mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Deane v Paper Australia Pty Ltd (2003) 121 IR 362
Outcome: cited
Counsel for Mr Claveria argued that these superannuation contributions should be included. If these contributions were included, the cap or limit in s 665(3) would be $31,993.23. Counsel argued that these contributions were remuneration "received by" Mr Claveria because they were received by his superannuation trustee on his behalf. She argued that the expression "received by" was to be understood as "received by or on behalf of the employee". There is some force in this submission. In Furey v Civil Service Association of WA (Inc) [1999] FCA 1492 ; (1999) 91 FCR 407 at 421, Carr J held that held that the expression "pay to the employee" in s 170CM(4) of the Act as it then stood should be understood to mean "pay to or on behalf of the employee". That is, the Act imposed an obligation on an employee seeking to pay compensation instead of notice, to pay either to or for the benefit or on behalf of the employee everything that the employee would have been entitled to have been paid had he or she worked out the required period of notice. This obligation extended to superannuation payments. By failing to pay superannuation for the four week period in question, the respondent breached s 170CM of the Act . In so concluding, Carr J followed the approach of Finn J in Comcare v Fyfe [1999] FCA 1368: see also the decision of the Australian Industrial Relations Commission in Deane v Paper Australia Pty Ltd (2003) 121 IR 362 at 366, holding that the operation of the superannuation guarantee legislation rendered the employer's contribution a benefit to the employee and within the concept of "remuneration" for the purposes of calculating the limits imposed by the Act for applicants wishing to bring unfair dismissal proceedings.
Case: Bull v Attorney-General (NSW) [1913] HCA 60 ; (1913) 17 CLR 370
Outcome: followed
The relevant statute is certainly beneficial to employees and the enactment of the statutory 'but for' test by s 6(1)(a) must, being ambiguous, be construed to 'give the fullest relief which the fair meaning of its language will allow', as Isaacs J put it in Bull v Attorney-General for New South Wales [1913] HCA 60 ; (1913) 17 CLR 370 at 384. A fair meaning will, however, not be one arrived at by straining language or exceeding its reach, nor will it be one that results in absurdity ex facie or an anomalous result, clearly shown: Esso Australian Resources Ltd v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511 at 518-19 and 565-6.
Case: Esso v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511
Outcome: followed
The relevant statute is certainly beneficial to employees and the enactment of the statutory 'but for' test by s 6(1)(a) must, being ambiguous, be construed to 'give the fullest relief which the fair meaning of its language will allow', as Isaacs J put it in Bull v Attorney-General for New South Wales [1913] HCA 60 ; (1913) 17 CLR 370 at 384. A fair meaning will, however, not be one arrived at by straining language or exceeding its reach, nor will it be one that results in absurdity ex facie or an anomalous result, clearly shown: Esso Australian Resources Ltd v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511 at 518-19 and 565-6.
Case: Kennedy v Telstra Corporation (1995) 61 FCR 160
Outcome: discussed
As to s 6(1)(a) , the applicant maintained that the 'but for' test there set out remains a test of causation (rather than temporal connection) when applied to injuries occurring otherwise than in the course of employment. In reliance on Kennedy v Telstra Corporation (1995) 61 FCR 160, counsel submitted that the 'but for' test has to be applied 'practically and in a commonsense way'. Furthermore, it was submitted that the Tribunal also failed to provide any reasoning in support of its finding that the 'but for' test contained in subsection 6(1)(a) of the Act was satisfied. 37 The only cases dealing with s 6(1)(a) are Kennedy and Schmid v Comcare (2004) 77 ALD 782. In Schmid , Weinberg J took a similar approach to that of Tamberlin J in Kennedy . His Honour considered that it could not have been Parliament's intention that the 'but for' test should be construed literally: a degree of 'proximity', going beyond temporal connections of time and place, was required under s 6(1)(a). This approach was said to be consistent with that taken by McMahon D P in Re Mulligan and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1995) 36 ALD 699. 61 In that sense, a 'commonsense or practical' approach (per Tamberlin J in Kennedy ) or a requirement for some degree of 'proximity' (per Weinberg J in Schmid ) may be necessary to confine the unbounded logical possibilities of a 'but for' test within limits that may be imputed to the legislature as acceptable. Courts must take care however, lest in the guise of avoiding a construction that would result in a clear anomaly, they try to rewrite a legislative provision closer to their own, and possibly highly contestable, views of what would be a fair and 'common sense' law to deal with the subject at hand.
Case: Schmid v Comcare (2004) 77 ALD 782
Outcome: discussed
The only cases dealing with s 6(1)(a) are Kennedy and Schmid v Comcare (2004) 77 ALD 782. In Schmid , Weinberg J took a similar approach to that of Tamberlin J in Kennedy . His Honour considered that it could not have been Parliament's intention that the 'but for' test should be construed literally: a degree of 'proximity', going beyond temporal connections of time and place, was required under s 6(1)(a). This approach was said to be consistent with that taken by McMahon D P in Re Mulligan and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1995) 36 ALD 699. 61 In that sense, a 'commonsense or practical' approach (per Tamberlin J in Kennedy ) or a requirement for some degree of 'proximity' (per Weinberg J in Schmid ) may be necessary to confine the unbounded logical possibilities of a 'but for' test within limits that may be imputed to the legislature as acceptable. Courts must take care however, lest in the guise of avoiding a construction that would result in a clear anomaly, they try to rewrite a legislative provision closer to their own, and possibly highly contestable, views of what would be a fair and 'common sense' law to deal with the subject at hand.
Case: ACCC v Alice Car &amp; Truck Rentals Pty Ltd (unreported, O'Loughlin J, 5 March 1997)
Outcome: referred to
application of O 11 r 16 should now be considered in the light of the principles discussed in relation to s 31A: see Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers) [2006] FCA 1416 at [11] , namely that a proceeding need not be hopeless or bound to fail before the Court can strike out a pleading or part of a pleading. In deciding whether to strike out, the Court must have regard to the adequacy of the pleading and must take the evidence at its highest. That is, the Court must assess the pleadings as if the facts alleged are true: see ACCC v Alice Car &amp; Truck Rentals Pty Ltd (unreported, O'Loughlin J, 5 March 1997). The Court should err on the side of striking out rather than giving summary judgment where the underlying complaint of a pleading supports a reasonable cause of action, although the pleading itself has deficiencies: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691 at [1] . ISSUES NOW AGREED Quantum of Pecuniary relief
Case: AWB Ltd v Honourable Terrance Rhoderic Hudson Cole (No 6) [2006] FCA 1274
Outcome: followed
to s 43 of the Court Act, the Court has an unfettered general discretion in respect of the award of costs, provided that such discretion is exercised judicially: see Ruddock and Others v Vardarlis and Others (No 2) (2001) 115 FCR 229 at [9]. The general rule is that costs follow the event: see Ruddock at [11]. In AWB Ltd v Honourable Terrance Rhoderic Hudson Cole (No 6) [2006] FCA 1274 , Young J, at [16]-[17], ordered each party to pay their own costs, given that each had achieved a ' substantial measure of success '. His Honour could not find that either party could be considered the ' successful litigant '.
Case: Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers) [2006] FCA 1416
Outcome: referred to
application of O 11 r 16 should now be considered in the light of the principles discussed in relation to s 31A: see Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers) [2006] FCA 1416 at [11] , namely that a proceeding need not be hopeless or bound to fail before the Court can strike out a pleading or part of a pleading. In deciding whether to strike out, the Court must have regard to the adequacy of the pleading and must take the evidence at its highest. That is, the Court must assess the pleadings as if the facts alleged are true: see ACCC v Alice Car &amp; Truck Rentals Pty Ltd (unreported, O'Loughlin J, 5 March 1997). The Court should err on the side of striking out rather than giving summary judgment where the underlying complaint of a pleading supports a reasonable cause of action, although the pleading itself has deficiencies: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691 at [1] . ISSUES NOW AGREED Quantum of Pecuniary relief
Case: Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401
Outcome: referred to
observations of French J in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [19] - [21] are particularly useful in distinguishing between the requirements for a summary judgment under s 31A and a strike out as discussed below. His Honour observed that s 31A renders judgment, and is thus distinct from a strike out, which can be followed by the amendment of a pleading. Thus judgment should only be entered where no amendment of pleadings or particulars is possible, that is, where there is a defect in the pleadings which cannot be cured. Order 11 rule 16 of the Rules Order 11 rule 16 of the Rules provides: Where a pleading&#8722; (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause, prejudice, embarrassment or delay in the proceeding; or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.
Case: General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: referred to
test which was applied generally on an application for summary judgment prior to insertion of s 31A in the Court Act was that referred to in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others [1964] HCA 69 ; (1964) 112 CLR 125. At 129 Barwick CJ determined the test to be applied where an application is made to strike out a claim. His Honour said: At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument" ; "so to speak apparent at a glance". Section 31A of the Court Act has been said to impose a less stringent test than that described in General Steel Industries and may be understood to enable summary dismissal of unmeritorious matters: see Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 at [26] and Gordon J in Jefferson Ford at [124]. Gordon J at [126] said that ' whether a proceeding or part of a proceeding has no reasonable prospects of success ' requires: 1. identification of the cause of action pleaded; 2. identification of the pleaded facts said to give rise to that cause of action; 3. a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; 5. identification of any facts pleaded which are said to give rise to the defence; and 6. a review of the evidence (if any) tendered in defence of the claim.
Case: International Writing Institute Inc v Rimala Pty Ltd and Another (1995) 57 FCR 135
Outcome: referred to
International Writing Institute Inc v Rimala Pty Ltd and Another (1995) 57 FCR 135 the Full Court said (at 139): Conversion occurs when goods are dealt with in a manner inconsistent with the rights of the owner, but this must be clear... Whilst it is possible that conversion occurs at some different point...the sale of the goods will, generally speaking, provide the necessary certainty. Crucially, in relation to s 116 of the Copyright Act , the conduct referred to in paragraphs 67A to 67E attaches to conversion of an ' infringing copy '. The term ' infringing copy ' is relevantly defined in s 10 of the Copyright Act to mean ' a copy of the film... being an article (which may be an electronic reproduction or copy of the...film) the making of which constituted an infringement of the copyright in the...film '. The word ' copy ' is defined to mean ' any article or thing in which visual images or sounds comprising the film are embodied '. Findings relating to the conversion claim For the reasons considered hereunder, the Court concludes that the existing pleadings are deficient.
Case: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60 ; (2008) 167 FCR 372
Outcome: considered
has been a judicial difference of opinion in two recent decisions of the Full Court concerning the interpretation of s 31A: see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60 ; (2008) 167 FCR 372 and Wills v Australian Broadcasting Corporation (2009) 253 ALR 228. Section 31A of the Court Act has been said to impose a less stringent test than that described in General Steel Industries and may be understood to enable summary dismissal of unmeritorious matters: see Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 at [26] and Gordon J in Jefferson Ford at [124]. Gordon J at [126] said that ' whether a proceeding or part of a proceeding has no reasonable prospects of success ' requires: 1. identification of the cause of action pleaded; 2. identification of the pleaded facts said to give rise to that cause of action; 3. a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; 5. identification of any facts pleaded which are said to give rise to the defence; and 6. a review of the evidence (if any) tendered in defence of the claim. Despite some difference in the judicial approach of Finkelstein J and Gordon J in Jefferson Ford , the Court is prepared to follow the observations of Gordon J as providing a practical guide to the interpretation of s 31A of the Court Act. The conflict between Gordon J and Rares J in Jefferson Ford (see [129], [73]) and which was not resolved in Wills , relating to whether judges retain a general discretion to enter summary judgment under s 31A, is irrelevant to the current judgment, and accordingly it is unnecessary for the Court to consider the conflicting judicial opinions.
Case: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222
Outcome: cited
31A of the Court Act has been said to impose a less stringent test than that described in General Steel Industries and may be understood to enable summary dismissal of unmeritorious matters: see Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 at [26] and Gordon J in Jefferson Ford at [124]. Gordon J at [126] said that ' whether a proceeding or part of a proceeding has no reasonable prospects of success ' requires: 1. identification of the cause of action pleaded; 2. identification of the pleaded facts said to give rise to that cause of action; 3. a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; 5. identification of any facts pleaded which are said to give rise to the defence; and 6. a review of the evidence (if any) tendered in defence of the claim.
Case: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691
Outcome: referred to
application of O 11 r 16 should now be considered in the light of the principles discussed in relation to s 31A: see Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers) [2006] FCA 1416 at [11] , namely that a proceeding need not be hopeless or bound to fail before the Court can strike out a pleading or part of a pleading. In deciding whether to strike out, the Court must have regard to the adequacy of the pleading and must take the evidence at its highest. That is, the Court must assess the pleadings as if the facts alleged are true: see ACCC v Alice Car &amp; Truck Rentals Pty Ltd (unreported, O'Loughlin J, 5 March 1997). The Court should err on the side of striking out rather than giving summary judgment where the underlying complaint of a pleading supports a reasonable cause of action, although the pleading itself has deficiencies: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691 at [1] . ISSUES NOW AGREED Quantum of Pecuniary relief
Case: Ruddock and Others v Vardarlis and Others (No 2) (2001) 115 FCR 229
Outcome: referred to
to s 43 of the Court Act, the Court has an unfettered general discretion in respect of the award of costs, provided that such discretion is exercised judicially: see Ruddock and Others v Vardarlis and Others (No 2) (2001) 115 FCR 229 at [9]. The general rule is that costs follow the event: see Ruddock at [11]. In AWB Ltd v Honourable Terrance Rhoderic Hudson Cole (No 6) [2006] FCA 1274 , Young J, at [16]-[17], ordered each party to pay their own costs, given that each had achieved a ' substantial measure of success '. His Honour could not find that either party could be considered the ' successful litigant '.
Case: Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878
Outcome: followed
Roadshow establishes an infringement of copyright in the 86 films, such finding may provide a basis to extend any injunctive relief to the whole film catalogue. Such an order was made in Kazaa at 94 and Universal Music Pty Ltd v Cooper [2005] FCA 1878 , in proceedings which are not dissimilar to the current proceedings. The Court considers that it would not be appropriate for the hearing to be limited only to the 86 identified films, and accordingly rejects iiNet's motion. ROADSHOW'S MOTION Paragraph 63 of the Defence Adequacy of iiNet's Defence Roadshow, by paragraph three of its Notice of Motion, seeks to have paragraph 63(l) of the Defence struck out. Paragraph 63 of the ASOC alleges, inter alia, that iiNet took no action to cause the alleged infringements of copyright by iiNet's users to cease. Paragraph 63(l) of the Defence which responds in part to such claim states that notifications made by the AFACT to iiNet, using data collected by DtecNet of allegedly infringing iiNet users, ' were mere allegations of copyright infringement '. Roadshow submits that the statement that the notifications constitute ' mere allegations ' uses terminology which is not a term of art, nor is it found in the copyright legislation. The Court has no difficulty in understanding such pleading as being a statement that the AFACT notifications did no more than bring to iiNet's attention an allegation of copyright infringement. Whether the notifications from DtecNet of alleged infringement are sufficient to prove infringement by iiNet's users or might be used as evidence that iiNet was aware of the infringement of its users is necessarily a matter requiring evidence and thus is a matter for determination at the hearing. So considered, there is nothing further which needs to be added to the pleading. The Court rejects Roadshow's assertion that such statement is inadequate.
Case: Universal Music Australia Pty Ltd and Others v Cooper and Others [2005] FCA 972 ; (2005) 150 FCR 1
Outcome: followed
the Court considers that it is appropriate that the issues of liability and the question of damages be separated, the Court will make such orders to separate liability from quantum of pecuniary relief such as occurred in Universal Music Australia Pty Ltd and Others v Sharman Licence Holdings Ltd and Others [2005] FCA 1242 ; 65 IPR 289 at 295 (' Kazaa ') and Universal Music Australia Pty Ltd and Others v Cooper and Others [2005] FCA 972 ; (2005) 150 FCR 1 at [148] . Sufficiency of certain paragraphs of iiNet's Defence
Case: Universal Music Australia Pty Ltd and Others v Sharman Licence Holdings Ltd and Others [2005] FCA 1242 ; 65 IPR 289
Outcome: followed
the Court considers that it is appropriate that the issues of liability and the question of damages be separated, the Court will make such orders to separate liability from quantum of pecuniary relief such as occurred in Universal Music Australia Pty Ltd and Others v Sharman Licence Holdings Ltd and Others [2005] FCA 1242 ; 65 IPR 289 at 295 (' Kazaa ') and Universal Music Australia Pty Ltd and Others v Cooper and Others [2005] FCA 972 ; (2005) 150 FCR 1 at [148] . Sufficiency of certain paragraphs of iiNet's Defence
Case: Venus Adult Shops Pty Ltd and Others v Fraserside Holdings Ltd and Another [2006] FCAFC 188 ; (2006) 157 FCR 442
Outcome: referred to
relies upon the principles referred to in Oakley v Lyster [1931] 1 KB 148 at 153 in support of its contention that the tort of conversion involves deliberate intent. The principles concerning conversion under s 116 have been considered recently by the Full Court in Venus Adult Shops Pty Ltd and Others v Fraserside Holdings Ltd and Another [2006] FCAFC 188 ; (2006) 157 FCR 442 at [85] to [94]. At [88] the Full Court said: The essence of conversion is interference with a right of possession. It is nevertheless properly described as a "varied and somewhat amorphous tort" serving two distinct functions. One function is tortious, whereby it compensates a person deprived of the use of goods. However it also acts as a "surrogate for the Roman vindicatio ; that is, in order to give a dispossessed owner the means to recover his goods in specie , or if that is not appropriate their market value" &#8722; Tettenborn, Wiley and Bennett; The Law of Damages (LexisNexis UK, 2003) p 294. The conduct which may constitute conversion is diverse. It has been said to include: (i) refusal to return; (ii) taking; (iii) receipt; (iv) disposal or deprivation of title; (v) destruction; (vi) loss as a bailee; (vii) keeping. The diversity of that list raises questions about the universal appropriateness of a "market value" approach to the assessment of damages &#8722; Tettenborn A, "Damages in Conversion: the Exception or the Anomaly" (1993) 52 CLJ 128.
Case: Wills v Australian Broadcasting Corporation (2009) 253 ALR 22
Outcome: referred to
has been a judicial difference of opinion in two recent decisions of the Full Court concerning the interpretation of s 31A: see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60 ; (2008) 167 FCR 372 and Wills v Australian Broadcasting Corporation (2009) 253 ALR 228. Despite some difference in the judicial approach of Finkelstein J and Gordon J in Jefferson Ford , the Court is prepared to follow the observations of Gordon J as providing a practical guide to the interpretation of s 31A of the Court Act. The conflict between Gordon J and Rares J in Jefferson Ford (see [129], [73]) and which was not resolved in Wills , relating to whether judges retain a general discretion to enter summary judgment under s 31A, is irrelevant to the current judgment, and accordingly it is unnecessary for the Court to consider the conflicting judicial opinions.