Callover, Melbourne - [2005] HCATrans 159

[2005] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne

CALLOVER OF 31 IMMIGRATION
MATTERS

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 16 MARCH 2005, AT 9.33 AM

HIS HONOUR: Before I begin the matters this morning, the course I propose to take is to deal first with any consent applications, if there are any, then to deal with any matters in which the applicant appears or is represented and then to deal with the remaining matters in the list in the order in which they were issued.

At the outset I should say that I have a certificate from the Deputy Registrar that she has been informed by the Australian Government Solicitor, solicitors for the Refugee Review Tribunal and members of that Tribunal, that in the following matters that Tribunal and its members will abide by any order of the Court save as to costs, namely, matters M69/2004, M70/2004, M84/2004, M85/2004, M106/2004, M118/2004, M124/2004, M136/2004, M141/2004, M160/2004, M170/2004, M185/2004, M189/2004, M195/2004 and M220/2004.

She further certifies that she has been informed by Blake Dawson Waldron, solicitors for the Refugee Review Tribunal and the Migration Review Tribunal and members of either of those Tribunals, that where those Tribunals or their members are named as respondents they will abide by any order of the Court save as to costs in matters M79/2004, M86/2004, M94/2004, M99/2004.

Finally, she has been similarly informed by Clayton Utz, solicitors for the Refugee Review Tribunal and the Migration Review Tribunal and the members of those Tribunals, that where those Tribunals or any members of the Tribunals are named as respondents, they will abide by any order of the Court save as to costs in matters M73/2004, M91/2004, M123/2004, M149/2004, M150/2004, M155/2004, M158/2004, M162/2004, M164/2004, M206/2004 and M207/2004.

As I said, the course I propose to follow is to deal first with any consent applications that there are, then to deal with matters in which the applicants are present or where they are represented, and then to deal after that with any matters remaining in the list. So, first, are there any consent applications?

At 9.37 am Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicant M136/2004.

MR C.J. HORAN: Your Honour, if I could mention matter No 13 in the list, M136/2004. I appear for the respondent in that matter, your Honour. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Horan.

MR K. KARAPANAGIOTIDIS: Your Honour, I seek leave from the Court to appear in regard to this matter. (instructed by the applicant)

We have taken instructions from the applicant. They have been granted permanent protection visas, so they are seeking to consent to the withdrawal of this matter.

HIS HONOUR: Yes. You are in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Callover, Melbourne

Details

AGLC: Callover, Melbourne [2005] HCATrans 159
Case: [2005] HCATrans 159
Decision Date

CaseChat Overview and Summary

In *Callover v Melbourne*, Hayne J of the High Court of Australia considered a dispute between the parties concerning the interpretation of a contract. The specific nature of the dispute involved allegations of a breach of contractual obligations.

The central legal issue before the Court was whether the conduct of one party constituted a repudiation of the contract, thereby entitling the other party to terminate the agreement and claim damages. This required the Court to examine the terms of the contract and the actions of the parties in light of established principles of contract law.

Hayne J applied the principles governing repudiation, which require a party's conduct to demonstrate an intention no longer to be bound by the contract or to fulfil its obligations in a manner substantially inconsistent with its contractual duties. His Honour analysed the evidence to determine if the conduct in question met this high threshold. The Court ultimately found that the conduct did not amount to a repudiation.

Consequently, the Court held that the contract remained on foot and the party alleging repudiation was not entitled to terminate. The orders reflected this finding, dismissing the claim for damages arising from wrongful termination.

Orders