinson for joinder to the Hillig proceedings on the basis of their ownership of land adjoining the Port Stephens land ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2006] FCA 61). Worimi did not seek to be joined to the Hillig proceedings within the relevant period of notification of the non-claimant proceedings (see [39] below). The original basis for joinder was as the applicant authorised by the women who assert a native title interest. Worimi contends, and the original Form 1 claimant application ('the original application') states, that the Port Stephens land is a sacred site for women, in the context of childbirth. If Worimi has a claim to native title over the Port Stephens land on behalf of a native title claim group, subject to compliance with the Act he would have sufficient interest to be joined to the Hillig proceedings. Mr Hillig contends, however, that if no valid assertion of native title can be made, there can be no reason to join him to those proceedings. It is insufficient for joinder to the non-claimant proceedings that Worimi seeks to prevent the sale of the land ( Hillig at [27]). The original application, filed on 9 February 2006, was prepared before Worimi had legal advice. In the original application the native title claim group is said to be ' the female members of the Garuahgal people who are descended from Mary Mahr born in 1847...being those aboriginal people whose traditional lands and waters are situated in the Port Stephens area of New South Wales '. Worimi asserts that authority to make the claimant application ' was given to me as the Custodian and Protector of the Garuahgal Women '.


case_text: Dates now applies to be joined to the non-claimant application on the basis of a native title interest held by the claim group of the proposed application, that is, himself and his family. Mr Hillig opposes the joinder of Mr Dates in either capacity. In particular he submits that, in order to establish native title, Mr Dates must comply with the requirements of the Act as they apply to a claimant. A claimed existence of native title must meet the requirements of s 61, s 61A and s 62 of the Act which apply to claimant applications ( Kanak v Minister for Land and Water Conservation [2000] FCA 1105 ; (2000) 106 FCR 31 at [11] ). This is not a case of competing claims of native title (cf Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 ).


case_title: Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544


case_text: the description of the claim group, as a matter of construction, can not comply with the Act and can not be cured by amendment or further evidence, there is no good reason to grant the adjournment and the application for summary dismissal should succeed. It is necessary to consider the original application as filed, the proposed application and the evidence already filed by Worimi. It is also relevant to consider whether the original application can be amended to substitute the proposed claim group for the original claim group. The determination is to be made on the most favourable view of the evidence adduced by Worimi ( Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [7] per Mansfield J). The proposition advanced by Mr Wright, counsel for Mr Hillig, is that, on Worimi's own case, the claim group is incapable of meeting the requirements of the Act, either as described in the original application or as described in the proposed application. Ms Jowett put a number of possibilities to the Court in support of the proposed claim group and referred to the nature of evidence that could be adduced in support of those possibilities. I have taken those into account, even though they were only raised as possibilities or possible scenarios. Mr Wright's proposition is that, as a matter of construction, the proposed claim group can not be one that can make the claim, even if, as a sub-group of the original claim group, the members were to authorise Worimi to bring the proposed application. Further, Worimi now makes a claim on his own behalf, a claim that he has expressly negated on previous occasions. Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) conclude at [15.1380] that the expression "native title claim group" in s 61(1) of the Act refers to ' the whole group of persons who hold native title over an area and cannot comprise a subgroup which accepts that it is part only of a larger group of native title holders '. A native title claim group may comprise a sub-group of a community that share a set of traditional laws and customs where that sub-group alone possesses rights and interests in the particular area ( Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138 at [52] [53]). However, where a small family group or a sub-group is only part of the group who claim to hold native title it is not the group who hold the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Dieri at [55]; McKenzie at [41]; Landers at [32] [33]). An exception to this principle was Colbung v Western Australia [2003] FCA 774 where a smaller family group was not included in the larger claim group but claimed particular rights and interests which may not have been established by the larger group. The issue was raised again at first instance by Wilcox J in Bodney v Western Australia [2003] FCA 890 in the context of inappropriate veto rights where not all the members authorise the claim.


case_text: Jowett's submissions are also to the effect that the sub-group represented by the proposed claim group can validly bring the claim even though it is recognised that a larger group may also have the rights and interests. In Mabo v the State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at 52, Brennan J acknowledged ' individual, non-proprietary rights that are derived from the community's laws and customs and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights '. His Honour added at 60 that there can be protection of interests: members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so).' In Bodney , Mr Bodney's position at the appeal was that the group that he represented and on whose behalf he had been authorised to bring applications was composed of the only living descendants of the traditional owners. Accordingly, his position was that they were not a sub-group but the whole of the group described in the application as the Ballaruk and Didjarruk people (at [71]). There was contrary evidence from relatives outside the family that constituted the sub-group but Mr Bodney did not have the opportunity to cross-examine them as they were not present in Court. As Branson J said at [31], it was possible that the small group on whose behalf Mr Bodney made his claims was also the whole of the group alleged by him to hold the claimed native title rights and interests. Her Honour declined to form a concluded view as to whether a sub-group of those who are alleged to hold the relevant native title rights and interests are permitted to make a native title application but the claim must, in any event, be authorised by the small group (at [34]). As Brennan J said in Mabo (No 2) at 60, the interests of members of an indigenous clan or group can be protected, communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs. The origins of the content of the law or custom are to be found in the normative rules of the Aboriginal society that existed before the assertion of sovereignty ( Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [46] per Gleeson CJ and Gummow and Hayne JJ). That inquiry does not concern only the laws and customs which now are acknowledged ( Yorta Yorta at [59]).


case_title: McKenzie v State Government of South Australia (2005) 214 ALR 214


case_text: Brennan J said in Mabo (No 2) at 60, the interests of members of an indigenous clan or group can be protected, communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs. The origins of the content of the law or custom are to be found in the normative rules of the Aboriginal society that existed before the assertion of sovereignty ( Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [46] per Gleeson CJ and Gummow and Hayne JJ). That inquiry does not concern only the laws and customs which now are acknowledged ( Yorta Yorta at [59]).


case_title: Risk v National Native Title Tribunal [2000] FCA 1589


case_text: application is now clearly brought by Mr Dates on his own behalf and on behalf of his wife and children. They assert individual or group native title rights and interests. It is not the case that the proposed claim group identifies the earlier claim group with more certainty. The intention is to change the persons on whose behalf the application is to be brought (cf Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 at [33] ). Ms Jowett submits that it may be that Mr Dates and, through him his family, have the sole rights arising from biological descent. This submission is made, in part, in response to the evidence of other persons within the claimed biological descent from Mary Mahr and members of the Worimi and Maaiangal clans including Mr Dates' brother, to the effect that no native title existed over the Port Stephens land and that it was not a women's site. Ms Jowett raises the possibility that it was only to Worimi that the relevant interest passed according to custom. It cannot be assumed that any rights and interests now recognised must necessarily be held by all of the living descendants of those who held the rights and interests at sovereignty ( Bodney per Branson J at [31]). A claimant sub-group may be able to establish authorisation by reason of customary law even where a wider group did not authorise the bringing of a claim ( Bodney per Stone J at [90] with whom Spender and Branson JJ agreed).


case_text: Leave to appeal is required because the judgment below is interlocutory. The applicant's application was rejected as disclosing no arguable case pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Leave to appeal will only be granted where two criteria are satisfied. The first is that, in all the circumstances, the judgment below is attended with sufficient doubt to warrant it being reconsidered on appeal. The second is whether substantial injustice would result if leave were refused, supposing the first instance decision was wrong: see Décor Corporation v Dart Industries [1991] FCA 655 ; (1991) 33 FCR 397. 3 The applicant is a citizen of India. He said that his father financed his travel to Australia by borrowing a large amount of money on the security of his father's house. He said he could be in some danger if he returned to India without having earned money to repay his father and that his family may abandon him. 4 The Tribunal found no connection between the applicant's concerns and persecution of a kind referred to in the Refugees Convention. It also considered that the applicant would not face a real chance of persecution as a result of his involvement in a single protest against the government.


case_text: This is an appeal from a decision of Emmett FM of 4 July 2007 in which her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) ( SZKDY v Minister for Immigration and Citizenship [2007] FMCA 1038). The Tribunal affirmed a decision of the Minister's delegate to refuse the appellants a protection visa. The appellants' notice of appeal was drafted prior to them seeing the reasons of the learned Federal Magistrate and does not include any appropriate ground of appeal. That remains the position, there having been no amendment to it. 2 The substantial point at issue in the case is the so-called "relocation" principle. The appellants are citizens of Bulgaria and live together in a de-facto relationship. The female appellant sought a protection visa on the basis that she held a well-founded fear of persecution by her former husband and her membership of a social group defined as "Bulgarian women suffering domestic violence." The male appellant's claim is made on the basis of his association with the female appellant. The Tribunal accepted that she was a member of such a social group and that she would have a well-founded fear of persecution by her former husband if it were not for her ability to relocate within Bulgaria.


case_text: The Tribunal, in considering that question, applied the law as it was understood at that time which was prior to the decisions of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 and S ZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660. The learned Federal Magistrate considered the appeal on the basis of the existing decisions of the Full Court of this Court, namely, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 37 , and found that there was no error in the Tribunal's conclusion based upon those principles. The Federal Magistrate set out a summary of the Tribunal's findings on that issue.


case_text: The Tribunal, in considering that question, applied the law as it was understood at that time which was prior to the decisions of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 and S ZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660. The learned Federal Magistrate considered the appeal on the basis of the existing decisions of the Full Court of this Court, namely, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 37 , and found that there was no error in the Tribunal's conclusion based upon those principles. The Federal Magistrate set out a summary of the Tribunal's findings on that issue. 4 The appellants, although not having framed any ground of appeal, referred me to some writings on relocation which, again, are based upon Randhawa 52 FCR 437. They submit that Bulgaria is a small country and that, effectively, relocation could not be effective because, as it was put, "Everybody knows everybody else," and presumably, that they could easily travel to where the other person is. That basis for attacking the judgment of the Federal Magistrate cannot succeed because it raises what is, essentially, a question of fact. It is not the task of the Federal Magistrates Court to make findings of fact. That is the province of the Tribunal. On judicial review, the Federal Magistrates Court is limited to assessing whether or not there was jurisdictional error. 5 Although the appellants point to no error in principle or law by the learned Federal Magistrate which would support an appeal, I have looked carefully at the matter because of the fact that, subsequent to the decisions by the Tribunal and Emmett FM, the High Court considered the issue. I have had assistance from counsel for the Minister in analysing the approach of the High Court in the relevant decisions as to whether or not that amounts to any revision of the principles laid down in Randhawa 52 FCR 437. It is not necessary, for the purposes of this case, to consider that in a general way. I should focus upon the facts of this particular case.


case_text: The Tribunal, in considering that question, applied the law as it was understood at that time which was prior to the decisions of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 and S ZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660. The learned Federal Magistrate considered the appeal on the basis of the existing decisions of the Full Court of this Court, namely, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 37 , and found that there was no error in the Tribunal's conclusion based upon those principles. The Federal Magistrate set out a summary of the Tribunal's findings on that issue. 6 The basic test accepted by the High Court in SZATV 237 ALR 634 is whether it be reasonable, in the sense of being practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, noting, however, that what is reasonable in the sense of "practicable" must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality ( SZATV 237 ALR at 23 24). 7 When I turn to the Tribunal's decision, the Tribunal posed the question in this way: "The Tribunal next considered whether the applicants could relocate within Bulgaria to avoid the harm that they fear. According to Australian law, if it can reasonably be expected that an applicant can relocate to another part of their country and live safely then the applicant does not have a well-founded fear of persecution in relation to that country. What is reasonable will depend on the circumstances of the individual case." The Tribunal then went on to consider a number of aspects of those factual issues. I cannot find that the Tribunal proceeded upon a basis which is inconsistent with the decisions of the High Court to which I have referred. For the purposes of this case, it does not seem that there is any operative difference between the approach of the High Court and the approach applied by the Tribunal which, in turn, the Federal Magistrate found was not in error. 8 There is no need for me to comment about the findings about social group and persecution, as those matters were accepted for the purposes of the exercise by the Tribunal. The appellants' complaint is, in my view, a complaint about the merits of the decision-making by the Tribunal. Those merits, of course, are a matter of opinion, and although the appellants may not agree with the conclusion, in my view, it was a conclusion open to the Tribunal in the sense that it correctly identified the principle and then considered the facts which related to it. 9 I am bound to dismiss this appeal by each of these appellants. The orders of the Court are: (1) Appeal dismissed. (2) The appellants are to pay the costs of the first respondent assessed in the sum of $2500. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 2 November 2007 The appellants appeared in person Counsel for the First Respondent: Mr C Mantziaris Solicitor for the First Respondent: Blake Dawson Waldron Date of Hearing: 31 October 2007 Date of Judgment: 31 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1667.html


case_title: S ZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660


case_text: There is no general rule that parties having knowledge of a prior contract between different parties may not subsequently enter into a contract with fundamentally inconsistent terms. As I explained in Australian Securities and Investment Commission v GDK Financial Solutions Pty Ltd (in liq) (No 4) [2008] FCA 1071 at [98] - [100] , the lack of any such rule is the inevitable consequence of the efficient breach theory of contract, which, although it has occasionally been criticised, remains the controlling theory of contract damages under Australian law: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [159] .


case_title: Butt v M'Donald (1896) 7 QLJ 68

case_text: The respondents admit they breached an implied term of the Offer Letter, namely that the respondents would not seek to prevent performance of the Offer Letter or withhold its benefits: Butt v M'Donald (1896) 7 QLJ 68, 70-71 cited and referred to in Secured Income Real Estate (Australia) Ltd v St Martins Investment Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 , 607; Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 and CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680. The event which the respondents said gave rise to the breach was the execution of the Woolworths' Letter of Offer on 18 March 2008. However, despite the generous admission of the respondents, I cannot accept that execution of the 18 March 2008 letter constituted a breach of the Butt v M'Donald term. 52 As noted earlier, there is no obligation in contract not to enter a later agreement containing terms inconsistent with a prior contract. Butt v M'Donald does not hold otherwise because it states only that a party will be in breach if it withholds benefits or frustrates the performance of another. In other words, the implied term will be breached only when the party does something that: (1) positively impairs or frustrates another party's ability to perform its obligations; or (2) actually deprives (not just possibly will deprive) the other of a contractual benefit. Entering into an inconsistent contract such as the Woolworths' deal here in itself does neither where, as here, the party subjecting itself to the conflicting obligations is still free to choose which it will perform (confer the benefit) and the date for performance has not yet come due. For example, the respondents could have changed their minds on 19 March 2008 and decided that it would be better to give the lease to Coles and instead breach their agreement with Woolworths. Then they could have changed their minds again on 20 March 2008 and so on. Thus, there was no breach on 18 March of which I can be independently satisfied, notwithstanding the respondents' admission. 53 For its part, Coles submitted that the respondents breached the Offer Letter on 27 March 2008 (see [37 (17)] above) when they informed Coles that they had ceased negotiations but that that breach "was the intended culmination and inevitable consequence of earlier breaches of terms of the Offer Letter" - namely: 1. clause 26 which obliged FKP to enter into an AFL; 2. an implied obligation to act in good faith to do all things necessary to grant Coles a lease ("the good faith breach"); 3. the clause of the Offer Letter which obliged FKP to keep the terms of the Offer Letter confidential. 55 Whether an implied obligation of good faith independently exists and to what extent it might differ from the Butt v M'Donald term are complicated and hotly debated issues in contract law. Moreover, it would not be a simple matter to determine the extent of the respondents' obligation under cl 26 to negotiate and accept an AFL and Lease. (Indeed, that is always a problem in Masters v Cameron heads-of-agreement type cases where later negotiations break down.) For example, at what point could Coles throw its hands up and say that the respondents were unreasonably refusing to negotiate or accept an AFL or Lease such that the default terms ought to apply? 56 Fortunately, it is not necessary to resolve the issues between the parties by reference to the admitted Butt v M'Donald breach or the first two breaches alleged by Coles because I am satisfied on the evidence that more straightforward breaches exist. First, the evidence that the respondents did not and could not obtain the necessary development approvals by 1 October 2008 necessarily implies that those approvals were not obtained by the 1 March 2008 date specified in the Offer Letter. Accordingly, I find that the respondents breached cl 14(b)(5) on 1 March 2008. 57 Secondly, the respondents breached the confidentiality clause of the Offer Letter on 26 February 2008. At the end of the Offer Letter, a clause headed "Confidentiality" provided, in part, as follows: The terms and conditions of this offer are strictly confidential ( Confidential Information ). The Lessor must: (i) not disclose any of the Confidential Information to any person, firm or body corporate; (ii) not directly or indirectly use, reproduce or deal with the Confidential Information for any purpose without the prior written consent of the Lessee, except on a confidential basis to professional consultants of the Lessor; ... In any case, where the Lessor must obtain the Lessee's prior written consent, the Lessee is entitled to withhold the giving of its consent for any reason in its discretion, or to give its consent subject to such conditions as the Lessee imposed in its discretion. 58 The respondents admit that they breached this clause when, on 26 February 2008, they disclosed to Woolworths terms of the offer that Coles had agreed (1) to enter into a 20 year lease with an option to take a lease for two further 10 year terms (cll 4 and 5), (2) to pay a percentage at 2% of annual gross sales (excluding GST) in excess of $37,000,000 (cl 7(b)) and (3) to participate in base rent reviews every five years during the term and options to the average of total base and percentage rents payable in the preceding three years (cl 7(d)). That they would admit this is not surprising because during the course of the trial Mr McCoy gave evidence during cross-examination, corroborated by certain of his emails which were tendered as exhibits, that he did in fact disclose this information to a representative of Woolworths on or about 26 February 2008.


case_text: My present view is that the proper party to the Offer Letter, objectively considered, was and remains Lifestyle, primarily because it is the owner of the Tarneit Property and thus the only party directly capable of conveying a leasehold interest in the property to Coles: see Carminco Gold & Resources Ltd v Findlay & Co Stockbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472 at [22] (stating that the identity of the parties is a "simple question as to who, objectively considered, were intended to be the parties to the contract"). Another reason for this view is that the negotiations resulting in the Offer Letter were carried over from a period when FKP was not even in the picture (ie when Lifestyle was still Wilbow and was not owned by FKP), objectively suggesting that for Coles it was never a question of doing a deal with FKP but was rather a question of doing a deal with the owner of the Tarneit Property, whoever that was. 5 There is of course room to take the opposing view. For example, cl 14(b)(3) of the Offer Letter permits Coles to terminate the agreement if the "Lessor" does not own all of the land comprising the Centre by 1 March 2008. From this, one might reasonably infer that the parties contemplated that, whether or not FKP at the time of the execution of the Offer Letter owned the land, it was taking steps to purchase or otherwise acquire that land (whether from Lifestyle or otherwise). No doubt if it were Coles on the other side of the proceeding, Coles would claim that FKP was the lessor, FKP did not own all the land by the specified date and therefore it was entitled to terminate. 6 Ultimately, this issue is not one to which I have given extended consideration for several reasons. For one thing, the respective positions of each side on this issue were never properly developed or addressed in oral submissions. For another, the issue seems like one that the parties ought to be able to come to some kind of agreement about, especially because it is not clear that the question has any practical significance in light of these facts and circumstances (ie where Coles is the complaining party). FKP is the 100% owner of Lifestyle and there does not seem to be any concern that one FKP entity or the other is lacking in resources; regardless of which entity might be made the subject of an order to pay a money judgment. Even if there is an order for specific performance compelling the respondents to grant a lease, which Coles seeks, Lifestyle would not necessarily have to be the party against whom it was directed; it could be crafted as an order directing FKP to cause Lifestyle, as its wholly-owned subsidiary and owner of the property, to grant a lease. 43 I reject those contentions. As the history of the negotiations records, it was just that, negotiations. No concluded AFL or Lease was ever prepared or executed. Moreover, there was also no informal agreement (whether by 8 January 2008 or otherwise) evidenced by the chain of drafts in respect of major points objectively demonstrating a present intent of the parties to be bound so as to fall within the so-called fourth category of Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353: see Carminco Gold (2007) 243 ALR 472 and Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 at [25] - [29] .


case_text: The respondents admit they breached an implied term of the Offer Letter, namely that the respondents would not seek to prevent performance of the Offer Letter or withhold its benefits: Butt v M'Donald (1896) 7 QLJ 68, 70-71 cited and referred to in Secured Income Real Estate (Australia) Ltd v St Martins Investment Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 , 607; Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 and CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680. The event which the respondents said gave rise to the breach was the execution of the Woolworths' Letter of Offer on 18 March 2008. However, despite the generous admission of the respondents, I cannot accept that execution of the 18 March 2008 letter constituted a breach of the Butt v M'Donald term. 54 The respondents disputed that they had breached cl 26 on the basis that unless and until Coles proffered an AFL that they wanted to execute, there could be no breach and that no such AFL was proffered by Coles until 23 June 2008. The respondents also disputed that they breached the implied obligation to act in good faith on the basis that no such term exists: Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 and CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680 at [131]-[143].


case_text: The interaction between the TPA and the law of contract is interesting and has been the subject of previous consideration: see by way of example Concrete Constructions Group v Litevale Pty Ltd (2002) 170 FLR 290; Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217; Mander Forklift Pty Ltd v Dairy Farmers Co-operative (1990) ATPR (Digest) 46-061.


case_text: The question of the equitable breach of confidentiality alleged by Coles is in a different category. The conduct relied upon by Coles to make out this claim is the same conduct that I have found constitutes a breach of the confidentiality term in the Offer Letter. Coles argues that equitable and legal obligations of confidence can co-exist. I disagree. In my view, no equitable duty of confidence arises where there is a contractual duty: see Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 ; (2007) 73 IPR 326 at [118] . The fundamental rule is that equity will not intervene where there is an adequate remedy at law. This was recognised by Fullagar J in Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 , 195, where his Honour considered that equity would withhold further remedies for breach of confidence where adequate remedies were available at law.


case_title: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167


case_text: Finally, I am of the view that when the respondents informed Coles on 27 March 2008 (see [37 (17)] above) that they were ceasing negotiations with it, that conduct constituted anticipatory breach of the Offer Letter which, in the circumstances which followed, was also a repudiation of that contract: DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423. The relevant circumstances include the fact that the respondents refused to sign the eleventh draft of the AFL sent by Coles to FKP on 23 June 2008 which by then included the resolution of the three outstanding issues in the manner proposed by FKP on 31 January 2008 (see [21 (15)] above) which had initially been rejected by Coles. If that were not enough, by the time these proceedings were commenced in July 2008, it was clear from the manner in which the respondents have defended these proceedings that they have not and do not intend to further perform the Offer Letter, however construed: see DTR Nominees 138 CLR at 434. 60 I should note that my review of the Offer Letter in light of the evidence suggests that the respondents probably committed additional breaches of it. For example, cl 21 of the Offer Letter required the respondents to retain ownership of the premises at least until the Lease was executed. The clause also stated that the Lessor would be liable for "loss, expense or damage" caused by disposal of all or part of its interest in the Centre prior to execution of the Lease. If the respondents conveyed a leasehold interest over the Tarneit Property to Woolworths (there was no evidence of an executed or registered Lease between Woolworths and the respondents, only a letter of offer and an admission of an executed AFL), it would appear to be a breach of cl 21. However, as this and other potential additional breaches were neither pleaded nor squarely raised by the evidence or submissions, I will not address them further.


case_title: Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228


case_text: The relief to which Coles is entitled as a consequence of these breaches is a matter to be addressed in subsequent proceedings. With respect to the third breach (the anticipatory breach), for example, there is a question as to whether a plaintiff's election to hold the party to the agreement rather than rescind means that it cannot claim damages. It is sufficient for present purposes to note that some authorities suggest that anticipatory breach entitles Coles to damages only if it terminates the Offer Letter: see Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17 , 48 and Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 , 416-417, 441-442). Of course any issue in that regard may be moot in light of the actual breaches: see Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21 ; (1976) 136 CLR 444 , 450; Huppert v Stock Options of Australia Pty Ltd [1965] HCA 30 ; (1965) 112 CLR 414 , 422-423, 426 and 431.


case_text: The interaction between the TPA and the law of contract is interesting and has been the subject of previous consideration: see by way of example Concrete Constructions Group v Litevale Pty Ltd (2002) 170 FLR 290; Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217; Mander Forklift Pty Ltd v Dairy Farmers Co-operative (1990) ATPR (Digest) 46-061. 68 In Futuretronics at 239, Ormiston J "expressed [his] doubts whether a contractual promise of itself carries with it any representation as to fact or conduct" actionable by reason of s 51A. His Honour explained the issue (at 238-39) in the following terms: It is hard to believe that normally any promisee with ordinary contractual rights would ... describe himself as having been deceived or misled [based on the mere acceptance of a promise] . It is only when it becomes apparent that the promise cannot be enforced, because, for example, it is either unenforceable or the promisee's rights are valueless or diminished, that one may return to the original promise to inquire whether that promise was of so little substance that it can be concluded that the promisee was indeed misled or deceived in the first place, at the time of his acceptance of the promise. Thus it may then be seen that the promisor originally had no intention to perform his promise or that he originally had no capacity or ability to perform it. ... It would seem on the authorities that, at the least, a contractual promise would amount to an implied representation that the promisor then had an intention to carry out that promise. If it can be shown that he had no such intention, he would be guilty of misleading or deceptive conduct. Likewise it would seem that such a representation connotes a present ability to fulfil that promise which, if shown to be untrue at the time of making, would likewise characterise the implied representation as misleading or deceptive. 69 As this passage reveals, an express contractual promise or representation will constitute an actionable implied representation under s 52 of the TPA only if the party making the promise or representation had no intention or capability of carrying it out at the time it was made (ie the promisor had no reasonable grounds for making the promise). The questions which then arise are (1) what is the contractual promise in this case and (2) did the respondents have the intention and ability to carry it out at the time it was made? 70 In the present case, the specific promise relied on by Coles is the promise to grant a lease. It cannot be doubted that, on the evidence before the Court, the respondents had both the ability and intent to fulfil that promise at the time it was made. More broadly, the respondents admit that they impliedly represented to Coles that they would perform all obligations under the Offer Letter including an obligation to execute an AFL. Despite extensive cross-examination of the respondents' witnesses, Coles failed to establish that the respondents did not have such an intention or capability at the time the representations were made and at all times prior to 26 February 2008 when Lifestyle commenced negotiations with Woolworths to lease part of the Tarneit property to Woolworths. In my view, the evidence establishes that the respondents had reasonable grounds for making representations and promises of the kind contained in the Offer Letter and thus those representations and promises were not misleading or deceptive within the meaning of ss 51A and 52 of the TPA. 71 The question which then arises is whether the respondents' conduct in the period from 27 February 2008 to 27 March 2008, said to constitute representations by silence and implication, was misleading or deceptive or likely to mislead or deceive Coles? The answer to that question is no as well.


case_text: This view has been consistently followed over the years, most recently in Golden Sands Pty Ltd v Excel Quarries Pty Ltd [2008] VSC 276 at [302] n 41. Again, however, even if it were not a matter of settled authority, I would apply such a rule as a matter of logic and basic principle. As a matter of basic contract law, a term will not be implied except in very limited circumstances (primarily where it is obvious, reasonable and necessary to make the contract work): Golden Sands at [223] and authorities there cited. In this case, Coles' alleged representation by silence and implication effectively amounts to a claim that there was an implied term of exclusivity - that is, that the respondents would negotiate exclusively with Coles - in circumstances where such a term could not be implied under contract law because it is not necessary to make the contract work. Thus not only would the rule that s 52 imposes a duty to advise as to the subjective interpretation of the contract destroy objective contract theory, it would also provide a means around the limitations on the implication of terms under the law of contract. 74 So radical a position cannot be accepted. In my view, the failure of the respondents to disclose their subjective view that the Offer Letter (or a particular clause therein) was not binding, that they would not adhere to a particular interpretation of a clause, or that they considered themselves free to take on or pursue agreements containing obligations inconsistent with those arising under the Offer Letter is not actionable under s 52 of the TPA. 75 Further, I should note that even if, contrary to the view I have formed, the representations alleged by Coles were actionable under s 52 , there would be a real question as to whether Coles is entitled to any relief over and above what it might get in contract, given that Coles seeks only damages under s 82 of the TPA.


case_title: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157


case_title: Huppert v Stock Options of Australia Pty Ltd [1965] HCA 30 ; (1965) 112 CLR 414


case_text: The interaction between the TPA and the law of contract is interesting and has been the subject of previous consideration: see by way of example Concrete Constructions Group v Litevale Pty Ltd (2002) 170 FLR 290; Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217; Mander Forklift Pty Ltd v Dairy Farmers Co-operative (1990) ATPR (Digest) 46-061. 72 In Mander Forklift , Cole J stated the rule regarding representations by silence or implication as bearing on the interpretation or performance of a contract: Silence concerning a view of the proper interpretation of a contract, or that a mutually known term of a contract will be enforced can rarely, if ever, constitute conduct within s 4(2) of the Trade Practices Act 197[4] (generally see Rhone-Poulenc Agrochimie SA v IUM Chemical Services Pty Ltd (1986) 12 FCR 477 ; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 40 ; (1988) 79 ALR 83. To construe s 52 as imposing an obligation upon a party to a contract to advise the other party both of its interpretation of clauses in the contract, and that the clauses in the contract will be enforced or adhered to destroys the very basis of objective interpretation of contracts to which Mason J referred in Codelfa [ Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337] , 352).


case_text: I reject those contentions. As the history of the negotiations records, it was just that, negotiations. No concluded AFL or Lease was ever prepared or executed. Moreover, there was also no informal agreement (whether by 8 January 2008 or otherwise) evidenced by the chain of drafts in respect of major points objectively demonstrating a present intent of the parties to be bound so as to fall within the so-called fourth category of Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353: see Carminco Gold (2007) 243 ALR 472 and Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 at [25] - [29] . 55 Whether an implied obligation of good faith independently exists and to what extent it might differ from the Butt v M'Donald term are complicated and hotly debated issues in contract law. Moreover, it would not be a simple matter to determine the extent of the respondents' obligation under cl 26 to negotiate and accept an AFL and Lease. (Indeed, that is always a problem in Masters v Cameron heads-of-agreement type cases where later negotiations break down.) For example, at what point could Coles throw its hands up and say that the respondents were unreasonably refusing to negotiate or accept an AFL or Lease such that the default terms ought to apply?


case_title: Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21 ; (1976) 136 CLR 444


case_title: Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17


case_title: Pryde v Bjorn 141 WashApp 1027 (2007)

case_text: While it is not to be doubted that an exchange of correspondence or other collection of informal (and even unsigned) writings may together form a contract, that will only be so if those writings objectively manifest a present intent of the parties to be bound: see Schoenhoff v The Commonwealth Bank of Australia [2003] NSWSC 918 at [71] ; Tasman Capital at [25]; see also Pryde v Bjorn 141 WashApp 1027 (2007) (considering when and at what point an exchange of drafts by email will be found to give rise to a binding contract prior to the signing and exchange of a formal contract).


case_title: Schoenhoff v The Commonwealth Bank of Australia [2003] NSWSC 918


case_text: The respondents admit they breached an implied term of the Offer Letter, namely that the respondents would not seek to prevent performance of the Offer Letter or withhold its benefits: Butt v M'Donald (1896) 7 QLJ 68, 70-71 cited and referred to in Secured Income Real Estate (Australia) Ltd v St Martins Investment Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 , 607; Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 and CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680. The event which the respondents said gave rise to the breach was the execution of the Woolworths' Letter of Offer on 18 March 2008. However, despite the generous admission of the respondents, I cannot accept that execution of the 18 March 2008 letter constituted a breach of the Butt v M'Donald term.


case_text: I reject those contentions. As the history of the negotiations records, it was just that, negotiations. No concluded AFL or Lease was ever prepared or executed. Moreover, there was also no informal agreement (whether by 8 January 2008 or otherwise) evidenced by the chain of drafts in respect of major points objectively demonstrating a present intent of the parties to be bound so as to fall within the so-called fourth category of Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353: see Carminco Gold (2007) 243 ALR 472 and Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 at [25] - [29] . 45 While it is not to be doubted that an exchange of correspondence or other collection of informal (and even unsigned) writings may together form a contract, that will only be so if those writings objectively manifest a present intent of the parties to be bound: see Schoenhoff v The Commonwealth Bank of Australia [2003] NSWSC 918 at [71] ; Tasman Capital at [25]; see also Pryde v Bjorn 141 WashApp 1027 (2007) (considering when and at what point an exchange of drafts by email will be found to give rise to a binding contract prior to the signing and exchange of a formal contract).