mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: In the Matter of Village Roadshow Limited (No 2) (2004) 22 ACLC 212
Outcome: cited
REQUISITIONED GENERAL MEETING Bell requisitioned a general meeting, which has been effectively adjourned by reason of this proceeding and by order of the Full Court seeking to maintain the status quo. The meeting being so requisitioned in accordance with the Corporations Act 2001 (Cth) ('the Act') should proceed. Even if practical considerations were in favour of not refixing a date for the adjourned meeting (see In the Matter of Village Roadshow Limited (No 2) (2004) 22 ACLC 212, per Mandie J), I do not consider I should adopt this approach where the Act places an obligation on the directors to call and arrange to hold the general meeting so requisitioned. Further, the meeting is an adjourned meeting: (see eg Jackson v Hamlyn [1953] Ch 577, and Scadding v Lorant (1851) 3 HLC 418). The adjourned meeting should not be delayed longer than necessary. The procedural steps required to be taken are not those of a new meeting. Notice will need to be given of the adjourned meeting, but not necessarily of 28 days. However, I do not regard this as significant. Normally an important matter is to ensure that at the time of voting, those entitled to vote reflect as far as possible the current membership of a company. The Court should endeavour to make, in accordance with the general policy of the law, the vote of a meeting reflect the views of shareholders identified and entitled to vote at a time as close as possible to the holding of the meeting: (see In the Matter of Village Roadshow Limited (No 2) (2004) 22 ACLC 212) at [6], and Myners, Review of the Impediments to Voting UK Shares (January 2004) at [18]). I have come to the view that, despite the lapse of time, I should not, even if empowered, make an order changing the record date. It seems to me the adjournment has effectively come about because of a Court order, which was to maintain the status quo, pending resolution of the dispute. Further, I am not satisfied that, in making any order changing the record date, no substantial injustice will be, or is likely to be, caused to any person, including those who acted on the basis of the resumed meeting being merely an adjournment of the original meeting. In my view, in the case of an adjourned meeting, and in the absence of special circumstances, the record date should not be changed. The defendants seek an order that Bell pay their costs (including of the first trial) on an indemnity or solicitor-client basis. This is resisted by Bell. Apart from the issue of the first trial, Bell does not put forward submissions against an adverse order as to costs on a party and party basis.
Case: Jackson v Hamlyn [1953] Ch 577
Outcome: cited
REQUISITIONED GENERAL MEETING Bell requisitioned a general meeting, which has been effectively adjourned by reason of this proceeding and by order of the Full Court seeking to maintain the status quo. The meeting being so requisitioned in accordance with the Corporations Act 2001 (Cth) ('the Act') should proceed. Even if practical considerations were in favour of not refixing a date for the adjourned meeting (see In the Matter of Village Roadshow Limited (No 2) (2004) 22 ACLC 212, per Mandie J), I do not consider I should adopt this approach where the Act places an obligation on the directors to call and arrange to hold the general meeting so requisitioned. Further, the meeting is an adjourned meeting: (see eg Jackson v Hamlyn [1953] Ch 577, and Scadding v Lorant (1851) 3 HLC 418). The adjourned meeting should not be delayed longer than necessary. The procedural steps required to be taken are not those of a new meeting. Notice will need to be given of the adjourned meeting, but not necessarily of 28 days.
Case: Kernaghan v Corrections Corporation of Australia Staff Superannuation Pty Ltd (No. 3) [2007] FCA 2018
Outcome: cited
the reasons stated by Bell in its written submissions, I do not regard the conduct of Bell as being unreasonable: (see Kernaghan v Corrections Corporation of Australia Staff Superannuation Pty Ltd (No. 3) [2007] FCA 2018 at [13-14] per North J, and Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, 441).
Case: Scadding v Lorant (1851) 3 HLC 418 
Outcome: cited
REQUISITIONED GENERAL MEETING Bell requisitioned a general meeting, which has been effectively adjourned by reason of this proceeding and by order of the Full Court seeking to maintain the status quo. The meeting being so requisitioned in accordance with the Corporations Act 2001 (Cth) ('the Act') should proceed. Even if practical considerations were in favour of not refixing a date for the adjourned meeting (see In the Matter of Village Roadshow Limited (No 2) (2004) 22 ACLC 212, per Mandie J), I do not consider I should adopt this approach where the Act places an obligation on the directors to call and arrange to hold the general meeting so requisitioned. Further, the meeting is an adjourned meeting: (see eg Jackson v Hamlyn [1953] Ch 577, and Scadding v Lorant (1851) 3 HLC 418). The adjourned meeting should not be delayed longer than necessary. The procedural steps required to be taken are not those of a new meeting. Notice will need to be given of the adjourned meeting, but not necessarily of 28 days.
Case: Tresize v National Australia Bank Ltd (2005) 220 ALR 706
Outcome: referred to
On 11 August 2005, on the motion of the first respondent, I ordered that pars 79 to 92 of the amended statement of claim (the claim) in this proceeding be struck out. My reasons for so ordering are contained in Tresize v National Australia Bank Ltd (2005) 220 ALR 706 (the earlier reasons). 2 After I made the orders referred to above and published the earlier reasons, Mr Watts, counsel for the applicants, applied for leave to replead the struck out pars. I granted leave and gave the applicants 45 days (that is, until 26 September 2005) to replead. 3 No further amended statement of claim was filed by 26 September 2005.
Case: Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328
Outcome: considered
The applicant justifies the raising of those issues for the first time on appeal on the basis of an asserted obligation of the Tribunal to inquire into and correctly consider questions of law arising on the matter before it, even in the face of concessions or admissions by the parties. It relies upon Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328 at [36] [39] for that proposition. 32 I do not consider that that decision supports its contention. That case relevantly concerned the question of whether the Tribunal had erred in failing to address the question under s 24(2)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) of whether the employee claiming compensation had undertaken all reasonable rehabilitative treatment for the impairment which was compensable. That consideration was relevant to whether the injury had resulted in permanent impairment, so as to entitle the employee concerned to a lump sum compensation payment. The Full Court (Drummond, Kiefel and Dowsett JJ) at [39] said: The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision. 33 In my judgment, the conduct of the matter before the Tribunal clearly indicates that, at least impliedly, the applicant did not seek to ventilate the issues arising under ss 10(7) or 63 of the Act, and restricted itself to the matters which the Tribunal identified. The Tribunal in those circumstances was quite entitled to proceed upon the basis that those matters were not contentious. It did not err in failing to address them. Consequently, the applicant is not now entitled to assert or cannot succeed in asserting that the Tribunal erred in law by failing to do so.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: cited
In addition, there are a few matters in respect of which it is not at all clear that, had the issues been raised by the applicant for consideration, the evidence would have remained as it was before the Tribunal. As discussed in more detail below, in the course of considering the several matters raised by the applicant, the matters now raised under (1), (2) and (5) above and possibly in (3) above may have led to there being more evidence before the Tribunal pertaining to them. For example, there may have been evidence from Dr Macris as to the significance, if any, of the additional medical history to him issuing the CMF to the respondent. There may have been evidence from Dr Bauze and Dr Brooks, and perhaps other evidence, as to the relationship between the diseased condition of the respondent's right knee and the aggravation of the diseased condition of his left knee. There may have been further evidence from the applicant about his state of mind at the time he was examined by Dr Macris concerning his capacity to do the proposed work on the Iron Chieftain. There may have been other relevant communications between the applicant and the respondent, or between the applicant and others such as medical practitioners. That is not of course intended to be exhaustive, or necessarily correct. It is really speculative as to how the hearing before the Tribunal would have proceeded if those issues had been properly signalled. Such considerations, however, do indicate that it would not be appropriate now to permit those matters to be raised: see. eg. Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8; University of Wollongong v Metwally (No 2) [1985] HCA 28 ; (1985) 59 ALJR 481 at 483. I shall nevertheless consider each of the matters sought to be raised by the applicant, even though in some instances the material available may not be the full material which would have been available had the applicant raised those issues before the Tribunal.
Case: University of Wollongong v Metwally (No 2) [1985] HCA 28 ; (1985) 59 ALJR 481
Outcome: cited
In addition, there are a few matters in respect of which it is not at all clear that, had the issues been raised by the applicant for consideration, the evidence would have remained as it was before the Tribunal. As discussed in more detail below, in the course of considering the several matters raised by the applicant, the matters now raised under (1), (2) and (5) above and possibly in (3) above may have led to there being more evidence before the Tribunal pertaining to them. For example, there may have been evidence from Dr Macris as to the significance, if any, of the additional medical history to him issuing the CMF to the respondent. There may have been evidence from Dr Bauze and Dr Brooks, and perhaps other evidence, as to the relationship between the diseased condition of the respondent's right knee and the aggravation of the diseased condition of his left knee. There may have been further evidence from the applicant about his state of mind at the time he was examined by Dr Macris concerning his capacity to do the proposed work on the Iron Chieftain. There may have been other relevant communications between the applicant and the respondent, or between the applicant and others such as medical practitioners. That is not of course intended to be exhaustive, or necessarily correct. It is really speculative as to how the hearing before the Tribunal would have proceeded if those issues had been properly signalled. Such considerations, however, do indicate that it would not be appropriate now to permit those matters to be raised: see. eg. Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8; University of Wollongong v Metwally (No 2) [1985] HCA 28 ; (1985) 59 ALJR 481 at 483. I shall nevertheless consider each of the matters sought to be raised by the applicant, even though in some instances the material available may not be the full material which would have been available had the applicant raised those issues before the Tribunal.
Case: Australian Meat Holdings Pty Ltd v Kazi [2004] 2 Qd R 458
Outcome: considered
The applicant submitted that Australian Meat Holdings Pty Ltd v Kazi [2004] 2 Qd R 458 supported its contention. In that case it was held that a contract of employment was void, so the injured person was not a worker within the meaning of s 12(1) of the WorkCover Queensland Act 1996 (Qld) and could not claim compensation against his employer. The definition of "worker" in s 12(1) was "an individual who works under a contract of service". It was found that the contract of employment was void, so that the injured person was not working under a contract of service and so was not a worker. The contract was found to be void because the claimant in that case was an unlawful non-citizen in Australia. Section 235 of the Migration Act 1958 (Cth) made it an offence for an unlawful non-citizen in Australia to perform work in Australia in the circumstances then applicable. Hence, the Court found that the claimant in that case could not enter into a contract of service: see especially at [12] [13]. A similar result was reached in WorkCover Corporation (San Remo Macaroni Co Pty Ltd) v Da Ping (1994) 175 LSJS 469.
Case: WorkCover Corporation (San Remo Macaroni Co Pty Ltd) v Da Ping (1994) 175 LSJS 469
Outcome: cited
The applicant submitted that Australian Meat Holdings Pty Ltd v Kazi [2004] 2 Qd R 458 supported its contention. In that case it was held that a contract of employment was void, so the injured person was not a worker within the meaning of s 12(1) of the WorkCover Queensland Act 1996 (Qld) and could not claim compensation against his employer. The definition of "worker" in s 12(1) was "an individual who works under a contract of service". It was found that the contract of employment was void, so that the injured person was not working under a contract of service and so was not a worker. The contract was found to be void because the claimant in that case was an unlawful non-citizen in Australia. Section 235 of the Migration Act 1958 (Cth) made it an offence for an unlawful non-citizen in Australia to perform work in Australia in the circumstances then applicable. Hence, the Court found that the claimant in that case could not enter into a contract of service: see especially at [12] [13]. A similar result was reached in WorkCover Corporation (San Remo Macaroni Co Pty Ltd) v Da Ping (1994) 175 LSJS 469.
Case: Yango Pastoral Co Pty Limited v First Chicago Australia Limited [1978] HCA 42 ; (1978) 139 CLR 410
Outcome: applied
In Yango Pastoral Co Pty Limited v First Chicago Australia Limited [1978] HCA 42 ; (1978) 139 CLR 410 at 413, Gibbs ACJ said Where a statute imposes a penalty upon the making or performance of a contract, it is a question of construction whether the statute intends to prohibit the contract in this sense, that is, to render it void and unenforceable, or whether it intends only that the penalty for which it provides shall be inflicted if the contract is made or performed. At 426, Mason J said ... the question is whether the statute intends merely to penalize the person who contrives the prohibition or whether it intends to go further and prohibit contracts the making of which constitute [the breach]. In deciding this question the court will take into account the scope and purpose of the statute and the consequences of the suggested implication with a view to ascertaining whether it would conduce to, or frustrate, the object of the statute.
Case: Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312
Outcome: cited
In my view, the second step is equally problematical for the applicant. In addition, there is nothing in the Seafarers Act itself to support the contention for the reasons just discussed. An employee is defined in s 4 to include a seafarer, and a seafarer is defined in s 3 to include a person employed in any capacity on a prescribed ship. As a matter of fact, the respondent was employed on the Iron Chieftain operated by the applicant. On the clear wording of s 26 of the Seafarers Act, if the respondent as an employee suffered an injury which resulted in his incapacity for work, compensation was payable to him for that injury under the Seafarers Act. It would be a wholly disproportionate consequence of the applicant's contention that he would be ineligible for compensation, even if the non-disclosure or incomplete disclosure of his medical condition was accidental or through oversight, or if it related to a condition which had no relevance to his capacity to perform his duties. It is difficult to accept that outcome would have been intended in legislation which has a significant social objective. The analysis of the relative significance of the information which has been either not disclosed or inaccurately reported regarding the past medical history, and its relationship to the injury, or of the reasons for its non-disclosure or inaccurate disclosure, is not one upon which, in my view, the entitlement to compensation under the Seafarers Act are predicated. That may be one of the situations which, subject to considering the applicant's further contentions, ss 26(3) or 10(7) of the Seafarers Act is designed to cover. The disproportionality to which I have referred is a relevant consideration to the construction for which the applicant contends: cf Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312 at 316. Indeed, the point was made in Visscher 147 FCR at 542 that a medical certificate is not conclusive of the question of fitness to undertake particular duties. In that case, the Full Court at 542 adopted a submission of counsel that: ... the regulatory scheme that is established by the [Navigation] Act and the Orders is a licensing system of a familiar generic sort, of which the issuing of medical certificates is part. It does not, either expressly or impliedly, deal with the contractual relationship between employers and employees.
Case: Lees v Comcare (1999) 56 ALD 84
Outcome: cited
In my judgment, ss 63(2)(a) and (b) are not intended to so restrict a claimant for compensation under the Seafarers Act. At the time a claim for compensation is made, it will often be the case that the precise nature of the injury or its aetiology (as ultimately found) will not be apparent either to the claimant or to his medical advisers: see e.g. Lees v Comcare (1999) 56 ALD 84 at 91. I consider that the nature of the injury as expressed in the claim was sufficient to put the applicant on notice as to the general nature of the injury or injuries which the respondent claimed to have suffered, so that the applicant could exercise its right to require a medical examination under s 66 of the Seafarers Act and to seek information about and from the respondent under s 67 of the Seafarers Act. It is not suggested in the submissions that the notification contained in the claim in any way impeded the applicant from undertaking those inquiries. In addition, as the course of hearing before the Tribunal illustrates, there was medical evidence adduced from both Dr Brook and Dr Bauze that the applicant had suffered an aggravation of his left knee disease unrelated to, or only marginally related to the medial meniscal condition in his left knee. The applicant permitted the proceeding to be conducted on that basis, including testing the medical evidence. It did not object to that evidence as being irrelevant to the claim, nor indeed could it sensibly have done so. 55 It is convenient to address these two contentions of the applicant together.
Case: Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31 ; (1995-1996) 187 CLR 310
Outcome: cited
As senior counsel for the applicant pointed out, the distinction between "injury" and "disease" has had a long history under workers compensation legislation, deriving originally from the fact that disease was not in early such legislation compensable, as the compensation entitlement was limited to "injury by accident": see e.g. the discussion in Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31 ; (1996) 187 CLR 310 at 315 316; Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45 ; (2000) 200 CLR 286.
Case: Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45 ; (2000) 200 CLR 286
Outcome: cited
As senior counsel for the applicant pointed out, the distinction between "injury" and "disease" has had a long history under workers compensation legislation, deriving originally from the fact that disease was not in early such legislation compensable, as the compensation entitlement was limited to "injury by accident": see e.g. the discussion in Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31 ; (1996) 187 CLR 310 at 315 316; Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45 ; (2000) 200 CLR 286.
Case: Commonwealth v Beattie (1981) 53 FLR 191
Outcome: cited
It is clear that the Tribunal proceeded on the basis that the respondent had a pre-existing degenerative condition of his left knee which constituted a "disease", and that his injury arose because that pre-existing degenerative condition had been aggravated. The Tribunal addressed the issue of causation incorporated into the definition of "disease" by finding expressly that the aggravation had been materially contributed to by the particular employment activities undertaken by the respondent. It also found expressly that that aggravation had caused incapacity for work. Those findings, in my judgment, were reasonably open to the Tribunal. It accepted the respondent's evidence that, prior to his commencement of employment on the Iron Chieftain, he did not have ongoing symptoms of pain in his left knee, and that after performing his duties for some time, he developed quite significant symptoms in his left knee which he found to be disabling. Pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place: see Commonwealth v Beattie (1981) 53 FLR 191 at 197; Federal Broom Company Pty Limited v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626.
Case: Federal Broom Company Pty Limited v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626
Outcome: cited
It is clear that the Tribunal proceeded on the basis that the respondent had a pre-existing degenerative condition of his left knee which constituted a "disease", and that his injury arose because that pre-existing degenerative condition had been aggravated. The Tribunal addressed the issue of causation incorporated into the definition of "disease" by finding expressly that the aggravation had been materially contributed to by the particular employment activities undertaken by the respondent. It also found expressly that that aggravation had caused incapacity for work. Those findings, in my judgment, were reasonably open to the Tribunal. It accepted the respondent's evidence that, prior to his commencement of employment on the Iron Chieftain, he did not have ongoing symptoms of pain in his left knee, and that after performing his duties for some time, he developed quite significant symptoms in his left knee which he found to be disabling. Pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place: see Commonwealth v Beattie (1981) 53 FLR 191 at 197; Federal Broom Company Pty Limited v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626.