mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370
Outcome: cited
Nonetheless, I note that in Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 Finn J entertained, but did not grant, an application made in an existing proceeding for relief under O 21 r 1 and r 2 as a sequel to a summary judgment application. Though the effect, if any, of O 21 r 3 with respect to the practice and procedure in respect of seeking to engage the powers conferred by O 21 r 1 and r 2 is not mentioned in that case, neither it must be said, is it mentioned in Ramsey v Skyring, National Australia Bank Limited v Freeman (a Bankrupt) and Granich and Associates v Yap . 58 In Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 at 380, [44], Finn J observed of O 21 r 1 and r 2: [44] By way of background to the application of these provisions, it is important to have regard to the fundamental principle on which they entrench. This is that every person has a "constitutional right" of access to a court of competent jurisdiction to obtain redress in consequence of an alleged breach of his or her rights by some other person: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977 ; [1980] 1 All ER 289 at 295; Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 at 389 ; [1999] FCA 907 ; Freeman v National Australia Bank Ltd [2006] FCAFC 67 ; (2006) 230 ALR 213 at 218 19 ; [2006] FCAFC 67. The purpose of the powers given under the Rules is to reinforce the power of the court to protect its own processes against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303 at 312; [1992] HCA 39 ; 66 ALJR 810 at 814. This said, an order under the Rules will not lightly be made because of its serious impact on the right of access to the courts of this country.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: cited
For all that, what in substance Mr Rogers has done in the present proceeding is to seek to agitate a claim for damages for personal injury, loss and damage pursuant to causes of action said to arise under the ASIC Act . He has not done this before. No submission was made that this absence of seeking to litigate this very cause of action was irrelevant in light of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 and the outcome of earlier proceedings in this Court brought by Mr Rogers against some of the Respondents. Further, it is, with respect, as set out above, possible to discern in the reasons for judgment given in certain of the earlier proceedings the inspiration for the present proceeding. Yet further, the application of the principle described by Sir Owen Dixon in Cox v Journeaux (No. 2) in the circumstances of the present case is not without difficulty.
Case: Bourne v Campbell [1999] FCA 1522
Outcome: cited
it may be accepted that the holding of an inquiry is " a serious matter ", it has also been said that the statutory precondition to the holding of such an inquiry has been set by the legislature at a " low " level: Bourne v Campbell [1999] FCA 1522 at [8] , 93 IR 238 at 240. Einfeld J there observed: [8] When this application was first listed for directions, the Court was not invited by the respondents to determine that there was, as raised by s 219, no reasonable ground for the application. Yet a finding of satisfaction of the matter is in truth a statutory pre-requisite to the fixing of the hearing and the institution of the inquiry. The difficulty of reaching a preliminary view such as required by s 219, at a time when both the Court and the parties may not be in a position to consider the question, is probably at least one of the reasons for the presence in the legislation of s 223(5). In other words, if the Court and the parties are to achieve an early hearing of an inquiry into an election, as will virtually always be desirable, the level of satisfaction required by s 219 will ordinarily be quite low. The power to terminate under s 223(5) will then enable the Court to end an inquiry if a little later it is shown that there is no reasonable basis upon which the application can succeed. Whether it is correct to conclude that the " level of satisfaction ... will ordinarily be quite low " may be left to one side. The level of satisfaction required is that prescribed by the legislature; namely, the Court must be " satisfied that there are reasonable grounds " for the application being made. It may also be presently left to one side whether the requirement that there be " reasonable grounds " takes into account the facts and circumstances available to the person making the application. If the applicant is a " member ", it may be that such a person has more intimate knowledge of those facts and circumstances relevant to an assessment of whether or not there has been an " irregularity ". When the applicant is the Electoral Commissioner, as in the present case, these facts and circumstances may not be as readily accessible.
Case: Health Services Union of Australia and Health Services Union of Australia Victoria No 1 Branch In the Matter of an Inquiry Relating to an Election for an Office [2000] FCA 160
Outcome: referred to
the purposes of s 201(b), it is considered that a Court may be " satisfied that there are reasonable grounds for the application " if satisfied that the construction of the Rules of an organisation being advanced by the Electoral Commissioner is reasonably open. The fact of an application being lodged with this Court under s 200 and the state of satisfaction that " there are reasonable grounds for the application " are the statutory prerequisites to the exercise of the power conferred by s 201 to " fix a time and place for conducting the inquiry ": cf Health Services Union of Australia and Health Services Union of Australia Victoria No 1 Branch In the Matter of an Inquiry Relating to an Election for an Office [2000] FCA 160. The correct construction of Rule 13 in the present proceeding and, in particular, subsections (1), (2) and (5), may thus presently be left to one side. The construction of that Rule now being advanced by the Electoral Commissioner &#8212; namely, that an unfinancial member may again become financial by payment of arrears and that a refusal to accept payment is a breach of the Rules &#8212; is a construction which is reasonably open. If that construction is correct, a breach of the Rules may have occurred. For present purposes, such evidence as there is provides a sufficient basis upon which it is open to the Electoral Commissioner to conclude that Dr Endean sought to pay outstanding subscriptions and that that attempted payment was refused. Why the payment was refused remains unknown. Any breach of the Rules in respect to Dr Finn is less certain. Although it would appear that Dr Finn did not seek to tender payment, the basis upon which he was told on 30 June 2009 that it was " not possible " (presumably) to join " the federal body directly " also invites inquiry. The belief of the Electoral Commissioner that that too may constitute a breach of the Rules is a belief which can reasonably be held.
Case: Re Collins; Ex parte Hockings [1989] HCA 42 ; (1989) 167 CLR 522
Outcome: considered
addressing attention to the definition of an " irregularity " as that term was previously defined in s 4(1) of the Conciliation and Arbitration Act 1904 (Cth), in R v Gray; Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351 at 368, Gibbs CJ said: The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election. That case, unlike the present, did not involve any alleged breach of the rules of an organisation. The complaint was that electioneering material that had been distributed was misleading. Subsequently, in Re Collins; Ex parte Hockings [1989] HCA 42 ; (1989) 167 CLR 522 , more detailed attention was directed to when an " irregularity " arises " in relation to an election ". Brennan and Deane JJ there observed at 525 that: ... an irregularity is not "in or in connexion with an election" if the irregularity consists merely in the steps taken to affect voting intention but leaves untouched the processes of nomination, conduct and declaration of the poll. Of concern to their Honours was the prospect raised by Gaudron J that, if acts which affect the formation of voting intentions were to fall within the definition of an " irregularity ", this " would involve a very substantial intrusion into the secrecy of the ballot ". Gaudron J confined the inquiry to the more formal machinery processes involved in an election, to the exclusion of electioneering. See also per Toohey and McHugh JJ at 526. It was to remedy the defects in the definition of " irregularity " considered in Re Collins that s 190 was apparently introduced: Re Mcjannett (No 2) [2009] FCA 1015 at [23] to [24]. Barker J there noted that s 190 was introduced for the first time as part of Sch 1 of the Workplace Relations Act 1996 (Cth) and did not exist under earlier legislation dealing with inquiries into irregularities.
Case: Re Davidson [1990] FCA 129 ; (1990) 22 FCR 449
Outcome: referred to
is nevertheless clear that the particular " irregularity " being relied upon must be " in relation to " an election: Re Ivory [1993] FCA 103 ; (1993) 41 FCR 267 at 273. See also: Re Davidson (1990) 22 FCR 449 at 453 to 454 per Wilcox J. It may also be noted that the definition of " irregularity " is not an exhaustive definition.
Case: R v Gray; Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351
Outcome: cited
addressing attention to the definition of an " irregularity " as that term was previously defined in s 4(1) of the Conciliation and Arbitration Act 1904 (Cth), in R v Gray; Ex parte Marsh [1985] HCA 67 ; (1985) 157 CLR 351 at 368, Gibbs CJ said: The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election. That case, unlike the present, did not involve any alleged breach of the rules of an organisation. The complaint was that electioneering material that had been distributed was misleading. Subsequently, in Re Collins; Ex parte Hockings [1989] HCA 42 ; (1989) 167 CLR 522 , more detailed attention was directed to when an " irregularity " arises " in relation to an election ". Brennan and Deane JJ there observed at 525 that: ... an irregularity is not "in or in connexion with an election" if the irregularity consists merely in the steps taken to affect voting intention but leaves untouched the processes of nomination, conduct and declaration of the poll. Of concern to their Honours was the prospect raised by Gaudron J that, if acts which affect the formation of voting intentions were to fall within the definition of an " irregularity ", this " would involve a very substantial intrusion into the secrecy of the ballot ". Gaudron J confined the inquiry to the more formal machinery processes involved in an election, to the exclusion of electioneering. See also per Toohey and McHugh JJ at 526.
Case: Re Ivory [1993] FCA 103 ; (1993) 41 FCR 267
Outcome: cited
is nevertheless clear that the particular " irregularity " being relied upon must be " in relation to " an election: Re Ivory [1993] FCA 103 ; (1993) 41 FCR 267 at 273. See also: Re Davidson (1990) 22 FCR 449 at 453 to 454 per Wilcox J. It may also be noted that the definition of " irregularity " is not an exhaustive definition.
Case: Re Jacomb [2000] FCA 1891 , 180 ALR 134
Outcome: referred to
201 sets forth those circumstances in which an " inquiry " is to be conducted. That section provides as follows: Instituting of inquiry Where: (a) an application for an inquiry has been lodged with the Federal Court under section 200 ; and (b) the Court is satisfied that there are reasonable grounds for the application; the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted. Section 205 thereafter sets forth the procedure to be followed by the Court and s 206 sets forth the action that may be taken by the Court. Included within the orders that may be made is an order declaring an election, or any step in relation to an election, to be void. In Re Jacomb [2000] FCA 1891 , 180 ALR 134 , Weinberg J declined to make such an order.
Case: Re Jarman; Ex parte Cook (No 2) [1996] HCA 7 ; (1996) 136 ALR 233
Outcome: cited
invoke this Court's power to conduct an inquiry, it has been said, is " a serious matter ": Re Jarman; Ex parte Cook (No 2) [1996] HCA 7 ; (1996) 136 ALR 233. Again, when addressing the terms of s 219, which conferred power on the Industrial Relations Court to conduct an inquiry, Kirby J there observed (at 241): It is true that the powers of the Industrial Relations Court in conducting an election inquiry should not be narrowly construed. But the Act has provided ample powers to the court to make orders, as appropriate and necessary, including at short notice, to meet irregularities appearing in the course of an inquiry into an election. To invoke the jurisdiction of the Industrial Relations Court and to conduct an inquiry into an election is a serious matter. This explains the procedure established by s 219(b) by which, before an inquiry is conducted, the court must be satisfied that "there is reasonable ground for the application". I say that the step is a serious one because it affects confidence in the integrity of the conduct of the organisation; introduces an element of uncertainty in the tenure of the office-holders affected; distracts the attention of those office-holders, to some extent, from the pursuit of their industrial functions; consumes a great deal of time of the organisation and of public office-holders; and involves much public and private cost. In such circumstances, the proper inference is that the Parliament intended that electoral inquiries should not be lightly embarked upon nor extended unnecessarily beyond the subject matter of the particular application. That is the scheme of Pt IX Div 5 of the Act. The provision of s 221(1)(c) must be read to give effect to that scheme ... And, again, the same reservation is appropriate when an application is made pursuant to s 200 of the 2009 Act and when an inquiry is conducted pursuant to s 201: Re Mcjannett (No 2) [2009] FCA 1015 at [102] per Barker J.
Case: Re Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48 ; (1976) 135 CLR 194
Outcome: applied
the outset of the application made by the Electoral Commissioner, a question was raised as to the nature of the power being exercised by the Court. Comparable powers previously found in the Conciliation and Arbitration Act 1904 (Cth) were found to be Constitutionally valid: Re Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48 ; (1976) 135 CLR 194 at 218; Re Application by Adamson for an Election Inquiry in the Amalgamated Metals Foundry and Shipwrights Union (unreported, FCA, Gray J, NSW No 28 of 1984, 17 June 1985); Leary v The Australian Builders' Labourers' Federation; Re Elections for Offices in Australian Builders' Labourers' Federation (New South Wales Branch) (1961) 2 FLR 342 per Joske J; Re Mellor; Re Federated Liquor &amp; Allied Industries Employees Union of Australia, Queensland Branch (1986) 17 IR 398. The Electoral Commissioner served notices in accordance with s 78B of the Judiciary Act 1903 (Cth) in the present proceeding. No Attorney has intervened. No submission has been advanced that the current powers vested in this Court are beyond the competence of the federal legislature.
Case: Leary v The Australian Builders' Labourers' Federation; Re Elections for Offices in Australian Builders' Labourers' Federation (New South Wales Branch) (1961) 2 FLR 342
Outcome: followed
the outset of the application made by the Electoral Commissioner, a question was raised as to the nature of the power being exercised by the Court. Comparable powers previously found in the Conciliation and Arbitration Act 1904 (Cth) were found to be Constitutionally valid: Re Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48 ; (1976) 135 CLR 194 at 218; Re Application by Adamson for an Election Inquiry in the Amalgamated Metals Foundry and Shipwrights Union (unreported, FCA, Gray J, NSW No 28 of 1984, 17 June 1985); Leary v The Australian Builders' Labourers' Federation; Re Elections for Offices in Australian Builders' Labourers' Federation (New South Wales Branch) (1961) 2 FLR 342 per Joske J; Re Mellor; Re Federated Liquor &amp; Allied Industries Employees Union of Australia, Queensland Branch (1986) 17 IR 398. The Electoral Commissioner served notices in accordance with s 78B of the Judiciary Act 1903 (Cth) in the present proceeding. No Attorney has intervened. No submission has been advanced that the current powers vested in this Court are beyond the competence of the federal legislature.
Case: Re Mcjannett (No 2) [2009] FCA 1015
Outcome: followed
the manner in which the Application to this Court is expressed, it is considered that the law to be applied is that now contained in the Fair Work (Registered Organisations) Act 2009 (Cth) ("the 2009 Act"). That was the conclusion reached by Barker J after a review of the complex transitional provisions in Re Mcjannett (No 2) [2009] FCA 1015 at [3] to [10]. It was to remedy the defects in the definition of " irregularity " considered in Re Collins that s 190 was apparently introduced: Re Mcjannett (No 2) [2009] FCA 1015 at [23] to [24]. Barker J there noted that s 190 was introduced for the first time as part of Sch 1 of the Workplace Relations Act 1996 (Cth) and did not exist under earlier legislation dealing with inquiries into irregularities. To invoke this Court's power to conduct an inquiry, it has been said, is " a serious matter ": Re Jarman; Ex parte Cook (No 2) [1996] HCA 7 ; (1996) 136 ALR 233. Again, when addressing the terms of s 219, which conferred power on the Industrial Relations Court to conduct an inquiry, Kirby J there observed (at 241): It is true that the powers of the Industrial Relations Court in conducting an election inquiry should not be narrowly construed. But the Act has provided ample powers to the court to make orders, as appropriate and necessary, including at short notice, to meet irregularities appearing in the course of an inquiry into an election. To invoke the jurisdiction of the Industrial Relations Court and to conduct an inquiry into an election is a serious matter. This explains the procedure established by s 219(b) by which, before an inquiry is conducted, the court must be satisfied that "there is reasonable ground for the application". I say that the step is a serious one because it affects confidence in the integrity of the conduct of the organisation; introduces an element of uncertainty in the tenure of the office-holders affected; distracts the attention of those office-holders, to some extent, from the pursuit of their industrial functions; consumes a great deal of time of the organisation and of public office-holders; and involves much public and private cost. In such circumstances, the proper inference is that the Parliament intended that electoral inquiries should not be lightly embarked upon nor extended unnecessarily beyond the subject matter of the particular application. That is the scheme of Pt IX Div 5 of the Act. The provision of s 221(1)(c) must be read to give effect to that scheme ... And, again, the same reservation is appropriate when an application is made pursuant to s 200 of the 2009 Act and when an inquiry is conducted pursuant to s 201: Re Mcjannett (No 2) [2009] FCA 1015 at [102] per Barker J.
Case: Re Mellor; Re Federated Liquor &amp; Allied Industries Employees Union of Australia, Queensland Branch (1986) 17 IR 398
Outcome: followed
the outset of the application made by the Electoral Commissioner, a question was raised as to the nature of the power being exercised by the Court. Comparable powers previously found in the Conciliation and Arbitration Act 1904 (Cth) were found to be Constitutionally valid: Re Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48 ; (1976) 135 CLR 194 at 218; Re Application by Adamson for an Election Inquiry in the Amalgamated Metals Foundry and Shipwrights Union (unreported, FCA, Gray J, NSW No 28 of 1984, 17 June 1985); Leary v The Australian Builders' Labourers' Federation; Re Elections for Offices in Australian Builders' Labourers' Federation (New South Wales Branch) (1961) 2 FLR 342 per Joske J; Re Mellor; Re Federated Liquor &amp; Allied Industries Employees Union of Australia, Queensland Branch (1986) 17 IR 398. The Electoral Commissioner served notices in accordance with s 78B of the Judiciary Act 1903 (Cth) in the present proceeding. No Attorney has intervened. No submission has been advanced that the current powers vested in this Court are beyond the competence of the federal legislature.
Case: Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162
Outcome: applied
power conferred by s 201 is constrained by the requirement that the Court be " satisfied that there are reasonable grounds for the application ". Grounds which provide no more than a speculative basis for a suspicion will not suffice: Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162. When considering the terms of earlier comparable legislation, French J there formulated the approach to be applied as follows (at 166): "Reasonable ground for the application" The question for the Court mandated by s 219(b) of the Industrial Relations Act 1988 is whether it is satisfied that there is reasonable ground for the application. It will not be so satisfied if the grounds relied upon could not, even if made out, constitute "an irregularity in relation to an election for an office in the organisation". The question whether there is such an irregularity lies at the heart of this jurisdiction. Nor will it be so satisfied if the allegations of fact relied upon in the application do not at least offer good grounds for suspicion that there has been such an irregularity. The Court will not entertain an application of a speculative nature based upon the applicant's opinion that there has been irregularity unless that opinion rests upon some substantial factual foundation. Necessary conditions to establish the requisite state of satisfaction can be multiplied. It is harder to state what is sufficient to satisfy the Court beyond the words of the section itself which require an evaluative judgment at this preliminary stage. See also: Re Randall (1993) 44 FCR 324 at 325 per French J. The same approach should be applied to s 201(b) of the 2009 Act. Upon an application being made, the task presently entrusted to this Court is that set forth in s 201(b), namely to reach a state of satisfaction " that there are reasonable grounds for the application ". It is no part of the task now entrusted to the Court to attempt to pre-empt the result of any inquiry that may be held. As observed by French J (as His Honour then was) in Re Post , the task presently before the Court " require[s] an evaluative judgment at this preliminary stage ": (1992) 40 IR at 167. In Re Randall , His Honour referred to an application of the present kind as involving " threshold questions ": (1993) 44 FCR at 325.