mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Middle Harbour Investments Ltd (In Liq) (No. 2) [1977] 2 NSWLR 652
Outcome: cited
this application, the applicant seeks an order staying the orders of 19 June 2006 which comprise four orders. Since order 1 of the orders of 19 June 2006 is not an operative order effecting a dismissal, I do not propose to stay the operation of the declaration as to the effect of the order of 6 October 2005 from the date of the failure to comply with the condition. Order 3 of the order of 19 June 2006 is a refusal of an extension of time for compliance with the order of 6 October 2005. That matter is the subject of leave to appeal. If the appeal is meritorious, the Court has power to set aside order 3 and extend time to enable an amended application to be filed thus reinstating the application. An application to stay a refusal to extend time is apt to be construed as an order extending time. That matter is before the Full Court. The applicant also seeks a stay in respect of the orders of 6 October 2005. I propose to stay order 1 of that order, pending the determination of the appeal (with leave) from the refusal on 19 June 2006 to extend the time for the filing of an amended application, to the extent that the order of 6 October 2005 provides, prospectively, that the application 'stands dismissed'. The respondent does not oppose the application for a stay which I understand to mean that the respondent submits that in exercising the discretion I ought to be satisfied that there is at least an arguable case to be made, although not a persuasive case, in support of the appeal with leave consistent with Powerflex Services Pty Ltd v Data Access Corp. (1996) 137 ALR 498 and Alexander v Cambridge Credit Corp. Ltd (Receivers Appointed) (1985) 2 NSWLR 685. Prima facie, of course, the judgment appealed from is correct and a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct ( Re Middle Harbour Investments Ltd (In Liq) (No. 2) [1977] 2 NSWLR 652.
Case: ISS Health Support Services Pty Ltd v Duthie [2007] SAIRC 94
Outcome: discussed
5 August 2008, the respondent issued a Summons in the Industrial Relations Court of South Australia (IRCSA) alleging that at all material times of her employment she was performing duties covered by the Clerks' Award (SA) (the Clerks Award) and then from 27 March 2006 under the Notional Agreement Preserving the State Clerks' Award (Cth) (the Clerks NAPSA). She sought the underpayment of her claimed entitlements and interest, that is the difference between what she was paid pursuant to the Fitness Award and the Fitness NAPSA and what she contended she should have been paid pursuant to the Clerks Award and the Clerks NAPSA. The IRCSA had jurisdiction to entertain that claim under s 14(a) of the Fair Work Act 1994 (SA) (the FW Act) and as an "eligible court" as defined in s 717 and pursuant to s 720 of the Workplace Relations Act 1996 (Cth) (the WR Act), including the claim arising under the federal instrument, relevantly the Clerks NAPSA: see ISS Health Support Services Pty Ltd v Duthie [2007] SAIRC 94 ( ISS Health v Duthie ). The appellant denied that the respondent was performing the duties covered by the Clerks Award and the Clerks NAPSA as contended, and argued that the relevant instruments were the Fitness Award and the Fitness NAPSA. The IRCSA appeal was listed for hearing on 30 April 2009. On 2 April 2009, his Honour Senior Judge Jennings gave directions for the exchange of outlines of submissions in relation to both the jurisdictional issue and the merits of the appeal. It is unclear what the "jurisdictional issue" is. It may be that there is an issue as to whether an appeal lies without the making of orders (although as noted in [8] of these reasons, s 187(1) of the FW Act would appear to accommodate such an appeal). It may be that there is an issue whether that appeal is competent, having regard to the "matter" including the federal element and the provisions of ss 850(2) and 853 of the WR Act. As to that, see the decision in ISS Health v Duthie [2007] SAIRC 94 at [45] . See also Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171 ( Kronen ) at [4] and [7]. It may be that the appeal may be incompetent because it is not an appeal from the whole of the decision, but only that part of it which related to the period up to 26 March 2006.
Case: R v Bevan; Ex parte Elias and Gordon [1942] HCA 12 ; (1942) 66 CLR 452
Outcome: cited
Federal Court on any appeal, being seized of "the matter" as described in [2] hereof, would have jurisdiction to deal with all questions arising in relation to it: R v Bevan; Ex parte Elias and Gordon [1942] HCA 12 ; (1942) 66 CLR 452 ; Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 ; Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585. In Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 French J (as he then was) said at 597 [85]: Jurisdiction conferred on a Federal Court in respect of a matter authorises the Court to determine all the claims, federal and non-federal, which are involved in the controversy. That the federal claim is determined adversely to the applicant does not thereby deprive the Court of jurisdiction to deal with the non-federal claims. They are all part of the federal jurisdiction conferred upon the Court.
Case: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570
Outcome: cited
Federal Court on any appeal, being seized of "the matter" as described in [2] hereof, would have jurisdiction to deal with all questions arising in relation to it: R v Bevan; Ex parte Elias and Gordon [1942] HCA 12 ; (1942) 66 CLR 452 ; Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 ; Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585. In Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 French J (as he then was) said at 597 [85]: Jurisdiction conferred on a Federal Court in respect of a matter authorises the Court to determine all the claims, federal and non-federal, which are involved in the controversy. That the federal claim is determined adversely to the applicant does not thereby deprive the Court of jurisdiction to deal with the non-federal claims. They are all part of the federal jurisdiction conferred upon the Court.
Case: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511
Outcome: cited
Federal Court on any appeal, being seized of "the matter" as described in [2] hereof, would have jurisdiction to deal with all questions arising in relation to it: R v Bevan; Ex parte Elias and Gordon [1942] HCA 12 ; (1942) 66 CLR 452 ; Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 ; Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585. In Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 French J (as he then was) said at 597 [85]: Jurisdiction conferred on a Federal Court in respect of a matter authorises the Court to determine all the claims, federal and non-federal, which are involved in the controversy. That the federal claim is determined adversely to the applicant does not thereby deprive the Court of jurisdiction to deal with the non-federal claims. They are all part of the federal jurisdiction conferred upon the Court.
Case: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 ; (2000) 104 FCR 564
Outcome: cited
Federal Court on any appeal, being seized of "the matter" as described in [2] hereof, would have jurisdiction to deal with all questions arising in relation to it: R v Bevan; Ex parte Elias and Gordon [1942] HCA 12 ; (1942) 66 CLR 452 ; Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 ; Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585. In Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 French J (as he then was) said at 597 [85]: Jurisdiction conferred on a Federal Court in respect of a matter authorises the Court to determine all the claims, federal and non-federal, which are involved in the controversy. That the federal claim is determined adversely to the applicant does not thereby deprive the Court of jurisdiction to deal with the non-federal claims. They are all part of the federal jurisdiction conferred upon the Court.
Case: Attorney-General v Sillen [1864] EngR 352 ; (1864) 10 HL Cas 704
Outcome: cited
right of appeal has a statutory source: Attorney-General v Sillen [1864] EngR 352 ; (1864) 10 HL Cas 704 at 720; Grierson v R [1938] HCA 45 ; (1938) 60 CLR 431 at 435; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3 ; (1999) 160 ALR 588 at [72] . Under s 24(1)(c) of the Federal Court of Australia Act 1976 (Cth), this Court has jurisdiction to hear appeals from judgments of a State Court exercising federal jurisdiction where an Act so provides. Section 853(1) of the WR Act, the relevant part of which is set out in [9] hereof, so provides. The question is whether the Industrial Magistrate has given a "judgment", as defined: see [10] above.
Case: Grierson v R [1938] HCA 45 ; (1938) 60 CLR 431
Outcome: cited
right of appeal has a statutory source: Attorney-General v Sillen [1864] EngR 352 ; (1864) 10 HL Cas 704 at 720; Grierson v R [1938] HCA 45 ; (1938) 60 CLR 431 at 435; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3 ; (1999) 160 ALR 588 at [72] . Under s 24(1)(c) of the Federal Court of Australia Act 1976 (Cth), this Court has jurisdiction to hear appeals from judgments of a State Court exercising federal jurisdiction where an Act so provides. Section 853(1) of the WR Act, the relevant part of which is set out in [9] hereof, so provides. The question is whether the Industrial Magistrate has given a "judgment", as defined: see [10] above.
Case: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3 ; (1999) 160 ALR 588
Outcome: cited
right of appeal has a statutory source: Attorney-General v Sillen [1864] EngR 352 ; (1864) 10 HL Cas 704 at 720; Grierson v R [1938] HCA 45 ; (1938) 60 CLR 431 at 435; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3 ; (1999) 160 ALR 588 at [72] . Under s 24(1)(c) of the Federal Court of Australia Act 1976 (Cth), this Court has jurisdiction to hear appeals from judgments of a State Court exercising federal jurisdiction where an Act so provides. Section 853(1) of the WR Act, the relevant part of which is set out in [9] hereof, so provides. The question is whether the Industrial Magistrate has given a "judgment", as defined: see [10] above.
Case: Moller v Roy [1975] HCA 31 ; (1975) 132 CLR 622
Outcome: cited
is plain enough, as the appellant submitted, that the words "judgment, decree or order" should bear the same meaning as that in s 73 of the Constitution : Moller v Roy [1975] HCA 31 ; (1975) 132 CLR 622 ; Ah Toy v Registrar of Companies (1985) 10 FCR 280 ( Ah Toy ). It follows that reasons for judgment are not themselves judgments, and that there is no appeal against reasons standing alone: Hi-fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 at 378 per Beaumont J. The appellant thus correctly identified the question whether there is any operative judicial act, beyond the expression of reasons which might form the basis for later orders. It said that there were no orders made in this matter, because there is no obligation on any party to do or refrain from doing any act and no determination of the amount payable under the applicable instruments.
Case: Ah Toy v Registrar of Companies (1985) 10 FCR 280 
Outcome: discussed
is plain enough, as the appellant submitted, that the words "judgment, decree or order" should bear the same meaning as that in s 73 of the Constitution : Moller v Roy [1975] HCA 31 ; (1975) 132 CLR 622 ; Ah Toy v Registrar of Companies (1985) 10 FCR 280 ( Ah Toy ). It follows that reasons for judgment are not themselves judgments, and that there is no appeal against reasons standing alone: Hi-fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 at 378 per Beaumont J. The appellant thus correctly identified the question whether there is any operative judicial act, beyond the expression of reasons which might form the basis for later orders. It said that there were no orders made in this matter, because there is no obligation on any party to do or refrain from doing any act and no determination of the amount payable under the applicable instruments. In Ah Toy (1985) 10 FCR 280 , the Full Court held that an appeal from findings made in the reasons of the Chief Justice of the Supreme Court of the Northern Territory who had conducted an inquiry under s 278 of the Companies Act (NT) into the conduct of the putative appellant as the liquidator of a particular company was incompetent. The findings were followed by a series of orders under s 278(2) that the putative appellant make good to the company its loss caused by certain actions taken by the liquidator. There was initially no appeal from some of the orders themselves; that was done by amendment at the hearing relating only to some of the challenged findings which did not relate directly to the liquidator. Not surprisingly, the Full Court regarded as incompetent the amended appeal to the extent that it challenged only those findings unrelated to the orders. In Ah Toy (1985) 10 FCR 280 , the Full Court at 285-6 addressed various authorities considering what constitutes a "judgment, decree or order". I shall not repeat them. In essence, that expression covers only the operative judicial acts, binding upon the parties and determinative of their legal rights. It must involve the formal judicial act or order by which the Court disposes of the matter before it.
Case: Hi-fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374
Outcome: cited
is plain enough, as the appellant submitted, that the words "judgment, decree or order" should bear the same meaning as that in s 73 of the Constitution : Moller v Roy [1975] HCA 31 ; (1975) 132 CLR 622 ; Ah Toy v Registrar of Companies (1985) 10 FCR 280 ( Ah Toy ). It follows that reasons for judgment are not themselves judgments, and that there is no appeal against reasons standing alone: Hi-fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 at 378 per Beaumont J. The appellant thus correctly identified the question whether there is any operative judicial act, beyond the expression of reasons which might form the basis for later orders. It said that there were no orders made in this matter, because there is no obligation on any party to do or refrain from doing any act and no determination of the amount payable under the applicable instruments.
Case: Ah Toy v Registrar of Companies (1985) 10 FCR 356
Outcome: discussed
Full Court subsequently considered the valid appeal: Ah Toy v Registrar of Companies (1985) 10 FCR 356.
Case: Citigroup Pty Ltd v Mason [2008] FCA 389 ; (2008) 167 FCR 217
Outcome: cited
matters such as the present, as I have noted, it is commonplace for the Court to decide the issue of principle between the parties, leaving it to them to then agree upon the consequential detailed calculations. The final determination of the issue of principle may operate only as an interlocutory judgment, as it does not finally dispose of all issues in the proceeding. It is akin to the separate determination of a question under O 29 of the Federal Court Rules , where an order recording such a determination may give rise to an appeal by leave under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). However, s 853(2) of the WR Act provides that it is not necessary to obtain leave to appeal under s 853(1), and s 853(2) has consequently been held to prevail over the requirement for leave: Citigroup Pty Ltd v Mason [2008] FCA 389 ; (2008) 167 FCR 217 at [32] - [33] . The question remains whether the reasons of the Industrial Magistrate constitute a determination, binding upon the parties and determinative of their legal rights, notwithstanding that there is no formal or separate sealed order recording such a determination.
Case: Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395
Outcome: cited
Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 , the Full Court found that an appeal from the decision of the Australian Telecommunications Commission was competent in the following circumstances. The decision was that the employee should be compulsorily retired for medical unfitness under s 56 of the Telecommunications Act 1975 (Cth). As required by s 56 , the Telecommunications Regulations 1975 (Cth) made provision for review of such a decision. The Review Tribunal decided that "there was insufficient evidence to recommend any alternative to the decision". The employee successfully challenged the validity of the decision of the Review Tribunal under the Administrative Decisions (Judicial Review) Act 1975 (Cth), including on the basis that the relevant regulations did not make proper provision for review of the initial decision so the initial decision under s 56 was itself invalid. The judge at first instance delivered reasons for judgment to that effect, and, although no formal judgment was entered, both in his reasons for judgment and by a minute of orders containing proposed orders accompanying them made declarations as to the invalidity of the decision to retire the employee and setting aside that decision. The primary judge also concluded that, in any event, the Review Tribunal had failed to accord the employee procedural fairness so that, but for the decision about the invalidity of the relevant regulations, the matter would have had to be remitted to the Review Tribunal for reconciliation. The Full Court regarded the appeal from the order setting aside the initial decision as competent, even though there was no challenge to its being set aside for breach of procedural fairness. That is, the appeal was regarded as competent even though it was accepted by the employer as appellant that the Review Tribunal decision should be set aside because procedural fairness was not given to the employee. Toohey J (with whom Fisher J agreed) said at 402-3 that the appeal was "from a finding implicit in the judgment" that the initial decision was also invalid because it must have been on that basis that the matter was not remitted to the Review Tribunal for reconsideration, but that the decisions were declared to be invalid.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
The principles governing the exercise of the Court's power to summarily dismiss a claim on the ground that it discloses no reasonable cause of action, the principles which govern pleadings in this Court and the relevant authorities are conveniently summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421. It is not necessary to restate, at length, his Honour's exposition of the relevant rules and the statements of principle which emerge from the cases to which he refers. It is sufficient, for present purposes, to note that: &#8226; The power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised: see Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130; Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603. &#8226; The purpose of pleadings is to define the issues with sufficient clarity such that respondents understand, and have the opportunity to meet, the case made against them: see Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151ff. &#8226; A statement of claim must plead all the material facts necessary for the purpose of formulating a complete cause of action. If it does not it is liable to be struck out: Mitanis ; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713. &#8226; It is not sufficient for the pleader to state conclusions drawn from unstated facts: see Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5. &#8226; There will be cases in which the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59] ), and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits ( State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42,828-9). &#8226; Not all conclusionary pleadings will be struck out as being deficient: see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 at 417. Whether or not such a pleading should be struck out will depend on whether or not the facts are pleaded at too great a level of generality: see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
The principles governing the exercise of the Court's power to summarily dismiss a claim on the ground that it discloses no reasonable cause of action, the principles which govern pleadings in this Court and the relevant authorities are conveniently summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421. It is not necessary to restate, at length, his Honour's exposition of the relevant rules and the statements of principle which emerge from the cases to which he refers. It is sufficient, for present purposes, to note that: &#8226; The power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised: see Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130; Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603. &#8226; The purpose of pleadings is to define the issues with sufficient clarity such that respondents understand, and have the opportunity to meet, the case made against them: see Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151ff. &#8226; A statement of claim must plead all the material facts necessary for the purpose of formulating a complete cause of action. If it does not it is liable to be struck out: Mitanis ; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713. &#8226; It is not sufficient for the pleader to state conclusions drawn from unstated facts: see Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5. &#8226; There will be cases in which the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59] ), and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits ( State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42,828-9). &#8226; Not all conclusionary pleadings will be struck out as being deficient: see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 at 417. Whether or not such a pleading should be struck out will depend on whether or not the facts are pleaded at too great a level of generality: see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557.