mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Moffitt v The Vehicle Builders Employees' Federation of Australia (1985) 11 IR 174
Outcome: referred to
is little dispute about what is intended by the words "oppressive, unreasonable or unjust". In Moffitt v The Vehicle Builders Employees' Federation of Australia (1985) 11 IR 174 at 175, a Full Court adopted the meaning given by Deane J to these words in Municipal Officers' Association of Australia v Lancaster [1981] FCA 151 ; (1981) 54 FLR 129 at 165, where his Honour said: Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful ... To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play ... In effect, the applicant argued that the rules under challenge are oppressive, unreasonable or unjust because they fail to make proper provision for the control of the Branch committee by the members as opposed to a clique of members.
Case: Municipal Officers' Association of Australia v Lancaster [1981] FCA 151 ; (1981) 54 FLR 129
Outcome: referred to
is little dispute about what is intended by the words "oppressive, unreasonable or unjust". In Moffitt v The Vehicle Builders Employees' Federation of Australia (1985) 11 IR 174 at 175, a Full Court adopted the meaning given by Deane J to these words in Municipal Officers' Association of Australia v Lancaster [1981] FCA 151 ; (1981) 54 FLR 129 at 165, where his Honour said: Those three words are used objectively in the clause and each of them is to be given its ordinary strong meaning. Plainly, their meanings overlap and definition is liable to adulterate the strength which the words possess. Nonetheless, it seems desirable that I indicate the meaning which I ascribe to them. To be oppressive, a condition, obligation or restriction must be burdensome, harsh and wrongful ... To be unreasonable, it must be immoderate and inappropriate. To be unjust, it must be contrary to right and justice and to ordinary standards of fair play ... In effect, the applicant argued that the rules under challenge are oppressive, unreasonable or unjust because they fail to make proper provision for the control of the Branch committee by the members as opposed to a clique of members.
Case: Hodder v Australian Workers' Union (1985) 9 FCR 498
Outcome: cited
J continued, at [10]: The circumstances to which I referred in the last paragraph, or "extrinsic facts" as they have been called, include the number of members of the organisation, their geographic distribution and concentration, whether or not the organisation is divided into branches and the nature of the industry or occupational activities in which members are engaged. This principle derives from such authorities as Hodder v Australian Workers' Union (1985) 9 FCR 498 , at 502 per Pincus J, approved in Lawley v Transport Workers' Union of Australia (1987) 22 IR 114 and Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59 ; and Gordon v Carroll (1975) 27 FLR 129 , at 173 per Smithers, Woodward and St John JJ.
Case: Lawley v Transport Workers' Union of Australia (1987) 22 IR 114
Outcome: cited
J continued, at [10]: The circumstances to which I referred in the last paragraph, or "extrinsic facts" as they have been called, include the number of members of the organisation, their geographic distribution and concentration, whether or not the organisation is divided into branches and the nature of the industry or occupational activities in which members are engaged. This principle derives from such authorities as Hodder v Australian Workers' Union (1985) 9 FCR 498 , at 502 per Pincus J, approved in Lawley v Transport Workers' Union of Australia (1987) 22 IR 114 and Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59 ; and Gordon v Carroll (1975) 27 FLR 129 , at 173 per Smithers, Woodward and St John JJ.
Case: Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59
Outcome: cited
J continued, at [10]: The circumstances to which I referred in the last paragraph, or "extrinsic facts" as they have been called, include the number of members of the organisation, their geographic distribution and concentration, whether or not the organisation is divided into branches and the nature of the industry or occupational activities in which members are engaged. This principle derives from such authorities as Hodder v Australian Workers' Union (1985) 9 FCR 498 , at 502 per Pincus J, approved in Lawley v Transport Workers' Union of Australia (1987) 22 IR 114 and Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59 ; and Gordon v Carroll (1975) 27 FLR 129 , at 173 per Smithers, Woodward and St John JJ.
Case: Gordon v Carroll (1975) 27 FLR 129
Outcome: cited
J continued, at [10]: The circumstances to which I referred in the last paragraph, or "extrinsic facts" as they have been called, include the number of members of the organisation, their geographic distribution and concentration, whether or not the organisation is divided into branches and the nature of the industry or occupational activities in which members are engaged. This principle derives from such authorities as Hodder v Australian Workers' Union (1985) 9 FCR 498 , at 502 per Pincus J, approved in Lawley v Transport Workers' Union of Australia (1987) 22 IR 114 and Thomson v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (1996) 70 IR 59 ; and Gordon v Carroll (1975) 27 FLR 129 , at 173 per Smithers, Woodward and St John JJ.
Case: Boland v Munro (1980) 48 FLR 66
Outcome: cited
effect, the applicant's case was that, having regard to the nature of the members' employment, general meetings were not an adequate controlling mechanism and that a plebiscite should be the means by which the governing body was controlled by members but that a plebiscite could not operate in this way under the Union's rules. To make good the first part of this argument, the applicant again relied on Ryan J's analysis in Griffiths [2001] FCA 1215 , where, citing Boland v Munro (1980) 48 FLR 66 , his Honour said at [28]: Control [in the relevant sense] is not confined to the control which may be said to be exercisable through the ballot box at elections but extends, in a limited sense, to control between elections. ... His Honour accepted that, "control", in the present context, meant a power to check or restrain and not dominating control: [29]. In Griffiths [2001] FCA 1215 at [40] - [41] , Ryan J concluded that: [I]n evaluating the sufficiency of control over a committee given to the members, regard has to be had to the rules as a whole. ... ... Because I have been persuaded ... that the rules as a whole of the Association, considered without regard to the new rule 56, fail to make a provision required by the Act, namely one for control of the COM by the members, it follows that an order may be made under s 208 of the Act unless the new rule 56 has effectively remedied the failure.
Case: Scott v Jess (1984) 3 FCR 263
Outcome: cited
am not persuaded that the applicant has made a sufficient showing that rule 62 does not make any appropriate provision for General Meetings to allow members of the Branch the opportunity to attend. In this context, it seems to me that it must be borne in mind that rule 62(c) requires that notice of the proposed Special General Meeting be given to each shop steward, presumably so that such notice can be conveyed to the members. Rule 62(e) provides that, in such a case as this, the Meeting be held within 35 days of the receipt of the petition, and at a time and place determined by the Branch Committee. As counsel for Mr Jackson noted, the power to appoint a time and place must be exercised bona fide and for the purpose for which it was conferred in furtherance of the democratic participation of the members in the Meeting: compare Allen v Townsend 31 FLR at 483-488 and Scott v Jess (1984) 3 FCR 263 at 287.
Case: SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61
Outcome: followed
I have power to set aside an order made under s 25(2B)(bb): s 25(2B)(bc). That power may be exercised even if the order dismissing the appeal has been formally entered: SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61. 4 It seems to me that it would be appropriate to set aside the order made on Wednesday, 14 November if I thought the applicant had good prospects of succeeding on the appeal. 5 The applicant seeks to appeal from an order of a Federal Magistrate made on 13 August 2007 dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 2 January 2007 and handed down on 5 January 2007.
Case: VWST v The Minister for Immigration and Multi-cultural and Indigenous Affairs [2004] FCAFC 286
Outcome: considered
As to the claim that the Tribunal's conclusions were not based on a rational or logical foundation, it must first be said that there is something of a controversy as to whether this is a ground of jurisdictional error. In VWST v The Minister for Immigration and Multi-cultural and Indigenous Affairs [2004] FCAFC 286 , 10 November 2004, a Full Court of this Court held that the current state of the law is that want of logic in the reasons of the Tribunal is not an available ground of review, see para 18.
Case: Re: Minister for Immigration and Multi-cultural Affairs, ex parte S20 of 2002 (2003) 77 ALJR 1165
Outcome: considered
That Court did so, having considered, materially, a then recently given decision of the High Court, Re: Minister for Immigration and Multi-cultural Affairs, ex parte S20 of 2002 (2003) 77 ALJR 1165. I note that the learned authors of Aronson and others , at page 265 state of this decision of the High Court that it, " approved review for irrationality or illogicality ." There is, with respect, certainly reason so to regard the High Court's decision in S20 ; see para 52 in the joint judgment of McHugh and Gummow JJ, with which, at para 173, Callinan J agreed; see also para 138 in the reasons of judgment of Kirby J. Even assuming, though, that want of logic or irrationality is a permissible ground of jurisdictional error review, this is not a case, in my opinion, in which such a ground can be made out. 19 There were manifest inconsistencies of the kind highlighted by the Tribunal in its correspondence, and subsequent reasons. Those reasons, having regard to the inconsistencies highlighted, do provide a logical and rational basis upon which the Tribunal could have concluded, as it did, that it was not satisfied that the claim for a protection visa had been made out. 20 The final ground of challenge is that the Tribunal did not take into account the information provided in response to the s 424A letters by the appellant. As I have mentioned, though, these letters were expressly quoted in the Tribunal's reasons, and it is evident that the information was taken into account by the Tribunal in reaching its conclusions.
Case: Christie George on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518
Outcome: cited
long and the short of it is, the application is one which has failed a registration test. Every opportunity has been given for the Applicants to amend the application or at least provide some hope, in a meaningful way, that an amendment is likely which would provide a basis for retention of the case in the Court's list. There is no basis for forming an opinion that this is anything other than a case which does not warrant the further expenditure of public funds in terms of judicial time and also in terms of the investment of public funds in a Respondent State considering the case and attending. There are bases then upon which the application may be dismissed and should be dismissed under s 190F(6). I canvassed the background to that particular provision in the legislation in a decision which I gave in another case: Christie George on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518. I shall not repeat what I there stated. There is another basis upon which this application should be dismissed and it is one which ought not be forgotten. That is there is a default of appearance. In fact, more than one, there are multiple defaults of appearance. Defaults of appearance, in themselves, provide a basis upon which an application may be dismissed. It is understandable that in some circumstances, for reasons about which a judge may be unaware, the State may wish, for its own particular reasons, not to move under s 190F(6) but rather prefer to see a dismissal occur in an appropriate case of the court's own motion. Those same sentiments, with respect, do not apply where the practice and procedure of a court is not observed. In the ordinary course of events, one might expect a respondent, particularly a public respondent, acting responsibly to move for dismissal in a case where there is an event of default in the ordinary practice and procedure of a court, as a model litigant would move in other cases involving the wider interests of the public. Be that as it may, there is then a basis in terms of default under the practice of the court as well as under s 190F(6) , for the dismissal of this application. The order that I make is that the application be dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 14 April 2009 Solicitor for the Applicant: No appearance by the Applicant Solicitor for the First Respondent: Crown Solicitor of Queensland Solicitor for the Second Respondent: There was no appearance for the Second Respondent Date of Hearing: 27 March 2009 Date of Judgment: 27 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/325.html
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; (2006) 70 IPR 146
Outcome: cited
Whether or not the applicant/cross-respondent was entitled to amend without leave need not be determined as the parties are agreed that the substance of the matter should be decided on the basis that the respondent/cross-claimant is to satisfy the Court that the test laid down by s 31A of the Federal Court of Australia Act 1976 (Cth) is met. There is a burgeoning number of authorities which have considered the relatively straightforward wording of s 31A. Many of the authorities are cited by Lindgren J in White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 at [58]; see also Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; (2006) 70 IPR 146 at [45]. Subsection (3) of s 31A of the Federal Court of Australia Act 1976 (Cth) makes it clear that the way in which the previous regime had developed should no longer govern the question. Beyond that I respectfully see little merit in this case in considering judicial paraphrases of ordinary English.
Case: Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd [1999] FCA 816 ; (1999) 91 FCR 167
Outcome: discussed
I am relieved of the necessity of analysing the question that arises here ab initio, as it has been considered in the authorities to which I have been referred. In Philips Electronics NV v Remington Products Australia Pty Ltd (1997) 150 ALR 355; (1997) 39 IPR 303 Lehane J, confronted with a similar question, refused to strike out a claim for a similar declaration. His Honour said (150 ALR at 360; 39 IPR at 309): "In the end, however, the question, on the footing that there is jurisdiction to make a declaration of the kind sought, is whether the case pleaded in support of that relief ... is so evidently hopeless that the paragraphs and prayers for relief should be struck out. It may be accepted that it will be a rare case where the court finds it appropriate to grant declaratory relief in relation to a pending trade mark application rather than allow the procedure under the Act to take its course. But it is now well established that, given jurisdiction, the provision by statute of a particular means of determining an issue in relation to which a declaration is sought does not necessarily mean that a declaration will be refused ...; the existence of the statutory procedure is a matter albeit an important matter to be taken into account in exercising the court's discretion." (Emphasis added.) In the event, his Honour was not satisfied at that stage that the case for declaration was hopeless and did not strike it out. However, on the final hearing, Lehane J declined to make the declaration and, in substance, was unpersuaded that the statutory process should be interfered with (see Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd [1999] FCA 816 ; (1999) 91 FCR 167 at [60] [65]).
Case: Philips Electronics NV v Remington Products Australia Pty Ltd (1997) 150 ALR 355; (1997) 39 IPR 303
Outcome: discussed
I am relieved of the necessity of analysing the question that arises here ab initio, as it has been considered in the authorities to which I have been referred. In Philips Electronics NV v Remington Products Australia Pty Ltd (1997) 150 ALR 355; (1997) 39 IPR 303 Lehane J, confronted with a similar question, refused to strike out a claim for a similar declaration. His Honour said (150 ALR at 360; 39 IPR at 309): "In the end, however, the question, on the footing that there is jurisdiction to make a declaration of the kind sought, is whether the case pleaded in support of that relief ... is so evidently hopeless that the paragraphs and prayers for relief should be struck out. It may be accepted that it will be a rare case where the court finds it appropriate to grant declaratory relief in relation to a pending trade mark application rather than allow the procedure under the Act to take its course. But it is now well established that, given jurisdiction, the provision by statute of a particular means of determining an issue in relation to which a declaration is sought does not necessarily mean that a declaration will be refused ...; the existence of the statutory procedure is a matter albeit an important matter to be taken into account in exercising the court's discretion." (Emphasis added.) In the event, his Honour was not satisfied at that stage that the case for declaration was hopeless and did not strike it out. However, on the final hearing, Lehane J declined to make the declaration and, in substance, was unpersuaded that the statutory process should be interfered with (see Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd [1999] FCA 816 ; (1999) 91 FCR 167 at [60] [65]).
Case: RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22
Outcome: followed
A similar question in relation to the Patents Act 1990 (Cth) was determined by Lindgren J in RGC Mineral Sands Ltd v Wimmera Industrial Minerals Pty Ltd (No 2) [2000] FCA 22. That, too, was decided prior to the introduction of s 31A of the Federal Court of Australia Act . In a typically thorough judgment, his Honour analysed the issues that arise and the many authorities relating to it, including the decision of Lehane J to which I have just referred. Summary dismissal was granted.
Case: White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298
Outcome: cited
Whether or not the applicant/cross-respondent was entitled to amend without leave need not be determined as the parties are agreed that the substance of the matter should be decided on the basis that the respondent/cross-claimant is to satisfy the Court that the test laid down by s 31A of the Federal Court of Australia Act 1976 (Cth) is met. There is a burgeoning number of authorities which have considered the relatively straightforward wording of s 31A. Many of the authorities are cited by Lindgren J in White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 at [58]; see also Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; (2006) 70 IPR 146 at [45]. Subsection (3) of s 31A of the Federal Court of Australia Act 1976 (Cth) makes it clear that the way in which the previous regime had developed should no longer govern the question. Beyond that I respectfully see little merit in this case in considering judicial paraphrases of ordinary English.
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: referred to
In the present case, the application for adjournment was not refused but was limited to one day to 28 November 2006 rather than ten days to 8 December 2006 which was the preferred term of adjournment of the Deputy President. Whether or not an adjournment is granted and the terms of that adjournment are matters entirely within the discretion of the Tribunal. As was said in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504 505: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so." 30 The considerations which led or compelled the Deputy President to so limit the term of adjournment have already been canvassed at some length, and it was not submitted on behalf of the applicant that the exercise of the discretion miscarried because such considerations, or any one or more of them, were not relevant. But the applicant submitted that the Deputy President failed to take into account two relevant considerations, namely: (1) The possibility of having the matter heard by another member of the Tribunal; and (2) the possibility of the matter being heard in the period 1 7 December 2006. I have already indicated at [26] above why I do not think these were real possibilities and that may well explain why the Deputy President made no specific reference to them. In the scheme of things, I do not think the lack of any specific reference to them indicates that they were not taken into account; rather they were overtaken by the fact that the Deputy President only had one possible free day between 27 November 2006 and 20 December 2006 (apart from 28 November 2006) and that was 8 December 2006 and the fact that there were no hearing rooms available up until 20 December 2006 even if another member of the Tribunal was available to hear the matter at a date later than 28 November 2006. 31 While there was no express challenge to the Tribunal's exercise of its discretion in limiting the terms of the adjournment to one day in the form of a ground of review, a considerable amount of time was spent in argument on the Tribunal's alleged failure to take these two matters into account. If there was such a ground of review, I would not be prepared to conclude that the Tribunal's exercise of discretion miscarried by reason of such matters.