mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441
Outcome: cited
On 6 November 2006 I ordered that the applicant's further amended statement of claim be struck out. However, I granted leave to replead on or before 30 November 2006: see [2006] FCA 1441. 33 It is correct, as the respondent submits, that, at an early stage in the proceeding, it put the applicant on notice as to the deficiencies which ultimately led to the striking-out of the first amended statement of claim. The applicant did not ignore or disregard the respondent's submissions. It considered them, accepted some of them and made certain amendments to the statement in August 2006. The respondent again made detailed submissions on why it considered the statement of claim still did not plead a sustainable cause of action. The applicant again considered its position, but, as it was entitled to do, advanced detailed arguments supporting the efficacy of the revised pleading. As is evident from my reasons for decision ([2006] FCA 1441) the arguments were complex and they dealt with the developing case law under the former s 298K of the Act . That case law is not lacking in subtlty and fine distinction. The concepts of injury, prejudicial alteration and threat do not have well settled meanings. 34 As is apparent from my reasons dealing with the first strike-out application, although I harboured doubts to whether a viable case could be pleaded by the applicant under Part XA , I did not regard it as an impossibility. Leave to replead, was therefore, granted. 35 The applicant took advantage of the grant of leave and filed a second further amended statement of claim. This statement of claim alleged contravention of Part XA. It also alleged a contravention of the new Part 16 based, in part, on events which occurred in the course of 2006. This statement of claim was also struck-out. I held that the major deficiencies which I had identified in relation to the case based on Part XA had not been overcome and that the attempt to mount a case under Part 16 failed because various parts of the statement of claim were embarrassing. These conclusions were reached after further detailed argument both written and oral.
Case: Australian and International Pilots Association v Qantas Airways Limited (No 2) [2007] FCA 581
Outcome: cited
Pursuant to this grant of leave, the applicant filed a second further amended statement of claim. On 27 April 2007 I ordered that this pleading also be struck out and said that I would hear the parties on costs: see [2007] FCA 581. I did so because, at the end of its submissions on the second strike-out application, the respondent sought an order that its costs be paid on an indemnity basis should it be successful in its application. In its written submissions the applicant reserved its position in relation to costs pending a review of my reasons for judgment. When judgment was delivered I gave directions for the filing of written submissions and indicated that I would hear oral argument on 9 May 2007. On that day senior counsel for the applicant advised the Court that certain discussions were taking place between the parties which may have rendered it unnecessary for any costs questions to be further considered and indicated that, for this reason and in an effort to avoid unnecessary costs, his client had not filed written submissions on the issue. Further directions were given for the filing of written submissions and the hearing was adjourned to 8 June 2007. 3 The respondent seeks an order of costs in its favour in relation to: &#8226; Its strike-out application notice of which was given on 16 June 2006; &#8226; Its strike-out application, dated 18 December 2006 which was filed on 17 January 2007; and &#8226; The hearing on 9 May 2006. 4 The costs were sought under s 824(2) of the Workplace Relations Act 1996 (Cth) ("the Act "), or, alternatively, under s 347 of that Act as it stood before the March 2006 amendments.
Case: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: referred to
Where costs are ordered by the Court they will ordinarily be paid on a party and party basis. Any departure from this usual practice, according to the authorities collected by Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 230-4, will only occur in a limited range of cases. The "tests" used to identify such cases have been couched in general terms such as "when the justice of the case might so require" or whether there exists "some special or unusual feature on the case to justify the Court in departing from the ordinary practice." These "tests" have, for example, been found to have been met in cases in which unwarranted allegations of fraud have been made, proceedings have been prosecuted for some ulterior motive or in wilful disregard of known facts or clearly established law or where there has been an imprudent refusal of an offer of compromise. To my mind the applicant's conduct, in opposing the second strike-out application and in adopting its bona fide but misguided approach to the Court's directions which led to costs being thrown away on 9 May 2007, do not constitute conduct of the character which would warrant a departure from the ordinary rule. 40 The applicant seeks leave to discontinue the proceeding. The applicant could discontinue the proceeding without leave of the Court under O 22 r 2(1)(b) of the Federal Court Rules . However, given the uncertain costs implications of a discontinuance under this rule because of the provisions of O 22 r 3(1) and s 824 of the Act it was, in my opinion, appropriate for the applicant to seek leave to discontinue the proceeding. The respondent did not oppose the granting of such leave. I consider that leave should be granted subject to the orders for costs which I have foreshadowed in relation to the second strike-out application and the hearing on 9 May 2007 being made. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 8 August 2007 Counsel for the Applicant: Mr M Bromberg SC Solicitor for the Applicant: AJ Macken &amp; Co Counsel for the Respondent: Mr F Parry SC Solicitor for the Respondent: Freehills Date of Hearing: 8 June 2007 Date of Judgment: 8 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/879.html
Case: Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115 ; (2003) 129 FCR 271
Outcome: followed
The applicant was correct to accept that s 347(1) applied to subsidiary applications made in the course of a proceeding. Although there are conflicting authorities, (as to which see the cases collected in Paras v Public Service Body Head of the Department of Infrastructure (No. 3) [2006] FCA 745 ; (2006) 152 FCR 534 at 536-539), the conflict was resolved by the decision of the Full Court in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115 ; (2003) 129 FCR 271. In that case the Full Court (Black CJ, Tamberlin and Sundberg JJ) followed the decision of Wilcox CJ (with whom von Doussa J agreed) in the Industrial Relations Court in Shackley v Australian Croatian Club Limited (1996) 141 ALR 736. In Shackley Wilcox CJ said (at 745) that: "As I have indicated, the word "proceeding" is widely used to refer, not only to a principal action (or "proceeding") between parties, but also to any subsidiary application made during the course of the principal action. There is no reason to believe that the word is used in a different sense in s 347; indeed the word in parenthesis indicates the contrary. If parliament had intended that "proceeding" should be understood, in s 347, as meaning only a principal action that commenced when the Court's jurisdiction was first invoked and concluded with final judgment, it would have been absurd to say that an appeal alone might constitute a "proceeding"".
Case: Freeman v Moyes (1834) 1 Ad &amp; El 338
Outcome: cited
The power of the Court to award costs in a proceeding is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). Absent the grant of such a power the Court could not order the payment of costs by or to any party: see Garnett v Bradley (1878) 3 App Cas 944 at 962. Section 347(1) placed a constraint on the power conferred by s 43 of the Federal Court of Australia Act . It was not the source of the Court's power to award costs. Rather, it regulated the exercise of that power in matters arising under the Act . I can find no support in the authorities for the contention that a statutory power to award costs is to be treated as procedural but that statutory inhibitions on the exercise of that power are to be regarded as conferring substantive rights or privileges. In Shanahan the Full Court was inclined to regard s 347(1) as being "procedural in nature": at [19]. Jackman involved the substitution of one formula for another to guide the calculation of costs. In Galvin there was reference (at 297) to "[t]wo cases of high authority [which decided] that legislation giving or regulating a power to award costs is retrospective, in that it affects not substantive rights but merely procedure." (Emphasis added). Those two cases were Freeman v Moyes (1834) 1 Ad &amp; El 338 and Wright v Hale (1860) 30 LJ (Ex) 40. In Freeman the statutory change which occurred between the commencement of the proceeding and the hearing directed that particular parties be liable to pay costs subject to a contrary order by the Court. In Wright an existing entitlement to recover costs was removed where the plaintiff recovered less than a prescribed sum and if the trial judge certified that the action "was not fit to be brought.". All of these cases were concerned with statutory provisions which regulated the exercise of the Court's power to award costs. In each case the amended provision was held applicable to a proceeding which had commenced before it came into force. Section 347(1) was such a provision.
Case: Mathieson v Burton [1971] HCA 4 ; (1971) 124 CLR 1
Outcome: referred to
The applicant contends that, even if s 824 is applicable to so much of the proceeding as took place after 27 March 2006, it retains the protection of the limitations contained in the old s 347 by reason of the operation of s 8(c) of the Acts Interpretation Act 1901 (Cth). That paragraph relevantly provides: "8. Where an Act repeals in the whole or in part a former Act , then unless the contrary intention appears the repeal shall not: (a) ... (b) ... (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any Act so repealed; (d) ... (e) ... and any such investigation, legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed." The word "repeals" in s 8 is accorded an extended definition. It includes changes to legislation effected by implication and the abrogation or limitation of the effect of a former provision of an Act : see s 8A of the Acts Interpretation Act . The introduction of the extended definition is, no doubt, attributable in part to the observation of Gibbs J in Mathieson v Burton [1971] HCA 4 ; (1971) 124 CLR 1 at 21 that the addition of words to a section in an Act does not constitute a repeal but rather an amendment of the statute.
Case: Re Ogston and Repatriation Commission (1998) 52 ALD 392
Outcome: referred to
I am prepared to assume, in the applicant's favour, that the amendments to s 347 were comprehended by the extended definition of "repeals" which is provided for in s 8A of the Acts Interpretation Act : It is certainly arguable that the provisions of s 824(2) constitute an abrogation of the limiting effect of the former s 347(1): cf Re Ogston and Repatriation Commission (1998) 52 ALD 392 at 400 [21]. The applicant must, nonetheless, establish that it had an accrued right to the benefit of the provisions of s 347 at the time at which the amendment took effect, namely 27 March 2006. It acknowledges that a statutory power to award costs may properly be characterised as procedural in nature but submits that s 347 confers a right or privilege because it affords protection from the power to award costs.
Case: Shackley v Australian Croatian Club Limited (1996) 141 ALR 736
Outcome: referred to
The applicant was correct to accept that s 347(1) applied to subsidiary applications made in the course of a proceeding. Although there are conflicting authorities, (as to which see the cases collected in Paras v Public Service Body Head of the Department of Infrastructure (No. 3) [2006] FCA 745 ; (2006) 152 FCR 534 at 536-539), the conflict was resolved by the decision of the Full Court in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115 ; (2003) 129 FCR 271. In that case the Full Court (Black CJ, Tamberlin and Sundberg JJ) followed the decision of Wilcox CJ (with whom von Doussa J agreed) in the Industrial Relations Court in Shackley v Australian Croatian Club Limited (1996) 141 ALR 736. In Shackley Wilcox CJ said (at 745) that: "As I have indicated, the word "proceeding" is widely used to refer, not only to a principal action (or "proceeding") between parties, but also to any subsidiary application made during the course of the principal action. There is no reason to believe that the word is used in a different sense in s 347; indeed the word in parenthesis indicates the contrary. If parliament had intended that "proceeding" should be understood, in s 347, as meaning only a principal action that commenced when the Court's jurisdiction was first invoked and concluded with final judgment, it would have been absurd to say that an appeal alone might constitute a "proceeding"".
Case: Wright v Hale (1860) 30 LJ (Ex) 40
Outcome: cited
The power of the Court to award costs in a proceeding is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). Absent the grant of such a power the Court could not order the payment of costs by or to any party: see Garnett v Bradley (1878) 3 App Cas 944 at 962. Section 347(1) placed a constraint on the power conferred by s 43 of the Federal Court of Australia Act . It was not the source of the Court's power to award costs. Rather, it regulated the exercise of that power in matters arising under the Act . I can find no support in the authorities for the contention that a statutory power to award costs is to be treated as procedural but that statutory inhibitions on the exercise of that power are to be regarded as conferring substantive rights or privileges. In Shanahan the Full Court was inclined to regard s 347(1) as being "procedural in nature": at [19]. Jackman involved the substitution of one formula for another to guide the calculation of costs. In Galvin there was reference (at 297) to "[t]wo cases of high authority [which decided] that legislation giving or regulating a power to award costs is retrospective, in that it affects not substantive rights but merely procedure." (Emphasis added). Those two cases were Freeman v Moyes (1834) 1 Ad &amp; El 338 and Wright v Hale (1860) 30 LJ (Ex) 40. In Freeman the statutory change which occurred between the commencement of the proceeding and the hearing directed that particular parties be liable to pay costs subject to a contrary order by the Court. In Wright an existing entitlement to recover costs was removed where the plaintiff recovered less than a prescribed sum and if the trial judge certified that the action "was not fit to be brought.". All of these cases were concerned with statutory provisions which regulated the exercise of the Court's power to award costs. In each case the amended provision was held applicable to a proceeding which had commenced before it came into force. Section 347(1) was such a provision.
Case: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259
Outcome: applied
Authority's arguments as to the inadequacy of the Tribunal's reasons were based on these provisions. So far as the argument was based on s 43(2B) it must be rejected. The Full Court of this Court has held that that provision requires the Tribunal to do no more that to state the findings which it has actually made. It does not require the Tribunal to make the findings which it ought to have made: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] per Hill and Allsop JJ; see also Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] per Rares J; Gilkinson v Repatriation Commission (2008) 104 ALD 406 at 410 [14] per Rares J. That conclusion is inevitable in light of the High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 331-332 [10] per Gleeson CJ, 349 [77] per McHugh, Gummow and Hayne JJ where it was held that s 430 of the Migration Act 1958 (Cth) which is not materially different to s 43(2B) operated in that manner.
Case: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Outcome: cited
number of decisions of this Court have established the ambit and purpose of the expression "question of law". For present purposes three are pertinent. First, O 53 r 3(2) of the Federal Court Rules discloses an intention that a question of law raised on appeal from the Tribunal should be stated with precision as a pure question of law: see Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 325 [18] per Branson and Stone JJ. Secondly, a question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear having regard to the context in which it appears: see Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 565 [51] per Sundberg and Kenny JJ. Thirdly, if a question properly analysed is not a question of law within the meaning of s 44 , no amount of formulary such as "erred in law" or "was open as a matter of law" can make it into a question of law: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 per Ryan J.
Case: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Outcome: cited
number of decisions of this Court have established the ambit and purpose of the expression "question of law". For present purposes three are pertinent. First, O 53 r 3(2) of the Federal Court Rules discloses an intention that a question of law raised on appeal from the Tribunal should be stated with precision as a pure question of law: see Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 325 [18] per Branson and Stone JJ. Secondly, a question which is inelegantly drafted may nonetheless be a question of law if its purport is tolerably clear having regard to the context in which it appears: see Ergon Energy Corp Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 153 FCR 551 at 565 [51] per Sundberg and Kenny JJ. Thirdly, if a question properly analysed is not a question of law within the meaning of s 44 , no amount of formulary such as "erred in law" or "was open as a matter of law" can make it into a question of law: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 per Ryan J.
Case: Civil Aviation Safety Authority v Allan [2001] FCA 1064 ; (2001) 114 FCR 14
Outcome: referred to
Authority submits that the power in reg 269(1) does not extend to imposing a condition that the persons so hired be "acceptable" to it. It put forward three reasons for this. First, it was said to be inconsistent with reg 30(2C), which explicitly imposes conditions on the holder of a certificate of approval in relation to the persons employed by it; secondly, it was said that the regulation did not set forth any criteria by which the acceptability might be measured; thirdly , it was said that the Tribunal had, in truth, remitted its function to the Authority, a course which was said to be forbidden by this Court's decision in Civil Aviation Safety Authority v Allan [2001] FCA 1064 ; (2001) 114 FCR 14. I do not think these submissions have substance. Reg 30(2C) provides: (2C) A certificate of approval is subject to: (a) a condition that each activity the certificate covers must only be carried out at a place where the facilities and equipment necessary for the proper carrying out of the activity are available to the holder of the certificate; (b) a condition that the activities the certificate covers must be carried out in accordance with a system of quality control that satisfies the requirements of subregulation (2D); and (c) if the certificate covers some or all of the following activities: (i) the design of aircraft; (ii) the design of aircraft components; (iii) the design of aircraft materials; (vii) the maintenance of aircraft; (viii) the maintenance of aircraft components; (ix) the maintenance of aircraft materials; (x) the training of candidates for the examinations referred to in paragraph 31 (4) (e); (xi) the conducting of the examinations referred to in paragraph 31 (4) (e); a condition that each of those activities that is covered by the certificate must be carried out under the control of a person appointed by the applicant to control the activities; and (d) a condition that the holder of the certificate of approval must ensure that each person employed by, or working under an arrangement with, the holder receives adequate training in: (i) the work performed by the person for the purposes of the activities covered by the certificate; and (ii) the use of any equipment used in connection with that work. As I apprehend it, the argument is that because of the specific provisions of reg 30(2C) it should be concluded that there is excluded from the power in reg 269(1) any power to impose conditions regulating the qualities of persons employed by a certificate holder. To accept such an argument it would be necessary to identify some negative implication from reg 30(2C) to the effect that no other power might be used to achieve a similar result. I can discern in it no basis for such an implication.