mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: cited
Since the delay in filing the application is short and the applicant was not assisted by a lawyer before the Federal Magistrates Court, the failure to file the application within the time limited by the Rules is sufficiently explained. The real questions are whether the judgment of the Federal Magistrates Court is attended with sufficient doubt so as to warrant reconsideration by an Appeal Court and whether substantial injustice would result if leave were refused ( D&eacute;cor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 655 ; (1991) 33 FCR 397 ; Herald &amp; Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 at 440 [19] ; and MZWRW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1665). In a case where the question of substantial injustice is to be assessed in the context of contended error by the primary court in addressing whether the Tribunal engaged in jurisdictional error in relation to a claim of well-founded fear of persecution for a Convention reason (1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees: see ss 65(1) and 36 (2)(a) of the Act ), error on the part of the primary court on the issue of the Tribunal's jurisdiction is likely to give rise to injustice which satisfies the test. Although the two issues are separate, they are necessarily related and must be carefully balanced. The gravity of the consequences of error in the case of a refugee claim may prove to be very significant. The primary question in this application is whether the judgment of the Federal Magistrates Court that the applicant's application for a show cause order was to be dismissed as disclosing no arguable case for the relief claimed, is attended with sufficient doubt so as to warrant consideration by this Court in the exercise of its appellate jurisdiction.
Case: Herald &amp; Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435
Outcome: cited
Since the delay in filing the application is short and the applicant was not assisted by a lawyer before the Federal Magistrates Court, the failure to file the application within the time limited by the Rules is sufficiently explained. The real questions are whether the judgment of the Federal Magistrates Court is attended with sufficient doubt so as to warrant reconsideration by an Appeal Court and whether substantial injustice would result if leave were refused ( D&eacute;cor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 655 ; (1991) 33 FCR 397 ; Herald &amp; Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 at 440 [19] ; and MZWRW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1665). In a case where the question of substantial injustice is to be assessed in the context of contended error by the primary court in addressing whether the Tribunal engaged in jurisdictional error in relation to a claim of well-founded fear of persecution for a Convention reason (1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees: see ss 65(1) and 36 (2)(a) of the Act ), error on the part of the primary court on the issue of the Tribunal's jurisdiction is likely to give rise to injustice which satisfies the test. Although the two issues are separate, they are necessarily related and must be carefully balanced. The gravity of the consequences of error in the case of a refugee claim may prove to be very significant. The primary question in this application is whether the judgment of the Federal Magistrates Court that the applicant's application for a show cause order was to be dismissed as disclosing no arguable case for the relief claimed, is attended with sufficient doubt so as to warrant consideration by this Court in the exercise of its appellate jurisdiction.
Case: MZWRW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1665
Outcome: cited
Since the delay in filing the application is short and the applicant was not assisted by a lawyer before the Federal Magistrates Court, the failure to file the application within the time limited by the Rules is sufficiently explained. The real questions are whether the judgment of the Federal Magistrates Court is attended with sufficient doubt so as to warrant reconsideration by an Appeal Court and whether substantial injustice would result if leave were refused ( D&eacute;cor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 655 ; (1991) 33 FCR 397 ; Herald &amp; Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 at 440 [19] ; and MZWRW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1665). In a case where the question of substantial injustice is to be assessed in the context of contended error by the primary court in addressing whether the Tribunal engaged in jurisdictional error in relation to a claim of well-founded fear of persecution for a Convention reason (1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees: see ss 65(1) and 36 (2)(a) of the Act ), error on the part of the primary court on the issue of the Tribunal's jurisdiction is likely to give rise to injustice which satisfies the test. Although the two issues are separate, they are necessarily related and must be carefully balanced. The gravity of the consequences of error in the case of a refugee claim may prove to be very significant. The primary question in this application is whether the judgment of the Federal Magistrates Court that the applicant's application for a show cause order was to be dismissed as disclosing no arguable case for the relief claimed, is attended with sufficient doubt so as to warrant consideration by this Court in the exercise of its appellate jurisdiction.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1948) 78 CLR 62
Outcome: cited
Plainly s 31A was introduced to establish a lower standard for strikeouts (either of claims or defences) than that previously laid down by the High Court's decisions in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1948) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130, namely that the allegations are "so clearly untenable that [they] cannot possibly succeed". 32 The application of the Concrete Constructions principle to conduct concerning contracts of employment has resulted in a divergence of Federal Court authority. In Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 Wilcox J held that information supplied to an employee in the course of negotiating a variation to his contract of employment was "in trade or commerce". In Stoelwinder v Southern Health Care Network (2000) 177 ALR 501, a case concerning negotiations for a new contract of employment, Finkelstein J came to the same view. Both these cases were strikeout applications and thus were governed at the time they were decided by the Dey and General Steel authorities; their Honours could only strike out the claim if it was hopeless or bound to fail.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; 1964 112 CLR 125 at 130
Outcome: cited
Plainly s 31A was introduced to establish a lower standard for strikeouts (either of claims or defences) than that previously laid down by the High Court's decisions in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1948) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130, namely that the allegations are "so clearly untenable that [they] cannot possibly succeed". 32 The application of the Concrete Constructions principle to conduct concerning contracts of employment has resulted in a divergence of Federal Court authority. In Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 Wilcox J held that information supplied to an employee in the course of negotiating a variation to his contract of employment was "in trade or commerce". In Stoelwinder v Southern Health Care Network (2000) 177 ALR 501, a case concerning negotiations for a new contract of employment, Finkelstein J came to the same view. Both these cases were strikeout applications and thus were governed at the time they were decided by the Dey and General Steel authorities; their Honours could only strike out the claim if it was hopeless or bound to fail.
Case: Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267
Outcome: referred to
In my opinion, s 31A applies to the present strikeout application. The provision is of a procedural rather than substantive nature. In Rodway v The Queen [1990] HCA 19 ; (1990) 169 CLR 515 the High Court was concerned with the appellant's convictions for certain sexual offences. At the time of the alleged offences the Criminal Code (Tas) required corroboration of the evidence of the complainant but by the time of the trial that requirement had been repealed. The High Court upheld the ruling of the trial judge (Neasey J) and the Court of Criminal Appeal that the repealed provision did not apply. After citing the statement of Dixon CJ in Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said at 521: 'But ordinarily an amendment to the practice and procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity."
Case: Brambles Holdings Pty Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 177
Outcome: cited
On its face, the Grievance Procedure came into existence long after the Contract. There is before the Court a formal document headed "Contract of Employment" signed by Ms Duncan and the President of the Management Committee to which is attached a "Position Description and the Staff Policy". Included in the latter is a requirement for the Director to "Be responsible for human resources management in the Service, including staff appointments, supervision, evaluation, support and training, and OH&amp;S." Sometimes it can be difficult to locate an offer and acceptance and, 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: Brambles Holdings Pty Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 177, Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,1178. However, the present case is one where there is a formal, written contract of employment, quite detailed and complete in itself, entered into at the commencement of Ms Duncan's employment. The Grievance Procedure was not part of the Contract when it was formed.
Case: Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,1178
Outcome: cited
On its face, the Grievance Procedure came into existence long after the Contract. There is before the Court a formal document headed "Contract of Employment" signed by Ms Duncan and the President of the Management Committee to which is attached a "Position Description and the Staff Policy". Included in the latter is a requirement for the Director to "Be responsible for human resources management in the Service, including staff appointments, supervision, evaluation, support and training, and OH&amp;S." Sometimes it can be difficult to locate an offer and acceptance and, 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: Brambles Holdings Pty Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 177, Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,1178. However, the present case is one where there is a formal, written contract of employment, quite detailed and complete in itself, entered into at the commencement of Ms Duncan's employment. The Grievance Procedure was not part of the Contract when it was formed.
Case: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: applied
The respondents submit that the conduct alleged was not in trade or commerce. In Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 a worker was injured as a result of his foreman wrongly telling him that grates in an air-conditioning shaft were secured by bolts. He brought a s 52 claim based on misleading and deceptive conduct by the foreman, for which the employer was vicariously liable. In the view of the majority (Mason CJ, Dawson, Deane and Gaudron JJ) at 604-605, the foreman's statement was not made in the course of, or for the purposes of, some trading or commercial dealing between the corporation and the particular employee. The conduct of the foreman "consisted of an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building". 32 The application of the Concrete Constructions principle to conduct concerning contracts of employment has resulted in a divergence of Federal Court authority. In Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 Wilcox J held that information supplied to an employee in the course of negotiating a variation to his contract of employment was "in trade or commerce". In Stoelwinder v Southern Health Care Network (2000) 177 ALR 501, a case concerning negotiations for a new contract of employment, Finkelstein J came to the same view. Both these cases were strikeout applications and thus were governed at the time they were decided by the Dey and General Steel authorities; their Honours could only strike out the claim if it was hopeless or bound to fail. 34 Had this question arisen under the former strikeout standard, it would be very difficult to say this part of the case was hopeless, given the divergence of authority. However, s 31A is a clear, and different, command. I am still of the view that the application of Concrete Constructions in Martin was correct and that, accordingly, Ms Duncan has no reasonable prospect of success. Paragraphs 29, 30, 31 and 34 will be struck out.
Case: Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389
Outcome: distinguished
The application of the Concrete Constructions principle to conduct concerning contracts of employment has resulted in a divergence of Federal Court authority. In Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 Wilcox J held that information supplied to an employee in the course of negotiating a variation to his contract of employment was "in trade or commerce". In Stoelwinder v Southern Health Care Network (2000) 177 ALR 501, a case concerning negotiations for a new contract of employment, Finkelstein J came to the same view. Both these cases were strikeout applications and thus were governed at the time they were decided by the Dey and General Steel authorities; their Honours could only strike out the claim if it was hopeless or bound to fail.
Case: Stoelwinder v Southern Health Care Network (2000) 177 ALR 501
Outcome: distinguished
The application of the Concrete Constructions principle to conduct concerning contracts of employment has resulted in a divergence of Federal Court authority. In Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 Wilcox J held that information supplied to an employee in the course of negotiating a variation to his contract of employment was "in trade or commerce". In Stoelwinder v Southern Health Care Network (2000) 177 ALR 501, a case concerning negotiations for a new contract of employment, Finkelstein J came to the same view. Both these cases were strikeout applications and thus were governed at the time they were decided by the Dey and General Steel authorities; their Honours could only strike out the claim if it was hopeless or bound to fail.
Case: Martin v Tasmania Development and Resources (1999) 163 ALR 79
Outcome: applied
In Martin v Tasmania Development and Resources (1999) 163 ALR 79, Mr Martin claimed that a letter stating that his termination was necessary on the basis of "operational requirements" was misleading and deceptive and contravened s 52. At the trial of the action I found that there were in fact "operational requirements" within the meaning of that term in the contract of employment: 163 ALR at [55]-[67]. Mr Martin succeeded on other grounds, not relevant for present purposes. However, I held that if the representations as to operational requirements were misleading and deceptive, they would not have been made in trade or commerce. In expressing disagreement with Wilcox J, I said (at [77]): "The majority in (Concrete Constructions) clearly rejected the wider construction of 'in trade or commerce', which would extend to virtually any activity of a corporation. It is true that a building company could not earn income unless it had workers who received instructions from foremen. But that was not enough to bring the alleged misrepresentation within the concept of 'trade or commerce'. Similarly, TDR could not carry out its activities of promoting Tasmanian trade and development (which activities themselves I assume for present purposes to be in trade or commerce) unless it engaged staff. Nevertheless such engagements and the necessary associated incidental negotiations, however necessary, are not in themselves of a trading or commercial nature. They are internal affairs of TDR." In Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 212-213, another final hearing, a case concerning alleged misrepresentations by an employer to employees about superannuation entitlements, I took the same view. 34 Had this question arisen under the former strikeout standard, it would be very difficult to say this part of the case was hopeless, given the divergence of authority. However, s 31A is a clear, and different, command. I am still of the view that the application of Concrete Constructions in Martin was correct and that, accordingly, Ms Duncan has no reasonable prospect of success. Paragraphs 29, 30, 31 and 34 will be struck out.
Case: Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 212-213
Outcome: applied
In Martin v Tasmania Development and Resources (1999) 163 ALR 79, Mr Martin claimed that a letter stating that his termination was necessary on the basis of "operational requirements" was misleading and deceptive and contravened s 52. At the trial of the action I found that there were in fact "operational requirements" within the meaning of that term in the contract of employment: 163 ALR at [55]-[67]. Mr Martin succeeded on other grounds, not relevant for present purposes. However, I held that if the representations as to operational requirements were misleading and deceptive, they would not have been made in trade or commerce. In expressing disagreement with Wilcox J, I said (at [77]): "The majority in (Concrete Constructions) clearly rejected the wider construction of 'in trade or commerce', which would extend to virtually any activity of a corporation. It is true that a building company could not earn income unless it had workers who received instructions from foremen. But that was not enough to bring the alleged misrepresentation within the concept of 'trade or commerce'. Similarly, TDR could not carry out its activities of promoting Tasmanian trade and development (which activities themselves I assume for present purposes to be in trade or commerce) unless it engaged staff. Nevertheless such engagements and the necessary associated incidental negotiations, however necessary, are not in themselves of a trading or commercial nature. They are internal affairs of TDR." In Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 at 212-213, another final hearing, a case concerning alleged misrepresentations by an employer to employees about superannuation entitlements, I took the same view.
Case: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at [6] - [8] , [42]-[46]
Outcome: cited
In any event, unconscionable in s 51AA does not mean unfair or reprehensible in a colloquial sense. Rather, as explained in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at [6] - [8] , [42]-[46], it refers to the equitable doctrine, the meaning of which has been expounded in High Court cases such as Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 and Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 457. In the present case there is no complaint that the respondents exploited any special disadvantage of Ms Lipscombe in respect of the formation of the Contract and her engagement as Director. If the respondents' termination of the Contract amounted to a breach, the ordinary contractual remedies would be available. If the publication of the termination letter amounted to defamation, she will have, as she alleges, a good cause of action.
Case: Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 and Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 457
Outcome: cited
In any event, unconscionable in s 51AA does not mean unfair or reprehensible in a colloquial sense. Rather, as explained in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at [6] - [8] , [42]-[46], it refers to the equitable doctrine, the meaning of which has been expounded in High Court cases such as Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 and Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 457. In the present case there is no complaint that the respondents exploited any special disadvantage of Ms Lipscombe in respect of the formation of the Contract and her engagement as Director. If the respondents' termination of the Contract amounted to a breach, the ordinary contractual remedies would be available. If the publication of the termination letter amounted to defamation, she will have, as she alleges, a good cause of action.
Case: Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 457
Outcome: cited
In any event, unconscionable in s 51AA does not mean unfair or reprehensible in a colloquial sense. Rather, as explained in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at [6] - [8] , [42]-[46], it refers to the equitable doctrine, the meaning of which has been expounded in High Court cases such as Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 and Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 457. In the present case there is no complaint that the respondents exploited any special disadvantage of Ms Lipscombe in respect of the formation of the Contract and her engagement as Director. If the respondents' termination of the Contract amounted to a breach, the ordinary contractual remedies would be available. If the publication of the termination letter amounted to defamation, she will have, as she alleges, a good cause of action.