mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kucks v CSR Limited (1996) 66 IR 182
Outcome: cited
follows therefore that the intention of the parties to the Agreement should be understood not only by reference to these essential considerations but also in the context of the work John Holland was seeking to win and attract for its employees by its tender in response to the Invitation to Tender and whether the scope of the Workplace Expansion Agreement has a relevant relationship with that work, in the context of the contract that was ultimately to be entered into for the performance of particular work. As to these principles see the adoption of the observations of Street J in George A. Bond &amp; Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 by French J in City of Wanneroo v Holmes (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182 per Madgwick J at 184; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 per Ryan J; Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 per Wilcox, Conti and Jacobson JJ at [8]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 per Nicholson, Jacobson and Lander JJ at [51]; and Amcor Limited v Construction, Forestry, Mining &amp; Energy Union [2005] HCA 10; (2005) 214 ALR 56 [2005] HCA 10 ; , (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131].
Case: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211
Outcome: cited
follows therefore that the intention of the parties to the Agreement should be understood not only by reference to these essential considerations but also in the context of the work John Holland was seeking to win and attract for its employees by its tender in response to the Invitation to Tender and whether the scope of the Workplace Expansion Agreement has a relevant relationship with that work, in the context of the contract that was ultimately to be entered into for the performance of particular work. As to these principles see the adoption of the observations of Street J in George A. Bond &amp; Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 by French J in City of Wanneroo v Holmes (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182 per Madgwick J at 184; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 per Ryan J; Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 per Wilcox, Conti and Jacobson JJ at [8]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 per Nicholson, Jacobson and Lander JJ at [51]; and Amcor Limited v Construction, Forestry, Mining &amp; Energy Union [2005] HCA 10; (2005) 214 ALR 56 [2005] HCA 10 ; , (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131].
Case: Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209
Outcome: cited
follows therefore that the intention of the parties to the Agreement should be understood not only by reference to these essential considerations but also in the context of the work John Holland was seeking to win and attract for its employees by its tender in response to the Invitation to Tender and whether the scope of the Workplace Expansion Agreement has a relevant relationship with that work, in the context of the contract that was ultimately to be entered into for the performance of particular work. As to these principles see the adoption of the observations of Street J in George A. Bond &amp; Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 by French J in City of Wanneroo v Holmes (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182 per Madgwick J at 184; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 per Ryan J; Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 per Wilcox, Conti and Jacobson JJ at [8]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 per Nicholson, Jacobson and Lander JJ at [51]; and Amcor Limited v Construction, Forestry, Mining &amp; Energy Union [2005] HCA 10; (2005) 214 ALR 56 [2005] HCA 10 ; , (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131].
Case: United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84
Outcome: cited
follows therefore that the intention of the parties to the Agreement should be understood not only by reference to these essential considerations but also in the context of the work John Holland was seeking to win and attract for its employees by its tender in response to the Invitation to Tender and whether the scope of the Workplace Expansion Agreement has a relevant relationship with that work, in the context of the contract that was ultimately to be entered into for the performance of particular work. As to these principles see the adoption of the observations of Street J in George A. Bond &amp; Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 by French J in City of Wanneroo v Holmes (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182 per Madgwick J at 184; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 per Ryan J; Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 per Wilcox, Conti and Jacobson JJ at [8]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 per Nicholson, Jacobson and Lander JJ at [51]; and Amcor Limited v Construction, Forestry, Mining &amp; Energy Union [2005] HCA 10; (2005) 214 ALR 56 [2005] HCA 10 ; , (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131].
Case: Amcor Limited v Construction, Forestry, Mining &amp; Energy Union [2005] HCA 10; (2005) 214 ALR 56; [2005] HCA 10 ; (2005) 222 CLR 241
Outcome: cited
follows therefore that the intention of the parties to the Agreement should be understood not only by reference to these essential considerations but also in the context of the work John Holland was seeking to win and attract for its employees by its tender in response to the Invitation to Tender and whether the scope of the Workplace Expansion Agreement has a relevant relationship with that work, in the context of the contract that was ultimately to be entered into for the performance of particular work. As to these principles see the adoption of the observations of Street J in George A. Bond &amp; Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 by French J in City of Wanneroo v Holmes (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182 per Madgwick J at 184; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 per Ryan J; Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 per Wilcox, Conti and Jacobson JJ at [8]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 per Nicholson, Jacobson and Lander JJ at [51]; and Amcor Limited v Construction, Forestry, Mining &amp; Energy Union [2005] HCA 10; (2005) 214 ALR 56 [2005] HCA 10 ; , (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131].
Case: Briginshaw v Briginshaw (1938) 60 CLR 336
Outcome: cited
next question that arises is: Did the CFMEU, AMWU or CEPU by reason of the conduct of their officials on 13 February 2009 and/or 5 March 2009 contravene s 767(1) or s 768(1) of the Act? These provisions are civil remedy provisions for the purposes of the Act (ss 767(2) and 768(3)) and the Court may order a person who has contravened either provision to pay a pecuniary penalty. Accordingly, the contravening conduct must be established to the standard of proof required by Briginshaw v Briginshaw (1938) 60 CLR 336 and the Court is required to take into account the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged (s 140(2) Evidence Act 1995 (Cth)). The Briginshaw standard of proof should be applied to all questions of fact in controversy ( Pine v Doyle (2005) 143 IR 98; [2005] FCA 977, per Merkel J; Standen v Feehan (2008) 175 IR 297 per Lander J; [2008] FCA 1009).
Case: Pine v Doyle (2005) 143 IR 98; [2005] FCA 977
Outcome: cited
next question that arises is: Did the CFMEU, AMWU or CEPU by reason of the conduct of their officials on 13 February 2009 and/or 5 March 2009 contravene s 767(1) or s 768(1) of the Act? These provisions are civil remedy provisions for the purposes of the Act (ss 767(2) and 768(3)) and the Court may order a person who has contravened either provision to pay a pecuniary penalty. Accordingly, the contravening conduct must be established to the standard of proof required by Briginshaw v Briginshaw (1938) 60 CLR 336 and the Court is required to take into account the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged (s 140(2) Evidence Act 1995 (Cth)). The Briginshaw standard of proof should be applied to all questions of fact in controversy ( Pine v Doyle (2005) 143 IR 98; [2005] FCA 977, per Merkel J; Standen v Feehan (2008) 175 IR 297 per Lander J; [2008] FCA 1009). The first is whether Mr Ingham was hindered or obstructed by the Union officials (that is, a permit holder) on 13 February 2009 or 5 March 2009 as a question of fact ( Pine v Doyle ; Standen v Feehan ; O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1). The second is whether the officials engaged in that conduct intentionally. The third is whether the conduct of the officials offended the prohibition upon a permit holder otherwise acting in "an improper manner" and whether that conduct must be engaged in intentionally. There is no doubt that Mr Ingham on both days was diverted from discharging his normal duties. He was called to the entry gate and was compelled to deal with the events of entry that the officials knew was the subject of John Holland's objections. He also sought to manage the events of entry by discouraging the officials from continuing to enter the site as they walked along the road towards the smoko or crib huts and by engaging the officials and requesting and/or ordering them to leave the site. Mr Ingham chose to wait with the officials until the employees had their break and chose to be present when the officials spoke to employees in the huts. His election to wait and be present was a function of managing the consequences of unauthorised entry. Accordingly, I find that the acts of entry by the permit holders on 13 February 2009 and 5 March 2009 in the manner found at [98] to [127] amount to a hindrance and obstruction of Mr Ingham in the conduct of his duties to John Holland. I find that the conduct was intentional in the sense that the conduct was unreasonable as the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances described in these reasons was likely to impede Mr Ingham and nevertheless the permit holders elected to enter the site, progress to the crib huts and conduct meetings with employees of John Holland in the circumstances previously described ( Pine v Doyle (supra); Leonard v Morris (1975) 10 SASR 528). Accordingly, I am satisfied that contraventions of s 767(1) occurred on 13 February 2009 and 5 March 2009.
Case: Standen v Feehan (2008) 175 IR 297 per Lander J; [2008] FCA 1009
Outcome: cited
next question that arises is: Did the CFMEU, AMWU or CEPU by reason of the conduct of their officials on 13 February 2009 and/or 5 March 2009 contravene s 767(1) or s 768(1) of the Act? These provisions are civil remedy provisions for the purposes of the Act (ss 767(2) and 768(3)) and the Court may order a person who has contravened either provision to pay a pecuniary penalty. Accordingly, the contravening conduct must be established to the standard of proof required by Briginshaw v Briginshaw (1938) 60 CLR 336 and the Court is required to take into account the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged (s 140(2) Evidence Act 1995 (Cth)). The Briginshaw standard of proof should be applied to all questions of fact in controversy ( Pine v Doyle (2005) 143 IR 98; [2005] FCA 977, per Merkel J; Standen v Feehan (2008) 175 IR 297 per Lander J; [2008] FCA 1009). The first is whether Mr Ingham was hindered or obstructed by the Union officials (that is, a permit holder) on 13 February 2009 or 5 March 2009 as a question of fact ( Pine v Doyle ; Standen v Feehan ; O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1). The second is whether the officials engaged in that conduct intentionally. The third is whether the conduct of the officials offended the prohibition upon a permit holder otherwise acting in "an improper manner" and whether that conduct must be engaged in intentionally. There is no doubt that Mr Ingham on both days was diverted from discharging his normal duties. He was called to the entry gate and was compelled to deal with the events of entry that the officials knew was the subject of John Holland's objections. He also sought to manage the events of entry by discouraging the officials from continuing to enter the site as they walked along the road towards the smoko or crib huts and by engaging the officials and requesting and/or ordering them to leave the site. Mr Ingham chose to wait with the officials until the employees had their break and chose to be present when the officials spoke to employees in the huts. His election to wait and be present was a function of managing the consequences of unauthorised entry.
Case: George v Rockett (1990) 93 ALR 483
Outcome: cited
a person has reasonable grounds to believe that entry is not authorised involves an objective assessment of whether facts were before that person sufficient to induce a reasonable person to believe that grounds existed for denying authority to enter. That view is consistent with the approach to the notion of "reasonable grounds" in George v Rockett (1990) 93 ALR 483 and Rema Industries and Services Pty Ltd v Coad &amp; Ors (1992) 107 ALR 374. In determining whether reasonable grounds for a belief exist, there is a relationship between the objective facts that must engender such a belief and the role, standards and duties of the person confronting the relevant facts. In this case, the officials are permit holders under the Act and Mr Dettmer is an experienced State Secretary of the AMWU. In the face of an employer's objection to entry in the manner of 19 November 2008 and correspondence from the employer pressing that objection, a permit holder and the Unions as organisations, must necessarily give consideration to the merits of the employer's claims and form a view as to whether the claims are well placed or not. If the Unions and the permit holders are satisfied that the claims are misplaced , the demonstrated consideration of the claims is very likely to suggest that the relevant person when seeking to enter the site had reasonable grounds for believing that entry was authorised even though events may subsequently demonstrate that entry was not authorised. Persons in the position of permit holders or officers of Unions cannot be said to have acted reasonably in the absence of reasonable investigation and enquiry into objections made and strongly pressed denying the very right of entry relied upon by those seeking entry. That follows because statutory rights of entry to premises carry with the exercise of those rights corresponding duties of enquiry to be reasonably satisfied that entry is authorised in the context of the facts and circumstances before the entry seeker. That corresponding duty is not only a function of a balance between rights and obligations but derives from Part 15 of the Act, the objects recited in s 736 of the Act and the regime established for granting permits to enter.
Case: Rema Industries and Services Pty Ltd v Coad &amp; Ors (1992) 107 ALR 374
Outcome: cited
a person has reasonable grounds to believe that entry is not authorised involves an objective assessment of whether facts were before that person sufficient to induce a reasonable person to believe that grounds existed for denying authority to enter. That view is consistent with the approach to the notion of "reasonable grounds" in George v Rockett (1990) 93 ALR 483 and Rema Industries and Services Pty Ltd v Coad &amp; Ors (1992) 107 ALR 374. In determining whether reasonable grounds for a belief exist, there is a relationship between the objective facts that must engender such a belief and the role, standards and duties of the person confronting the relevant facts. In this case, the officials are permit holders under the Act and Mr Dettmer is an experienced State Secretary of the AMWU. In the face of an employer's objection to entry in the manner of 19 November 2008 and correspondence from the employer pressing that objection, a permit holder and the Unions as organisations, must necessarily give consideration to the merits of the employer's claims and form a view as to whether the claims are well placed or not. If the Unions and the permit holders are satisfied that the claims are misplaced , the demonstrated consideration of the claims is very likely to suggest that the relevant person when seeking to enter the site had reasonable grounds for believing that entry was authorised even though events may subsequently demonstrate that entry was not authorised. Persons in the position of permit holders or officers of Unions cannot be said to have acted reasonably in the absence of reasonable investigation and enquiry into objections made and strongly pressed denying the very right of entry relied upon by those seeking entry. That follows because statutory rights of entry to premises carry with the exercise of those rights corresponding duties of enquiry to be reasonably satisfied that entry is authorised in the context of the facts and circumstances before the entry seeker. That corresponding duty is not only a function of a balance between rights and obligations but derives from Part 15 of the Act, the objects recited in s 736 of the Act and the regime established for granting permits to enter.
Case: O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1
Outcome: cited
first is whether Mr Ingham was hindered or obstructed by the Union officials (that is, a permit holder) on 13 February 2009 or 5 March 2009 as a question of fact ( Pine v Doyle ; Standen v Feehan ; O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1). The second is whether the officials engaged in that conduct intentionally. The third is whether the conduct of the officials offended the prohibition upon a permit holder otherwise acting in "an improper manner" and whether that conduct must be engaged in intentionally. There is no doubt that Mr Ingham on both days was diverted from discharging his normal duties. He was called to the entry gate and was compelled to deal with the events of entry that the officials knew was the subject of John Holland's objections. He also sought to manage the events of entry by discouraging the officials from continuing to enter the site as they walked along the road towards the smoko or crib huts and by engaging the officials and requesting and/or ordering them to leave the site. Mr Ingham chose to wait with the officials until the employees had their break and chose to be present when the officials spoke to employees in the huts. His election to wait and be present was a function of managing the consequences of unauthorised entry.
Case: Leonard v Morris (1975) 10 SASR 528
Outcome: cited
I find that the acts of entry by the permit holders on 13 February 2009 and 5 March 2009 in the manner found at [98] to [127] amount to a hindrance and obstruction of Mr Ingham in the conduct of his duties to John Holland. I find that the conduct was intentional in the sense that the conduct was unreasonable as the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances described in these reasons was likely to impede Mr Ingham and nevertheless the permit holders elected to enter the site, progress to the crib huts and conduct meetings with employees of John Holland in the circumstances previously described ( Pine v Doyle (supra); Leonard v Morris (1975) 10 SASR 528). Accordingly, I am satisfied that contraventions of s 767(1) occurred on 13 February 2009 and 5 March 2009.
Case: Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357 ; (2005) 147 FCR 235
Outcome: considered
There is now a considerable body of authority dealing with this provision although its proper application is not altogether free from difficulty. The first matter to emphasise about the exception in subs (3) is that it applies not to a document as such but to a representation or representations contained in a document. It is well accepted that the hearsay rule contained in s 69(2) is founded on the "rationale of reliability" of business records generally. The exception to that subsection is founded on a "rationale of unreliability" of representations made in the circumstances envisaged by subs (3): see generally Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357 ; (2005) 147 FCR 235 at [27] . As Barrett J put the matter in Vitali v Stachnik [2001] NSWSC 303 at [12] : The purpose of the exclusion is ... to prevent the introduction through this exception to the hearsay rule of hearsay material which is prepared in an atmosphere or context which may cause it to be self-serving in the sense of possibly being prepared to assist the proof of something known or at least apprehended to be relevant to the outcome of identifiable legal proceedings. 10 The focus of the contemplation referred to in subs (3)(a) is, as Lindgren J indicated in the Advanced Medical Institute case, upon the contemplation of the person who "prepared" or "obtained" the relevant representation. As his Honour said at [25]-[27]: 25. ... In order for s 69(3)(a) to apply, a person must have "prepared" or "obtained" the representation (not the document) in contemplation of a proceeding. It is an unusual use of language to refer to the "preparing" of a representation, but I think that the intention is clear enough; the reference is to the person who prepared, formulated, shaped or framed the terms in which the representation is made. This will typically, perhaps always, be or include the maker of the representation. 26. The person who "obtains" a representation is a person who seeks the representation or procures it to be made. This person is not the maker of the representation, but may be a person who "prepared" it. 27. By referring to persons who prepared or obtained the representation, the legislature was attempting to encompass all those who might cause a representation to be made in the form which it takes.