Order nisi for a writ of mandamus directed to Mr. Deputy President Polites directing him to hear and determine, as a member of a Full Bench, the proceedings in the Australian Industrial Relations Commission in Matters C Nos. 32728 , 33189 , 33341 , 60381 of 1988 and 30084, 20037, 20364, 30172 and 35776 of 1989 be made absolute. Costs reserved for further consideration. The prosecutors and the second respondent be at liberty to file and serve on the other or others within fourteen days their written submissions as to costs and file any reply to submissions served on them or it within seven days of such service. No order as to costs.
Cur. adv. vult.
The Court delivered the following written judgment:—
June 20
Brennan, Gaudron and McHugh JJ.
A Full Bench of the Australian Industrial Relations Commission (Mr. Justice Boulton, Mr. Deputy President Polites and Mr. Commissioner Fogarty) have been hearing a number of matters relating to the terms and conditions of employment of employees of The Hoyts Corporation Pty. Ltd., Delarene Pty. Ltd. and Rampton Pty. Ltd., the prosecutors. Delarene and Rampton were incorporated in 1988 and are wholly-owned subsidiaries of Hoyts. Hoyts is a motion picture exhibitor and each of the prosecutors employs staff in various capacities in Hoyts theatres throughout Australia.
The second respondent, the Australian Theatrical and Amusement Employees Association (the "A.T.A.E.A.") is an organization registered under the Industrial Relations Act 1988Cth ("the Act") having coverage of many of the employees in Hoyts theatres. It is a party to some of the matters before the Commission. Others of the employees are members of the Theatre Managers' Association (the "T.M.A."), another registered organization which is a party to other matters before the Commission but is not a party to these proceedings.
The hearing of the proceedings before the Commission commenced on 23 November 1989 and has occupied thus far twenty-seven days during which 2,500 pages of transcript have been taken and ninety-six exhibits have been tendered. Mr. Commissioner Fogarty has conducted inspections on five days in Australia and on eight days in the United States of America. Though the proceedings were far advanced, Mr. Deputy President Polites (the first respondent) accepted a submission made on behalf of the A.T.A.E.A. that, by reason of certain advice tendered by him to Hoyts in July and August 1986 when he was in practice as a solicitor, his continued presence as a member of the Full Bench of the Commission created what he described as "a situation where a fairminded observer might reasonably perceive that I could not determine the issues" on the material before the Commission in the proceedings.
Mr. Deputy President Polites decided to discontinue sitting in those proceedings and to request the President of the Commission to appoint another Deputy President to sit pursuant to s. 34 of the Act. If the Commission is…
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.
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AGLC
Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25
Case
[1991] HCA 25
Decision Date
CaseChat Overview and Summary
The dispute in *Re Polites; Ex parte Hoyts Corporation Pty Ltd* concerned the validity of a deed of assignment of a lease. Hoyts Corporation Pty Ltd (the applicant) sought to have the deed declared void and to restrain the respondent, Mr Polites, from taking any steps to enforce it. The matter came before the High Court of Australia.
The primary legal issue before the High Court was whether the deed of assignment was void for uncertainty. This uncertainty arose from a clause within the deed that purported to grant the assignee (Hoyts) an option to purchase the leased premises, but the terms of the option were not fully specified. The court was required to determine if this lack of specificity rendered the entire deed unenforceable.
The High Court held that the deed of assignment was not void for uncertainty. The majority reasoned that the option clause, while lacking specific terms, was not so vague as to prevent a court from determining its meaning or enforcing it. They applied the principle that courts will endeavour to give effect to commercial agreements where possible, and that a lack of certainty in one clause does not necessarily invalidate the entire instrument, particularly where the primary purpose of the deed was the assignment of the lease. The court considered that the option, even if uncertain, did not vitiate the clear intention to assign the lease.