mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gibbs v The Mayor, Councillors and the Citizens of the City of Altona (1992) 37 FCR 216
Outcome: referred to
The parties' agreement about the identification of the terms which had been breached was founded on the construction of s 178(2) which was adopted by Gray J in Gibbs v The Mayor, Councillors and the Citizens of the City of Altona (1992) 37 FCR 216 at 223. His Honour there held that "each separate obligation found in an award is to be regarded as a 'term', for the purposes of s 178..." His Honour further held that, in ascertaining what constitutes a 'term', regard should be had "not [to] matters of form, such as how the award maker has chosen to designate by numbers or letters the various provisions of an award, but on matters of substance, namely the different obligations which can be spelt out." In the present case the parties have fixed on the particular provisions of the Award to which it was necessary to have resort for the purpose of calculating Mr Paynting's minimum legal entitlements to wages. In my view the parties were correct to approach the matter in this manner. The six "terms" which have been identified applied throughout the relevant period and, depending on the days of which Mr Paynting worked, imposed obligations on the respondents as to the level of remuneration payable to him. Whilst the Award was varied from time to time to increase the amounts prescribed by the various terms, the substantial obligation did not vary: it was that the prescribed amount should be paid to Mr Paynting. 12 When calculating Mr Paynting's entitlements under the Award for any given day, it was necessary, in many instances, to have regard to more than one of the aforementioned terms. For example, in the period between 8 February 2001 and 23 June 2004, when he was working on a casual basis, his ordinary hourly rate was supplemented by the casual loading and, if the work was undertaken on a Saturday, a further loading was payable. 13 The parties have agreed that the breaches of particular terms led to the following underpayments: (a) Underpayment of wages for ordinary hours: (i) Clause 12.5.3: $21,711.17 (ii) Clause 15.1: $3,486.60 (b) Underpayment of wages for overtime hours Monday to Friday: (i) Clauses 12.5.4 and 37.2: $38,233.64 (ii) Clause 37.2: $23,468.85 (c) Underpayment of wages for Saturday hours: (i) Clauses 12.5.4, 33.2.1 and 37.2: $2,223.45 (ii) Clauses 33.2.1 and 37.2: $460.82 (d) Underpayment of wages for Sunday hours: (i) Clauses 12.5.4 and 35: $4,838.39 (ii) Clause 35: $1,941.87 (e) Underpayment of wages for public holiday hours: (i) Clauses 12.5.4 and 42.7.1: $79.09 (ii) Clause 42.6.1: $220.88
Case: Johnson v R [2004] HCA 15 ; (2004) 205 ALR 346
Outcome: referred to
Another factor which must be taken into account in the fixing of pecuniary penalties for multiple breaches of statutory stipulations is the totality principle. This principle is designed to ensure that the aggregate of the penalties imposed is not such as to be oppressive or crushing. Different views have been expressed as to the manner in which the principle ought properly to be applied. On one view the starting point should be the determination of an appropriate total penalty. That figure would then be divided by the number of breaches to produce a penalty for each breach: see CPSU v Telstra Corporation Limited (2001) 108 IR 228 at 230[7]. The orthodox position, however, which I consider should be adopted, is that the starting point is the determination of appropriate penalties for each contravention of the statutory norm. The aggregate figure is then considered with a view to ensuring that it is an appropriate response to the conduct which led to the breaches: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53. See also Ponzio v B &amp; P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [145] per Jessup J. This approach was recently described, in the criminal context from which the totality principle is derived, as "the orthodox, but not necessarily immutable, practice" adopted by sentencing courts: see Johnson v R [2004] HCA 15 ; (2004) 205 ALR 346 at 356[26] per Gummow, Callinan &amp; Heydon JJ.
Case: Ponzio v B &amp; P Caelli Constructions Pty Ltd [2007] FCAFC 65
Outcome: referred to
Another factor which must be taken into account in the fixing of pecuniary penalties for multiple breaches of statutory stipulations is the totality principle. This principle is designed to ensure that the aggregate of the penalties imposed is not such as to be oppressive or crushing. Different views have been expressed as to the manner in which the principle ought properly to be applied. On one view the starting point should be the determination of an appropriate total penalty. That figure would then be divided by the number of breaches to produce a penalty for each breach: see CPSU v Telstra Corporation Limited (2001) 108 IR 228 at 230[7]. The orthodox position, however, which I consider should be adopted, is that the starting point is the determination of appropriate penalties for each contravention of the statutory norm. The aggregate figure is then considered with a view to ensuring that it is an appropriate response to the conduct which led to the breaches: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53. See also Ponzio v B &amp; P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [145] per Jessup J. This approach was recently described, in the criminal context from which the totality principle is derived, as "the orthodox, but not necessarily immutable, practice" adopted by sentencing courts: see Johnson v R [2004] HCA 15 ; (2004) 205 ALR 346 at 356[26] per Gummow, Callinan &amp; Heydon JJ.
Case: Burns Philp Investments Pty Ltd v Dickens (1993) 11 ACLC 525
Outcome: referred to
My Chambers indicated to Burness that I did not want any further written submissions or further affidavit material from him in response to the defendants at this stage in the proceeding. By a subsequent letter dated 4 January 2006, my associate drew the parties' attention to Burns Philp Investments Pty Ltd v Dickens (1993) 11 ACLC 525; GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218 at 228; and Re Glowbind Pty Ltd (in Liq); Takchi v Parbery [2003] NSWSC 1190 ; (2003) 181 FLR 208 and invited their submissions on these cases, as well as costs, including the position of RAM Parts. 41 Section 536 gives the Court a discretionary power: that is, it " may inquire into the matter" (emphasis added): see Re Glowbind Pty Ltd (in Liq); Takchi v Parbery [2003] NSWSC 1190 ; (2003) 181 FLR 208 (" Glowblind ") at 217 per Burchett AJ. Importantly, s 536 does not provide an automatic right to an inquiry upon application. As his Honour said in Glowblind at 217: "Where an inquiry under s 536 is appropriate, this will be because the court considers that inquiry to be 'in the public interest', and 'it is satisfied that there is a prima facie case' to justify subjecting the liquidator to it." See also Burns Philp Investments Pty Ltd v Dickens (1993) 11 ACLC 525 (" Dickens ") at 526, where Young J noted that "it is not in the public interest that anybody who feels that he or she or it has a grievance against the liquidator which they hope might be able to be proved in due course may set in train a full blown inquiry".
Case: Sumitomo Mitsui Banking Corporation v Sumitomo Mitsui Financial Group Pty Ltd [2009] FCA 300
Outcome: related
30 March 2009, I delivered reasons for judgment and made orders as a consequence of those reasons ( Sumitomo Mitsui Banking Corporation v Sumitomo Mitsui Financial Group Pty Ltd [2009] FCA 300). The orders which I made on 30 March 2009 were interlocutory. The proceedings have been listed before me today for final hearing. As was the case on 30 March 2009, there has been no appearance either by or on behalf of the respondent although the listing of the matter today was notified to the respondent at its registered office. The matter has also been called outside the Court. In the circumstances, the applicant seeks relief in the absence of the respondent. The relief which the applicant seeks is set out in Short Minutes of Order which have been handed up to me and which I shall mark as MFI-1.
Case: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370
Outcome: cited
The motion before me is a predictable sequel to the circumscribed leave I gave Mr Kowalski in Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370 to file and serve an amended application and statement of claim. That leave was exercised but the respondents (MMA Super and AMP Super) now seek orders either that the proceedings be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), or that the statement of claim be struck out under O 11 r 16 of the Federal Court Rules as disclosing no reasonable cause of action. I intend taking the latter course for the reason that, while the pleading is misguided in its thrust, it cannot be said that the underlying complaint that appears to inform it may not suggest a reasonable cause of action. In their submissions the respondents, while not admitting this to be the case, have come close to identifying that cause of action, though without conceding that it is reasonably arguable or that they do not have a good defence to it. 2 As I indicated in Kowalski (No 1) , the actual dispute between Mr Kowalski and his past employer, Mitsubishi Motors Australia Ltd (MMAL), has a long history dating to before 16 March 1994 when his employment with that company ceased. MMA Super, a subsidiary of MMAL, was the trustee of the MMA Staff Superannuation Fund and was brought into that dispute because of claims Mr Kowalski has asserted as to his superannuation entitlements consequent upon the cessation of his employment with MMAL. It is unnecessary for present purposes to outline the many proceedings he has brought against MMAL and MMA Super. 3 Though his complaints in substance relate to defaults of MMA Super, AMP Super has been joined in this proceeding because by a deed of 15 June 2006 the trust fund was transferred to it as trustee and MMA Super was then wound up as a superannuation entity. The relief Mr Kowalski seeks includes an order for payment of a sum of money out of the fund, hence the joinder of AMP Super.
Case: Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1
Outcome: cited
While the structure of the Trust Deed and Schedule C is such that, in the circumstances, Mr Kowalski had some entitlement to be paid a sum out of the fund, the deed did not give him any absolute entitlement to be paid a TPD Benefit as such. For such a benefit to be payable the trustee had to determine whether Mr Kowalski fell within the definition of "Total and Permanent Disablement" in cl 1(6) of the Trust Deed. Part (b) of that definition required the trustee to form an opinion as to whether Mr Kowalski was incapacitated to such an extent as to render him unlikely ever to engage or work for reward in any occupation for which he is reasonably suited by education, training or experience. The cl 1(6) determination and the opinion embedded in it were ones for the trustee not the court: see Ford and Lee, Principles of the Law of Trusts , [5185] and the cases cited therein. Accordingly, absent a favourable determination by the trustee, it cannot be said, as Mr Kowalski claims in his pleading, that he has an entitlement to a TPD Benefit: but cf Minehan v AGL Employees Superannuation Pty Ltd (1998) 134 ACTR 1 at [68] where the court itself executed the trust a rare event. 18 Again the pleading alleges repeated failures by the trustee to consider any of the medical evidence that was available to it and hence whether he was entitled to a TPD Benefit. Assuming that there were times at which a duty to consider so arose, the most that Mr Kowalski could expect from a court by way of relief if any would be a direction to the trustee to consider whether, in the circumstances, a cl 1(6) determination should be made and this on the basis of an unreasonable and culpable failure to consider the matter. Mr Kowalski does not seek such relief in this proceeding. 21 There is now a significant body of Australian case law dealing with challenges to the decisions of superannuation trustees not to provide a particular benefit to a member because the trustee has determined that the member did not fall within the relevant trust definition for that benefit. Many of these cases have involved claims for total and permanent disability benefits having criteria similar to those embodied in cl 1(6): see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995).
Case: Neil v Nott [1994] HCA 23 ; (1994) 121 ALR 148
Outcome: cited
Underlying Mr Kowalski's complaint about the trustee's omission, though, would seem to be an unformulated assertion that a determination under cl 1(6) adverse to him had been made. I put the matter this way for this reason. I earlier referred to the correspondence between Mr Kowalski and the trustee concerning his formal application for a TPD Benefit. This evidence was put on by Mr Kowalski. In the course of that correspondence the trustee's solicitors indicated on instruction that "the Trustee has previously considered and declined your claim for a TPD benefit from the Fund arising from your employment to 16 March 1994 and including its cessation on that date". Mr Kowalski is unrepresented. In the distinctive circumstances of this matter where he cannot be expected fully to understand the mysteries of the law of trusts, it is proper for the court to endeavour within appropriate limits to ascertain the right that confusedly such a litigant could well be seeking to assert: cf Neil v Nott [1994] HCA 23 ; (1994) 121 ALR 148 at 150. 20 In his oral submissions Mr Kowalski indicated that, though it was said in the 24 February 2006 letter that the trustee had made a determination adverse to him, he has not been provided with a copy of it or, I would infer, the reasons for it. He equally says he has put on such evidence as he could to satisfy the trustee for cl 1(6) purposes.
Case: Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173
Outcome: cited
There is now a significant body of Australian case law dealing with challenges to the decisions of superannuation trustees not to provide a particular benefit to a member because the trustee has determined that the member did not fall within the relevant trust definition for that benefit. Many of these cases have involved claims for total and permanent disability benefits having criteria similar to those embodied in cl 1(6): see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995). 23 Accepting that both under the general law and under cl 3(1) of the trust deed, MMA Super had no duty to give reasons for its adverse determination, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251. 25 For present purposes, I accept that the grounds upon which a court will review an exercise of a superannuation trustee's discretionary determination are essentially those stated by McGarvie J in Karger v Paul [1984] VR 161 , though they have been somewhat elaborated if not adapted: see Baker v Local Government Superannuation Scheme Pty Ltd at [8] in the superannuation context. They are that the discretion was not exercised in good faith; that there was not a real and genuine consideration of the correct question; that the discretion was not exercised for the purpose for which it was conferred; if the trustee has given reasons for its exercise of discretion, that those reasons were not sound; and, if the material before the trustee can be identified, that the trustee's decision was one that no reasonable person could come to on that material.
Case: Hay v Total Risk Management Pty Ltd [2004] NSWSC 94
Outcome: cited
There is now a significant body of Australian case law dealing with challenges to the decisions of superannuation trustees not to provide a particular benefit to a member because the trustee has determined that the member did not fall within the relevant trust definition for that benefit. Many of these cases have involved claims for total and permanent disability benefits having criteria similar to those embodied in cl 1(6): see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995). 23 Accepting that both under the general law and under cl 3(1) of the trust deed, MMA Super had no duty to give reasons for its adverse determination, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251.
Case: Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945
Outcome: cited
There is now a significant body of Australian case law dealing with challenges to the decisions of superannuation trustees not to provide a particular benefit to a member because the trustee has determined that the member did not fall within the relevant trust definition for that benefit. Many of these cases have involved claims for total and permanent disability benefits having criteria similar to those embodied in cl 1(6): see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995).
Case: Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107
Outcome: cited
There is now a significant body of Australian case law dealing with challenges to the decisions of superannuation trustees not to provide a particular benefit to a member because the trustee has determined that the member did not fall within the relevant trust definition for that benefit. Many of these cases have involved claims for total and permanent disability benefits having criteria similar to those embodied in cl 1(6): see eg Jeffrey Guy Baker v Local Government Superannuation Scheme Pty Ltd [2007] NSWSC 1173 ; Hay v Total Risk Management Pty Ltd [2004] NSWSC 94 ; Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 ; Flegeltaub v Telstra Super Pty Ltd [2000] VSC 107 ; Minehan v AGL Employees Superannuation Pty Ltd ; Vidovic v Email Superannuation Pty Ltd (unreported, Supreme Court of New South Wales, Bryson J, 3 March 1995). 23 Accepting that both under the general law and under cl 3(1) of the trust deed, MMA Super had no duty to give reasons for its adverse determination, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251.
Case: Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601
Outcome: cited
Accepting that both under the general law and under cl 3(1) of the trust deed, MMA Super had no duty to give reasons for its adverse determination, a failure to give reasons in circumstances where explanation might be called for is another matter. As Young J observed in Maciejewski v Telstra Super Pty Ltd (1998) 44 NSWLR 601 at 604, in dealing with the suggestion that because a trustee is not bound to give any reasons, therefore the matter is completely unreviewable: Nothing could be further from the truth. Indeed, whilst trustees do not have to give reasons in a case where a plaintiff puts forward a prima facie case that the trustee's discretion has miscarried, the absence of reasons and the absence of any evidence before the Court as to what happened, will tend to make that prima facie case a virtual certainty. This view has been endorsed in many subsequent cases: see Baker v Local Government Superannuation Scheme Pty Ltd ; Hay v Total Risk Management Pty Ltd ; Alcoa of Australia Retirement Plan Pty Ltd v Thompson (2002) 116 FCR 139 at [37]; Flegeltaub v Telstra Super Pty Ltd ; see also Butler LM, "Reviewing Trustees' Decisions: The Right to Reasons" (1999) 7 Aust Property LJ 251.