mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392
Outcome: cited
In conformity with this too, it has been held that an application for compensation under the no-fault compensation scheme established by the Accident Compensation Act 1985 (Vic) does not fall within s 659(2)(e); rather it is merely a claim for compensation: see Jennings v Salvation Army (2003) 128 IR 366 at 370-371 per Marshall J approved in Zhang at 352; see also Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392 at [15] per Finkelstein J. 128 In Zhang the Full Court indicated that, whilst the filing of a complaint and participation in proceedings must involve alleged violation of laws or regulations by the employer, recourse to competent administrative authorities need not: see Zhang at [23]; contra Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392 at [3] per Finkelstein J. This conclusion is consistent with the structure of s 659(2)(e) (and art 5(c) of the Termination of Employment Convention) as well as the history of the formulation of art 5(c): see [103] above. If, however, recourse to competent administrative authorities must also involve alleged violation of laws or regulations, then this element is also satisfied. This is because Mr Claveria alleged, in substance, that Mr Dunstan was bullying and harassing him. This conduct involved an allegation of violation of s 21 of the OHS Act.
Case: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
Outcome: cited
Whether there can be a satisfactory working relationship between Mr Claveria and the respondent's representatives in the event of reinstatement is a relevant consideration. Counsel for Mr Claveria referred me to various authorities concerning s 170EE of Industrial Relations Act 1988 as it then was: see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (' Perkins '); Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394; and Liddell v Lembke (1994) 127 ALR 342. This provision differed in terms from s 665. Some care must therefore be taken with these authorities. What they demonstrate, however, is that the Court has taken a reasonably robust attitude to an employer's claim of relationship breakdown with an employee following termination in contravention of a provision such as s 659(2)(e) of the Act: compare Perkins at 191. Moore J adopted much the same approach in Laz , in determining to make an order under s 170CR(1)(b) of the Act, which was in virtually identical terms to s 665. Although Mr Dunstan, Mr Findlay and Mr Claveria have been the subject of some strong criticisms in the course of this litigation, I doubt that this has created an insurmountable obstacle to Mr Claveria's reinstatement. The nature of Mr Claveria's work must be borne in mind, as well as the fact that he has worked for the respondent for many years. His long experience with Pilkington indicates that he has the capacity to take up employment with the company again. I accept that, if Mr Claveria returns to the Laverton factory, Mr Dunstan is likely to find the situation difficult initially, but I also accept that his embarrassment is likely to be short-term. Furthermore, the nature and extent of the Pilkington's workforce should be borne in mind. There was evidence, which was undisputed, that Pilkington employs about 15 workers on afternoon shift at the Laverton factory and about 23 on the day shift. It also operates a large plant in nearby Geelong.
Case: Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394
Outcome: cited
Whether there can be a satisfactory working relationship between Mr Claveria and the respondent's representatives in the event of reinstatement is a relevant consideration. Counsel for Mr Claveria referred me to various authorities concerning s 170EE of Industrial Relations Act 1988 as it then was: see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (' Perkins '); Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394; and Liddell v Lembke (1994) 127 ALR 342. This provision differed in terms from s 665. Some care must therefore be taken with these authorities. What they demonstrate, however, is that the Court has taken a reasonably robust attitude to an employer's claim of relationship breakdown with an employee following termination in contravention of a provision such as s 659(2)(e) of the Act: compare Perkins at 191. Moore J adopted much the same approach in Laz , in determining to make an order under s 170CR(1)(b) of the Act, which was in virtually identical terms to s 665. Although Mr Dunstan, Mr Findlay and Mr Claveria have been the subject of some strong criticisms in the course of this litigation, I doubt that this has created an insurmountable obstacle to Mr Claveria's reinstatement. The nature of Mr Claveria's work must be borne in mind, as well as the fact that he has worked for the respondent for many years. His long experience with Pilkington indicates that he has the capacity to take up employment with the company again. I accept that, if Mr Claveria returns to the Laverton factory, Mr Dunstan is likely to find the situation difficult initially, but I also accept that his embarrassment is likely to be short-term. Furthermore, the nature and extent of the Pilkington's workforce should be borne in mind. There was evidence, which was undisputed, that Pilkington employs about 15 workers on afternoon shift at the Laverton factory and about 23 on the day shift. It also operates a large plant in nearby Geelong.
Case: Liddell v Lembke (1994) 127 ALR 342
Outcome: cited
Whether there can be a satisfactory working relationship between Mr Claveria and the respondent's representatives in the event of reinstatement is a relevant consideration. Counsel for Mr Claveria referred me to various authorities concerning s 170EE of Industrial Relations Act 1988 as it then was: see Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (' Perkins '); Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394; and Liddell v Lembke (1994) 127 ALR 342. This provision differed in terms from s 665. Some care must therefore be taken with these authorities. What they demonstrate, however, is that the Court has taken a reasonably robust attitude to an employer's claim of relationship breakdown with an employee following termination in contravention of a provision such as s 659(2)(e) of the Act: compare Perkins at 191. Moore J adopted much the same approach in Laz , in determining to make an order under s 170CR(1)(b) of the Act, which was in virtually identical terms to s 665. Although Mr Dunstan, Mr Findlay and Mr Claveria have been the subject of some strong criticisms in the course of this litigation, I doubt that this has created an insurmountable obstacle to Mr Claveria's reinstatement. The nature of Mr Claveria's work must be borne in mind, as well as the fact that he has worked for the respondent for many years. His long experience with Pilkington indicates that he has the capacity to take up employment with the company again. I accept that, if Mr Claveria returns to the Laverton factory, Mr Dunstan is likely to find the situation difficult initially, but I also accept that his embarrassment is likely to be short-term. Furthermore, the nature and extent of the Pilkington's workforce should be borne in mind. There was evidence, which was undisputed, that Pilkington employs about 15 workers on afternoon shift at the Laverton factory and about 23 on the day shift. It also operates a large plant in nearby Geelong.
Case: Anthony Smith &amp; Associates Pty Limited v Sinclair (1996) 67 IR 240
Outcome: cited
An order for Mr Claveria's reinstatement should be made. Mr Claveria argued that any order for reinstatement should be reinstatement "with continuity of service and in the same position and on the same terms and conditions of employment as he had immediately prior to his dismissal". He relied on Anthony Smith &amp; Associates Pty Limited v Sinclair (1996) 67 IR 240. This was a decision concerning the former s 170EE of the Industrial Relations Act 1988 , which was relevantly different in terms to s 665: compare Laz at 259 per Moore J concerning s 170CR(1) of the Workplace Relations Act 1996 (which was in the same terms as s 665(1)). The respondent argued that in truth Mr Claveria had confused the Commission's power under s 654(3) with the Court's power under s 665(1). It contended that the orders that Mr Claveria sought were beyond the power of the Court.
Case: Treadwell v ACCO Australia Pty Ltd (unreported, Federal Court of Australia, VG 538/1997, 16 December 1997, BC9707067)
Outcome: referred to
In Treadwell v ACCO Australia Pty Ltd (unreported, Federal Court of Australia, VG 538/1997, 16 December 1997, BC9707067) Parkinson JR made orders under s 170CR(1)(b) similar in terms to those Mr Claveria seeks. If there is power to make orders of this kind, it derives from s 665(1)(d) and (e). Whilst s 665(1)(b) permits the Court to make an order requiring the employer to reinstate the employee, s 665(1)(d) permits the Court to make any other order it thinks necessary to remedy the effect of such a termination and s 665(1)(e) permits the Court to make any other consequential orders. These latter powers are broad. Section 665(1)(d) alone, alternatively s 665(1)(d) and (e) together, would support an order that the position to which Mr Claveria is reinstated be the same position on the same terms and conditions as he held prior to termination on 24 January 2007 or to another position on terms no less favourable; and that his employment be treated as having been continuous between the date of termination and the date of reinstatement.
Case: Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405
Outcome: applied
Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405 , which was a case in respect of an application for interlocutory injunctive relief in respect of the earlier intellectual property item known as a petty patent, Burchett J held that the fact that a respondent's product was capable of falling within the terms of the claim of the petty patent, as well as the fact that the Respondent's product was capable of use as an infringing device, meant that there was a serious question to be tried. On the material to hand, it seems to me that there is, in terms of use, an overlap as between the uses of the patented system of Tramanco and that which is marketed by BPW Transpec. It is necessary to sound a cautionary note in respect of that conclusion because of the very general nature of the information available at present in respect of BPW Transpec's system. The point was made on behalf of that company that the product concerned is, first and foremost, an electronic braking system with the feature that has excited Tramanco's interest, being something of an add-on. On the material to hand, that submission is well made, but it does not, in my opinion, affect the reaching of a conclusion that there is a serious question to be tried for the reason which I have given. There then falls, for separate, but not unrelated, consideration, factors going to the balance of convenience. Tramanco, by its managing director, Mr Sack, has, through its counsel, offered the usual undertaking as to damages. That undertaking, on the material to hand, is not one without substance. There is evidence in the material read today of the worth of Tramanco. Its assets, in total, amount to $2.3 million. It has no liabilities or encumbrances. It has a cash flow which is, on the material to hand, substantial and likely to increase.
Case: Applicant S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 295
Outcome: cited
The applicant in S1083 of 2003 sought an extension of time in which to file and serve a notice of appeal, or an application for leave to appeal, against Moore J's decision. That application was dismissed by Allsop J ( Applicant S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 295). His Honour adopted the reasons that he gave for dismissing a similar application brought by another person who had been an applicant before Moore J in S1083 of 2003 ( Applicant S1510 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 294). Allsop J said that Moore J's view that Ozmanian FCA and Ozmanian FCAFC conclusively determined that the Court had no jurisdiction to review the refusal of the Minister and of the Department to consider the application under s 417 was correct, and that his Honour had correctly dismissed the application as incompetent. 48 Applicant S1083 of 2003 applied unsuccessfully to the High Court for special leave to appeal ( Applicant S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 015). The Court expressed itself as not being convinced that there was any error in the ultimate disposition of the matter in the appellate jurisdiction of this Court.
Case: Applicant S1510 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 294
Outcome: cited
The applicant in S1083 of 2003 sought an extension of time in which to file and serve a notice of appeal, or an application for leave to appeal, against Moore J's decision. That application was dismissed by Allsop J ( Applicant S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 295). His Honour adopted the reasons that he gave for dismissing a similar application brought by another person who had been an applicant before Moore J in S1083 of 2003 ( Applicant S1510 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 294). Allsop J said that Moore J's view that Ozmanian FCA and Ozmanian FCAFC conclusively determined that the Court had no jurisdiction to review the refusal of the Minister and of the Department to consider the application under s 417 was correct, and that his Honour had correctly dismissed the application as incompetent.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
Ms Connolly's decision is not something provided for by the Act, and does not itself affect legal rights; cf Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 335 338. The decision of Ms Connolly is not susceptible to judicial review. The only decision that might conceivably be susceptible to judicial review is that of the Minister. However, it was permissible for the Minister take the decision not to consider exercising his power under s 417(1) by laying down guidelines as to the classes of case that were not to be referred to him ( Bedlington v Chong (1998) 87 FCR 75, discussed further below), and because of s 417(7), the jurisdiction-denying provisions, whether found in the former s 476(2) or in the present ss 474(1), (2) and (7), 476(2) and 476A(1)(a), cannot be avoided in relation to the Minister's decision by resort to the notion of jurisdictional error.
Case: Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
Outcome: discussed
As in the present case, the respondents submitted that this Court lacked jurisdiction to entertain the proceeding, relying on s 476(2) of the Act set out at [16] above. They submitted that Ms Connolly's actions were those of the Minister in accordance with the principles established in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (' Carltona '), that is to say, that the Minister, acting through Ms Connolly had decided not to consider the repeat request. Accordingly, they submitted, s 476(2) deprived the Court of jurisdiction. 42 In S1083 of 2003, Moore J summarised the conclusions of Merkel J in Ozmanian FCA in a series of dot points, which, with some rearrangement and comment by me, were as follows: &#8226; s 417 provided for three kinds of decision a decision to exercise the power under s 417(1), a decision not to do so, and a decision not to consider whether to do so (at 118); &#8226; the Carltona principle is not applicable to any of the classes of decision under s 417, and, relevantly, although power to make the third class of decision may be delegated under s 496 of the Act, it had not been (at 120, 121); &#8226; as a matter of fact, however, the Minister's senior adviser was authorised by the Minister to make and to communicate the third class of decision (at 127); &#8226; a decision of the third class that was in fact made by a Departmental or Ministerial officer could not be treated as a decision of the Minister by the operation of the Carltona principle (at 121); &#8226; the Carltona principle had no application in a legislative context where the Minister had a general power to delegate powers, including the power to decide not to consider the exercise of the s 417(1) power (at 120 - 121); &#8226; even though the decision not to consider exercising the s 417(1) power was not made by the Minister, it was nonetheless a decision of 'the Minister' for the purpose of s 475(2)(e) (at 127); &#8226; it followed that the limit on jurisdiction created by s 485(1), denied the Court jurisdiction under s 5 of the AD(JR) Act in relation to that decision (at 128); &#8226; notwithstanding, the limit on jurisdiction did not deny the Court jurisdiction under s 6 of the AD(JR) Act in relation to conduct engaged in for the purposes of the Minister's making a decision under s 417 (at 134). 43 Merkel J approached the matter on the basis that he could grant relief in respect of conduct under s 6 of the AD(JR) Act, because there had been a breach of the rules of natural justice by Departmental officers in their consideration of the request. 44 In Ozmanian FCAFC , a Full Court allowed an appeal against Merkel J's decision. Sackville J, with whom Jenkinson and Kiefel JJ agreed, considered that 'the words "in respect of ... decisions covered by s 475(2)", as used in s 485(1) are wide enough to embrace conduct leading to a decision not to consider exercising the Minister's powers' (at 15 16).
Case: Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673
Outcome: discussed
The present applicants rely on the holding by Merkel J that a decision not to consider exercising the s 417(1) power must be made by the Minister or by the Minister's properly authorised delegate. In addition to relying on the reasoning of Merkel J in Ozmanian FCA , they refer to the approval of his Honour's reasoning in the present respect by Wilcox J in Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673. 50 The applicants' present submission does not take into account Merkel J's other holding (at 125 128) to the effect that, even though the decision not to consider exercising the power had not been made by the Minister or his duly appointed delegate as required by the Act, it was nonetheless a decision made under the authority of, and in purported reliance on, s 417, and was therefore a decision 'of' the Minister for the purposes of the jurisdiction-denying provisions contained in the then ss 475(2)(e) and 485(1) of the Act.
Case: Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1
Outcome: discussed
In S1083 of 2003, Moore J considered that the decisions of Merkel J in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 (' Ozmanian FCA ') and of the Full Court on appeal from his Honour in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 (' Ozmanian FCAFC ') together provided a complete answer to the jurisdictional question.
Case: Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103
Outcome: discussed
In S1083 of 2003, Moore J considered that the decisions of Merkel J in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 (' Ozmanian FCA ') and of the Full Court on appeal from his Honour in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 (' Ozmanian FCAFC ') together provided a complete answer to the jurisdictional question.
Case: S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1455
Outcome: followed
In S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1455 (' S1083 of 2003 '), the facts were similar to those of the present case, the respondents were in substance the same, and the same counsel appeared for the applicants and the respondents. In that case, as in the present one, Ms Connolly did not to pass on to the Minister a request for the exercise of the Minister's power under s 417(1). The applicants sought the following orders under s 39B of the Judiciary Act 1903 (Cth) and under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the AD(JR) Act'): '1. An order compelling the Manager [Ms Connolly] to consider the applicants' request under section 417 of the Migration Act ... in accordance with the Guidelines issued by the Minister and to bring the s 417 application to the attention of the Minister in order that the Minister can decide whether or not to consider exercising the Minister's power. 2. An order prohibiting the Minister and the Secretary from acting upon or giving any further effect to the Manager's failure to bring the s 417 application to the attention of the Minister, and prohibiting the Minister and the Secretary from removing the applicants from Australia. 3. An order compelling the Secretary to consider the s 417 application in accordance with the Minister's guidelines and to ensure that the Manager deals with the s 417 application in accordance with the Minister's guidelines.'
Case: Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059
Outcome: followed
In Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059 , Katz J noted that Merkel J's conclusion in Ozmanian FCA that s 417 required the Minister personally to decide not to consider exercising the power under s 417(1) was rejected by the Full Court in Bedlington v Chong . (I think it plain that his Honour was directing his attention to the question of a decision not to exercise the power in the individual case.) Katz J added (at [31]): 'However, the rejection of Merkel J's conclusion on that matter appears, if anything, to make his conclusion about the unreviewability of the Departmental officer's decision by reason of the combined effect of para 475(2)(e) of the Act and subs 485(1) of the Act easier to accept.'
Case: Carbines v Powell [1925] HCA 16 ; (1925) 36 CLR 88
Outcome: cited
Lundbeck referred to the following authorities for the proposition that, generally speaking, a power to make regulations is not construed so as to authorise the making of regulations which widen, vary or depart from positive provisions of the enabling Act, extend the scope and general operation of that Act, or operate in a way that is otherwise than strictly ancillary: Shanahan v Scott [1957] HCA 4 ; (1957) 96 CLR 245 at 250, 254; Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 at 640; Willocks v Anderson [1971] HCA 28 ; (1970) 124 CLR 293 at 298-9; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 380; Carbines v Powell [1925] HCA 16 ; (1925) 36 CLR 88 at 92; Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42 ; (1951) 83 CLR 402 at 410. However, the starting point in each case is the empowering section. In the present case, s 228(1)(b) does not stand alone: there is s 228(2)(e) to be considered.