mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Donmastry Pty Ltd v Albarran (2004) 49 ACSR 745
Outcome: considered
The opposite conclusion was reached by Barrett J in Ramantanis v G &amp; M Excavations [2003] NSWSC 250 ; (2004) 22 ACLC 22 and Donmastry Pty Ltd v Albarran (2004) 49 ACSR 745. In Ramantanis his Honour noted that the statement in McPherson approved by Hamilton J appeared to have been made by reference to cases under earlier and somewhat different legislation to the present. His Honour noted that the specific provision in s 601AH(5) for the automatic reinstatement as director of a person who was a director of a company immediately before it was deregistered suggests that the deemed continuity of existence of the company is not sufficient to cause a director to resume his former position upon reinstatement of the registration. By analogy his Honour concluded that it followed that re-registration per se was also not sufficient to reinstate a liquidator. His Honour observed at paras [8] - [9],: As a matter of policy, however, a pre-existing and undischarged liquidator should resume office on reinstatement of registration. Section 601AH(3)(b) empowers the court to make "any order it considers appropriate", when making an order for reinstatement. I consider that that provides a suitable means of dealing with a situation where, as here, a liquidator was in office at the time of deregistration ... In view of the continuity that s 601AH(5) is intended to produce (which, in my view, entails continuity of that aspect of the company's characteristics which causes it to be in the course of winding up), the orders that the court makes should, in each case, put beyond doubt the ongoing tenure of the original liquidator. There are detailed provisions in the Act as to the resignation and replacement of liquidators. If a new liquidator is to be substituted, those provisions should be observed. 9 His Honour made orders for the reinstatement of registration and the continuation of the liquidator in office. In Donmastry Barrett J confirmed the view he had expressed in Ramantanis although, as the liquidator at the time of deregistration did not wish to continue in office and had expressly consented to another liquidator being appointed in his place, his Honour acceded to that request.
Case: Ramantanis v G &amp; M Excavations [2003] NSWSC 250 ; (2004) 22 ACLC 22
Outcome: considered
The opposite conclusion was reached by Barrett J in Ramantanis v G &amp; M Excavations [2003] NSWSC 250 ; (2004) 22 ACLC 22 and Donmastry Pty Ltd v Albarran (2004) 49 ACSR 745. In Ramantanis his Honour noted that the statement in McPherson approved by Hamilton J appeared to have been made by reference to cases under earlier and somewhat different legislation to the present. His Honour noted that the specific provision in s 601AH(5) for the automatic reinstatement as director of a person who was a director of a company immediately before it was deregistered suggests that the deemed continuity of existence of the company is not sufficient to cause a director to resume his former position upon reinstatement of the registration. By analogy his Honour concluded that it followed that re-registration per se was also not sufficient to reinstate a liquidator. His Honour observed at paras [8] - [9],: As a matter of policy, however, a pre-existing and undischarged liquidator should resume office on reinstatement of registration. Section 601AH(3)(b) empowers the court to make "any order it considers appropriate", when making an order for reinstatement. I consider that that provides a suitable means of dealing with a situation where, as here, a liquidator was in office at the time of deregistration ... In view of the continuity that s 601AH(5) is intended to produce (which, in my view, entails continuity of that aspect of the company's characteristics which causes it to be in the course of winding up), the orders that the court makes should, in each case, put beyond doubt the ongoing tenure of the original liquidator. There are detailed provisions in the Act as to the resignation and replacement of liquidators. If a new liquidator is to be substituted, those provisions should be observed. 9 His Honour made orders for the reinstatement of registration and the continuation of the liquidator in office. In Donmastry Barrett J confirmed the view he had expressed in Ramantanis although, as the liquidator at the time of deregistration did not wish to continue in office and had expressly consented to another liquidator being appointed in his place, his Honour acceded to that request.
Case: Commissioner of Taxation v Reynolds Australia Alumina Ltd (1987) 18 FCR 29
Outcome: referred to
can be accepted that where Parliament has enacted legislation to encourage a particular activity, for example, legislation which gives particular concessions to the mining or petroleum industries, the legislation must be construed so as to promote Parliament's purpose and not so as to detract from that purpose: Totalizator Agency Board v Commissioner of Taxation (1996) 69 FCR 311 at 323A per Hill J, with whom Tamberlin J and Sundberg J agreed. Thus an exemption which exists for the purpose of encouraging, rewarding or protecting some class of activity is to be given a liberal rather than a narrow construction and application: see Commissioner of Taxation v Reynolds Australia Alumina Ltd (1987) 18 FCR 29 at 35 per Beaumont J and at 46 47 per Burchett J; Diethelm Manufacturing Pty Ltd v Commissioner of Taxation [1993] FCA 437 ; (1993) 44 FCR 450 at 457 per French J. But in the case of a provision which confers an exemption upon a particular kind of body or fund which meets certain requirements, Parliament's purpose is not promoted by construing the provision in a manner favourable to the body or fund referred to in it: see TAB at 323C per Hill J. Indeed, there is much to be said for the view that the privileged status of exemption from income tax on the income of a fund which aspires to that status demands strict adherence to the requirements that must be met before that status is conferred; in the present case, the requirements of s 50-5, Item 1.5B, and s 50-60. General or holistic examination or assessments of compliance with, or satisfaction of, those requirements 'directed towards an overall characterisation of the conduct of the fund' ([50] of the Tribunal's reasons) runs the risk of detracting from, rather than promoting, Parliament's purpose.
Case: Diethelm Manufacturing Pty Ltd v Commissioner of Taxation [1993] FCA 437 ; (1993) 44 FCR 450 
Outcome: referred to
can be accepted that where Parliament has enacted legislation to encourage a particular activity, for example, legislation which gives particular concessions to the mining or petroleum industries, the legislation must be construed so as to promote Parliament's purpose and not so as to detract from that purpose: Totalizator Agency Board v Commissioner of Taxation (1996) 69 FCR 311 at 323A per Hill J, with whom Tamberlin J and Sundberg J agreed. Thus an exemption which exists for the purpose of encouraging, rewarding or protecting some class of activity is to be given a liberal rather than a narrow construction and application: see Commissioner of Taxation v Reynolds Australia Alumina Ltd (1987) 18 FCR 29 at 35 per Beaumont J and at 46 47 per Burchett J; Diethelm Manufacturing Pty Ltd v Commissioner of Taxation [1993] FCA 437 ; (1993) 44 FCR 450 at 457 per French J. But in the case of a provision which confers an exemption upon a particular kind of body or fund which meets certain requirements, Parliament's purpose is not promoted by construing the provision in a manner favourable to the body or fund referred to in it: see TAB at 323C per Hill J. Indeed, there is much to be said for the view that the privileged status of exemption from income tax on the income of a fund which aspires to that status demands strict adherence to the requirements that must be met before that status is conferred; in the present case, the requirements of s 50-5, Item 1.5B, and s 50-60. General or holistic examination or assessments of compliance with, or satisfaction of, those requirements 'directed towards an overall characterisation of the conduct of the fund' ([50] of the Tribunal's reasons) runs the risk of detracting from, rather than promoting, Parliament's purpose.
Case: Totalizator Agency Board v Commissioner of Taxation (1996) 69 FCR 311
Outcome: considered
can be accepted that where Parliament has enacted legislation to encourage a particular activity, for example, legislation which gives particular concessions to the mining or petroleum industries, the legislation must be construed so as to promote Parliament's purpose and not so as to detract from that purpose: Totalizator Agency Board v Commissioner of Taxation (1996) 69 FCR 311 at 323A per Hill J, with whom Tamberlin J and Sundberg J agreed. Thus an exemption which exists for the purpose of encouraging, rewarding or protecting some class of activity is to be given a liberal rather than a narrow construction and application: see Commissioner of Taxation v Reynolds Australia Alumina Ltd (1987) 18 FCR 29 at 35 per Beaumont J and at 46 47 per Burchett J; Diethelm Manufacturing Pty Ltd v Commissioner of Taxation [1993] FCA 437 ; (1993) 44 FCR 450 at 457 per French J. But in the case of a provision which confers an exemption upon a particular kind of body or fund which meets certain requirements, Parliament's purpose is not promoted by construing the provision in a manner favourable to the body or fund referred to in it: see TAB at 323C per Hill J. Indeed, there is much to be said for the view that the privileged status of exemption from income tax on the income of a fund which aspires to that status demands strict adherence to the requirements that must be met before that status is conferred; in the present case, the requirements of s 50-5, Item 1.5B, and s 50-60. General or holistic examination or assessments of compliance with, or satisfaction of, those requirements 'directed towards an overall characterisation of the conduct of the fund' ([50] of the Tribunal's reasons) runs the risk of detracting from, rather than promoting, Parliament's purpose.
Case: Bilfinger Berger Services (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2008) 176 IR 121
Outcome: approved
Bilfinger Berger Services (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2008) 176 IR 121 the Full Court of the Australian Industrial Relations Commission considered whether an employer's business comprised one or more business. At [3] the Full Bench observed that the evidence revealed that each of the five businesses conducted by the employer had separate resources, budgets, profits, employees, cost centres and billing centres. The respondent contended that the business of the employer was 'a multiple-business '. The Full Bench observed several obstacles with the respondent's submission. At [21] it stated: The first difficulty is that despite the fact that s 331 has been in the Act in one form or another since 1993, the construction has apparently never been adopted. Counsel were unable to point to a single instance of a multiple-business agreement applying to only one employer. The Full Bench continued at [22]-[23]: A further difficulty with the interpretation is that it gives rise to the possibility of a multiplicity of single businesses, and collective agreements, depending upon how an employer chooses to structure its operations. It would also introduce an element of unpredictability and caprice into the application of the agreement-making provisions depending upon the operating structure used by the employer. The interpretation would also give rise to a conflict between the operation of the multiple-business provisions and the definition of single business in s 322(1)(a). The terms "business, project or undertaking" in s 322(1)(a) should not be given a technical meaning. We think that the term "business" and perhaps also the term "undertaking" are capable of referring to the whole of the operations of one employer. While management jargon might support a narrower view, we think it is consistent with normal usage to describe the disparate operations of a single employer as that employer's business.
Case: Gould v Vaggelas (1985) 157 CLR 215
Outcome: cited
Ricochet Pty Ltd and Others v Equity Trustees Executor and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229 Lockhart, Gummow and French JJ rejected the submission that, in accordance with the observations of Wilson J in Gould v Vaggelas (1985) 157 CLR 215 at 236-238 the trial judge was bound to infer, in the absence of evidence to the contrary, that the appellants had been induced by the representations to enter into the lease in question. Their Honours said at 234: On the question of proof of inducement, the judgment of Wilson J in Gould v Vaggelas makes the point that a combination of factors may, if unanswered, lead to the conclusion that a person was induced by the representation of another to make the relevant decision.
Case: Jones v Dunkel and Another [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: referred to
contrary to this finding, the statements were misleading the Court would be required to consider the ' likely effect ' of such misleading statement. The onus of proof in establishing the employees would have been ' distracted ' by such statements or that the ' likely effect ' would have been that employees were misled must be established to the reasonable satisfaction of the Court: see Dixon CJ in Jones v Dunkel and Another [1959] HCA 8 ; (1959) 101 CLR 298 at 304-305, adopted by Stephen, Mason, Aickin and Wilson JJ in West v Government Insurance Office of New South Wales [1981] HCA 38 ; (1981) 148 CLR 62 at 66.
Case: Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd and Another; Gribbles Radiology Pty Ltd v Heath Services Union of Australia and Another [2005] HCA 9 ; (2005) 222 CLR 194
Outcome: referred to
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd and Another; Gribbles Radiology Pty Ltd v Heath Services Union of Australia and Another [2005] HCA 9 ; (2005) 222 CLR 194 at [39] the High Court said: The "business" of an employer may be constituted by a number of different assets, both tangible and intangible, that are used in the particular pursuit, whether of profit (if the "business" is a commercial enterprise) or other ends (if the activity is charitable or the "business" of government). In the case of a commercial enterprise, identifying the employer's "business" will usually require identification both of the particular activity that is pursued and of the tangible and intangible assets that are used in that pursuit. The "business" of an employer will be identified as the assets that the employer uses in the pursuit of the particular activity. It is the assets used in that way that can be assigned or transmitted and it is to the assets used in that way that an employer can be a successor.
Case: National Union of Workers v Coles CDC Eastern Creek Pty Limited [2009] FCA 523
Outcome: followed
this submission was not advanced to any significant degree, the Court observes that in National Union of Workers v Coles CDC Eastern Creek Pty Limited [2009] FCA 523 Graham J considered a submission to the same effect. His Honour at [50] dismissed the fact that certain employees engaged at a particular location would not have a ' reasonable opportunity to decide ' because of their voting power. His Honour found such claim lacked any substance. No authority has been quoted in support of such proposition, nor is there any evidence to support the submission that Luxottica had, as asserted by the AMWU, ' deliberately ' structured the proposed agreement to deny the laboratory employees a ' reasonable opportunity ' to decide to approve or to reject the proposed agreement. The claim that the vote of the laboratory employees would be completely irrelevant because they comprised a minority of the total number of employees is without evidential foundation. Pursuant to s 340(2)(b) of the Act an employee collective agreement may be made provided it is approved by a majority of employees. The vote of each member is of equal value and pursuant to s 340(2)(b)(i) of the Act the majority of those persons who vote will determine whether the agreement is to be made. In National Union of Workers v Coles CDC Graham J considered the prospect of a multiple-business at [44]. His Honour said: ...one might contemplate an employer which, within one company, carried on a media business, a pastoral business and a gambling business. Would those together constitute a single business, each being 'part of a single business' or, would they be three separate single businesses? Whilst it may be arguable that the three businesses were, for the purposes of the Act, a single business, with the answer to the question depending upon the unique facts of the given case, I am inclined to the view that there would be three separate 'single businesses' for the purposes of the Act. Mr Fretwell testified that the laboratory maintains a record of the costs of its operations including expenses, wages, rent, waste, electricity and other general costs. A record is also maintained relating to service and material charges made against a particular order received from a retail outlet. The material costs relate to the provision of spectacles and lenses which are ground, coated, edged and assembled to frames. The spreadsheet records all items of expenditure and notional income. Luxottica produced a budget forecast entitled ' Eyebiz Q2 Forecast ' which was a forecast and budget for labour costs and unit costs being the costs incurred in the processing of each order. The laboratory does not maintain any bank account and if cash is required for its operations it is supplied by a Luxottica retail cheque which is then cashed by the laboratory. No cash transactions take place between the retail outlets and the laboratory. Instead, an electronic record is maintained by the laboratory of the charges made for each order fulfilled by the laboratory.
Case: Oil Basins Limited v The Commonwealth of Australia and Other [1993] HCA 60 ; (1993) 178 CLR 643
Outcome: cited
submits that the Court would have no jurisdiction to make orders of the kind sought by the AMWU since the vote for the collective agreement has not been taken and nor has Luxottica taken any steps to submit the agreement to the Workplace Authority Director for approval pursuant to s 340 of the Act. In particular, the respondents relied upon the observations of Dawson J in Oil Basins Limited v The Commonwealth of Australia and Other [1993] HCA 60 ; (1993) 178 CLR 643 at 649. In view of the findings of the Court made above it is unnecessary for the Court to consider the question whether the Court would, if either of the AMWU's submissions had been upheld, have had power either under the Act or pursuant to the Federal Court of Australia Act to grant injunctive or declaratory relief. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 9 June 2009 Counsel for the Applicants: Mr Pearce Solicitor for the Applicants: Turner Freeman Lawyers Counsel for the First Respondent: Mr Moses SC with Mr Shariff Solicitor for the First Respondent: Deacons Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 1-2 June 2009 Date of Judgment: 9 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/608.html
Case: Ricochet Pty Ltd and Others v Equity Trustees Executor and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229
Outcome: referred to
Ricochet Pty Ltd and Others v Equity Trustees Executor and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229 Lockhart, Gummow and French JJ rejected the submission that, in accordance with the observations of Wilson J in Gould v Vaggelas (1985) 157 CLR 215 at 236-238 the trial judge was bound to infer, in the absence of evidence to the contrary, that the appellants had been induced by the representations to enter into the lease in question. Their Honours said at 234: On the question of proof of inducement, the judgment of Wilson J in Gould v Vaggelas makes the point that a combination of factors may, if unanswered, lead to the conclusion that a person was induced by the representation of another to make the relevant decision.
Case: Shop, Distributive and Allied Employees' Association v Karellas Investments Pty Ltd [2008] FCAFC 42 ; (2008) 166 FCR 562
Outcome: followed
Shop Distributive and Allied Employees' Association v Karellas Investments Pty Ltd [2008] FCAFC 42 ; (2008) 166 FCR 562 ( Karellas No. 2 ) the Full Court (Moore, Marshall and Tracey JJ) said at [54]: His Honour had regard to the likely effect of the information on employees. We consider that his Honour was correct to do so. An employee who is given false and misleading information that may affect his or her decision on whether to approve an agreement is, by the very provision of that information, denied a reasonable opportunity to decide whether to approve the agreement. That is, because there is information available to the employee which has the capacity to distract him or her on voting on the agreement and from considering its actual effect. A decision that is capable of being affected by false and misleading information is not a decision about approving the agreement, but a decision about extraneous matters not given effect to by the agreement. In applying such principle, it is necessary to consider the evidential onus upon the AMWU. That is, whether, on the balance of probabilities, the inference is established that the statements were inaccurate.
Case: Shop, Distributive and Allied Employees' Association v Karellas Investments Pty Ltd (No. 2) (2007) 166 IR 51
Outcome: followed
Green's statement contained at paragraph seven of his affidavit, reproduced at [19] above, is the only evidence that any employee might have been misled, assuming the statements to be wrong. The Court is mindful of the finding of Graham J at [49] in Shop, Distributive and Allied Employees' Association v Karellas Investments Pty Ltd (No. 2) (2007) 166 IR 51 (' Karellas No. 1 ') where his Honour said: In the absence of any evidence whatsoever as to the effect of any of the matters or alleged misinformation on the minds of any of the Karellas' employees, the likely effect of such alleged misinformation has to be considered. The Court is required to consider whether the statements are likely to have misled the employees. The Court could conclude, upon a review and comparison between the Award and the current or proposed agreement that the rates of pay presented by the Award are clearly less advantageous to the employees of Luxottica, and that if employees believed that Luxottica would revert to the Award, they would be likely to be misled into voting for the agreement proposed. However, the Court must have some evidence before it that the employees were aware that the proposed agreement was clearly more advantageous to the Award, that is, whether the employees were aware of the content of the Award. In Karellas No. 1 the information provided to the employees was sufficient to enable the Court to find that it was misleading and was likely to ' distract ' the employees. For example, the employees were told the agreement would provide a pay rise over the previous agreement when it did not. Graham J had before him all the evidence necessary to decide the ' likely effect ' of such misinformation upon the minds of the employees. It was self-evident that the misinformation was likely to have provided an incentive to vote for the agreement. Without similar evidence the Court is unable find the ' likely effect ' of the alleged misinformation, since any such finding would be wholly speculative. The evidence is inadequate to warrant a finding that the statements caused employees to be distracted in their voting.