mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Howard Smith &amp; Company Limited v Varawa [1907] HCA 38 ; (1907) 5 CLR 68
Outcome: referred to
It was submitted by the applicants in the light of the foregoing authorities that in determining whether each of them is entitled to the relief sought in the present proceedings against CAO, it is necessary to consider the total relationship between the applicants and CAO, and hence all the facts and circumstances bearing upon the applicants' particular employment. In so doing, it was further submitted that the Court is entitled to have regard to conduct that occurred after the relationship commenced. I was referred to what was observed by Heydon JA (as he then was) in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 163-164, commencing, 'The second relevant principle is that post-contractual conduct is admissible on the question of whether a contract was formed' , his Honour thereby citing authority, commencing with Howard Smith &amp; Company Limited v Varawa [1907] HCA 38 ; (1907) 5 CLR 68 at 77, in the context of his discussion of principles of contract formation. Further in Brambles at 177 on the subject of limitations upon an offer and acceptance analysis, Heydon JA adopted the following dictum of the New South Wales Court of Appeal in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,118 (McHugh JA with whose reasons Hope and Mahoney JJA concurred) : 'Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In any dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.' It would be somewhat of an overstatement to describe the present context as involving a 'dynamic commercial relationship' , but nevertheless the foregoing dictum is by no means out of place in the present context.
Case: Humberstone v Northern Timber Mills [1949] HCA 49 ; (1949) 79 CLR 389
Outcome: referred to
Specifically as to the importance of the notion of control, the focus of that expression was said by CAO to reside in the right of the putative employer to exercise the same with focus on 'ultimate authority' over the employee as to the apparent origin of the judicial use of that latter expression. CAO invoked the observations made by the South Australian Full Court in Mason &amp; Cox Pty Ltd v McCann (1999) 74 SASR at [29], where Doyle CJ (with whose reasons Mullighan J agreed) said that emphasis is upon '... the importance of the legal right to control rather than the practical fact of control' , being an emphasis attributed to the following dictum of Dixon J (as he then was) in Humberstone v Northern Timber Mills [1949] HCA 49 ; (1949) 79 CLR 389 at 404: 'The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions.' 192 I think that CAO is correct in its comprehensive case advanced, in a sense in the alternative, to the effect that the conduct and functions of the respective parties were not otherwise indicative of an employment relationship between the applicants and CAO, having regard to the totality thereof, and having regard in particular also to the criteria apparent from the authorities to which I have already referred, inclusive in particular of Stevens, Hollis, Damevski, ACT Visiting Medical Officers and BHP Billiton , keeping in mind in so doing that it is labour hire arrangements that are here inherently involved. I would acknowledge the relevance and force of all of the factors formulated in [135], each having varying significance without each being determinative in any fulfilment of the need for undertaking a balancing exercise in relation to all relevant factors bearing upon resolution of the principal issue arising as the existence or otherwise of relationships of employment. I would further acknowledge the prospective operation, in cases such as the present, of the principles enunciated generally in Mason and Humberstone , as well as perhaps more specifically in Drake , and additionally of course in Forstaff where reference to and examination of authority is undertaken by way of focus on labour hire arrangements.
Case: Macdonald v Australian Wool Innovation Ltd [2005] FCA 105 
Outcome: cited
More recently in Macdonald v Australian Wool Innovation Ltd [2005] FCA 105 to which CAO drew attention, Weinberg J of this Court addressed an issue as to the existence or otherwise of a binding contract of employment, and summarised the appropriate juridical approach at [182]-[183] as follows: '182. It is clearly established that there cannot be a concluded agreement unless the parties are "of one mind" on all essential terms. The test for determining whether a term is "essential" is objective. One way of answering that question is to ask whether the contract would be "commercially viable" without such a term. In relation to the agreement of further, non-essential, terms, the question to be asked is: did the parties intend that the agreement would not become binding until there was agreement on the further terms, or did they intend to be bound forthwith, even if there were terms still to be agreed. In addition, there ought to be some indication that there has been an offer, and an acceptance of that offer, though many commercial dealings do not lend themselves to such an orthodox analysis. 183. In determining whether the parties have reached a legally binding agreement, it is necessary to determine what is sometimes described as their objective intention. The legal rights and obligations of the parties turn upon what their words and conduct would reasonably be understood to convey, and not upon their actual beliefs or intentions.... The objective approach is said to lead to a greater degree of certainty in contractual dealings and in their assessment by courts. A party who on reasonable grounds supposes that he or she has entered into a contract with another cannot be defeated by a claim by the other that, despite appearances, he or she did not actually intend to enter into a contract.
Case: Pitcher and Another v Langford and Another (1991) 23 NSWLR 142
Outcome: cited
Further submissions in writing of the applicants in chief designated as the 'Contract between Applicants and Respondent', and comprising 13 pages, were placed before the Court purportedly as 'Conclusions'. Those submissions commenced with an acknowledgment of the applicants that 'in so far as matters relating to the employment arrangements of the Applicants were in writing, they mainly suggest employment by MES rather than [CAO]', given particularly that 'the Applicants were paid by MES and MES also made provision for superannuation, workers compensation and deducted and remitted income tax payments to the Australian Taxation Office'. Those circumstances as to payment of wages by MES, and of matters incidental thereto, such as the issue of group certificates and provision for superannuation, were said by the applicants not to constitute conclusive evidence of the existence of any employment relationship between the applicants and MES. I was referred by the applicants to the need to consider 'the reality' of the 'paper arrangements', notwithstanding that the same may not be characterised as 'sham' in nature, and to the following observations in that regard of Handley JA in Pitcher and Another v Langford and Another (1991) 23 NSWLR 142 at 162: 'Almost all the matters relied upon... for the appellants, namely declaration of the shearers' wages by the owner, payment of insurance premiums thereon, payment of wages by the owner to the shearers, payment of the tax thereon and the signing of the written agreements are paper matters. Such paper matters can be no more effective than signed agreements in preventing a Court from discerning the real nature of the relationship between the parties.' The foregoing principle may be readily acknowledged forensically. Whether it may operate adversely to the operation of the reality of the subject documentary arrangements as put in place by MES and CAO is however another matter.
Case: Queensland Stations Proprietary Limited v The Federal Commissioner of Taxation [1945] HCA 13 ; (1945) 70 CLR 539
Outcome: referred to
CAO submitted additionally that the evidence did not support a conclusion other than that the ultimate legal control over each of the applicants resided with MES, and further that although CAO could forbid the applicants to enter the mine and could restrict their movement on the mine site, that situation was no different from what applied to any person present on the mine site or seeking to enter the mine site. Moreover CAO emphasised that the factor of control was only one factor to be considered in assessing the existence of an employment relationship, and was not a determinative factor; I was referred in that regard to ACT Visiting Medical Officers at [19] and [27]. As to the proposition that a person accepting superintendence or control of another person did not necessarily mean that the person became an employee, I was referred to Queensland Stations Proprietary Ltd v the Commissioner of Taxation [1945] HCA 13 ; (1945) 70 CLR 539 at 552, Stevens at 36 and Ready Mixed Concrete (South East) Ltd v Minister Of Pensions and National Insurance (1968) 2 QB 497 at 526 (MacKenna J); that dictum in Ready Mixed Concrete at 526 included the following: 'A man does not cease to run a business on his own account because he agrees to run it efficiently or to accept another's superintendence.'
Case: Reed v Blue Line Cruises Limited (1996) 73 IR 420 
Outcome: cited
Subsequently in Reed v Blue Line Cruises Ltd (1996) 73 IR 420, Moore J observed more illustratively at 425: 'A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.' 106 It was contended that in the light of the circumstances of the applicants' employment in the HVO which I have sought to describe and exemplify, the Court should find that by the time of commencement of the claim period in July 2002, the full time and exclusive nature of the applicants' employment at the HVO was such that they were permanent full time employees rather than casual employees for the purposes of the 2000 and 2003 Agreements. 107 Mr Wilton's analysis of timesheet data relating to times worked by him for the weeks respectively ending 10 June 2001 to 20 January 2002, inclusive of day, night and afternoon shifts, was that the same averaged 49.19 hours per week, and Mr Cumberland's analysis of that data relating to time worked by him for the weeks ending 15 July 2001 to 20 January 2002, similarly inclusively, was that the same averaged 43.32 hours per week. Mr Wilton's analysis of timesheet data relating to times worked for the weeks respectively ending 27 January 2002 to 15 May 2005, similarly inclusively as to day, night and afternoon shifts, represented an average of 40.38 hours per week and Mr Cumberland's analysis relating to time worked for the weeks ended 27 January 2002 to 26 December 2004, again similarly inclusively, represented an average of 35.78 hours per week. Those calculations in relation to Mr Wilton were said to indicate underpayments of $31,126.56 made up as follows: 2002/03 year $4,697.00 2003/04 year $13,584.25 2004/05 year $12,845.31 Those calculations in relation to Mr Cumberland were said to indicate underpayments of $47,912.45 made up as follows: 2002/03 year $8,410.00 2003/04 year $18,971.25 2004/05 year $20,531.20.
Case: The Roy Morgan Research Centre Pty Ltd v Commr of State Revenue (Vic) (1997) 97 ATC 5070
Outcome: cited
In the course of proceedings earlier in the Victorian Court of Appeal in The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (1997) 97 ATC 5070, Winneke P, with whom J D Phillips and Kenny JJA agreed, said at 5074 as to the nature of the evidentiary approach to imputation of the liability of an employer to pay pay-roll tax as follows: 'The exercise is not, as Tadgell, JA. observed in Green v Victorian Workcover Authority [1997] 1 VR 364 at 375 "a mechanical one". Rather it is a matter of obtaining the overall picture from the accumulation of detail. Tadgell, JA described the exercise by citing, with approval, a passage from the judgment of Mummery, J. in the case of Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944 where his Lordship said of a determination whether a person was a servant or independent contractor: "This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another." ... .' The juridical approach there described blends constructively with those notions appearing in other authorities I have cited in the course of these reasons, each accommodating varying or different features but nevertheless attracting at least broadly the operation directly or indirectly of not dissimilarly expressed principles. 191 There remains for consideration the implications of the aspects of the conduct and functions of the respective parties undertaken in the context of what may be described as the totality of the relationship between the parties to this litigation and the working out thereof. That notion has been substantially addressed already in these reasons, but it is necessary or appropriate to conclude additionally upon the evidentiary material addressed in the context of the invocation of authority undertaken by CAO in its comprehensive treatise reproduced by way of overview of the conduct and functions of the respective parties in the segment commencing at [132] of these reasons. In so doing, I would keep in mind what was pointed out in Roy Morgan Research at 5074 ( ante ) as to '... obtaining the overall picture from the accumulation of detail' , and 'the overall effect of the detail, which is not necessarily the same as the sum total of the individual details'.
Case: Stephenson v Delphi Diesel Systems Ltd [2003] ICR (Industrial Cases Reports for England and Wales) 471
Outcome: referred to
The opinion of Munby J at [89] was therefore that '[i] f the obligation to remunerate the worker is imposed on the agency, there cannot be a contract of service between the worker and the end-user' , and conversely 'if, at the same time, control is vested in the end-user, then there equally cannot be a contract of service between the worker and the agency' . Those propositions were considered by his Lordship to reflect 'a consistent line of authority holding that in [such] circumstances there is no contract of employment indeed no contract at all between the worker and the end-user' . Moreover it is in line with Australian authority (for example Forstaff ) to postulate the need for there to be a contract in operation between a putative employer and a putative employee in order to establish the relationship of employer and employee. The extensive line of authority listed in [90] of his Lordship's reasons bearing upon the propositions which he enunciated include Stephenson . I would draw attention to the concluding sentence at [53] of the reasons for judgment in Stephenson , being that '[o] n any view it would, in our opinion, be unusual to describe an individual as having a contract of employment with a party who has no legal obligation to pay his wages and to whom he had no legal obligation to provide work' . Further authority in England conceivably to like effect was nevertheless cited by Munby J at [90] of his reasons.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
In accordance with the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, I join the Migration Review Tribunal as the second respondent. 6 Section 116 of the Act provides: '(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: ... (b) its holder has not complied with a condition of the visa; (2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled. (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.' 7 Regulation 2.43(2)(b) of the Regulations prescribes a breach of Condition 8202 as a prescribed circumstance for the purpose of s 116(3) of the Act. Condition 8202 provides as follows: '8202 (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3). (2) A holder meets the requirements of this subclause if: (a) the holder is enrolled in a registered course; or (b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student the holder is enrolled in a full-time course of study or training. (3) A holder meets the requirements of this subclause if: (a) in the case of a holder whose education provider keeps attendance records the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester for the course; or (ii) for a course that runs for at least a semester for each term and semester of the course; and (b) in any case the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester for the course; or (ii) for a course that runs for at least a semester for each term or semester (whichever is shorter) of the course. (4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa the holder is enrolled in a full-time course of study or training.'
Case: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 177
Outcome: cited
I accept the submissions of the first respondent. In determining whether to withhold relief on the grounds of futility, the Full Court in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 applied a test which asked whether the jurisdictional error was one 'which could possibly have deprived the appellants of a successful outcome to their application for review'. In this case, the jurisdictional error was not one which could possibly have deprived the applicant of a successful outcome to his review before the Tribunal. The evidence shows even if the attendance record is assessed by reference to the period of 7 October 2003 to 28 November 2003, which is the period referred to in the Notice of Intention to Consider Cancellation, and the period referred to in the s 20 Notice and the Certificate of Attendance, the applicant's attendance record did not meet the 80 per cent requirement. Accordingly, if the matter was remitted to the Tribunal, it could not possibly reach the necessary state of satisfaction as would permit compliance by the applicant in accordance with Condition 8202(3)(a)(ii). Further, there would be no procedural unfairness to the applicant in withholding relief on this basis because the applicant was given the opportunity to make submissions on his attendance record over the full period of the second term, and by his letter of 23 April 2004 took advantage of that opportunity. In my view, this is a case where, in the exercise of my discretion, relief should be withheld on the basis that it would be futile to send the matter back to the Tribunal. 36 The third ground relied on was that the cancellation of the decision was contrary to the principle of 'substantive fairness'. 37 This ground does not disclose a head of jurisdictional error. Counsel for the first respondent, however, treated this ground as a complaint about procedural fairness. There was, in my view, no breach of procedural fairness.
Case: Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35
Outcome: cited
The appeal in Zhou is still pending. However, the first respondent has drawn my attention to Humayun v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCAFC 35 ('Humayun') a decision of the Full Court which was delivered on 22 March 2006. Wilcox J (with whom Conti and Stone JJ agreed) said: 'Mr Catterns argued the s 20 notice, issued to Mr Humayun on 7 February 2003, was defective for the reasons enunciated by Mr McInnis FM in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (No 1) [2005] FMCA 1826. That case is presently under appeal so it is preferable for me not to offer any views about its correctness. Counsel for the Minister contended that, even if the s 20 notice was incapable of having the consequences set out under Subdivision GB of Division 3 of the Migration Act (ss 137J-137P), that did not affect the power of the delegate to effect a visa cancellation under s 116 of the Act. They referred to the judgment of Allsop J (with whom Tamberlin J agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; 141 FCR 448. Furthermore, said counsel, a legal deficiency in the delegate's decision would not affect the power of the MRT to review the reported decision and to make such order as the delegate ought to have made. They cited three recent Full Court decisions: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 , 211 ALR 261; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 , 143 FCR 314 and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218. Both the respondents' contentions are correct. There is nothing in this point.' 44 By reason of the Full Court in Humayun having considered and rejected the grounds underlying the Federal Magistrate's decision in Zhou , there appears to be no utility in awaiting the outcome of the Full Court appeal in Zhou . 45 I accordingly dismiss the application with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 8 May 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr P R MacLiver Solicitor for the First Respondent: Australian Government Solicitor Date of Hearings: 14 October 2005, and 15 February 2006 Date of Judgment: 8 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/522.html