mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199
Outcome: referred to
One peculiarity of this appeal was that the application for review nominated a Post Office Box in Melbourne as the appellant's address for service. On 23 November 2000, a letter was sent to the Post Office Box, inviting the appellant to attend a hearing on 8 February 2001. Although a copy of that letter was also sent by facsimile to the appellant's representative, there was no requirement that the Tribunal do so since the provisions of the Act which were referred to in the case of SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199 at 207 had then not been enacted. 3 On 6 December 2000, the Tribunal received correspondence stating that the appellant intended to attend the hearing. That correspondence had a signature on it which purported to be the appellant's. When the matter came on for hearing before me, the appellant said that it was not his signature, and that this correspondence indicated to the Tribunal he intended to attend the hearing. The correspondence stated the appellant's name and provided the same residential address that he had previously given to the Department of Immigration and Citizenship (in Noble Park, Victoria) as his address for service. It is worth noting that the invitation to appear at the hearing had also been sent to that address. 4 Before the Federal Magistrate, the appellant gave evidence that, although he had lived at Noble Park in 2000, he had left there when he travelled to Sydney. Although the Federal Magistrate expressed concerns about the appellant's general credibility and was unsure whether he had left the Noble Park address by December 2000, his Honour considered it unnecessary to draw a conclusion on that matter. The Federal Magistrate found that there was nothing before the Tribunal which would to cause it to doubt that the appellant had received the notification of the hearing and intended to attend it. This was especially the case since the appellant never gave the Tribunal his telephone numbers. 5 In the opinion of the Federal Magistrate, the Tribunal was not required to conduct any other inquiry or follow any other procedure before determining the application in accordance with s 426A of the Act . The Federal Magistrate also found that there was no basis upon which to decide that s 425 of the Act was vitiated by any improper exercise of power or any other failure by the Tribunal. The decision of the Federal Magistrate at [14]-[18] deals with these matters in detail, and I can see no error in his Honour's or the Tribunal's reasoning. 6 Accordingly, the appeal is dismissed with. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 20 February 2008 The appellant appeared in person Counsel for the Respondent: Ms B. Nolan Solicitor for the Respondent: Sparke Helmore Lawyers Date of Hearing: 20 February 2008 Date of Judgment: 20 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/121.html
Case: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 786
Outcome: cited
reasons are to be read in conjunction with the reasons for judgment in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 786. In proceeding QUD63 of 2009, John Holland sought particular declarations as to the conduct; an injunction restraining the first, second and third respondents from engaging in any industrial action at or in connection with John Holland's X50 worksite operations at Abbot Point; an order imposing pecuniary penalties on each of the first three respondents pursuant to s 769 of the Act in respect of the contraventions of ss 767(1) and 768(1); and an order pursuant to s 841 of the Act that any penalties imposed on those parties be paid to John Holland. In proceeding QUD66 of 2009, the AMWU, the ETU and the CFMEU and Messrs Bradley, Lowth, Ong and Robinson sought declarations that John Holland had contravened ss 767(3) and 767(7) of the Act in hindering and obstructing the officials in their exercise of a contended right of entry to the X50 worksite on 19 November 2008, 13 February 2009 and 5 March 2009. Those applicants also sought an order for the imposition of a pecuniary penalty in respect of the contended contraventions, an order for payment of any pecuniary penalty to the Union applicants, and an order for payment of compensation to the officials.
Case: A &amp; L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Outcome: cited
Act confers on the Court the exercise of a statutory discretion as to whether the conduct warrants the imposition of a pecuniary penalty and if so the amount of the penalty up to a statutory maximum. The discretion is said to be "at large" ( A &amp; L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6] per Gyles J) unaided by any mandatory statutory criteria.
Case: Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231
Outcome: cited
the discretion is at large and informed by the particular circumstances of a contravention, the discretion should be exercised broadly according to settled principle which nevertheless recognises the important flexibility necessary to adapt the exercise of the discretion to particular conduct, the contextual circumstances of that conduct and any other matter relevant to the exercise of the discretion. Judges of this Court have sought to isolate principles or criteria informing the exercise of the discretion to impose a pecuniary penalty and the quantum of the penalty. The observations of Branson J in Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231 at [8] are well known and have been applied regularly in this Court (some examples of which are Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122 per Ryan J at [44]; Alfred v Walter Construction Group Limited [2005] FCA 497 per Branson J at [10]; Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237 per Branson J at [4]; Hadgkiss v Blevin [2004] FCA 917 per Conti J at [3]; Kelly v Fitzpatrick (2007) 166 IR 14 per Tracey J and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [39]; McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302; (2006) 158 IR 181 at [92]).
Case: Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122
Outcome: cited
the discretion is at large and informed by the particular circumstances of a contravention, the discretion should be exercised broadly according to settled principle which nevertheless recognises the important flexibility necessary to adapt the exercise of the discretion to particular conduct, the contextual circumstances of that conduct and any other matter relevant to the exercise of the discretion. Judges of this Court have sought to isolate principles or criteria informing the exercise of the discretion to impose a pecuniary penalty and the quantum of the penalty. The observations of Branson J in Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231 at [8] are well known and have been applied regularly in this Court (some examples of which are Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122 per Ryan J at [44]; Alfred v Walter Construction Group Limited [2005] FCA 497 per Branson J at [10]; Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237 per Branson J at [4]; Hadgkiss v Blevin [2004] FCA 917 per Conti J at [3]; Kelly v Fitzpatrick (2007) 166 IR 14 per Tracey J and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [39]; McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302; (2006) 158 IR 181 at [92]).
Case: Alfred v Walter Construction Group Limited [2005] FCA 497
Outcome: cited
the discretion is at large and informed by the particular circumstances of a contravention, the discretion should be exercised broadly according to settled principle which nevertheless recognises the important flexibility necessary to adapt the exercise of the discretion to particular conduct, the contextual circumstances of that conduct and any other matter relevant to the exercise of the discretion. Judges of this Court have sought to isolate principles or criteria informing the exercise of the discretion to impose a pecuniary penalty and the quantum of the penalty. The observations of Branson J in Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231 at [8] are well known and have been applied regularly in this Court (some examples of which are Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122 per Ryan J at [44]; Alfred v Walter Construction Group Limited [2005] FCA 497 per Branson J at [10]; Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237 per Branson J at [4]; Hadgkiss v Blevin [2004] FCA 917 per Conti J at [3]; Kelly v Fitzpatrick (2007) 166 IR 14 per Tracey J and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [39]; McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302; (2006) 158 IR 181 at [92]).
Case: Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237
Outcome: cited
the discretion is at large and informed by the particular circumstances of a contravention, the discretion should be exercised broadly according to settled principle which nevertheless recognises the important flexibility necessary to adapt the exercise of the discretion to particular conduct, the contextual circumstances of that conduct and any other matter relevant to the exercise of the discretion. Judges of this Court have sought to isolate principles or criteria informing the exercise of the discretion to impose a pecuniary penalty and the quantum of the penalty. The observations of Branson J in Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231 at [8] are well known and have been applied regularly in this Court (some examples of which are Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122 per Ryan J at [44]; Alfred v Walter Construction Group Limited [2005] FCA 497 per Branson J at [10]; Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237 per Branson J at [4]; Hadgkiss v Blevin [2004] FCA 917 per Conti J at [3]; Kelly v Fitzpatrick (2007) 166 IR 14 per Tracey J and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [39]; McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302; (2006) 158 IR 181 at [92]).
Case: Hadgkiss v Blevin [2004] FCA 917
Outcome: cited
the discretion is at large and informed by the particular circumstances of a contravention, the discretion should be exercised broadly according to settled principle which nevertheless recognises the important flexibility necessary to adapt the exercise of the discretion to particular conduct, the contextual circumstances of that conduct and any other matter relevant to the exercise of the discretion. Judges of this Court have sought to isolate principles or criteria informing the exercise of the discretion to impose a pecuniary penalty and the quantum of the penalty. The observations of Branson J in Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231 at [8] are well known and have been applied regularly in this Court (some examples of which are Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122 per Ryan J at [44]; Alfred v Walter Construction Group Limited [2005] FCA 497 per Branson J at [10]; Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237 per Branson J at [4]; Hadgkiss v Blevin [2004] FCA 917 per Conti J at [3]; Kelly v Fitzpatrick (2007) 166 IR 14 per Tracey J and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [39]; McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302; (2006) 158 IR 181 at [92]).
Case: Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426
Outcome: cited
the discretion is at large and informed by the particular circumstances of a contravention, the discretion should be exercised broadly according to settled principle which nevertheless recognises the important flexibility necessary to adapt the exercise of the discretion to particular conduct, the contextual circumstances of that conduct and any other matter relevant to the exercise of the discretion. Judges of this Court have sought to isolate principles or criteria informing the exercise of the discretion to impose a pecuniary penalty and the quantum of the penalty. The observations of Branson J in Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231 at [8] are well known and have been applied regularly in this Court (some examples of which are Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122 per Ryan J at [44]; Alfred v Walter Construction Group Limited [2005] FCA 497 per Branson J at [10]; Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237 per Branson J at [4]; Hadgkiss v Blevin [2004] FCA 917 per Conti J at [3]; Kelly v Fitzpatrick (2007) 166 IR 14 per Tracey J and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [39]; McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302; (2006) 158 IR 181 at [92]).
Case: McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA1302; (2006) 158 IR 181
Outcome: cited
the discretion is at large and informed by the particular circumstances of a contravention, the discretion should be exercised broadly according to settled principle which nevertheless recognises the important flexibility necessary to adapt the exercise of the discretion to particular conduct, the contextual circumstances of that conduct and any other matter relevant to the exercise of the discretion. Judges of this Court have sought to isolate principles or criteria informing the exercise of the discretion to impose a pecuniary penalty and the quantum of the penalty. The observations of Branson J in Construction, Forestry, Mining &amp; Energy Union v Coal &amp; Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231 at [8] are well known and have been applied regularly in this Court (some examples of which are Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122 per Ryan J at [44]; Alfred v Walter Construction Group Limited [2005] FCA 497 per Branson J at [10]; Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237 per Branson J at [4]; Hadgkiss v Blevin [2004] FCA 917 per Conti J at [3]; Kelly v Fitzpatrick (2007) 166 IR 14 per Tracey J and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [39]; McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302; (2006) 158 IR 181 at [92]).
Case: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Outcome: cited
J, in formulating observations at [8] in CFMEU v Coal &amp; Allied Operations Pty Ltd (No. 2) recognised that the list of factors her Honour took into account was not intended to comprise an exhaustive list. Tracey J in Kelly v Fitzpatrick and Stuart-Mahoney v CFMEU formulated a potentially relevant checklist of considerations. These considerations are useful but the overriding principle is that identified by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 at [91] in these terms: Checklists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations. I have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B &amp; P Caelli Constructions Pty Ltd &amp; Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J. Since this approach represents orthodoxy although not immutably so, it seems to me that it ought to be applied on the footing of assessing whether the overall result is just and appropriate having regard to the penalty imposed in respect of each contravention. I note the observations of Buchanan J in Australian Ophthalmic Supplies v McAlary-Smith at [97]. At [102] Buchanan J said this: The totality principle is a guide to sentencing practice. It must be adapted to the circumstances. It is designed to avoid injustice in the overall result. It is not a principle which suggests that a penalty should necessarily be reduced from an aggregate total fixed for multiple offences. Rather, it involves a final check to ensure that a total or aggregate penalty is not, in all the circumstances, excessive. It may not be.
Case: Pearce v The Queen (1998) 194 CLR 610 at [40] and Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585
Outcome: cited
am conscious of the discussion of the principles directed to whether a number of events might be treated as one course of conduct. I particularly note the discussion in Pearce v The Queen (1998) 194 CLR 610 at [40] and Hamberger v Construction Forestry Mining &amp; Energy Union [2002] FCA 585 and the important distinction between the principles relating to a course of conduct and the application of the totality principle ( Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 per Stone and Buchanan JJ at [41] to [58]. In Hamberger , Cooper J noted that the conduct which had occurred on 29 January 1999 and 26 February 1999 (about a month apart) was focused upon the removal of a particular person from a site because he would not join an industrial association. The conduct was unified by a common purpose and on each occasion directed to a particular individual. Accordingly, Cooper J treated the incidents as having arisen in a single course of conduct. His Honour noted that although part of a single course of conduct and thus not attracting a separate penalty in respect of each separate contravention, the persistence in the conduct over time was a circumstance of aggravation in assessing the culpability of the conduct viewed as a whole.
Case: Hamberger v Construction Forestry Mining &amp; Energy Union [2002] FCA 585
Outcome: cited
am conscious of the discussion of the principles directed to whether a number of events might be treated as one course of conduct. I particularly note the discussion in Pearce v The Queen (1998) 194 CLR 610 at [40] and Hamberger v Construction Forestry Mining &amp; Energy Union [2002] FCA 585 and the important distinction between the principles relating to a course of conduct and the application of the totality principle ( Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 per Stone and Buchanan JJ at [41] to [58]. In Hamberger , Cooper J noted that the conduct which had occurred on 29 January 1999 and 26 February 1999 (about a month apart) was focused upon the removal of a particular person from a site because he would not join an industrial association. The conduct was unified by a common purpose and on each occasion directed to a particular individual. Accordingly, Cooper J treated the incidents as having arisen in a single course of conduct. His Honour noted that although part of a single course of conduct and thus not attracting a separate penalty in respect of each separate contravention, the persistence in the conduct over time was a circumstance of aggravation in assessing the culpability of the conduct viewed as a whole.
Case: Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383
Outcome: cited
am conscious of the discussion of the principles directed to whether a number of events might be treated as one course of conduct. I particularly note the discussion in Pearce v The Queen (1998) 194 CLR 610 at [40] and Hamberger v Construction Forestry Mining &amp; Energy Union [2002] FCA 585 and the important distinction between the principles relating to a course of conduct and the application of the totality principle ( Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 per Stone and Buchanan JJ at [41] to [58]. In Hamberger , Cooper J noted that the conduct which had occurred on 29 January 1999 and 26 February 1999 (about a month apart) was focused upon the removal of a particular person from a site because he would not join an industrial association. The conduct was unified by a common purpose and on each occasion directed to a particular individual. Accordingly, Cooper J treated the incidents as having arisen in a single course of conduct. His Honour noted that although part of a single course of conduct and thus not attracting a separate penalty in respect of each separate contravention, the persistence in the conduct over time was a circumstance of aggravation in assessing the culpability of the conduct viewed as a whole. I have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B &amp; P Caelli Constructions Pty Ltd &amp; Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J.