mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Johnson v Marshall Sons &amp; Co Ltd [1906] AC 409
Outcome: cited
The Tribunal adopted the view that it was necessary to consider the facts of the particular case to determine whether the conduct in question amounted to serious and wilful misconduct. That is consistent with the approach with the courts have taken to such expressions in the Seafarers Act and in its ancestors and analogues, including under the Workmen's Compensation Act 1897 (UK). See, e.g. Johnson v Marshall Sons &amp; Co Ltd [1906] AC 409. Such an approach has been taken in Australian cases dealing with that expression: see Ismakovich v Broken Hill Pty Company Limited (1982) 49(2) SAIR 209; Comcare v Calipari [2001] FCA 1534 ; Richards v Faulls Pty Ltd [1971] WAR 129; Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785. That does not suggest, as the applicant contends, that the concept of "serious and wilful misconduct" is ambulatory. It simply indicates that the assessment of whether, in particular circumstances, serious and wilful misconduct has been established, is a question of fact to be decided in all the circumstances of the particular case. In my judgment, the Tribunal did not err in law in approaching the matter in that way. 81 Misconduct is serious if it significantly increases the likelihood of serious injury: see Johnson [1906] AC 409; Calipari [2001] FCA 1534 ; Richards [1971] WAR 129. In Hills 4 ANZ Ins Cas 60-785, Green CJ said: For conduct to amount to serious and wilful misconduct it must be such as to give rise to an immediate risk of serious injury, it must be deliberate and not merely a thoughtless act done on the spur of the moment and it must be accompanied by an appreciation of the risk which is involved in it.
Case: Ismakovich v Broken Hill Pty Company Limited (1982) 49(2) SAIR 209
Outcome: applied
The Tribunal adopted the view that it was necessary to consider the facts of the particular case to determine whether the conduct in question amounted to serious and wilful misconduct. That is consistent with the approach with the courts have taken to such expressions in the Seafarers Act and in its ancestors and analogues, including under the Workmen's Compensation Act 1897 (UK). See, e.g. Johnson v Marshall Sons &amp; Co Ltd [1906] AC 409. Such an approach has been taken in Australian cases dealing with that expression: see Ismakovich v Broken Hill Pty Company Limited (1982) 49(2) SAIR 209; Comcare v Calipari [2001] FCA 1534 ; Richards v Faulls Pty Ltd [1971] WAR 129; Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785. That does not suggest, as the applicant contends, that the concept of "serious and wilful misconduct" is ambulatory. It simply indicates that the assessment of whether, in particular circumstances, serious and wilful misconduct has been established, is a question of fact to be decided in all the circumstances of the particular case. In my judgment, the Tribunal did not err in law in approaching the matter in that way. 79 A similar statutory scheme and factual circumstances to those now under consideration were considered by Judge Stanley in Ismakovich 49(2) SAIR 209. His Honour said at 236, after considering the equivalent of s 10(7) in the Workers Compensation Act 1971 (SA) that: The legislature has therein specifically provided that, if after being warned of the consequences of his action, the worker wilfully and falsely represents himself in writing as not having previously suffered from an injury which is a disease and he subsequently suffers such injury arising out of or in the course of his employment with that employer, compensation shall not be payable in respect of that injury. It seems to me implicit from the inclusion of that provision in that section that the legislature did not regard the wilful making by a worker of a false statement concerning any prior injury as amounting to "serious and wilful misconduct": within the meaning of section 9(5), for, if such a statement was already embraced by that term, there was no necessity to enact that portion of the provision of section 90(1). The same can be said for s 26(3) and s 10(7) of the Seafarers Act. However, I do not need to decide that question. 80 Even assuming that a wilful and false misrepresentation made in seeking employment could be brought within the serious and wilful misconduct exclusion of s 26(3), it is necessary for the applicant to have shown in the particular circumstances that there was in fact serious and wilful misconduct on the part of the respondent and that the misconduct caused the injury.
Case: Comcare v Calipari [2001] FCA 1534
Outcome: cited
The Tribunal adopted the view that it was necessary to consider the facts of the particular case to determine whether the conduct in question amounted to serious and wilful misconduct. That is consistent with the approach with the courts have taken to such expressions in the Seafarers Act and in its ancestors and analogues, including under the Workmen's Compensation Act 1897 (UK). See, e.g. Johnson v Marshall Sons &amp; Co Ltd [1906] AC 409. Such an approach has been taken in Australian cases dealing with that expression: see Ismakovich v Broken Hill Pty Company Limited (1982) 49(2) SAIR 209; Comcare v Calipari [2001] FCA 1534 ; Richards v Faulls Pty Ltd [1971] WAR 129; Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785. That does not suggest, as the applicant contends, that the concept of "serious and wilful misconduct" is ambulatory. It simply indicates that the assessment of whether, in particular circumstances, serious and wilful misconduct has been established, is a question of fact to be decided in all the circumstances of the particular case. In my judgment, the Tribunal did not err in law in approaching the matter in that way. 81 Misconduct is serious if it significantly increases the likelihood of serious injury: see Johnson [1906] AC 409; Calipari [2001] FCA 1534 ; Richards [1971] WAR 129. In Hills 4 ANZ Ins Cas 60-785, Green CJ said: For conduct to amount to serious and wilful misconduct it must be such as to give rise to an immediate risk of serious injury, it must be deliberate and not merely a thoughtless act done on the spur of the moment and it must be accompanied by an appreciation of the risk which is involved in it.
Case: Richards v Faulls Pty Ltd [1971] WAR 129
Outcome: cited
The Tribunal adopted the view that it was necessary to consider the facts of the particular case to determine whether the conduct in question amounted to serious and wilful misconduct. That is consistent with the approach with the courts have taken to such expressions in the Seafarers Act and in its ancestors and analogues, including under the Workmen's Compensation Act 1897 (UK). See, e.g. Johnson v Marshall Sons &amp; Co Ltd [1906] AC 409. Such an approach has been taken in Australian cases dealing with that expression: see Ismakovich v Broken Hill Pty Company Limited (1982) 49(2) SAIR 209; Comcare v Calipari [2001] FCA 1534 ; Richards v Faulls Pty Ltd [1971] WAR 129; Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785. That does not suggest, as the applicant contends, that the concept of "serious and wilful misconduct" is ambulatory. It simply indicates that the assessment of whether, in particular circumstances, serious and wilful misconduct has been established, is a question of fact to be decided in all the circumstances of the particular case. In my judgment, the Tribunal did not err in law in approaching the matter in that way. 81 Misconduct is serious if it significantly increases the likelihood of serious injury: see Johnson [1906] AC 409; Calipari [2001] FCA 1534 ; Richards [1971] WAR 129. In Hills 4 ANZ Ins Cas 60-785, Green CJ said: For conduct to amount to serious and wilful misconduct it must be such as to give rise to an immediate risk of serious injury, it must be deliberate and not merely a thoughtless act done on the spur of the moment and it must be accompanied by an appreciation of the risk which is involved in it.
Case: Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785
Outcome: discussed
The Tribunal adopted the view that it was necessary to consider the facts of the particular case to determine whether the conduct in question amounted to serious and wilful misconduct. That is consistent with the approach with the courts have taken to such expressions in the Seafarers Act and in its ancestors and analogues, including under the Workmen's Compensation Act 1897 (UK). See, e.g. Johnson v Marshall Sons &amp; Co Ltd [1906] AC 409. Such an approach has been taken in Australian cases dealing with that expression: see Ismakovich v Broken Hill Pty Company Limited (1982) 49(2) SAIR 209; Comcare v Calipari [2001] FCA 1534 ; Richards v Faulls Pty Ltd [1971] WAR 129; Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785. That does not suggest, as the applicant contends, that the concept of "serious and wilful misconduct" is ambulatory. It simply indicates that the assessment of whether, in particular circumstances, serious and wilful misconduct has been established, is a question of fact to be decided in all the circumstances of the particular case. In my judgment, the Tribunal did not err in law in approaching the matter in that way. 81 Misconduct is serious if it significantly increases the likelihood of serious injury: see Johnson [1906] AC 409; Calipari [2001] FCA 1534 ; Richards [1971] WAR 129. In Hills 4 ANZ Ins Cas 60-785, Green CJ said: For conduct to amount to serious and wilful misconduct it must be such as to give rise to an immediate risk of serious injury, it must be deliberate and not merely a thoughtless act done on the spur of the moment and it must be accompanied by an appreciation of the risk which is involved in it.
Case: A Solicitor v The Council of the Law Society of NSW [2004] HCA 1 ; (2004) 216 CLR 253
Outcome: cited
The other matter to observe is that the relevant time for the assessment of whether a person is the prescribed fit and proper person, is at the time of the relevant determination. This is made clear by the Act itself, for it is in considering the application that the Board needs to be satisfied that the applicant is the prescribed fit and proper person. I note the Act specifically uses the present tense. There is no express or implied legislative indication which provides for the assessment of the facts at any other particular date. I refer also to A Solicitor v Council of the Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 268. 13 In view of s 43(1) of the AAT Act, where the matter comes before the Tribunal, the Tribunal must be satisfied that the applicant is the prescribed fit and proper person at the time of the Tribunal's determination. In reaching its decision, the Tribunal should consider for itself, as though it was performing the function of the relevant decision-maker, whether the applicant has satisfied the Tribunal he or she was the prescribed fit and proper person. 14 In my view, reading the Tribunal's reasons as a whole and fairly, the Tribunal did not approach the matter by directing itself to the ultimate issue it needed to resolve, namely whether the applicant was the prescribed fit and proper person.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Outcome: applied
The approach to be taken on an appeal from a decision of the Tribunal was outlined by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287: The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts as found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77-78. Where the decision of the Tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie: Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 365. The limits within which the jurisdiction is conferred require that it be exercised with restraint. Only in exceptional circumstances should the decision of the Tribunal not be the final decision: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 145 (Fisher J); Commissioner of Taxation (Cth) v Cainero (1988) 88 ATC 4,427 (Foster J) . As the Full Court said in Repatriation Commission v Thompson (1988) 9 AAR 199 at 204: "...the nature of the task of this Court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law." This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts: Lennell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commissioner v Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).
Case: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
The decision was referred to and approved by the High Court of Australia in Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 (' Wu Shan Liang '). In Tax Agents' Board v Bray (2004) 58 ATR 118 at [22], Hely J said that "Although careful consideration of the AAT's reasons is required, they must be read as a whole and considered fairly". 5 Adopting the approach of the Full Court and Hely J, the Tribunal's reasons in this appeal must be read sensibly, not seeking to perceive error, but concentrating on the task of the Court which is to interfere only when the identified error is one of law. It is permissible to analyse both the language and structure of the reasons of the Tribunal to determine whether a legally erroneous approach has been adopted, or whether the Tribunal has failed to properly appreciate the matter it was bound to consider (see Sinclair v Maryborough Mining Warden [1975] HCA 17 ; (1975) 132 CLR 473 at 479 (Barwick CJ) and Wu Shan Liang at 291 (Kirby J).
Case: Sinclair v Maryborough Mining Warden [1975] HCA 17 ; (1975) 132 CLR 473
Outcome: cited
Adopting the approach of the Full Court and Hely J, the Tribunal's reasons in this appeal must be read sensibly, not seeking to perceive error, but concentrating on the task of the Court which is to interfere only when the identified error is one of law. It is permissible to analyse both the language and structure of the reasons of the Tribunal to determine whether a legally erroneous approach has been adopted, or whether the Tribunal has failed to properly appreciate the matter it was bound to consider (see Sinclair v Maryborough Mining Warden [1975] HCA 17 ; (1975) 132 CLR 473 at 479 (Barwick CJ) and Wu Shan Liang at 291 (Kirby J).
Case: Tax Agents' Board v Bray (2004) 58 ATR 118
Outcome: applied
The decision was referred to and approved by the High Court of Australia in Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 (' Wu Shan Liang '). In Tax Agents' Board v Bray (2004) 58 ATR 118 at [22], Hely J said that "Although careful consideration of the AAT's reasons is required, they must be read as a whole and considered fairly".
Case: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
Outcome: cited
An appeal under s 44 of the AAT Act is concerned solely with a question of law. The existence of a question of law is not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself (see TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J).
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199
Outcome: cited
The threshold for a serious question to be tried is not particularly onerous. It is not a phrase that contemplates some kind of prediction of the probability of the outcome of the trial; it simply obliges the Court, as a first step in considering the grant of interlocutory relief, to be satisfied that there is a serious question to be tried in the principal proceeding and that the interim relief sought will go in aid of the vindication of some legal right asserted by the action. Thus, the serious question must relate to the grant of relief that is sought in the action: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 (' Lenah Game Meats' ). 28 The purpose of an injunction pending trial is sometimes described in terms of preserving the status quo. In Lenah Game Meats , Gleeson CJ said at 217 [12] that: 'The justice and convenience of imposing interim restraint, pending the hearing of the final action, if it exists, lies in the need to prevent the practical destruction of that right before there has been an opportunity to have its existence finally established.' The applicant's claim for interim relief falls squarely within the scope of this principle, as she seeks to prevent the destruction of her right of internal review in both a legal and practical sense.
Case: Rankin v Marine Power International Pty Ltd (2001) 107 IR 117
Outcome: cited
It is also relevant for the Court to consider whether damages are an adequate remedy. The summary dismissal without notice of an employee solicitor is a very grave matter. Necessarily, it will have a detrimental effect on her reputation, and may impose a stigma that adversely affects her future career prospects: see Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 (' Rankin' ) at 142 [247]-[252] per Gillard J. For this reason, the applicant contends that damages will not be an adequate remedy. 30 As both counsel have accepted and as some of my questions have made clear, the Court does not embark on anything resembling a trial of the action when it deals with an application for interlocutory relief. The Court will not ordinarily attempt to reach any conclusion as to the facts or matters in dispute, beyond satisfying itself that there is a serious question to be tried, and possibly making other preliminary findings that may bear upon the balance of convenience or the exercise of discretion. That is the course which I will adopt here. 31 Although a number of serious questions were relied on, the case was most strongly put by reference to the rights that were said to arise for the benefit of the applicant under both the Act and the Regulations. The applicant did not lead evidence going to the various facts and events that were said to give rise to the allegations of misconduct. Nonetheless, she submitted that, on the evidence as it stood at the moment, there was a serious question whether it was capable of constituting serious misconduct warranting the summary termination of the applicant's employment. In Rankin , Gillard J said at 142 [250]: 'The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature.' 32 Having reviewed the evidence, I consider that there is a serious question whether the applicant's conduct was such as to provide a proper basis in law for her summary dismissal. However, in the absence of detailed responding evidence from the applicant, I would describe the serious question as a weak one. 33 The applicant's claim for interim relief based on her statutory rights is stronger. On the material and arguments before me, I consider that it is seriously arguable that the provisions of the Act and Regulations, particularly ss 8, 20(3), 33 and 64 and reg 6, are intended to give an employee a right of internal review before being excluded from employment.
Case: Concut Pty Ltd v Worrell (2000) 176 ALR 693
Outcome: cited
I turn to consider the balance of convenience and discretionary factors. The issue that has occupied my attention most deeply is the well-known principle that an injunction will not ordinarily be granted to continue an employment relationship where one party has acted to terminate it. That is the ordinary, but not the invariable, rule: see Concut Pty Ltd v Worrell (2000) 176 ALR 693 at 705-707 [51].
Case: Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25 ; (1946) 72 CLR 435
Outcome: cited
In the present case, the applicant contended that the employer has repudiated her employment contract, but she has not accepted that repudiation as bringing her employment contract to an end. Indeed, the applicant submited that her employment cannot be terminated without first affording her the statutory right of review to which she is entitled. The consequence is said to be that the purported repudiation has not automatically discharged the applicant's contract of employment: see Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25 ; (1946) 72 CLR 435 at 459, 469-472, 473 and 478. I am satisfied that the applicant's employment agreement has not necessarily been brought to an end, and that declarations of invalid termination could be made in due course if that were appropriate: see Automatic Fire Sprinklers v Watson , supra; Vine v National Dock Labour Board [1957] AC 488.