mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401
Outcome: cited
When the matter first came on for hearing on 16 July 2008 before Registrar Christie, submissions were made to the effect that the winding up application would have to be dismissed on the grounds it was bound to fail because of the principles stated in Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401. Before the matter was referred by Registrar Christie to me for it to be heard and determined, she indicated to Mr Gryst's then counsel that Tixana was not the only relevant case and that if she was hearing the matter she would as of course follow Tixana . It appears that some time after 16 July Mr Gryst engaged new counsel who in turn was informed by counsel for Dromana of the cases that stood in the way of the winding up application. These are the cases upon which I relied in my reasons for decision. Mr Gryst was subsequently advised that it was "extremely difficult and unlikely" that I would not follow the Tixana line of cases. Nonetheless, Mr Gryst proceeded with the matter and it met its inevitable fate. 7 While the above is simply a skeletal account of the circumstances leading up to the hearing, I am prepared to accept that, while Mr Gryst's conduct in the face of what had been pointed out to him provides grounds for suggesting that a departure from party and party costs might be warranted from a relatively early date, I consider that the appropriate point at which Mr Gryst's conduct can be said to have constituted persistence in a hopeless case was reached when Registrar Christie made plain what would have been its fate if heard by her, and did so by reference to Tixana indicating that it was not the only case relevant to the question. 8 While there are aspects of this matter about which Mr Gryst may feel some grievance and in particular the sequence of events which led to the statutory demand becoming stale those are not matters which in any way could justify his persistence in pursuing the winding up application in the face of what over time must have been obvious to him. He needlessly put Dromana to expense and this must be reflected in the costs order made. 9 Accordingly, I will order that Mr Gryst pay Dromana its costs on a party and party basis up to and including 16 July 2008 and thereafter on a solicitor and client basis.
Case: Metal Trades Industry Association of Australia v Amalgamated Metal Workers' and Shipwrights' Union [1983] HCA 28 ; (1983) 152 CLR 632
Outcome: applied
respondent ("Coinvest") accepts that: Jemena Electricity Networks (Vic) Ltd is bound by the Award and the 2004 Agreement; The applicable principles concerning the operation of s 109 of the Constitution are well settled and were most recently comprehensively and authoritatively examined in Telstra Corporation Ltd v Worthing [1999] HCA 12 ; (1999) 197 CLR 61. Sections 170LZ(1) and 152 of the WR Act (as at before 27 March 2006) and s 17(1) of the WR Act thereafter, operate to ensure that a federal industrial instrument will prevail over inconsistent State laws even though that instrument is not a "law of the Commonwealth" within s 109 of the Constitution . The relevant alleged constitutional inconsistency is between the WR Act and the State law; see Metal Trades Industry Association of Australia v Amalgamated Metal Workers' and Shipwrights' Union [1983] HCA 28 ; (1983) 152 CLR 632 at 648 649 (per Mason, Brennan and Deane JJ); So far as is presently material, s 109 applies to affect the operation of a State law where: (i) that law alters, impairs or detracts from a law of the Commonwealth or the exercise of power under a Commonwealth law; or (ii) that law enters a field that the law of the Commonwealth was intended to cover exclusively or exhaustively. Contentions of Coinvest
Case: New South Wales v Commonwealth (Hospital Benefits Case) [1983] HCA 8 ; (1983) 151 CLR 302
Outcome: discussed
different subject matters with which the State Act and the federal instruments are concerned with reflect the different purposes served by them. The saving of different purposes will not result in inconsistency; see Wardley at 253, per Stephen J; Airlines of NSW Pty Ltd v The State of New South Wales [1964] HCA 2 ; (1964) 113 CLR 1 at 42 per Taylor J, 48 per Menzies J and 52 per Windeyer J. Further, New South Wales v Commonwealth (Hospital Benefits Case) [1983] HCA 8 ; (1983) 151 CLR 302 shows the importance of identifying a relevant field before inquiring whether a State law has entered into it. Once it is shown that the fields are different, inconsistency cannot arise. In that case, the Commonwealth Act dealt with the payment of hospital benefits, which the State Act did not deal with, but rather imposed a tax on health funds. Here the State law imposes a tax and makes provision of benefits on an industry basis to be made not from employers but from the Fund to which various employers contribute. Many charges will be paid in respect of employees who never qualify for long service leave with one employer or at all. The State Act does not enter a field intended to be covered by the federal industrial instruments. Result
Case: Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237
Outcome: referred to
State law and the federal instruments co-exist in harmony such that each of them may be considered supplementary to or cumulative upon the other; see Worthing at [27] and Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 at 483 , per Dixon J. There is nothing in the State Act which denies or varies a right, or privilege conferred by the federal instruments; see Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 290, per Wilson J. (ii) Does the State Act enter a field intended to be covered by the federal instruments? The different subject matters with which the State Act and the federal instruments are concerned with reflect the different purposes served by them. The saving of different purposes will not result in inconsistency; see Wardley at 253, per Stephen J; Airlines of NSW Pty Ltd v The State of New South Wales [1964] HCA 2 ; (1964) 113 CLR 1 at 42 per Taylor J, 48 per Menzies J and 52 per Windeyer J. Further, New South Wales v Commonwealth (Hospital Benefits Case) [1983] HCA 8 ; (1983) 151 CLR 302 shows the importance of identifying a relevant field before inquiring whether a State law has entered into it. Once it is shown that the fields are different, inconsistency cannot arise. In that case, the Commonwealth Act dealt with the payment of hospital benefits, which the State Act did not deal with, but rather imposed a tax on health funds. Here the State law imposes a tax and makes provision of benefits on an industry basis to be made not from employers but from the Fund to which various employers contribute. Many charges will be paid in respect of employees who never qualify for long service leave with one employer or at all. The State Act does not enter a field intended to be covered by the federal industrial instruments. Result
Case: Airlines of NSW Pty Ltd v The State of New South Wales [1964] HCA 2 ; (1964) 113 CLR 1
Outcome: cited
different subject matters with which the State Act and the federal instruments are concerned with reflect the different purposes served by them. The saving of different purposes will not result in inconsistency; see Wardley at 253, per Stephen J; Airlines of NSW Pty Ltd v The State of New South Wales [1964] HCA 2 ; (1964) 113 CLR 1 at 42 per Taylor J, 48 per Menzies J and 52 per Windeyer J. Further, New South Wales v Commonwealth (Hospital Benefits Case) [1983] HCA 8 ; (1983) 151 CLR 302 shows the importance of identifying a relevant field before inquiring whether a State law has entered into it. Once it is shown that the fields are different, inconsistency cannot arise. In that case, the Commonwealth Act dealt with the payment of hospital benefits, which the State Act did not deal with, but rather imposed a tax on health funds. Here the State law imposes a tax and makes provision of benefits on an industry basis to be made not from employers but from the Fund to which various employers contribute. Many charges will be paid in respect of employees who never qualify for long service leave with one employer or at all. The State Act does not enter a field intended to be covered by the federal industrial instruments. Result
Case: Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472
Outcome: referred to
State law and the federal instruments co-exist in harmony such that each of them may be considered supplementary to or cumulative upon the other; see Worthing at [27] and Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 at 483 , per Dixon J. There is nothing in the State Act which denies or varies a right, or privilege conferred by the federal instruments; see Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 290, per Wilson J. (ii) Does the State Act enter a field intended to be covered by the federal instruments?
Case: Glover v Tip Top Bakeries (1984) 8 IR 308
Outcome: cited
I consider that any employee who is engaged on terms and conditions specified in cll 6.3.3(c), 6.3.3(d) and 6.8 of the PSA is entitled during long service leave to payment of the sum prescribed in each of those clauses in addition to the base rate of pay specified in cl 5.2.1 for each ordinary hour of work. In my view this is the ordinary English literal meaning of the expression "full pay" in relation to those employees engaged under those clauses of the PSA. I agree with the submission of Mr Herbert that in relation to such employees any lesser sum would not be full payment for the time that they are absent from work, as contemplated by the definition of "full pay" in Sch 5 of the State Act. In so finding I respectfully echo comments of Layton J of the Industrial Court of South Australia in Glover v Tip Top Bakeries (1984) 8 IR 308 at 313 which comments, although made in the context of sick leave, nonetheless are applicable mutatis mutandis in this context: For such an employee, it would seem quite anomalous if he was to be paid less than his usual entitlement by way of [long service] leave entitlement as though he worked on day work alone. If that were so, the award would effectively discriminate against shift workers in comparison with day workers in their respective entitlements to [long service] leave. The day workers would receive their usual pay whereas the shift workers would always receive less than their usual pay. Such an effect would in my opinion be inconsistent with the use of the word "full" in the expression "on full pay". (cf observations of Crawford J in Turfrey v Attorney General (Tas) (1992) 45 IR 349 at 352 and Hall P in Ussher v Pharlark Pty Ltd [2004] QIC 22)
Case: Shop Distributive and Allied Employees' Association v Woolworths Ltd [2006] FCA 616 ; [2006] 151 FCR 513
Outcome: cited
submissions were made by Counsel for both parties as to the rationale upon which the relevant provisions of the State Act applied in this case. However notwithstanding the different routes taken by each party, the destination was the same. In identifying the terms and conditions of employment of relevant employees as regulated by the PSA, and in particular in relation to long service leave, Ch 2 Pt 3 including s 43 and s 46 apply. A similar conclusion was drawn by Gray ACJ in Shop Distributive and Allied Employees' Association v Woolworths Ltd [2006] FCA 616 ; [2006] 151 FCR 513 in relation to the incorporation of equivalent Victorian legislation into the agreement the subject of that dispute. I do not consider it necessary to dwell further on the issue of application of Ch 2 Pt 3 of the State Act in these circumstances the necessity for the Court to interpret the relevant provisions of Ch 2 Pt 3 in relation to the operation of the PSA and the application of these provisions in determining the entitlement of relevant employees to long service leave are common ground. The clear tension in these proceedings arises from the different terminology used in s 43 and s 46 of the State Act, and the resolution of those differences in determining the entitlement of relevant employees to the current rate of pay on long service leave. The case put by the applicant is simple, namely that on the ordinary English literal meaning of s 43(2) of the State Act, when read in conjunction with the definition of "full pay", "full pay" for employees engaged under cll 6.3.3(c), 6.3.3(d) and 6.8 of the PSA must include payment of the amounts specified in each of those clauses in addition to the base rate of pay specified in cl 5.2.1 of the PSA. The rationale of this argument is that any lesser sum would not be payment in full for the time they are absent from work, and thus would not be "full pay" during their period of long service leave.
Case: Turfrey v Attorney General (Tas) (1992) 45 IR 349
Outcome: cited
I consider that any employee who is engaged on terms and conditions specified in cll 6.3.3(c), 6.3.3(d) and 6.8 of the PSA is entitled during long service leave to payment of the sum prescribed in each of those clauses in addition to the base rate of pay specified in cl 5.2.1 for each ordinary hour of work. In my view this is the ordinary English literal meaning of the expression "full pay" in relation to those employees engaged under those clauses of the PSA. I agree with the submission of Mr Herbert that in relation to such employees any lesser sum would not be full payment for the time that they are absent from work, as contemplated by the definition of "full pay" in Sch 5 of the State Act. In so finding I respectfully echo comments of Layton J of the Industrial Court of South Australia in Glover v Tip Top Bakeries (1984) 8 IR 308 at 313 which comments, although made in the context of sick leave, nonetheless are applicable mutatis mutandis in this context: For such an employee, it would seem quite anomalous if he was to be paid less than his usual entitlement by way of [long service] leave entitlement as though he worked on day work alone. If that were so, the award would effectively discriminate against shift workers in comparison with day workers in their respective entitlements to [long service] leave. The day workers would receive their usual pay whereas the shift workers would always receive less than their usual pay. Such an effect would in my opinion be inconsistent with the use of the word "full" in the expression "on full pay". (cf observations of Crawford J in Turfrey v Attorney General (Tas) (1992) 45 IR 349 at 352 and Hall P in Ussher v Pharlark Pty Ltd [2004] QIC 22)
Case: Ussher v Pharlark Pty Ltd [2004] QIC 22
Outcome: cited
I consider that any employee who is engaged on terms and conditions specified in cll 6.3.3(c), 6.3.3(d) and 6.8 of the PSA is entitled during long service leave to payment of the sum prescribed in each of those clauses in addition to the base rate of pay specified in cl 5.2.1 for each ordinary hour of work. In my view this is the ordinary English literal meaning of the expression "full pay" in relation to those employees engaged under those clauses of the PSA. I agree with the submission of Mr Herbert that in relation to such employees any lesser sum would not be full payment for the time that they are absent from work, as contemplated by the definition of "full pay" in Sch 5 of the State Act. In so finding I respectfully echo comments of Layton J of the Industrial Court of South Australia in Glover v Tip Top Bakeries (1984) 8 IR 308 at 313 which comments, although made in the context of sick leave, nonetheless are applicable mutatis mutandis in this context: For such an employee, it would seem quite anomalous if he was to be paid less than his usual entitlement by way of [long service] leave entitlement as though he worked on day work alone. If that were so, the award would effectively discriminate against shift workers in comparison with day workers in their respective entitlements to [long service] leave. The day workers would receive their usual pay whereas the shift workers would always receive less than their usual pay. Such an effect would in my opinion be inconsistent with the use of the word "full" in the expression "on full pay". (cf observations of Crawford J in Turfrey v Attorney General (Tas) (1992) 45 IR 349 at 352 and Hall P in Ussher v Pharlark Pty Ltd [2004] QIC 22)
Case: Cabal v United Mexican States (2000) 171 ALR 305
Outcome: followed
Another consideration for the Court is the prospects of success of Mr Snedden in the review of the magistrate's decision. Mr Snedden has not satisfied the Court that he has strong prospects of success in the s 21 review of the magistrate's s 19 determination. He has not been successful in any of his related applications which have now been dismissed. Mr Snedden has made three successive bail applications that have all been refused. Goldberg J in Cabal v United Mexican States (2000) 171 ALR 305 at [34] held that for a further application for bail to be successful an applicant would have to show that circumstances have since arisen which did not exist at the time of the earlier applications. Mr Snedden has not established any change in circumstances since his first application for bail was refused on 27 January 2006. 36 It is presumed that a person awaiting extradition will flee the jurisdiction if released on bail (see: Cabal 209 CLR at [63]). As such bail is ordinarily refused unless an applicant can satisfy the high burden of rebutting such presumption. In Cabal 209 CLR at [70] the High Court said: Unless the special circumstances are so cogent and the risk so very low that the proper exercise of discretion requires the grant of bail, any real risk of flight should be decisive against the grant of bail. 37 In these circumstances the Court cannot conclude that there is no real risk of flight if Mr Snedden was to be granted bail.
Case: Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386
Outcome: considered
A further matter which is to be considered by the Court is the advancement of Mr Snedden's extradition proceedings. The stages in the extradition process were succinctly stated in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 where the Court said at [389]: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: applied
support of the motions reference was made to s 31A of the Federal Court of Australia Act 1976 (Cth) which was inserted in that Act by the Migration Litigation Reform Act 2005 (Cth) Pt 7 Sch 1 which provides for striking out of claims or defences which do not have a reasonable prospect of success. However, that provision does not apply to proceedings like the present one which were commenced before the amendment. As a consequence I must apply the high standard mandated by General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 and Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62, namely that the case is "so clearly untenable that it cannot possibly succeed".
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: applied
support of the motions reference was made to s 31A of the Federal Court of Australia Act 1976 (Cth) which was inserted in that Act by the Migration Litigation Reform Act 2005 (Cth) Pt 7 Sch 1 which provides for striking out of claims or defences which do not have a reasonable prospect of success. However, that provision does not apply to proceedings like the present one which were commenced before the amendment. As a consequence I must apply the high standard mandated by General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 and Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62, namely that the case is "so clearly untenable that it cannot possibly succeed".
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36
Outcome: referred to
Another factor which must be taken into account in the fixing of pecuniary penalties for multiple breaches of statutory stipulations is the totality principle. This principle is designed to ensure that the aggregate of the penalties imposed is not such as to be oppressive or crushing. Different views have been expressed as to the manner in which the principle ought properly to be applied. On one view the starting point should be the determination of an appropriate total penalty. That figure would then be divided by the number of breaches to produce a penalty for each breach: see CPSU v Telstra Corporation Limited (2001) 108 IR 228 at 230[7]. The orthodox position, however, which I consider should be adopted, is that the starting point is the determination of appropriate penalties for each contravention of the statutory norm. The aggregate figure is then considered with a view to ensuring that it is an appropriate response to the conduct which led to the breaches: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53. See also Ponzio v B &amp; P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [145] per Jessup J. This approach was recently described, in the criminal context from which the totality principle is derived, as "the orthodox, but not necessarily immutable, practice" adopted by sentencing courts: see Johnson v R [2004] HCA 15 ; (2004) 205 ALR 346 at 356[26] per Gummow, Callinan &amp; Heydon JJ.