mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Fish v Solutions 6 Holdings Ltd (2006) 225 CLR 180
Outcome: considered
For the BoQ parties, emphasis was given to the jurisprudence which had developed in respect of s 106 of the NSW Act and its predecessors to the effect that the jurisdiction was engaged so long as the "contract" led "directly" to the performance of work in an industry: Fish v Solutions 6 Holdings Ltd (2006) 225 CLR 180 at 192, [27] and Stevenson v Barham [1977] HCA 4 ; (1976-1977) 136 CLR 190 at 200-201. In their joint judgment in the more recent of these cases, Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ noted (at [28]) that "the description of a contract as 'one which leads directly to a person performing work in any industry' is not without its difficulty" (emphasis in original). Their Honours cautioned (ibid) that this and other glosses on the language of s 106 ought not to be permitted to divert argument away from the language of the section. Later in that case (at [42]) their Honours observed: It is the arrangements (contractual and non-contractual) whereby a person performs work in an industry that the Commission may avoid or vary. That is, it is the arrangements (contractual and non-contractual) according to which a person performs the work (or in consequence of which or in fulfilment of which a person performs that work) which may be avoided or varied. And although the notion of 'avoiding' an arrangement that is not enforceable may be awkward, determining that some new arrangement will obtain for the future (thus 'varying' the arrangement) presents no such awkward juxtaposition of ideas. Further, to focus attention upon the arrangements whereby a person performs work in an industry, no matter whether the arrangement is found in the contract the parties have made or only in some related condition or collateral arrangement, sufficiently meets the need, identified by Barwick CJ in Brown v Rezitis, to recognise that these provisions of the Act have, as one important purpose, dealing with subterfuges which take workers outside the operation of industrial instruments intended to protect workers in an industry. At the same time, to read s 106 as hinged about performance of work in any industry and empowering the Commission to deal only with such of the arrangements between parties as can be described as a contract whereby a person performs work in any industry confines the jurisdiction of the Commission to declare a contract void or to vary it within bounds that leave intact the jurisdiction of the Supreme Court over other kinds of contractual obligations. (Internal footnote references omitted)
Case: McDonald's Australia Holdings Ltd v Commissioner of State Revenue (Qld) 2004 ATC 4970
Outcome: considered
While one might question whether, for example, the consensual premature extinguishment of an OMB Agreement at the initiative of the Bank could strictly yield a transfer of goodwill to the Bank: McDonald's Australia Holdings Ltd v Commissioner of State Revenue (Qld) 2004 ATC 4970 ; (2004) 57 ATR 395 (Chesterman J), another way of viewing this aspect of the allegations made in paragraph 108 of the amended defence is that such goodwill as may exist is inherently personal and unlikely to command value other than if the Bank for one reason or another wanted to be liberated from being bound by the OMB Agreement. It is neither necessary or appropriate for the purposes of this application to do anything other than conclude that the existence or otherwise of goodwill, the identification of the sources of any such goodwill and consideration of whether any goodwill would pass on an assignment such as cl 33,1 of the OMB Agreement permits is conceivably relevant to the question of whether a non-Bank party to an OMB Agreement is to be characterised as an "independent contractor" for the purposes of the Independent Contractors Act and raises triable issues of law and fact. The application to strike out paragraph 108 fails.
Case: Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257
Outcome: considered
Well over a century ago, in Daly v Egan (1886) 12 VLR 81 , at 84, a Full Court of the Supreme Court of Victoria observed of the jurisdiction to give summary judgment that: This summary jurisdiction is not intended to be exercised where the defendant has any plausible defence, or disputes any of the material facts. A Judge in chambers is not to try a case on affidavit where the facts are in dispute. See also to like effect in that same year observations made by Holroyd J in White v Johnston (1886) 8 ALT 53. Thus, when in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 105 , at 129-130 Barwick CJ cited with approval the following observation of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 , at 91 that: The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious, But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process, he was not promoting any novel approach to the disposal of an application like the present. The approach described had been evident since colonial times. Real questions of law and fact are raised by para 52(c) and paras 57 to 63 of the amended defence. It is not appropriate to deal with them summarily. Further, that there are presently hypothetical qualities to the questions of law sought to be agitated by the BoQ parties is an added reason, in the exercise of federal jurisdiction, for this Court not to answer them at this stage. The courts created by the Commonwealth Parliament under Chapter III of the Constitution do not give advisory opinions: In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257.
Case: Rossmick No 1 Pty Ltd v Bank of Queensland Ltd [2008] FCAFC 81
Outcome: considered
On the pleadings, whether it should be concluded that each of the OMB parties who is a party to an OMB Agreement should be classified as an "independent contractor" for the purposes of the Independent Contractors Act is controversial. In an earlier interlocutory appeal in this proceeding, Rossmick No 1 Pty Ltd v Bank of Queensland Ltd [2008] FCAFC 81 at [9] , the Full Court observed: The question of what are the terms of the written agreement between the OMB parties and the Bank parties and their effect does not necessarily determine the legal issue of whether the OMB parties are independent contractors for the purposes of s 5 of the Commonwealth Act. While it is unnecessary for us to express a concluded view on this question, it may well be that the expression 'independent contractor' in that section is intended to reflect the common law concept of what is an independent contractor as it applies in relation to natural persons, though we note that an independent contractor, as defined, is not limited to a natural person. If this is correct then the issue might be determined not only by reference to the terms of the contract between the principal and the alleged independent contractor but also by reference to the way in which the parties carry out or give effect to the contract between them: see Hollis v Vabu Pty Ltd [2001] HCA 44 ; (2001) 207 CLR 21 particularly at 40-41. As noted earlier, the OMB parties contended they are not independent contractors and the Bank parties contended they are. That being so, the OMB parties are entitled to plead and prove facts (unless admitted by the Bank parties) concerning the way in which the contractual arrangements have been carried out as part of proving that they are not independent contractors. This is so even if, ultimately, the issue falls to be decided primarily or solely by reference to the written agreements between the parties, and this now appears to be conceded now by the Bank parties. 36 Paragraphs 110 to 116 of the amended defence make allegations as to the effect of particular clauses within an OMB Agreement either alone or, as the case may be, when read with what is described as "the Fit-out Loan" and then plead that the clause or clauses concerned do not constitute a contract for services. In an earlier interlocutory judgment in respect of the then defence, Bank of Queensland Ltd v Industrial Court of New South Wales [2008] FCA 324 at [92] to [94] Greenwood J ordered to be struck out particular paragraphs which did no more than set out a contended construction of an OMB Agreement to be struck out. In the subsequent interlocutory appeal, Rossmick No 1 Pty Ltd v Bank of Queensland Ltd [2008] FCAFC 81 at [12] [13], the Full Court expressed agreement with the "general thrust" of this approach.
Case: Stevenson v Barham [1977] HCA 4 ; (1976-1977) 136 CLR 190
Outcome: considered
For the BoQ parties, emphasis was given to the jurisprudence which had developed in respect of s 106 of the NSW Act and its predecessors to the effect that the jurisdiction was engaged so long as the "contract" led "directly" to the performance of work in an industry: Fish v Solutions 6 Holdings Ltd (2006) 225 CLR 180 at 192, [27] and Stevenson v Barham [1977] HCA 4 ; (1976-1977) 136 CLR 190 at 200-201. In their joint judgment in the more recent of these cases, Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ noted (at [28]) that "the description of a contract as 'one which leads directly to a person performing work in any industry' is not without its difficulty" (emphasis in original). Their Honours cautioned (ibid) that this and other glosses on the language of s 106 ought not to be permitted to divert argument away from the language of the section. Later in that case (at [42]) their Honours observed: It is the arrangements (contractual and non-contractual) whereby a person performs work in an industry that the Commission may avoid or vary. That is, it is the arrangements (contractual and non-contractual) according to which a person performs the work (or in consequence of which or in fulfilment of which a person performs that work) which may be avoided or varied. And although the notion of 'avoiding' an arrangement that is not enforceable may be awkward, determining that some new arrangement will obtain for the future (thus 'varying' the arrangement) presents no such awkward juxtaposition of ideas. Further, to focus attention upon the arrangements whereby a person performs work in an industry, no matter whether the arrangement is found in the contract the parties have made or only in some related condition or collateral arrangement, sufficiently meets the need, identified by Barwick CJ in Brown v Rezitis, to recognise that these provisions of the Act have, as one important purpose, dealing with subterfuges which take workers outside the operation of industrial instruments intended to protect workers in an industry. At the same time, to read s 106 as hinged about performance of work in any industry and empowering the Commission to deal only with such of the arrangements between parties as can be described as a contract whereby a person performs work in any industry confines the jurisdiction of the Commission to declare a contract void or to vary it within bounds that leave intact the jurisdiction of the Supreme Court over other kinds of contractual obligations. (Internal footnote references omitted)
Case: Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16
Outcome: considered
A major legal and factual premise of the BoQ parties' case is that each of the OMB parties who are parties to an OMB Agreement should be classified as an "independent contractor" for the purposes of the Independent Contractors Act . That term is defined by s 4 of that Act but only in a way that declares that an "independent contractor" is not limited to a natural person. It is neither necessary nor appropriate for the purposes of this interlocutory application to reach a concluded view as to meaning of the term. It is enough to observe that, subject the declaration in the definition, the question of whether a party to a contract, corporate or individual, is or is not an "independent contractor" for the purposes of the Independent Contractors Act has been seemingly left by the Parliament to be determined having regard by analogy to principles of the common law developed in modern times by cases such as Hollis v Vabu Pty Ltd [2001] HCA 44 ; (2001) 207 CLR 21 and Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 ; (1986) 160 CLR 16. 48 The BoQ parties' point is certainly not clear to demonstration. In the face of a statutory definition of "independent contractor" which provides that an "independent contractor" is not limited to a natural person, recourse to an Explanatory Memorandum which seeks to promote the notion that the Act is concerned with an independent contractor/ employee distinction may be nothing more than a distraction from giving attention to the language of the definition in the Act itself in the context in which it appears. If nothing else, and given that a corporation cannot be an employee at common law, the way that the definition of "independent contractor" is cast gives pause for thought about whether it might be possible to have a corporate contractor whom one would not conclude was an independent contactor, applying by analogy tests laid down in Hollis v Vabu Pty Ltd , supra and Stevens v Brodribb Sawmilling Co Pty Ltd , supra. I expressly refrain from reaching a concluded view on that subject at an interlocutory stage.
Case: White v Johnston (1886) 8 ALT 53
Outcome: considered
Well over a century ago, in Daly v Egan (1886) 12 VLR 81 , at 84, a Full Court of the Supreme Court of Victoria observed of the jurisdiction to give summary judgment that: This summary jurisdiction is not intended to be exercised where the defendant has any plausible defence, or disputes any of the material facts. A Judge in chambers is not to try a case on affidavit where the facts are in dispute. See also to like effect in that same year observations made by Holroyd J in White v Johnston (1886) 8 ALT 53. Thus, when in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 105 , at 129-130 Barwick CJ cited with approval the following observation of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 , at 91 that: The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious, But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process, he was not promoting any novel approach to the disposal of an application like the present. The approach described had been evident since colonial times. Real questions of law and fact are raised by para 52(c) and paras 57 to 63 of the amended defence. It is not appropriate to deal with them summarily. Further, that there are presently hypothetical qualities to the questions of law sought to be agitated by the BoQ parties is an added reason, in the exercise of federal jurisdiction, for this Court not to answer them at this stage. The courts created by the Commonwealth Parliament under Chapter III of the Constitution do not give advisory opinions: In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257.
Case: Air Services Australia v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200
Outcome: cited
Order 15A is premised upon the proposition that the discovery sought, whether it be identity discovery under r 3 or discovery to enable the applicant to decide whether it has the right to obtain relief, relates to the prospective invocation of the jurisdiction of the Court in a claim for relief against an identified or yet to be identified respondent. Finn J put it thus in Air Services Australia v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200 (at 208): 27. Ordinarily a court's jurisdiction is enlivened by an initiating process seeking a determination of the substantive claim one party alleges it has against another. But ... such need not necessarily be the case. Necessity may require otherwise if a person's right is to be vindicated in a substantive claim. Preliminary discovery of the types provided in O 15A rr 3 and 6 have long been accepted as a proper and appropriate precursor to the making of a substantive claim and appropriate because it assists in the administration of justice in relation to the making of the claim itself. There is no reason for present purposes to distinguish between the two types of discovery. Each reflects a different necessity. 28. Though in form a discrete proceeding (as was the old bill of discovery: see the quotation from Story ) preliminary discovery is, as a matter of substance, properly to be regarded as interlocutory in character in that it does not, nor is it intended to, determine finally the rights inter se of the parties to the substantive application: cf Malouf v Malouf [(1999) [1999] FCA 284 ; 86 FCR 134]. Its function rather is to assist in that determination when or if the substantive application is brought consequent upon what is revealed in the preliminary discovery itself. 29. In consequence I consider an O 15A order for preliminary discovery to be an unexceptionable exercise of judicial power when made in relation to the matter necessitating the making of the order.
Case: Kirella Pty Ltd v Hooper [1999] FCA 169 ; (1999) 92 FCR 90
Outcome: cited
Tamberlin J, like Finn J, had been confronted with a challenge to the validity of O 15A in Kirella Pty Ltd v Hooper [1999] FCA 169 ; (1999) 92 FCR 90. He held that the rule did not purport to confer jurisdiction on the Court. Rather it was "... an exercise of the rule making power by the judges in accordance with s 59 of the Federal Court Act ". And further (at 99 [46]): The Court has the necessary jurisdiction because, at the time when preliminary discovery is sought in the present case, there is a matter in existence and the grant of preliminary discovery is an exercise of power with respect to that matter. The Full Court dismissed an appeal against the decision of Tamberlin J in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 167 ALR 358.
Case: Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 167 ALR 358
Outcome: cited
Tamberlin J, like Finn J, had been confronted with a challenge to the validity of O 15A in Kirella Pty Ltd v Hooper [1999] FCA 169 ; (1999) 92 FCR 90. He held that the rule did not purport to confer jurisdiction on the Court. Rather it was "... an exercise of the rule making power by the judges in accordance with s 59 of the Federal Court Act ". And further (at 99 [46]): The Court has the necessary jurisdiction because, at the time when preliminary discovery is sought in the present case, there is a matter in existence and the grant of preliminary discovery is an exercise of power with respect to that matter. The Full Court dismissed an appeal against the decision of Tamberlin J in Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 167 ALR 358.
Case: Re Sherlock (1991) 102 ALR 156
Outcome: cited
There is no authority to which I have been taken or which I have been able to find directly on the point whether an application for preliminary discovery is an originating process in a proceeding. There is analogous authority in relation to like processes. In Re Sherlock (1991) 102 ALR 156 Lockhart J held that an application for orders that persons be directed to attend before the Court for examination under the provisions of the Corporations Law was not an originating process. In this his Honour followed Re Austral Oil Estates Ltd (in liq) (1986) 86 FLR 247 at 248, a decision of McLelland J of the Supreme Court of New South Wales in relation to an examination order under s 541 of the Companies (NSW) Code which was the predecessor of s 597 of the Corporations Law. In neither of those judgments was there any elaboration of the characterisation of an application for examination as falling outside the concept of "originating process". 51 In Fiorentino v Irons (1997) 79 FCR 327, Foster J declined to follow what he characterised as the obiter observations of Lockhart J in Re Sherlock 102 ALR 156. He noted that the decision in the New South Wales Supreme Court turned upon the precise meaning of the Supreme Court Rules . He made the point that they were not framed in the same way as the Federal Court Rules were at that time. In particular, there was then no definition of "originating process" in either the Federal Court Rules or the Federal Court Act. His Honour relied upon the definition of "proceeding" in the Act. He said it was a very wide definition and he was satisfied that the issue of summons for examination was a proceeding. As to the width of the term "proceeding" his Honour referred to Re Interchase Corporation Ltd (1996) 68 FCR 481 at 487 (Kiefel J) and Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 at 448 (Finn J). In the latter case Finn J said: The definition of 'proceeding' in the Federal Court of Australia Act s 3 [sic], for example, in its reference to 'an incidental proceeding in the course of, or in connexion with, a proceeding', is apt to encompass a motion for security for costs.
Case: Re Austral Oil Estates Ltd (in liq) (1986) 86 FLR 247
Outcome: cited
There is no authority to which I have been taken or which I have been able to find directly on the point whether an application for preliminary discovery is an originating process in a proceeding. There is analogous authority in relation to like processes. In Re Sherlock (1991) 102 ALR 156 Lockhart J held that an application for orders that persons be directed to attend before the Court for examination under the provisions of the Corporations Law was not an originating process. In this his Honour followed Re Austral Oil Estates Ltd (in liq) (1986) 86 FLR 247 at 248, a decision of McLelland J of the Supreme Court of New South Wales in relation to an examination order under s 541 of the Companies (NSW) Code which was the predecessor of s 597 of the Corporations Law. In neither of those judgments was there any elaboration of the characterisation of an application for examination as falling outside the concept of "originating process".