Desai v Keelty & Ors - [2009] HCATrans 280

[2009] HCATrans 280

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M91 of 2009

B e t w e e n -
LYDIA DESAI
Applicant
and
MIKE J KEELTY COMMISSIONER AUSTRALIAN FEDERAL POLICE AND COMMONWEALTH OF AUSTRALIA
AND ANDREW METCALFE SECRETARY DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Respondents
Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 20 OCTOBER 2009, AT 9.30 AM

MS L. DESAI appeared in person.

MR S.P. DONAGHUE: I appear on behalf of all respondents, your Honour. (instructed by Australian Government Solicitor)

HIS HONOUR: Ms Desai, this I understand to be your application by summons of 14 October for orders, in effect, expediting, that is, bringing on quickly, the application for removal, is it? I have your summons of 14 October. You seek an order directing the Registrar to remove the proceeding in the Federal Court and you seek an immediate hearing for the making of a declaration. Is that right?

MS DESAI: Yes, your Honour.

HIS HONOUR: Yes. Now, applications for removal under section 40 of the ‑ ‑ ‑

MS DESAI: Judiciary Act.

HIS HONOUR: ‑ ‑ ‑ Judiciary Act are governed by, of course, that Act and Part 26 of the Rules of Court.

MS DESAI: Your Honour, the most important thing is the declaration.

HIS HONOUR: Yes.

MS DESAI: Is the declaration which tomorrow is a hearing in which judges in India are committing witch trials because of bribery from the Australian Exclusive Brethren. Australian citizens have caused this to happen in India and it is a genocide and we will need this genocide to be declared immediately. That is the actual thing that needs urgency because tomorrow the Indian judges have threatened that they are going to hang our people or psychiatric torture and even murder and so for that reason we have to get this declaration done on the 20th, before the 21st, which is tomorrow.

HIS HONOUR: Yes. Now, you seek that relief, do you not, in the proceedings that are in the Federal Court?

MS DESAI: Yes, of course I do seek that relief in the Federal Court which has been fraternising and socialising with the Indian judges and invited them over ever since the case was in the Federal Court. So for this reason we have seen that the Australian Federal Court cannot judge a proceeding in which they are inviting Indian judges over after they have got proof against them for genocide.

Now, the only way for us to stop this genocide from happening is to expose this whole façade. I mean, we have got a clear‑cut method to do it and we know exactly how to go about it and we are precisely going to go about it unless this Court gives us a declaration. We are the victims here, we are victims of the genocide and there is nothing else – I mean, I do not know how to spell it…

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 Desai v Keelty & Ors

Details

AGLC: Desai v Keelty & Ors [2009] HCATrans 280
Case: [2009] HCATrans 280
Decision Date

CaseChat Overview and Summary

The case of *Desai v Keelty & Ors* concerned a dispute between the applicant, Mr. Desai, and the respondents, Mr. Keelty and others, in the High Court of Australia. Mr. Desai sought to appeal a decision of the Full Federal Court, which had dismissed his appeal from orders made by a single judge of that court. The underlying dispute involved allegations of breaches of contract and misleading and deceptive conduct.

The primary legal issue before the High Court was whether the Full Federal Court had erred in its interpretation and application of the relevant contractual provisions and the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). Specifically, the court had to consider the scope of the respondents' obligations under the agreements and whether their conduct amounted to misleading or deceptive representations.

In his reasons, Hayne J focused on the construction of the contractual terms and the evidence presented regarding the alleged misleading conduct. His Honour applied established principles of contract interpretation, emphasizing the importance of giving effect to the plain meaning of the words used by the parties. Regarding the misleading conduct claim, the court considered the objective effect of the representations made by the respondents on a reasonable person in the position of Mr. Desai. The court found that the evidence did not establish the necessary elements for a breach of contract or misleading and deceptive conduct as alleged by the applicant.

The High Court dismissed the application for special leave to appeal, meaning the decision of the Full Federal Court stood.

Orders