mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215
Outcome: cited
to a defendant seeking a separate trial, including the possibility of unfairness, must be weighed against identified advantages to ASIC and to the defendants as a whole and the efficient use of the court's resources having regard to the commonality of issues raised by each claim: Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at [34] . The court should be concerned to determine what is the most efficient use of the resources of the parties and also of the court: Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at [23] . ASIC submits that the following factors are also relevant: (a) the state of progression of the proceeding: Knight v Beyond Properties Pty Ltd (No 2) at [25]. (b) the degree to which cost and delay will be minimised by a single trial or by separate trials: Bishop v Bridgelands Securities Ltd at 314; (c) the efficient use of the resources of the parties and the court: Carter v Commissioner of Taxation at [23]; Dean-Willcocks v Air Transit International Pty Ltd at [34]; (d) that it is preferable from a public policy perspective to avoid a multiplicity of hearings: Main-Road Property Group Pty Ltd v Pelligra &amp; Sons Pty Ltd [2007] VSC 43 at [21] ; (e) any relevant public interest in the proceeding: Dean-Willcocks v Air Transit International Pty Ltd at [35]; and (f) the degree of similarity in the transactions alleged in the proceedings this may be a more weighty consideration than the somewhat technical point that the transactions do not form a series: Australian Securities &amp; Investment Commission v Somerville [2008] NSWSC 788 at [42] . SATTVIC'S SUBMISSIONS Limited and unique issues
Case: Dean-Willcocks v Commissioner of Taxation 2003 45 ACSR 298
Outcome: cited
which have been held to militate against making such an order include: (a) the potential overlap of evidence and argument, including the need for the same witnesses to be called at both trials: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited [1996] FCA 1228 at [17] ; Dean-Willcocks v Commissioner of Taxation 2003 45 ACSR 298 at [18]; (b) the interrelationship between issues which are not capable of being resolved independently of each other: Mann v Board of Health (ACT) at 400F; (c) the potential disqualification of the judge that hears the first trial, if adverse findings are made as to the creditability of witnesses: National Mutual Property Services (Australia) Pty Ltd v Citbank Savings Limited at [16]; Dean-Willcocks v Commissioner of Taxation at [18]; and (d) the undesirability of inconsistent findings as to the same transactions: Henschel v Brittany Crepe Company Pty Ltd [1981] Qd R 173 at 175-176.
Case: Henschel v Brittany Crepe Company Pty Ltd [1981] Qd R 173 
Outcome: cited
which have been held to militate against making such an order include: (a) the potential overlap of evidence and argument, including the need for the same witnesses to be called at both trials: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited [1996] FCA 1228 at [17] ; Dean-Willcocks v Commissioner of Taxation 2003 45 ACSR 298 at [18]; (b) the interrelationship between issues which are not capable of being resolved independently of each other: Mann v Board of Health (ACT) at 400F; (c) the potential disqualification of the judge that hears the first trial, if adverse findings are made as to the creditability of witnesses: National Mutual Property Services (Australia) Pty Ltd v Citbank Savings Limited at [16]; Dean-Willcocks v Commissioner of Taxation at [18]; and (d) the undesirability of inconsistent findings as to the same transactions: Henschel v Brittany Crepe Company Pty Ltd [1981] Qd R 173 at 175-176.
Case: Hinze v Zed [1926] SASR 77
Outcome: cited
which have been held to weigh in favour of exercising the discretion to order separate trials include: (a) the issues concerning the party seeking the separate trial are distinct and discrete: Bishop v Bridgeland Securities at 314; (b) a joint trial will involve the respondent in the expense of being present at the trial of questions with which they are not concerned and it would be unfair for the respondent to be compelled to participate in a large and costly proceeding where it has only marginal involvement: Hinze v Zed [1926] SASR 77 at 84; Knight v Beyond Properties Pty Ltd (No 2) [2006] FCA 192 at [30] and Newman v Hold Pty Ltd [2001] VSC 282 at [17] .
Case: Jendas Pty Ltd v Jolly [1997] 2 VR 106
Outcome: cited
then submits that when the proceeding reaches the stage that an informed assessment can be made of whether any defendants would be prejudiced by a joint trial, other measures may be sufficient to avoid that prejudice. For example, ASIC says it has become commonplace in large and complex proceedings for trials to be staged in such a manner as to make it unnecessary for all parties to attend at all stages of the trial: Australian Securities &amp; Investment Commission v Somerville [2008] NSWSC 788 at [48] [50], [57]; Dean-Willcocks v Air Transit International Pty Ltd at [70]; Main-Road Property Group Pty Ltd v Pelligra &amp; Sons Pty Ltd at [25]; Jendas Pty Ltd v Jolly [1997] 2 VR 106 at 107. In Australian Securities &amp; Investment Commission v Somerville , Austin J observed that ASIC could, with the Court's encouragement, conduct its case in such a way that the days upon which the eighth defendant in that matter would need to be represented in court would be limited. Cost, delay and the efficient use of the resources of the parties and the Court
Case: Knight v Beyond Properties Pty Ltd (No 2) [2006] FCA 192
Outcome: cited
which have been held to weigh in favour of exercising the discretion to order separate trials include: (a) the issues concerning the party seeking the separate trial are distinct and discrete: Bishop v Bridgeland Securities at 314; (b) a joint trial will involve the respondent in the expense of being present at the trial of questions with which they are not concerned and it would be unfair for the respondent to be compelled to participate in a large and costly proceeding where it has only marginal involvement: Hinze v Zed [1926] SASR 77 at 84; Knight v Beyond Properties Pty Ltd (No 2) [2006] FCA 192 at [30] and Newman v Hold Pty Ltd [2001] VSC 282 at [17] . ASIC submits that the following factors are also relevant: (a) the state of progression of the proceeding: Knight v Beyond Properties Pty Ltd (No 2) at [25]. (b) the degree to which cost and delay will be minimised by a single trial or by separate trials: Bishop v Bridgelands Securities Ltd at 314; (c) the efficient use of the resources of the parties and the court: Carter v Commissioner of Taxation at [23]; Dean-Willcocks v Air Transit International Pty Ltd at [34]; (d) that it is preferable from a public policy perspective to avoid a multiplicity of hearings: Main-Road Property Group Pty Ltd v Pelligra &amp; Sons Pty Ltd [2007] VSC 43 at [21] ; (e) any relevant public interest in the proceeding: Dean-Willcocks v Air Transit International Pty Ltd at [35]; and (f) the degree of similarity in the transactions alleged in the proceedings this may be a more weighty consideration than the somewhat technical point that the transactions do not form a series: Australian Securities &amp; Investment Commission v Somerville [2008] NSWSC 788 at [42] . SATTVIC'S SUBMISSIONS Limited and unique issues
Case: Main-Road Property Group Pty Ltd v Pelligra &amp; Sons Pty Ltd [2007] VSC 43
Outcome: cited
submits that the following factors are also relevant: (a) the state of progression of the proceeding: Knight v Beyond Properties Pty Ltd (No 2) at [25]. (b) the degree to which cost and delay will be minimised by a single trial or by separate trials: Bishop v Bridgelands Securities Ltd at 314; (c) the efficient use of the resources of the parties and the court: Carter v Commissioner of Taxation at [23]; Dean-Willcocks v Air Transit International Pty Ltd at [34]; (d) that it is preferable from a public policy perspective to avoid a multiplicity of hearings: Main-Road Property Group Pty Ltd v Pelligra &amp; Sons Pty Ltd [2007] VSC 43 at [21] ; (e) any relevant public interest in the proceeding: Dean-Willcocks v Air Transit International Pty Ltd at [35]; and (f) the degree of similarity in the transactions alleged in the proceedings this may be a more weighty consideration than the somewhat technical point that the transactions do not form a series: Australian Securities &amp; Investment Commission v Somerville [2008] NSWSC 788 at [42] . SATTVIC'S SUBMISSIONS Limited and unique issues ASIC then submits that when the proceeding reaches the stage that an informed assessment can be made of whether any defendants would be prejudiced by a joint trial, other measures may be sufficient to avoid that prejudice. For example, ASIC says it has become commonplace in large and complex proceedings for trials to be staged in such a manner as to make it unnecessary for all parties to attend at all stages of the trial: Australian Securities &amp; Investment Commission v Somerville [2008] NSWSC 788 at [48] [50], [57]; Dean-Willcocks v Air Transit International Pty Ltd at [70]; Main-Road Property Group Pty Ltd v Pelligra &amp; Sons Pty Ltd at [25]; Jendas Pty Ltd v Jolly [1997] 2 VR 106 at 107. In Australian Securities &amp; Investment Commission v Somerville , Austin J observed that ASIC could, with the Court's encouragement, conduct its case in such a way that the days upon which the eighth defendant in that matter would need to be represented in court would be limited. Cost, delay and the efficient use of the resources of the parties and the Court
Case: Mann v Board of Health (ACT) (1996) 67 FCR 383
Outcome: cited
inconvenience is alleged, it must be shown that there are factors which make it inconvenient for there to be a joint trial, rather than that a separate trial is more convenient: Mann v Board of Health (ACT) (1996) 67 FCR 383 at 399F. Factors which have been held to militate against making such an order include: (a) the potential overlap of evidence and argument, including the need for the same witnesses to be called at both trials: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited [1996] FCA 1228 at [17] ; Dean-Willcocks v Commissioner of Taxation 2003 45 ACSR 298 at [18]; (b) the interrelationship between issues which are not capable of being resolved independently of each other: Mann v Board of Health (ACT) at 400F; (c) the potential disqualification of the judge that hears the first trial, if adverse findings are made as to the creditability of witnesses: National Mutual Property Services (Australia) Pty Ltd v Citbank Savings Limited at [16]; Dean-Willcocks v Commissioner of Taxation at [18]; and (d) the undesirability of inconsistent findings as to the same transactions: Henschel v Brittany Crepe Company Pty Ltd [1981] Qd R 173 at 175-176.
Case: Meadow Gem Pty Ltd v ANZ Executors and Trustees (unreported, Supreme Court of Victoria, 8 May 1995)
Outcome: cited
support of its contention that the evidence concerning the claims against it will be unique, Sattvic has filed an affidavit from one of the two persons it has identified as likely witnesses it will call at trial. As to this ASIC submits that it is necessary to bear in mind that the evidence when called may reveal overlap and connection not presently capable of being detected: Meadow Gem Pty Ltd v ANZ Executors and Trustees (unreported, Supreme Court of Victoria, 8 May 1995) at 14. For example, it says, evidence from the seventh defendant, Mr Johnston, may bear on the question of the date of issue of shares to Sattvic which is raised in paragraph 2 of Sattvic's defence. As before these submissions are speculative. If there were indeed the real likelihood of overlap it would by now be evident. In any event, even if there were some limited overlap of the kind described I do not regard that, of itself, as a basis for declining the order sought.
Case: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited [1996] FCA 1228 
Outcome: cited
which have been held to militate against making such an order include: (a) the potential overlap of evidence and argument, including the need for the same witnesses to be called at both trials: National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited [1996] FCA 1228 at [17] ; Dean-Willcocks v Commissioner of Taxation 2003 45 ACSR 298 at [18]; (b) the interrelationship between issues which are not capable of being resolved independently of each other: Mann v Board of Health (ACT) at 400F; (c) the potential disqualification of the judge that hears the first trial, if adverse findings are made as to the creditability of witnesses: National Mutual Property Services (Australia) Pty Ltd v Citbank Savings Limited at [16]; Dean-Willcocks v Commissioner of Taxation at [18]; and (d) the undesirability of inconsistent findings as to the same transactions: Henschel v Brittany Crepe Company Pty Ltd [1981] Qd R 173 at 175-176.
Case: Newman v Hold Pty Ltd [2001] VSC 282
Outcome: cited
which have been held to weigh in favour of exercising the discretion to order separate trials include: (a) the issues concerning the party seeking the separate trial are distinct and discrete: Bishop v Bridgeland Securities at 314; (b) a joint trial will involve the respondent in the expense of being present at the trial of questions with which they are not concerned and it would be unfair for the respondent to be compelled to participate in a large and costly proceeding where it has only marginal involvement: Hinze v Zed [1926] SASR 77 at 84; Knight v Beyond Properties Pty Ltd (No 2) [2006] FCA 192 at [30] and Newman v Hold Pty Ltd [2001] VSC 282 at [17] .
Case: Hu v Minister for Immigration and Citizenship (No 3) [2009] FMCA 629
Outcome: affirmed
19 December 2007 an application was filed with the Migration Review Tribunal challenging the decision to refuse to grant the visa under s 65 of the Migration Act 1958 (Cth) ("the Migration Act "). The Tribunal affirmed the delegate's decision on 28 November 2008. The Federal Magistrates Court dismissed an application seeking review of the Tribunal's decision on 2 July 2009: Hu v Minister for Immigration and Citizenship (No 3) [2009] FMCA 629. On 23 July 2009 a Notice of Appeal was filed in this Court.
Case: SZDNF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 378
Outcome: cited
the appeal was called for hearing there was no attendance on behalf of the Appellant. Notice of the date and place of hearing had been given to the Appellant. The solicitor for the First Respondent had also reminded the Appellant of the date and place for hearing when forwarding him a copy of the Minister's Outline of Written Submissions . Power is conferred upon the Court, in such circumstances, to dismiss the appeal: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii). On occasions that power is in fact exercised: e.g. Yu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 117. Power is also conferred upon the Court by s 25(2B)(bc) to vary an order made pursuant to s 25(2B)(bb). When an appeal is dismissed for failure to attend, it may be appropriate for an Appellant to be advised as to the terms of s 25(2B)(bc): e.g. SZDNF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 378. Power is also conferred upon the Court by O 52 r 38A(1)(d) of the Federal Court Rules to proceed to hear an appeal in the absence of a party. Power is likewise conferred upon the Court by O 52 r 38A(2)(a) to set aside or vary an order made pursuant to O 52 r 38A(1)(d).
Case: Yu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 117
Outcome: referred to
the appeal was called for hearing there was no attendance on behalf of the Appellant. Notice of the date and place of hearing had been given to the Appellant. The solicitor for the First Respondent had also reminded the Appellant of the date and place for hearing when forwarding him a copy of the Minister's Outline of Written Submissions . Power is conferred upon the Court, in such circumstances, to dismiss the appeal: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii). On occasions that power is in fact exercised: e.g. Yu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 117. Power is also conferred upon the Court by s 25(2B)(bc) to vary an order made pursuant to s 25(2B)(bb). When an appeal is dismissed for failure to attend, it may be appropriate for an Appellant to be advised as to the terms of s 25(2B)(bc): e.g. SZDNF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 378. Power is also conferred upon the Court by O 52 r 38A(1)(d) of the Federal Court Rules to proceed to hear an appeal in the absence of a party. Power is likewise conferred upon the Court by O 52 r 38A(2)(a) to set aside or vary an order made pursuant to O 52 r 38A(1)(d).
Case: BP Refinery (Westernport) Pty Limited v President, Councillors and Ratepayers of the Shire of Hasting [1977] HCA 40 ; (1977) 180 CLR 266
Outcome: considered
Although no submissions were made in relation to the issue of the applicability of the doctrine of implied terms in respect of Mr McCarron's AWA, there is no apparent reason why such doctrine should not apply to imply a term that the operational reasons referred to in clause 30 of the AWA be 'genuine operation reasons' determined after proper inquiry. The doctrine which applies only where it is necessary to give efficacy to an agreement, was considered by the Judicial Committee of the Privy Council in BP Refinery (Westernport) Pty Limited v President, Councillors and Ratepayers of the Shire of Hasting [1977] HCA 40 ; (1977) 180 CLR 266. Had the parties applied their minds to the question of whether a proper assessment would be made to determine whether a total ban on leave was necessary or that only genuine reasons could justify a ban, the result would have been so obvious that it 'goes without saying' (see BP Refinery 180 CLR 283). Whilst the doctrine of implied terms is not applicable to an industrial award (see Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410), the terms under which Mr McCarron was employed was an agreement, and not an award. It is not necessary to decide this issue in view of the finding that there were no operational reasons which justified the ban on the NDCP thereby resulting in a breach of clause 30. If it were necessary in order to give efficacy to the AWA to imply a term requiring the provision that 'operational requirements' means 'genuine operational requirements', the Court would imply such a term, and would find that such implied term was breached.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: applied
The standard of proof required to determine whether the reason for conduct was prohibited under s 793 is to be considered in accordance with the principle derived from the judgment of Dixon J in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 362: see The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454 at 464 where Einfeld J said I think that in dealing with these types of civil offences some standard of proof above mere satisfaction on the probabilities is appropriate. The Court is in any event bound by s 140(2) of the Evidence Act 1995 (Cth) to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged in determining whether it is reasonably satisfied that the matter has been proved.
Case: Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410
Outcome: cited
Although no submissions were made in relation to the issue of the applicability of the doctrine of implied terms in respect of Mr McCarron's AWA, there is no apparent reason why such doctrine should not apply to imply a term that the operational reasons referred to in clause 30 of the AWA be 'genuine operation reasons' determined after proper inquiry. The doctrine which applies only where it is necessary to give efficacy to an agreement, was considered by the Judicial Committee of the Privy Council in BP Refinery (Westernport) Pty Limited v President, Councillors and Ratepayers of the Shire of Hasting [1977] HCA 40 ; (1977) 180 CLR 266. Had the parties applied their minds to the question of whether a proper assessment would be made to determine whether a total ban on leave was necessary or that only genuine reasons could justify a ban, the result would have been so obvious that it 'goes without saying' (see BP Refinery 180 CLR 283). Whilst the doctrine of implied terms is not applicable to an industrial award (see Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410), the terms under which Mr McCarron was employed was an agreement, and not an award. It is not necessary to decide this issue in view of the finding that there were no operational reasons which justified the ban on the NDCP thereby resulting in a breach of clause 30. If it were necessary in order to give efficacy to the AWA to imply a term requiring the provision that 'operational requirements' means 'genuine operational requirements', the Court would imply such a term, and would find that such implied term was breached.
Case: Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329
Outcome: cited
The High Court in Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 18, referring to s 298K(1)(c) of the Act being the predecessor to the current s 792(1)(c), said: par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. See also Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 where her Honour considered the scope of the meaning of a prejudicial alteration of an employee's position within the meaning of s 298K(1)(c) of the unamended Act.
Case: Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238
Outcome: cited
With respect to the submission of the CPSU and Mr McCarron that the announcement of the leave ban constituted a threat of prohibited conduct within the meaning of s 793(2) of the Act, the OEA submits that as the ban on leave was not prohibited, its announcement could not have been a threat. Further, the OEA submits that the announcement of the leave ban did not constitute a threat as it did not menace or warn of an intention to inflict harm. The OEA relies upon the observations of Finkelstein J in Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238.