mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Printing &amp; Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444
Outcome: cited
Counsel for the applicant contended that the past conduct of the parties could be relied upon as an aid in the construction of the Certified Agreement. There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. See Merchant Service Guild of Australia v Sydney Steam Collier Owners &amp; Coal Stevedores Association (1958) 1 FLR 248 at 251 per Spicer CJ, 254 per Dunphy J and 257 per Morgan J, and Printing &amp; Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452-453. It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning. See Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11 at [44] .
Case: Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11
Outcome: cited
Counsel for the applicant contended that the past conduct of the parties could be relied upon as an aid in the construction of the Certified Agreement. There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. See Merchant Service Guild of Australia v Sydney Steam Collier Owners &amp; Coal Stevedores Association (1958) 1 FLR 248 at 251 per Spicer CJ, 254 per Dunphy J and 257 per Morgan J, and Printing &amp; Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452-453. It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning. See Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11 at [44] .
Case: Catlow v Accident Compensation Commission [1989] HCA 43 ; (1989) 167 CLR 543
Outcome: cited
This argument recognised that the phrase 'ordinary time rate of pay', which is used in both of the definitions relevant to the present case, and similar phrases have acquired a technical meaning in Australian law. See Catlow v Accident Compensation Commission [1989] HCA 43 ; (1989) 167 CLR 543 at 555-556 per Dawson J and 560-561 per McHugh J, with whom Deane J concurred; Scott v Sun Alliance Australia Ltd [1993] HCA 46 ; (1993) 178 CLR 1 at 7-8; Kucks v CSR Ltd (1996) 66 IR 182 at 185-186; Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 213-215; and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 (2003) 201 ALR 271 at [27] , [35] and [45] per McHugh, Gummow, Callinan and Heydon JJ. In Scott , in the passage to which I have referred, the High Court made it clear that, where the expression 'ordinary time rate of pay' is used in relation to conditions of work fixed by an industrial award or collective agreement, it is a reference to the rate of pay for 'the fixed standard hours as opposed to overtime or usual or customary time.'
Case: Scott v Sun Alliance Australia Ltd [1993] HCA 46 ; (1993) 178 CLR 1
Outcome: followed
This argument recognised that the phrase 'ordinary time rate of pay', which is used in both of the definitions relevant to the present case, and similar phrases have acquired a technical meaning in Australian law. See Catlow v Accident Compensation Commission [1989] HCA 43 ; (1989) 167 CLR 543 at 555-556 per Dawson J and 560-561 per McHugh J, with whom Deane J concurred; Scott v Sun Alliance Australia Ltd [1993] HCA 46 ; (1993) 178 CLR 1 at 7-8; Kucks v CSR Ltd (1996) 66 IR 182 at 185-186; Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 213-215; and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 (2003) 201 ALR 271 at [27] , [35] and [45] per McHugh, Gummow, Callinan and Heydon JJ. In Scott , in the passage to which I have referred, the High Court made it clear that, where the expression 'ordinary time rate of pay' is used in relation to conditions of work fixed by an industrial award or collective agreement, it is a reference to the rate of pay for 'the fixed standard hours as opposed to overtime or usual or customary time.'
Case: Kucks v CSR Ltd (1996) 66 IR 182
Outcome: cited
This argument recognised that the phrase 'ordinary time rate of pay', which is used in both of the definitions relevant to the present case, and similar phrases have acquired a technical meaning in Australian law. See Catlow v Accident Compensation Commission [1989] HCA 43 ; (1989) 167 CLR 543 at 555-556 per Dawson J and 560-561 per McHugh J, with whom Deane J concurred; Scott v Sun Alliance Australia Ltd [1993] HCA 46 ; (1993) 178 CLR 1 at 7-8; Kucks v CSR Ltd (1996) 66 IR 182 at 185-186; Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 213-215; and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 (2003) 201 ALR 271 at [27] , [35] and [45] per McHugh, Gummow, Callinan and Heydon JJ. In Scott , in the passage to which I have referred, the High Court made it clear that, where the expression 'ordinary time rate of pay' is used in relation to conditions of work fixed by an industrial award or collective agreement, it is a reference to the rate of pay for 'the fixed standard hours as opposed to overtime or usual or customary time.'
Case: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208
Outcome: cited
This argument recognised that the phrase 'ordinary time rate of pay', which is used in both of the definitions relevant to the present case, and similar phrases have acquired a technical meaning in Australian law. See Catlow v Accident Compensation Commission [1989] HCA 43 ; (1989) 167 CLR 543 at 555-556 per Dawson J and 560-561 per McHugh J, with whom Deane J concurred; Scott v Sun Alliance Australia Ltd [1993] HCA 46 ; (1993) 178 CLR 1 at 7-8; Kucks v CSR Ltd (1996) 66 IR 182 at 185-186; Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 213-215; and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 (2003) 201 ALR 271 at [27] , [35] and [45] per McHugh, Gummow, Callinan and Heydon JJ. In Scott , in the passage to which I have referred, the High Court made it clear that, where the expression 'ordinary time rate of pay' is used in relation to conditions of work fixed by an industrial award or collective agreement, it is a reference to the rate of pay for 'the fixed standard hours as opposed to overtime or usual or customary time.'
Case: Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 (2003) 201 ALR 271
Outcome: cited
This argument recognised that the phrase 'ordinary time rate of pay', which is used in both of the definitions relevant to the present case, and similar phrases have acquired a technical meaning in Australian law. See Catlow v Accident Compensation Commission [1989] HCA 43 ; (1989) 167 CLR 543 at 555-556 per Dawson J and 560-561 per McHugh J, with whom Deane J concurred; Scott v Sun Alliance Australia Ltd [1993] HCA 46 ; (1993) 178 CLR 1 at 7-8; Kucks v CSR Ltd (1996) 66 IR 182 at 185-186; Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 213-215; and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 (2003) 201 ALR 271 at [27] , [35] and [45] per McHugh, Gummow, Callinan and Heydon JJ. In Scott , in the passage to which I have referred, the High Court made it clear that, where the expression 'ordinary time rate of pay' is used in relation to conditions of work fixed by an industrial award or collective agreement, it is a reference to the rate of pay for 'the fixed standard hours as opposed to overtime or usual or customary time.'
Case: Bond v Barry [2008] FCAFC 115
Outcome: cited
Despite the fact that there is some difference of opinion in the Court as to the precise test to be applied and as to whether a decision under s 31A is final or interlocutory, it is clear from the discussion in Boston Commercial and Jefferson Ford that it is for the judge to decide whether there are reasonable prospects of success. In doing so, the judge conducts an inquiry into the merits of the question in order to decide whether it is sufficiently strong to warrant a trial ( Jefferson Ford at [23] per Finkelstein J, at [74] per Rares J; Bond v Barry [2008] FCAFC 115 at [72] per curiam). That test and the matters to be considered in coming to a conclusion are not mandated by the legislature. That is the case whether or not it is mandatory ( Jefferson Ford at [128] [129] per Gordon J) or discretionary ( J F Keir v Sparks [2008] FCA 611 at [12] per Graham J) to give summary judgment once that assessment is made or whether the discretion is a general one ( Boston Commercial at [45] per Rares J) or limited by the circumstances of "no reasonable prospect of success" ( Jefferson Ford at [129] per Gordon J). The Court is still in the position of determining the facts and inferences to be drawn in deciding whether or not the test in s 31A has been satisfied in any given case. It is for the Court to decide whether the basis for summary judgment has been established ( Gypsy Jokers at [7] per Gleeson CJ).
Case: Chu Kheng Lim v Minister for Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1
Outcome: cited
The heart of the applicant's argument is the allegation that s 31A impermissibly interferes with the exercise of the judicial power of the Commonwealth and directs the Court as to the outcome of a proceeding. A Commonwealth law that ' direct [s] the courts as to the manner and outcome of the exercise of their jurisdiction ' will be invalid on the basis that it usurps the judicial power of the Commonwealth ( Chu Kheng Lim v Minister for Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ at 37). 47 Section 31A does not ' purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction ' ( Chu Kheng Lim at 37 per Brennan, Deane and Dawson JJ; Gypsy Jokers at [39] per Gummow, Hayne, Heydon and Kiefel JJ). It does not require or authorise the Court ' to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power ' ( Chu Kheng Lim at 27). It does not ' direct the exercise of judicial power in finding facts, applying law or exercising an available discretion ' ( Nicholas at [20] per Brennan CJ). Indeed, as the applicant points out, the giving of summary judgment is an inherent power of courts under the common law ( Nicholas at [14] per Brennan CJ). Section 31A does not impair the curial function of finding facts and applying the law any more than statutory prescription of the rules of evidence, which ' have traditionally been recognised as being an appropriate subject of statutory prescription ' ( Nicholas at [23] per Brennan CJ).
Case: Commonwealth Trading Bank v Inglis [1974] HCA 17 ; (1974) 131 CLR 311
Outcome: considered
In Commonwealth Trading Bank v Inglis [1974] HCA 17 ; (1974) 131 CLR 311 the High Court considered the effect of court rules on a court's inherent powers. The Court said (at 318): It is unacceptable, in our opinion, to say...that the enactment of such a provision as that contained in O. 63, r. 6 leaves unaffected an inherent power which the court is said to have to make an order of the kind for which that rule provides. Those authorities which refer to the continued existence of an inherent power, notwithstanding that a like power is conferred by rules of court, have no application, in our opinion, to a provision of the kind now being considered. The High Court did not suggest that rules of court that affect the inherent power of the Court are thereby invalid.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
The purpose of the section is described in the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth) in the following terms: Subsection 31A(3) provides that for the purposes of giving summary judgment, a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the courts in construing the conditions for summary judgment by reference to the 'no reasonable cause of action' test, in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable. Section 31A will allow the Court greater flexibility in giving summary judgment and will therefore be a useful addition to the Court's powers in dealing with unmeritorious proceedings. Subsection 31A(4) provides that s 31A does not limit any other powers that the court possesses. 43 Prior to the enactment of s 31A, the test for summary dismissal was as set out by Barwick CJ in General Steel . Applying Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 , Barwick CJ described (at 130) the balancing between competing interests that underlies summary judgment: [G]reat care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. Accordingly, (at 129) Barwick CJ articulated the following test: ...the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action... is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
Case: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241
Outcome: considered
Special leave to appeal to the High Court was refused. Gummow ACJ observed that the attack on the legislation must fail, on the basis of the proper construction adopted by the Court of Criminal Appeal. As the Full Court stated in Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at [126] : The authorities make it clear that the first step in determining the constitutional validity of any law is to construe the statute under challenge. Where an interpretation can be taken that avoids rather than leads to a conclusion of invalidity, such an approach should be preferred (Gypsy Jokers [2008] HCA 4 ; 82 ALJR 454 , per Gummow, Hayne, Heydon and Kiefel JJ at [11]).
Case: J F Keir v Sparks [2008] FCA 611
Outcome: cited
Despite the fact that there is some difference of opinion in the Court as to the precise test to be applied and as to whether a decision under s 31A is final or interlocutory, it is clear from the discussion in Boston Commercial and Jefferson Ford that it is for the judge to decide whether there are reasonable prospects of success. In doing so, the judge conducts an inquiry into the merits of the question in order to decide whether it is sufficiently strong to warrant a trial ( Jefferson Ford at [23] per Finkelstein J, at [74] per Rares J; Bond v Barry [2008] FCAFC 115 at [72] per curiam). That test and the matters to be considered in coming to a conclusion are not mandated by the legislature. That is the case whether or not it is mandatory ( Jefferson Ford at [128] [129] per Gordon J) or discretionary ( J F Keir v Sparks [2008] FCA 611 at [12] per Graham J) to give summary judgment once that assessment is made or whether the discretion is a general one ( Boston Commercial at [45] per Rares J) or limited by the circumstances of "no reasonable prospect of success" ( Jefferson Ford at [129] per Gordon J). The Court is still in the position of determining the facts and inferences to be drawn in deciding whether or not the test in s 31A has been satisfied in any given case. It is for the Court to decide whether the basis for summary judgment has been established ( Gypsy Jokers at [7] per Gleeson CJ).
Case: K-Generation v Liquor Licensing Court (2007) 99 SASR 58
Outcome: considered
Section 31A confers a power on the Court to make a decision summarily that there is no reasonable prospect that, if a trial were to take place, the claim or defence would succeed. It is not an adjudication of the merits ( Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [45] per Rares J). If s 31A were to limit or restrict admissible evidence in such a way as to influence or control the manner in which the Court decided a summary dismissal application, then the provision would be incompatible with the exercise of judicial power and thus invalid ( Gypsy Jokers at [108] per Kirby J; K-Generation Pty Ltd v Liquor Licensing Court (2007) 99 SASR 58 at [69] [73] per Duggan J). However, that is simply not the case. 40 In K-Generation at [159], Gray J summarised the general principle in the following terms: The general principle, in its most basic form, has been variously stated as the notion that Ch III of the Constitution will operate to invalidate legislation that requires a federal court to exercise a function that is repugnant to the nature of a federal court, incompatible with federal judicial power, or inconsistent with the tradition of judicial power.
Case: Lodhi v Regina [2007] NSWCCA 360
Outcome: applied
In Lodhi v Regina [2007] NSWCCA 360 the NSW Court of Criminal Appeal considered the validity of certain statutory provisions under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ('the NSI Act'). Under s 26(2)(b) of the NSI Act, the Attorney General issued certificates that prohibited disclosure, in criminal proceedings, of information in documents to which the defendant had sought access. Section 31 of the NSI Act empowered the Court to make orders, including orders granting access to a defendant. In making those orders, s 31(7) of the NSI Act required the Court to balance the risk of prejudice to national security against the defendant's right to a fair trial, and any other relevant matter. Critically, s 31(8) of the NSI Act specified that the Court was to give "greatest" weight to national security. At [41], Spigelman CJ discussed the power of Parliament to change a test for the exercise of judicial power: Although the ultimate task to be performed is one of balancing, s 31(8) does tilt the balance or put a thumb on the scales. However, this is only one of many possible ways in which common law principles or legislative provisions can guide the task of balancing conflicting interests. The existence of such guidance, even if it can be said to tilt the balance in favour of a particular decision, does not fundamentally alter the task. For purposes of assessing the constitutional propositions upon which the appellant relied, it is important to recognise that tilting the balance by some form of guidance is perfectly consistent with the traditional judicial decision making process. 28 His Honour observed at [42] that the common law may also "tilt the scales" for the Court in undertaking a balancing exercise and concluded at [45] that '[a] lthough the provision of guidance, or an indication of weight, will affect the balancing exercise, it does not change the nature of the exercise '. The Chief Justice continued to say, at [46]: It may be that the interposition of a rule or standard applicable before the process of balancing is undertaken will lead to the conclusion that the process does not involve a balancing exercise at all. However, that is not the case where the common law principle or statute identifies one interest as more important than another in a particular context.
Case: Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273
Outcome: cited
The applicant relies on the use that may be made of international treaties that have been ratified in the construction of legislation that is ambiguous ( Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J). However, there is no demonstrated ambiguity in s 31A and nothing in that section to which Art 14.1 of the ICCPR applies. To the extent that the applicant raises the reference in Art 14.1 to an independent and impartial tribunal, if that is in the constitutional sense, it is dealt with elsewhere in these reasons and in Priestley .
Case: Priestley v Godwin (No 2) [2008] FCA 1453
Outcome: considered
The Human Rights Act has no application ( Priestley v Godwin (No 2) [2008] FCA 1453 at [17] - [18] ). 56 The applicant has not shown why, if he says that laws of the ACT are inconsistent with s 31A of the Federal Court Act, those laws apply and why they have been "picked up" by s 79 of the Judiciary Act 1903 (Cth). 62 Section 21(1) of the Human Rights Act has no application to these proceedings ( Priestley at [17]-[18]). 63 The applicant relies on the use that may be made of international treaties that have been ratified in the construction of legislation that is ambiguous ( Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J). However, there is no demonstrated ambiguity in s 31A and nothing in that section to which Art 14.1 of the ICCPR applies. To the extent that the applicant raises the reference in Art 14.1 to an independent and impartial tribunal, if that is in the constitutional sense, it is dealt with elsewhere in these reasons and in Priestley .