mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Carr v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 1802
Outcome: cited
In my opinion, the latter is the correct characterisation. The statutory provisions are not directed to a continuing state of affairs, but rather conduct which answers a particular description. If there are episodes of conduct distinct in time or place, albeit related and engaged in with the same purpose, there will be separate contraventions. To take an example discussed in argument, if an employer on each morning of a week threatened to assault an employee if he did not sign an AWA, there would be a contravention on each day. The evidence in relation to Ms Thompson is in essence no different: cf Carr v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 1802 at [12] and [16]. However, before penalties are finally fixed in respect of all contraventions, and not just those concerning Ms Thompson, I must look at the totality of all the unlawful conduct: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 63, Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281 at [14].
Case: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 
Outcome: cited
In my opinion, the latter is the correct characterisation. The statutory provisions are not directed to a continuing state of affairs, but rather conduct which answers a particular description. If there are episodes of conduct distinct in time or place, albeit related and engaged in with the same purpose, there will be separate contraventions. To take an example discussed in argument, if an employer on each morning of a week threatened to assault an employee if he did not sign an AWA, there would be a contravention on each day. The evidence in relation to Ms Thompson is in essence no different: cf Carr v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 1802 at [12] and [16]. However, before penalties are finally fixed in respect of all contraventions, and not just those concerning Ms Thompson, I must look at the totality of all the unlawful conduct: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 63, Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281 at [14].
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281
Outcome: cited
In my opinion, the latter is the correct characterisation. The statutory provisions are not directed to a continuing state of affairs, but rather conduct which answers a particular description. If there are episodes of conduct distinct in time or place, albeit related and engaged in with the same purpose, there will be separate contraventions. To take an example discussed in argument, if an employer on each morning of a week threatened to assault an employee if he did not sign an AWA, there would be a contravention on each day. The evidence in relation to Ms Thompson is in essence no different: cf Carr v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 1802 at [12] and [16]. However, before penalties are finally fixed in respect of all contraventions, and not just those concerning Ms Thompson, I must look at the totality of all the unlawful conduct: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 63, Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281 at [14].
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 
Outcome: cited
Two aspects may be noted. First, these penalties were increased very substantially, from $10,000, in 2004: schedule 3 Workplace Relations Amendment (Codifying Contempt Offences) Act 2004 (Cth). As to the seriousness with which the legislature views such contraventions, this increase "speaks for itself": Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 at 242. 96 Secondly, in s 407(2) the current Act prescribes different penalties for different contraventions. There are two levels, 30 or 60 penalty units. The contraventions presently under consideration attract the higher level. 97 The Group of which the respondent is a member has been in the hotel business in Tasmania since 2000.
Case: Canturi v Sita Coaches Pty Ltd [2002] FCA 349 ; (2002) 116 FCR 276
Outcome: cited
In a small, intimate workplace like the Hotel, the conduct of the respondent can be taken to have had a significant intimidatory effect on other employees; cf Canturi v Sita Coaches Pty Ltd [2002] FCA 349 ; (2002) 116 FCR 276 at [91] . The respondent must have been aware of this advantage for the implementation of its policy. 104 The respondent's submissions in mitigation of penalty centred on its admission of liability and an attempt to distance itself from the conduct of Mr Barry. It was said that Mr Kalis had gone to Greece on holiday and decided that Mr Barry, a person of long experience in the hotel industry, would be left in charge of the Hotel. 105 This proceeding was commenced on 31 October 2006. It was initially fixed for a four day trial commencing on 27 August 2007. The respondent had filed a number of affidavits in opposition to those of the applicant. I was told that negotiations for a possible admission commenced in June. The Court was not firmly advised until mid August that a full trial on liability would not be needed.
Case: R v Shannon (1979) 21 SASR 442
Outcome: cited
The significance of a plea of guilty is discussed by Professor Kate Warner in her Sentencing in Tasmania (2 nd ed, The Federation Press, 2002) in these terms " Guilty Pleas 3.603 A plea of guilty is a mitigating factor but the weight it is given will depend upon the relevant circumstances including remorse, the degree to which psychological trauma to potential witnesses is avoided, the length of the trial and the strength of the prosecution case. Recent Tasmanian decisions have accepted the following propositions advanced by King CJ in Shannon (1979) 21 SASR 442 at 452-453 as a correct statement of the principles governing the mitigatory effect of pleas of guilty: (1) A plea of guilty may be taken into account in mitigation of sentence where (a) it results from genuine remorse, repentance or contrition, or (b) it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such co-operation may be a desire to earn leniency, and where to allow the plea a mitigatory effect would be conducive to the public purposes which the sentencing judge is seeking to achieve. (2) A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge. (3) In cases falling within (1), the judge is not bound to make a reduction, but should consider the plea with all the other relevant factors in arriving at a proper sentence. (4) In assessing the weight to be attached to a plea of guilty as a factor making for leniency, it is proper for the judge to bear in mind that it is important to the administration of justice that guilty persons should not cause expense to the public and delay to other causes by putting forward false stories and on the basis of such false stories contesting the charges against them. (5) The above propositions are not to be taken as weakening in any way the principle that there must be no increase in the sentence which is appropriate to the crime because the offender has contested the charge." 107 It is true that the admission by the respondent has saved a substantial amount of public money (in this jurisdiction under the Act costs would not normally be awarded: s 824). Also the employees have been saved the stress of having to give evidence about unpleasant events. On the other hand, the admission came at a late stage and after substantial costs had been incurred.
Case: Joel v Morison (1834) 6 Car &amp; P 502
Outcome: cited
However, such mitigation as may have been obtained by an admission of liability was somewhat lessened by the submission that the respondent should get a "further discount" because it was giving up a possible defence. It was not, so the argument went, "bowing to the inevitable". Mr Barry was, in the time-honoured metaphor, engaging in "a frolic of his own" (a catchy phrase coined by Parke B in Joel v Morison (1834) 6 Car &amp; P 502 at 503 and explained by Diplock LJ in Morris v C W Martin &amp; Sons Ltd [1966] 1 QB 716 at 733-734). If there had been apportionment, it was said, Mr Barry would be 70 per cent liable, as against 30 per cent for the respondent.
Case: Morris v C W Martin &amp; Sons Ltd [1966] 1 QB 716
Outcome: cited
However, such mitigation as may have been obtained by an admission of liability was somewhat lessened by the submission that the respondent should get a "further discount" because it was giving up a possible defence. It was not, so the argument went, "bowing to the inevitable". Mr Barry was, in the time-honoured metaphor, engaging in "a frolic of his own" (a catchy phrase coined by Parke B in Joel v Morison (1834) 6 Car &amp; P 502 at 503 and explained by Diplock LJ in Morris v C W Martin &amp; Sons Ltd [1966] 1 QB 716 at 733-734). If there had been apportionment, it was said, Mr Barry would be 70 per cent liable, as against 30 per cent for the respondent.
Case: Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500
Outcome: cited
In the circumstances of the present case, s 826 does not operate as some technical or artificial deeming provision. In reality, for those employed at the Hotel, Mr Barry was the respondent: cf Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 509-511 .
Case: New South Wales v Lepore [2003] HCA 4 ; (2003) 212 CLR 511
Outcome: cited
Approached on common law principles of vicarious liability, and even assuming that his conduct was unauthorised and it was necessary to find that Mr Barry acted within the course of his employment, his conduct was so connected with what he was authorised to do securing signatures to AWAs and arranging rosters that it was a wrongful way of doing what he was employed to do: New South Wales v Lepore [2003] HCA 4 ; (2003) 212 CLR 511 at [40] - [54] . Obtaining signatures to the AWAs was not a private benefit for Mr Barry but something from which the respondent itself would profit. 112 It was not only Mr Barry who was aware of and implemented the policy; see [86]-[87] above. 113 At the most, a modest discount for admission of liability may be allowable. I would accept the figure of ten per cent as proposed by counsel for the applicant.
Case: P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466
Outcome: cited
is a considerable background to the applicants' motion and this proceeding which is set out in my earlier ruling on 28 April 2009: P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466. I do not propose to rehearse it in detail and I incorporate that ruling in these reasons.
Case: P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission [2007] FCA 1659 ; (2007) 65 ACSR 239
Outcome: cited
the return of the subpoena first came before the Court, ASIC objected to the production of the documents and transcripts for inspection on the ground of PII. At the time the basis for the objection that they tended to reveal the identity of informers to ASIC was not disclosed publicly in open hearing. I rejected ASIC's objection, in substance, on the basis that the identity of the informers, which ASIC was seeking to protect from disclosure, was already known within Multiplex and I set out my reasons in a confidential schedule to the published judgment: P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission [2007] FCA 1659 ; (2007) 65 ACSR 239. On 14 November 2007 I ordered that ASIC's application that the documents and transcripts were protected from production for inspection on the ground of PII be dismissed.
Case: Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd (No 2) [2009] WASC 67
Outcome: cited
practice or task of undertaking the redaction or masking exercise in respect of documents the subject of an order for discovery or inspection is well accepted. However, there have been different approaches to the manner in which such redaction or masking is to be undertaken and as to the principal basis for the practice. The various approaches are discussed and analysed by Martin CJ in Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd (No 2) [2009] WASC 67.
Case: Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667
Outcome: followed
am satisfied that the confidential material relied upon by ASIC discloses the existence and identity of an informer or informers to ASIC other than Mr Cummins. It is implicit in the Full Court's reasoning that the Court reached the same conclusion. It was accepted by all parties that the protection of the identity of an informer or informers to ASIC from disclosure is a legitimate and accepted basis upon which to object to the protection and inspection of documents on the ground of PII: see, for example, Rogers v Home Secretary [1973] AC 388; Cain v Glass (No 2) (1985) 3 NSWLR 230 ; Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311 ; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.
Case: Cain v Glass (No 2) (1985) 3 NSWLR 230
Outcome: followed
am satisfied that the confidential material relied upon by ASIC discloses the existence and identity of an informer or informers to ASIC other than Mr Cummins. It is implicit in the Full Court's reasoning that the Court reached the same conclusion. It was accepted by all parties that the protection of the identity of an informer or informers to ASIC from disclosure is a legitimate and accepted basis upon which to object to the protection and inspection of documents on the ground of PII: see, for example, Rogers v Home Secretary [1973] AC 388; Cain v Glass (No 2) (1985) 3 NSWLR 230 ; Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311 ; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.
Case: Rogers v Home Secretary [1973] AC 388
Outcome: followed
am satisfied that the confidential material relied upon by ASIC discloses the existence and identity of an informer or informers to ASIC other than Mr Cummins. It is implicit in the Full Court's reasoning that the Court reached the same conclusion. It was accepted by all parties that the protection of the identity of an informer or informers to ASIC from disclosure is a legitimate and accepted basis upon which to object to the protection and inspection of documents on the ground of PII: see, for example, Rogers v Home Secretary [1973] AC 388; Cain v Glass (No 2) (1985) 3 NSWLR 230 ; Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311 ; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.
Case: Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311
Outcome: followed
am satisfied that the confidential material relied upon by ASIC discloses the existence and identity of an informer or informers to ASIC other than Mr Cummins. It is implicit in the Full Court's reasoning that the Court reached the same conclusion. It was accepted by all parties that the protection of the identity of an informer or informers to ASIC from disclosure is a legitimate and accepted basis upon which to object to the protection and inspection of documents on the ground of PII: see, for example, Rogers v Home Secretary [1973] AC 388; Cain v Glass (No 2) (1985) 3 NSWLR 230 ; Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311 ; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.
Case: Gerah Imports Pty Ltd v Duke Group Ltd (In Liq) (1993) 61 SASR 557
Outcome: cited
It is plain that the examinable affairs of a company (as defined in s 53 of the Act) may include information as to the capacity of a person who is or may be liable to the company in the event of successful proceedings against that person: see Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301 at 311-312; Gerah Imports Pty Ltd v Duke Group Ltd (In Liq) (1993) 61 SASR 557; Re BPTC Ltd (In Liq) (1994) 14 ACSR 460. A liquidator may seek to be in a position to determine, in a commercial sense as well as a legal sense, how the liquidator is best able to discharge duties to the company in liquidation.
Case: Harvey v Burfield (2002) 84 SASR 11
Outcome: distinguished
A similar contention succeeded in Harvey v Burfield (2002) 84 SASR 11. In that case, there had been no order that the liquidators were appointed severally, so Perry J concluded after a review of the authorities that they should be regarded as having been appointed jointly. Consequently, his Honour said at 16, [37]: " ... where two or more liquidators are appointed, the appointment should be regarded as joint and not several, so that absent any statutory provision to the contrary, liquidators must act together and are unable to authorise any one or more of them to act on behalf of all of them." The position, as his Honour noted at 17, [42] may be different if the liquidators are appointed jointly and severally: cf Re Parker (1997) 80 FCR 1. Where liquidators are not appointed severally, s 506(4) would permit two of several (in the sense of "more than two or three, but not many" per Perry J at [53]) liquidators to exercise the powers of the liquidators under the Act. Perry J explained the operation of s 506(4) at 18, [55] in the following terms: "If it is accepted that where more than one liquidator is appointed the liquidators should be regarded as joint liquidators, with the consequence that they must act jointly and not severally in the exercise of any powers which may be conferred upon them, the reason why s 506(4) deals only with the situation where 'several liquidators' are appointed becomes clear. Absent any determination to the contrary made at the time of their appointment, where three or more liquidators are appointed, any power given by the Act may be exercised by any number not less than two ."
Case: Re BPTC Ltd (In Liq) (1994) 14 ACSR 460
Outcome: discussed
It is plain that the examinable affairs of a company (as defined in s 53 of the Act) may include information as to the capacity of a person who is or may be liable to the company in the event of successful proceedings against that person: see Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301 at 311-312; Gerah Imports Pty Ltd v Duke Group Ltd (In Liq) (1993) 61 SASR 557; Re BPTC Ltd (In Liq) (1994) 14 ACSR 460. A liquidator may seek to be in a position to determine, in a commercial sense as well as a legal sense, how the liquidator is best able to discharge duties to the company in liquidation. 22 Mr Viscariello placed reliance upon BPTC 14 ACSR at 463 where McLelland CJ in Eq said: "The power to require an examinee to produce 'books' either by the terms of the examination summons (s 596D(2) and (3)), or by separate direction (s 97(9)), is similarly discretionary. Numerous recent cases have emphasised the importance of the difference between the legal ambit of these powers, and the appropriateness of their exercise in particular cases. The court must ensure that a proper balance is maintained between the legitimate interests of the person seeking the exercise of the court's power on the one hand, and those of the persons to be affected by any such exercise of power, on the other hand." It was argued that the legitimate requirements of the examination at present do not extend to investigating the capacity of Mr Viscariello to meet any judgment. 23 An examination under s 596A, as noted, was an entitlement of the liquidators. There was no discretion to decline to permit it. That, of course, does not preclude the Registrar presiding at the examination from deciding that certain questions are oppressive in all the circumstances and so not allowing them to be put. Most, if not all, the cases in which summonses such as the present have been contentious have involved discretionary examination orders under s 596B. Nevertheless, I think similar considerations arise where there is an examination ordered under s 596A and production ordered under s 596D. There may well be circumstances where examination on a particular topic is oppressive because the balance referred to in BPTC 14 ACSR 460 is not maintained at one stage of an examination and is at an adjourned stage of the examination, or is oppressive at one examination but not at any subsequent examination. Counsel for Mr Viscariello acknowledged that Mr Lock and Mr Sheahan might secure a further order for the examination of Mr Viscariello under s 596A at a later date and for the production of documents relating to his personal financial position to assess his capacity to meet any judgment.
Case: Re Parker (1997) 80 FCR 1
Outcome: cited
A similar contention succeeded in Harvey v Burfield (2002) 84 SASR 11. In that case, there had been no order that the liquidators were appointed severally, so Perry J concluded after a review of the authorities that they should be regarded as having been appointed jointly. Consequently, his Honour said at 16, [37]: " ... where two or more liquidators are appointed, the appointment should be regarded as joint and not several, so that absent any statutory provision to the contrary, liquidators must act together and are unable to authorise any one or more of them to act on behalf of all of them." The position, as his Honour noted at 17, [42] may be different if the liquidators are appointed jointly and severally: cf Re Parker (1997) 80 FCR 1. Where liquidators are not appointed severally, s 506(4) would permit two of several (in the sense of "more than two or three, but not many" per Perry J at [53]) liquidators to exercise the powers of the liquidators under the Act. Perry J explained the operation of s 506(4) at 18, [55] in the following terms: "If it is accepted that where more than one liquidator is appointed the liquidators should be regarded as joint liquidators, with the consequence that they must act jointly and not severally in the exercise of any powers which may be conferred upon them, the reason why s 506(4) deals only with the situation where 'several liquidators' are appointed becomes clear. Absent any determination to the contrary made at the time of their appointment, where three or more liquidators are appointed, any power given by the Act may be exercised by any number not less than two ."
Case: Acorn Computers Ltd v MCS Microcomputer Systems Pty Ltd (1984) 6 FCR 277
Outcome: cited
not raised in submissions by Pakula Tackle, I accept that s 196 of the Copyright Act does not prevent the creation of an equitable interest in copyright pursuant to an oral agreement for value to assign copyright: Acorn Computers Ltd v MCS Microcomputer Systems Pty Ltd (1984) 6 FCR 277. No such agreement is pleaded and evidenced in relation to Pakula Tackle.