mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: George Ward Steel Pty Ltd v Kizkot Pty Ltd (1989) 15 ACLR 464; (1989) 7 ACLC 838
Outcome: referred to
have been referred to the decision of Hodgson J in George Ward Steel Pty Ltd v Kizkot Pty Ltd (1989) 15 ACLR 464; (1989) 7 ACLC 838, an authority I have myself applied in other cases, including Deputy Commissioner of Taxation v Fairchild Development Pty Ltd (in liq) [2006] FCA 714. Hodgson J's points are not, of course, a statutory formula but they are a useful checklist of things to at least take into account. Because of the very short time involved here, the indication of solvency is a fairly low threshold that is well met by the evidence which has been put before me.
Case: Australasian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 200 CLR 270
Outcome: applied
The power granted by s 447A to make the order sought cannot be doubted. The width of that section was firmly established in Australasian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 200 CLR 270 at 281 282 and has been applied in many circumstances since that time. Administrations vary greatly and s 447A provides the necessary flexibility if the object of Pt 5.3A set out in s 435A is to be realised. 16 The respondent EPG companies (by their administrators) appeared and consented to the orders sought. Australian Securities and Investments Commission (ASIC) was advised of the intention to bring the proceeding and was supplied with draft documents. The responsible officer noted that ASIC took no formal position in relation to the application, it being a commercial matter for the parties, and advised that ASIC would not be appearing. No other party was served or given notice of the application. 17 As the administrators of the various companies represent the interests of unsecured creditors, the only other potential parties possibly affected are the other secured creditors of the relevant respondent EPG companies. I accepted the submission of counsel for the applicants that the interests of such creditors are not affected in a manner which would make them necessary parties to this application. The result of this application does not affect the rights of any secured creditor in relation to the enforcement of its security. However, it seemed to me that, rather than make an order applicable only to the charges held by ACR over property of the relevant EPG respondent companies, the extension should be in general terms so as to avoid any possible argument that any other secured creditor had been disadvantaged by a special deal. There was not time on 12 June 2007 for any great reflection about that matter and the form of this order should not be taken as a precedent.
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: cited
The ACR Administrators did consider an alternative course, namely, to seek to enter a deed or some other form of agreement with the EPG Administrators under which they would give consent under s 440B(a) to ACR enforcing its securities after the "decision period" had expired. The ACR Administrators considered that there was a risk that a court would find that an agreement which fetters the future exercise of discretion and fiduciary obligations by administrators in such a manner would not be enforceable. (cf P Pan, "A Practical Comparison of Corporate Insolvency Procedures" in D Allen et al, Australian Finance Law , (5 th ed, Lawbook Co, 2002), Ch 27, at p 682; Re Java 452 Pty Ltd (Administrators Appointed); Permanent Trustee Australia Ltd v Stout (1999) 32 ACSR 507; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 at [54] ).
Case: Re Java 452 Pty Ltd (Administrators Appointed); Permanent Trustee Australia Ltd v Stout (1999) 32 ACSR 507
Outcome: cited
The ACR Administrators did consider an alternative course, namely, to seek to enter a deed or some other form of agreement with the EPG Administrators under which they would give consent under s 440B(a) to ACR enforcing its securities after the "decision period" had expired. The ACR Administrators considered that there was a risk that a court would find that an agreement which fetters the future exercise of discretion and fiduciary obligations by administrators in such a manner would not be enforceable. (cf P Pan, "A Practical Comparison of Corporate Insolvency Procedures" in D Allen et al, Australian Finance Law , (5 th ed, Lawbook Co, 2002), Ch 27, at p 682; Re Java 452 Pty Ltd (Administrators Appointed); Permanent Trustee Australia Ltd v Stout (1999) 32 ACSR 507; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 at [54] ).
Case: Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation [1919] HCA 72 ; (1919) 26 CLR 508
Outcome: considered
Among the authorities cited for the central proposition is the passage in the judgment of Isaacs and Rich JJ in Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation [1919] HCA 72 ; (1919) 26 CLR 508 at 530 531, where their Honours said: 'If a municipality either (1) is legally empowered to perform and does perform any function whatever for the Crown, or (2) is lawfully empowered to perform and does perform any function which constitutionally is inalienably a Crown function &#8722; as, for instance, the administration of justice &#8722; the municipality is in law presumed to represent the Crown, and the exemption applies. Otherwise, it is outside that exemption, and, if impliedly exempted at all, some other principle must be resorted to. The making and maintenance of streets in the municipality is not within either proposition.'
Case: R v Industrial Court of South Australia; Ex parte Australian Broadcasting Commission (1976) 13 SASR 460
Outcome: distinguished
Counsel for the respondent relied on R v Industrial Court of South Australia; Ex parte Australian Broadcasting Commission (1976) 13 SASR 460. The Full Court of the Supreme Court of South Australia held that the Australian Broadcasting Commission ('the ABC') was not an 'instrumentality or agency of the Government of the Commonwealth', within the meaning of s 114 of the Industrial Conciliation and Arbitration Act 1972 1975 (SA). At 284, Bray CJ, with whom Hogarth J agreed, referred to Electricity Trust of South Australia v Linterns Ltd [1950] SASR 133, in which it was held that the Electricity Trust of South Australia was a government instrumentality, as it managed the undertaking for the supply of electricity and the mining of coal in South Australia, exercised its functions on behalf of the Crown, and was the means or agency for managing a Crown asset. At 284 285, Bray CJ conceded that the ABC might be regarded as an instrumentality of the Commonwealth, but expressed the view that it could not be regarded as an instrumentality of the 'Government' of the Commonwealth. His Honour took the view that the word 'Government', with a capital initial, in s 114 meant the executive government of the Commonwealth. At 285, his Honour examined various provisions of the statute creating the ABC, emphasising the degree of autonomy from the executive government enjoyed by the ABC (with ministerial control only over a small number of specified functions, or in some exceptional specified circumstances), and the obligation of the ABC to indemnify the Postmaster-General in respect of any claim for anything done by the Postmaster-General's Department at the request of the ABC. His Honour also pointed out that there was nothing in the statute declaring that the ABC held its assets on behalf of the Crown. At 285 286, Bray CJ also regarded as relevant the question whether the degree of ministerial control was sufficient to entitle the ABC to the shield of the Crown. Assuming it to have been decided correctly, the ABC case is readily distinguishable from the present.
Case: Electricity Trust of South Australia v Linterns Ltd [1950] SASR 133
Outcome: referred to
Counsel for the respondent relied on R v Industrial Court of South Australia; Ex parte Australian Broadcasting Commission (1976) 13 SASR 460. The Full Court of the Supreme Court of South Australia held that the Australian Broadcasting Commission ('the ABC') was not an 'instrumentality or agency of the Government of the Commonwealth', within the meaning of s 114 of the Industrial Conciliation and Arbitration Act 1972 1975 (SA). At 284, Bray CJ, with whom Hogarth J agreed, referred to Electricity Trust of South Australia v Linterns Ltd [1950] SASR 133, in which it was held that the Electricity Trust of South Australia was a government instrumentality, as it managed the undertaking for the supply of electricity and the mining of coal in South Australia, exercised its functions on behalf of the Crown, and was the means or agency for managing a Crown asset. At 284 285, Bray CJ conceded that the ABC might be regarded as an instrumentality of the Commonwealth, but expressed the view that it could not be regarded as an instrumentality of the 'Government' of the Commonwealth. His Honour took the view that the word 'Government', with a capital initial, in s 114 meant the executive government of the Commonwealth. At 285, his Honour examined various provisions of the statute creating the ABC, emphasising the degree of autonomy from the executive government enjoyed by the ABC (with ministerial control only over a small number of specified functions, or in some exceptional specified circumstances), and the obligation of the ABC to indemnify the Postmaster-General in respect of any claim for anything done by the Postmaster-General's Department at the request of the ABC. His Honour also pointed out that there was nothing in the statute declaring that the ABC held its assets on behalf of the Crown. At 285 286, Bray CJ also regarded as relevant the question whether the degree of ministerial control was sufficient to entitle the ABC to the shield of the Crown. Assuming it to have been decided correctly, the ABC case is readily distinguishable from the present.
Case: Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34 ; (1979) 145 CLR 330
Outcome: cited
In the present case, one of the most striking features of the Trust is the extent to which it is subject to ministerial control. By s 4(2) of the VAC Act, the Trust's management of the Victorian Arts Centre is expressly subject to the general direction and control of the relevant Minister of the Crown. The Trust can only perform functions outside those expressly conferred by s 5(1) if the Minister approves of such functions (see s5(1)(h)). The exercise of the Trust's borrowing power is only possible with the approval of the Treasurer, under s 7. The extent of ministerial control is such that the Trust would be very likely to have the benefit of the immunity of the Crown from the application of legislation not expressed to bind the Crown, or from being sued or convicted of a criminal offence. In determining whether a statutory authority has such immunity, the extent to which it is subject to ministerial control under its establishing legislation is of great importance. See Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34 ; (1979) 145 CLR 330 at 347 350 per Stephen J, and State Bank of New South Wales v Commonwealth Savings Bank of Australia [1986] HCA 62 ; (1986) 161 CLR 639 at 650.
Case: State Bank of New South Wales v Commonwealth Savings Bank of Australia [1986] HCA 62 ; (1986) 161 CLR 639
Outcome: cited
In the present case, one of the most striking features of the Trust is the extent to which it is subject to ministerial control. By s 4(2) of the VAC Act, the Trust's management of the Victorian Arts Centre is expressly subject to the general direction and control of the relevant Minister of the Crown. The Trust can only perform functions outside those expressly conferred by s 5(1) if the Minister approves of such functions (see s5(1)(h)). The exercise of the Trust's borrowing power is only possible with the approval of the Treasurer, under s 7. The extent of ministerial control is such that the Trust would be very likely to have the benefit of the immunity of the Crown from the application of legislation not expressed to bind the Crown, or from being sued or convicted of a criminal offence. In determining whether a statutory authority has such immunity, the extent to which it is subject to ministerial control under its establishing legislation is of great importance. See Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34 ; (1979) 145 CLR 330 at 347 350 per Stephen J, and State Bank of New South Wales v Commonwealth Savings Bank of Australia [1986] HCA 62 ; (1986) 161 CLR 639 at 650. 32 Another significant indicator that the Trust is established to serve a government purpose is the grant to it, by s 18A of the VAC Act of the power to make by-laws. The delegation of legislative power suggests that the Trust carries on governmental activity. See State Bank of New South Wales at 651. 33 The examination of the legislative history, and of the current state of the VAC Act, makes it difficult to avoid the conclusion that the Trust is both empowered to serve, and does serve a State Government purpose. That purpose is the control and management of a significant public asset, which successive governments of Victoria have wished to make available for the economic and cultural enrichment of the citizens of Victoria. The information on the Trust's web site confirms this view. The Trust therefore falls clearly within the ordinary meaning of the phrase 'State instrumentality'. 34 Counsel for the respondent submitted that the expression 'State Government Departments and Instrumentalities' in cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award should not bear its ordinary meaning. His submissions were based on the history of the making of the two awards and the circumstances surrounding them. He also advanced a number of other arguments about the construction of the relevant provisions, including the argument that a purposive construction of them should be adopted.
Case: Liquor, Hospitality and Miscellaneous Union v Prestige Property Services Pty Ltd [2005] FCA 408
Outcome: cited
Counsel for the respondent also attempted to argue that I should have regard to possible anomalies that might arise from the application of cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award to high-rise buildings, occupied by a mix of tenants, only some of which were State Government entities. This argument is completely irrelevant to the present case. There is no suggestion that the Victorian Arts Centre is occupied by any entity other than the Trust. The question of multiple occupancy of buildings and the application of cl 8A(a)(ii) of the 1994 Award is dealt with in Liquor, Hospitality and Miscellaneous Union v Prestige Property Services Pty Ltd [2005] FCA 408 , a judgment delivered subsequent to the hearing of the present case. 53 For these reasons, I am persuaded that the word 'Instrumentalities' when used in the composite phrase 'State Government Departments and Instrumentalities' in cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award is used in its ordinary and natural meaning. When so used, as I have already found, it encompasses the Trust. 54 It follows that the respondent has been in breach of its obligations, imposed by cl 8A(a)(ii) of the 1994 Award and cl 15.3.1(b) of the 2003 Award, to pay the allowances required by those clauses to its employees engaged in performing cleaning services at the Victorian Arts Centre.
Case: EMCL Pty Ltd v Esanda Finance Corporation Ltd (No. 2) (1998) 160 ALR 382
Outcome: followed
I also propose to make an order that the respondent pay to each of the persons it employed at the Victorian Arts Centre the amount agreed to be outstanding. To each amount there should be added interest, pursuant to s 179A of the WR Act. In this respect, the applicant's claim is modest. Because of the difficulty of calculation of interest when it is payable on a series of payments that were due over a long period, the applicant has asked for interest only from 1 June 2003, ie. on the total sum owed to each employee in respect of the two periods claimed. The applicant calculated that interest only up to the date when the case was being heard. It should be calculated to the date of judgment. As to the rate, the applicant sought interest at 11 per cent per annum, that being the operative rate at 1 June 2003, pursuant to the Penalty Interest Rate Act 1983 (Vic). It is appropriate to choose that rate for the reasons advanced in EMCL Pty Ltd v Esanda Finance Corporation Ltd (No. 2) (1998) 160 ALR 382 at 384, and Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406 at [91] . The rate of interest was increased to 11.25 per cent from 26 June 2003, and to 12 per cent from 1 July 2004, but counsel for the applicant forwent any entitlement to a rate greater than 11 per cent. The order that I make for payment to each employee will therefore include an amount of interest on the sum owing to that employee at 1 June 2003, at the rate of 11 per cent per annum (non-compounding), from 1 June 2003 to the date of judgment.
Case: Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406
Outcome: followed
I also propose to make an order that the respondent pay to each of the persons it employed at the Victorian Arts Centre the amount agreed to be outstanding. To each amount there should be added interest, pursuant to s 179A of the WR Act. In this respect, the applicant's claim is modest. Because of the difficulty of calculation of interest when it is payable on a series of payments that were due over a long period, the applicant has asked for interest only from 1 June 2003, ie. on the total sum owed to each employee in respect of the two periods claimed. The applicant calculated that interest only up to the date when the case was being heard. It should be calculated to the date of judgment. As to the rate, the applicant sought interest at 11 per cent per annum, that being the operative rate at 1 June 2003, pursuant to the Penalty Interest Rate Act 1983 (Vic). It is appropriate to choose that rate for the reasons advanced in EMCL Pty Ltd v Esanda Finance Corporation Ltd (No. 2) (1998) 160 ALR 382 at 384, and Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406 at [91] . The rate of interest was increased to 11.25 per cent from 26 June 2003, and to 12 per cent from 1 July 2004, but counsel for the applicant forwent any entitlement to a rate greater than 11 per cent. The order that I make for payment to each employee will therefore include an amount of interest on the sum owing to that employee at 1 June 2003, at the rate of 11 per cent per annum (non-compounding), from 1 June 2003 to the date of judgment.
Case: Laz v Downer Group Ltd [2000] FCA 1390 ; FCA (2000) 108 IR 244
Outcome: followed
Parker Hannifin bears the onus of proving that it did not terminate Ms Crowley's employment for the reasons alleged; see Laz v Downer Group [2000] FCA 1390 ; FCA (2000) 108 IR 244 at [26] per Moore J. 20 Mr Flint is the decision maker who terminated Ms Crowley's employment. Mr Flint gave evidence that he terminated her employment for the following reasons: &#8226; her absence from work for an extended period during the previous 12 months; &#8226; her failure to give timely notification of her absences, in that medical certificates generally arrived in bundles and were backdated by several weeks and sometimes by a month; &#8226; the difficulty he experienced in communicating with her to ascertain when she would return to work; &#8226; his belief that there was little prospect of her returning to work in the short to medium term; and &#8226; his knowledge that she had applied for other jobs, including with Tyco and attending interviews when she was supposed to be too ill to work. 21 Mr Flint denies that he terminated Ms Crowley's employment because of her "temporary absence". He says that he considered that her absence was not "a temporary absence". Mr Flint also denies that Ms Crowley's applications to WorkCover or the Equal Opportunity Commission of Victoria were reasons for the termination. He makes the same point in respect of her physical disability, which was the injury to her left ear which caused her absences from employment from November 2004 to March 2005.
Case: He v Lewin [2004] FCAFC 161 ; (2004) 137 FCR 266
Outcome: applied
The claim that Ms Crowley's employment was terminated in breach of s 170CK(2)(e) is without foundation. As at the date of the termination (8 March 2005) Ms Crowley had not filed any complaint with any authority. To the extent that Ms Crowley relies on internal complaints within her former employer, such complaints are not encompassed by s 170CK(2)(e); see He v Lewin [2004] FCAFC 161 ; (2004) 137 FCR 266 at [44] .
Case: Jennings v Salvation Army [2003] FCA 1193 ; (2003) 128 IR 366
Outcome: followed
Even if the complaint to WorkCover had have preceded the termination, s 170CK(2)(e) would not have been breached. This is because the making of a claim under the Accident Compensation Act 1985 (Vic) is not contemplated by s 170CK(2)(e); see Jennings v Salvation Army [2003] FCA 1193 ; (2003) 128 IR 366 at [35] . The making of a complaint to WorkCover can only be in the context of a claim with which it has jurisdiction to deal. Complaining to WorkCover about aspects of an employer's conduct is also not contemplated by s 170CK(2)(e). 24 Mr Flint gave evidence that the injury to Ms Crowley's ear was not a reason for the termination. Ms Crowley did not challenge that evidence in her cross-examination of him. I am confident that if Ms Crowley and Mr Flint had been able to agree on a program for Ms Crowley to be re-integrated into Parker Hannifin's active workforce, on an agreed "return to work program", her termination would not have occurred; at least not at the initiative of Parker Hannifin. I am satisfied that Parker Hannifin has discharged its onus of proof with respect to this aspect of the proceeding. 25 The critical issue for determination in the proceeding is whether Parker Hannifin terminated Ms Crowley's employment for a reason which included the reason of her "temporary absence from work because of illness or injury within the meaning of the regulations".