Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd
[2004] HCA 52 (11 November 2004) (High Court of Australia)
Case details
Court
High Court of Australia
Case S63/2004
Citations
Toll (FGCT Pty Ltd v Alphapharm Pty Ltd
[2005] HCA 52 ➤
(2004) 219 CLR 165
(2004) 79 ALJR 129
(2004) 211 ALR 342
(2005) Aust Contract R 90-204
Judges
Gleeson CJ
Gummow J
Hayne J
Callinan J
Heydon J
Appeal from
NSW Court of Appeal
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2003] NSWCA 75 ➤
(2003) 56 NSWLR 662
Judgment date
11 April 2003
Judges
Sheller JA
Young CJ in Eq
Bryson J
Issues
Incorporation of Terms
Overview
Facts
Ebos, through its Australian subsidiary, Richard Thomson Pty Ltd (RT) was a wholesaler of medical supplies. This case related to the supply of Fluvirin vaccines imported for the 1999 flu season. EB appointed Alphapharm its exclusive distributor of Fluvirin in Australia.
Alphapharm agreed that (for a fee) RT would look after storage, regulatory approval and distribution in Australia. RT suggested that Finemores (a carrier - later to become ‘Toll’) be engaged for this purpose and Alphapharm agreed - also agreeing that RT could act as its agent in dealing with Finemores for this purpose.
After RT contacted Finemores requesting a quote, Finemores provided a quote under a cover letter stating that cartage was subject to conditions on the reverse side of the attached consignment note (no such note was attached but nothing turned on this) and the letter further requested that upon acceptance RT complete a ‘credit application form’ and sign a rate schedule with conditions.
RT met with Finemores on 17 February and was presented with a ‘Credit application form’. It included a statement, just above the signature line, 'stating ‘Please read “Conditions of Contract” (Overleaf) prior to signing.” The RT representative did not read the conditions, but did sign the form.
The ‘Conditions of Contract’ included an exclusion clause, providing Finemores would not be liable for, among other things, loss or damage occurring while they stored or delivered the vaccines.
Two batches of vaccines were destroyed - one during transit between Finemore’s storage warehouse and another while at the warehouse. In both cases the vaccines fell below the required refrigeration levels and were rejected by the regulators.
Alphapharm sued Finemores for damages; Finemores relied on the exclusion clause.
A question arose about whether Alphapharm was bound by the exclusion clause; this involved consideration of whether they were party to the agreement (whether RT was effectively acting as agent) and whether the exclusion clause was effective.
Timeline
The trial judge
The trial judge found in favour of Alphapharm. In particular, Acting Judge Hogan found that the Conditions of Contract on the reverse side of the Application for Credit did not form part of the contract and also that RT had not contracted as agent for Alphapharm.
On appeal to Court of Appeal
The Court of Appeal unanimously rejected an appeal.
On appeal to High Court
The High Court unanimously upheld an appeal. RT was acting as agent for Alphapharm and the terms were properly incorporated into the contract.
Key finding
The High Court accepted the general rule developed in L’Estrange v Graucob:
[para 57]: The general rule, which applies in the present case, is that where there is no suggested vitiating element, and no claim for equitable or statutory relief, a person who signs a document which is known by that person to contain contractual terms, and to affect legal relations, is bound by those terms, and it is immaterial that the person has not read the document.