mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Blyth Chemicals Ltd v Bushnell [1933] HCA 8 ; (1933) 49 CLR 66
Outcome: considered
have already concluded that Mr Allard's direction was both lawful and reasonable, that Mr Harrison was obliged to comply with it and that he did not do so. The only remaining question is whether or not his conduct entitled One Steel to terminate his employment summarily. The applicants submit that Mr Harrison could only be dismissed summarily for serious misconduct, relying upon the following passage from the reasons for judgment of Dixon and McTiernan JJ in Blyth Chemicals Ltd v Bushnell [1933] HCA 8 ; (1933) 49 CLR 66 at 81-82: Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... . But the conduct of the employee must itself involve the incompatibility, conflict or impediment or be destructive of confidence. An actual repugnance between his act and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.
Case: Scharmann v APIA Club Ltd (1983) 6 IR 157
Outcome: considered
number of other cases are of interest. The first is the decision of Wootten J in Scharmann v APIA Club Ltd (1983) 6 IR 157. At 164 his Honour said, concerning summary dismissal: Some of the older cases virtually treated it as a rule of law that disobedience to a lawful order gave the employer a right to dismiss, but the modern is that: "One act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions. ..." The disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions.
Case: Adami v Maison De Luxe Limited [1924] HCA 45 ; (1924) 35 CLR 143
Outcome: considered
J then referred to the decision of Isaacs ACJ in Adami v Maison De Luxe Limited [1924] HCA 45 ; (1924) 35 CLR 143 at 148-9. In that case the Acting Chief Justice rejected the proposition that, "wilful disobedience of a lawful order", meant, "simply conscious disobedience of an order, obedience to which is found after litigation to be in fact and in law within the range of duty", and continued: The proposition asserts that, provided ultimately the order is found to be within the scope of the contract, it matters not how isolated and trivial the occasion may have been, how unimportant the disobedience in relation to the employer's affairs, how doubtful in fact or law the legality of the order may have been, how bona fide and reasonable may have been the contention of the employee or how clearly his action was intended and explained at the time as defence only and not in any way as defiance. That is a proposition I find it impossible to accept. The other members of the Court (Gavan, Duffy and Starke JJ) did not address this question. At 151-152 Isaacs ACJ continued: But the effect of the word "wilful" varies, and, as I have said, the only universal guide is to ascertain from its surroundings what the word is intended to connote. One commanding circumstance is to ascertain the subject matter as a totality of which it is predicated that it must be wilful. Here the subject matter is not "disobedience", but "disobedience of a lawful order." It is the whole compound expression that must be "wilful," and not the one word "disobedience" adding a provision "if the order be lawful." It is no doubt a correct principle that, once the relation of employer and employee is established, obedience to lawful orders is, if not expressly, then impliedly, contemplated by the contract creating the relation, and mere disobedience of such orders is a breach of the bargain. But whether disobedience in a given case is of such a character as to justify a complete dissolution of the contract by one of the parties and, as here, a forfeiture by the other of the valuable accruing rights, together with some degradation altogether a severe penalty is, in my opinion, quite a different matter. Such a justification requires the disobedience to be as phrased "wilful disobedience of a lawful order." That is, it must be not merely a breach but a radical breach of the relation, and inconsistent with its continuance. Once the element of "wilfulness" is introduced for the purpose of the summary rescission by one party of the whole contractual relation, with penal results on the other, then, as the "wilfulness" is the attitude of the employee, so far as it is conveyed by words or acts to the employer, the subject must be looked at from a new standpoint. "Wilfully" does not necessarily connote in that connection anything criminal or immoral, but it does connote some deliberate design or purpose to derogate from duty.
Case: Clarkson v Commonwealth of Australia [2006] FCA 1348
Outcome: cited
The factual context of, and the general legal issues arising out of, Mr Clarkson's complaints about the failure to investigate the circumstances of his incarceration as a federal offender in a State prison have been outlined in my judgment in Clarkson v Commonwealth of Australia [2006] FCA 1348. 2 I have already dismissed his claims against four of the six respondents. Two remain, one relating to the Commonwealth Ombudsman, the other to the Human Rights and Equal Opportunity Commission ("HREOC"). 3 The application against the Ombudsman is bought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("AD(JR) Act") and challenges alleged decisions of the Ombudsman not to investigate three matters. These are: "1. The decision made not to investigate the actions taken by Correctional Officers at Junee CC to sabotage the appeals and education of the Applicant. 2. The decision made not to investigate the failure of the Commonwealth to monitor the administration of sentences served by Federal Offenders. 3. The decision made not to investigate the failure of the Commonwealth to amend the 1990 Commonwealth/State NSW Agreement to include terms designed ensure compliance with the ICCPR Protocols and otherwise according to law."
Case: S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143
Outcome: cited
In my earlier decision I indicated at par 22 that I was prepared to accept, for the purposes of this application, that notwithstanding the Arrangement, the Commonwealth may nonetheless retain tutelary responsibilities towards federal offenders in State prisons which might in exceptional circumstances found a claim in tort: cf S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549 ; (2005) 143 FCR 217; or for injunctive or mandatory orders against the Commonwealth. 10 There are several difficulties with the review sought of this decision. It is not apparent that the failure alleged related to a matter of administration being action taken by a department or by a prescribed authority. At best it seems to relate to a residual responsibility formally vested in the Governor-General as a party to the Arrangement or else to the Commonwealth acting through the relevant portfolio Minister. In either circumstance the matter does not fall within the jurisdiction of the Ombudsman to investigate. 11 I should add notwithstanding my reference to a residual tutelary responsibility in the Commonwealth, there is nothing in the material that has been filed by Mr Clarkson which, in my view, could properly be said to come near to exciting a duty in the Commonwealth to monitor his circumstances or for that matter the administration of sentences served by federal offenders. I will order that the application as against the third respondent be dismissed.
Case: Brannan v Minister for Immigration and Citizenship [2007] FCA 1900
Outcome: cited
express exception set forth in the Act is s 25(2B)(bc) which permits the Court to " vary or set aside an order " made pursuant to s 25(2B)(bb), namely an order dismissing an appeal by reason of an appellant's failure to attend a hearing relating to the appeal. That power is a power conferred " in general terms " and " should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by Parliament ": SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [20] , 158 FCR 292 at 298 per Black CJ, Weinberg and Allsop JJ. As contemplated in SZISM, the power conferred by s 25(2B)(bc) is a power which can be exercised even after the orders have been entered. See also: SZCOZ v Minister for Immigration and Citizenship [2007] FCA 641 at [1] ; Brannan v Minister for Immigration and Citizenship [2007] FCA 1900 at [3] ; SZJYK v Minister for Immigration and Citizenship [2007] FCA 1462 at [2] .
Case: Burrell v The Queen [2008] HCA 34 , 248 ALR 428
Outcome: cited
A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances ": D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [34] , [2005] HCA 12 ; 223 CLR 1 at 17. There must be finality in litigation: Burrell v The Queen [2008] HCA 34 , 248 ALR 428.
Case: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 , 223 CLR 1
Outcome: cited
A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances ": D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [34] , [2005] HCA 12 ; 223 CLR 1 at 17. There must be finality in litigation: Burrell v The Queen [2008] HCA 34 , 248 ALR 428.
Case: Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612
Outcome: cited
the Court may not have an " inherent power ", as a Court created by statute, it does have all the " powers expressly or by implication conferred by the legislation which govern[s] it " and has " in addition such powers as are incidental and necessary to the exercise of the jurisdiction conferred ": DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at [25] , cited with approval in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 at [30] , [2005] FCAFC 91 ; 141 FCR 291 at 296. In VTAG , Heerey, Finkelstein and Lander JJ cited with approval the statement of Wilson and Dawson JJ in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612 at 619, that the Court's " incidental and necessary powers " are " no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction ". From this, their Honours in VTAG held that the Court had power to set aside a consent order where the parties consent and had " in very limited circumstances " a power to set aside final orders made otherwise than by consent. See also: Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47 at [20] , 246 ALR 113 at 116. Section 25(2B)(bc), it was further held, did not " evince an intention that only orders under paras (ba) and (bb) can be varied or set aside ": [2005] FCAFC 91 at [32] , [2005] FCAFC 91 ; 141 FCR 291 at 295.
Case: Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217
Outcome: cited
setting aside of consent orders, it was suggested, may attract different considerations than the setting aside of other orders. Their Honours thus observed: [26] There are characteristics of consent orders which strongly suggest that Parliament would not have intended that such an order, once made and entered, could never be set aside or varied. With a consent order, leaving aside the exceptional case of approval of compromises involving litigants under a disability, the Court does not inquire into the merits of the order proposed. It does not decide questions of fact or law. With a consent order there is not the possibility of error of fact or law which could found an appeal either from a single judge to the Full Court or from the Full Court to the High Court. Reference was there also made by their Honours to Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 where Brennan J, sitting as a judge of the Australian Capital Territory Supreme Court, also recognised exceptions to the general rule that a perfected judgment cannot be recalled or varied. The Court, it was said, had an " inherent jurisdiction to ensure that its procedures do not affect (sic) injustice ". See also: Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 at [150] to [151].
Case: NAZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 718
Outcome: considered
can the present Applicant bring himself within Order 52 r 38A of the Federal Court Rules . In NAZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 718 , Allsop J had previously had to consider both Order 35 r 7 and Order 52 r 38A. Orders had there been made by a Full Court comprised of three Judges of this Court. Allsop J, sitting as a single Judge, referred the application to the Full Court and in doing so observed: [11] At the directions hearing before me, Mr Markus, who appeared for the respondent, submitted that I had no power to make any orders. He said that to the extent that the Court was proceeding under s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) (that is making an order for dismissal of the proceedings for failure of the appellant to attend a hearing relating to the appeal), there was no power to set aside the orders after entry. He pointed (correctly) to the prefatory words in O 35 rule 7(2) of the Federal Court Rules: where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act. ... [12] It may be an open question as to whether the power in O 52 ... r 38A(2)(a) of the Federal Court Rules can be used after entry of the orders. In any event it is by no means clear that a single judge can be "the Court" there referred to. Indeed, I do not think it is. ... [17] Given that I think that there is force in Mr Markus' arguments as to the lack of power in a single judge to use Order 35 r 7(2) to set aside an order of a Full Court, the appropriate course is to refer the application to a Full Court. ... Order 52 r 38A relevantly provides as follows: Absence of party (1) If a party is absent when an appeal is called on for hearing, the Court may: ... (d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal. (2) If the Court proceeds with the hearing under paragraph (1)(d), the Court may: (a) set aside or vary any order made after so proceeding; and (b) give directions for the further conduct of the appeal. When the case came before the Full Court, Branson, Bennett and Graham JJ proceeded under this provision of the Rules : NAZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 241 at [33] to [34]. It was not necessary for their Honours to resolve the question left open by Allsop J as to whether Order 52 rule 38A could be invoked after orders had been entered.
Case: NAZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 241
Outcome: cited
can the present Applicant bring himself within Order 52 r 38A of the Federal Court Rules . In NAZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 718 , Allsop J had previously had to consider both Order 35 r 7 and Order 52 r 38A. Orders had there been made by a Full Court comprised of three Judges of this Court. Allsop J, sitting as a single Judge, referred the application to the Full Court and in doing so observed: [11] At the directions hearing before me, Mr Markus, who appeared for the respondent, submitted that I had no power to make any orders. He said that to the extent that the Court was proceeding under s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) (that is making an order for dismissal of the proceedings for failure of the appellant to attend a hearing relating to the appeal), there was no power to set aside the orders after entry. He pointed (correctly) to the prefatory words in O 35 rule 7(2) of the Federal Court Rules: where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act. ... [12] It may be an open question as to whether the power in O 52 ... r 38A(2)(a) of the Federal Court Rules can be used after entry of the orders. In any event it is by no means clear that a single judge can be "the Court" there referred to. Indeed, I do not think it is. ... [17] Given that I think that there is force in Mr Markus' arguments as to the lack of power in a single judge to use Order 35 r 7(2) to set aside an order of a Full Court, the appropriate course is to refer the application to a Full Court. ... Order 52 r 38A relevantly provides as follows: Absence of party (1) If a party is absent when an appeal is called on for hearing, the Court may: ... (d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal. (2) If the Court proceeds with the hearing under paragraph (1)(d), the Court may: (a) set aside or vary any order made after so proceeding; and (b) give directions for the further conduct of the appeal. When the case came before the Full Court, Branson, Bennett and Graham JJ proceeded under this provision of the Rules : NAZL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 241 at [33] to [34]. It was not necessary for their Honours to resolve the question left open by Allsop J as to whether Order 52 rule 38A could be invoked after orders had been entered.
Case: Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 1020 , 78 ALD 151
Outcome: cited
further potential difficulty is whether the application which is now made to the Court should have been made by way of a new application rather than by way of Motion in the same proceeding in which North J originally made the July 2007 Order. After having referred to the ground upon which a consent order could be set aside in Harvey v Phillips , Handley JA in Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 697 observed that "... it is also established that the jurisdiction to set aside a consent order on such a ground should be invoked by a new action brought for that purpose and not by a motion in the original proceedings ..." The difficulty could, perhaps, have been overcome by simply treating the existing Notice of Motion as a fresh proceeding: cf Pembroke School Inc v Human Rights and Equal Opportunity Commission [2002] FCA 1020 at [22] , 78 ALD 151 at 158. No objection, however, was taken on behalf of the Respondent Minister to the manner in which the Applicant has proceeded and accordingly this further difficulty need not be resolved.
Case: Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45
Outcome: cited
setting aside of consent orders, it was suggested, may attract different considerations than the setting aside of other orders. Their Honours thus observed: [26] There are characteristics of consent orders which strongly suggest that Parliament would not have intended that such an order, once made and entered, could never be set aside or varied. With a consent order, leaving aside the exceptional case of approval of compromises involving litigants under a disability, the Court does not inquire into the merits of the order proposed. It does not decide questions of fact or law. With a consent order there is not the possibility of error of fact or law which could found an appeal either from a single judge to the Full Court or from the Full Court to the High Court. Reference was there also made by their Honours to Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 where Brennan J, sitting as a judge of the Australian Capital Territory Supreme Court, also recognised exceptions to the general rule that a perfected judgment cannot be recalled or varied. The Court, it was said, had an " inherent jurisdiction to ensure that its procedures do not affect (sic) injustice ". See also: Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 at [150] to [151].
Case: Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47 , 246 ALR 113
Outcome: cited
the Court may not have an " inherent power ", as a Court created by statute, it does have all the " powers expressly or by implication conferred by the legislation which govern[s] it " and has " in addition such powers as are incidental and necessary to the exercise of the jurisdiction conferred ": DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at [25] , cited with approval in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 at [30] , [2005] FCAFC 91 ; 141 FCR 291 at 296. In VTAG , Heerey, Finkelstein and Lander JJ cited with approval the statement of Wilson and Dawson JJ in Jackson v Sterling Industries Limited [1987] HCA 23 ; (1987) 162 CLR 612 at 619, that the Court's " incidental and necessary powers " are " no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction ". From this, their Honours in VTAG held that the Court had power to set aside a consent order where the parties consent and had " in very limited circumstances " a power to set aside final orders made otherwise than by consent. See also: Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47 at [20] , 246 ALR 113 at 116. Section 25(2B)(bc), it was further held, did not " evince an intention that only orders under paras (ba) and (bb) can be varied or set aside ": [2005] FCAFC 91 at [32] , [2005] FCAFC 91 ; 141 FCR 291 at 295.
Case: Singh v Secretary, Department of Family and Community Services [2001] FCA 1281
Outcome: cited
S353 , for example, such an " inherent power " was referred to but not invoked. Emmett J, with whom Allsop and Middleton JJ agreed, there referred to Order 35 r 7 and set forth the circumstances in which this " inherent power " could be exercised as follows: [20] However, no provision of the Rules can deprive the Court of the inherent power that it has to set aside an order made in the absence of a party or an order made at a hearing of which the party had no notice (see Taylor v Taylor [1979] HCA 38 ; (1979) 143 CLR 1 at 8). That is to say, it is an incident of the exercise of the judicial power of the Commonwealth that the Court may, in an appropriate case, set aside its own order if it is satisfied that there is a proper explanation for the non-attendance of a party at a hearing at which the order is made. However, given that the power exists, it is clearly discretionary (see Taylor at 8). In the absence of an adequate explanation for the non-attendance, the orders previously made were there not set aside. In Singh v Secretary, Department of Family and Community Services [2001] FCA 1281 at [13] , Beaumont, Kiefel and Hely JJ also acknowledged a limited power in an " exceptional case " to revoke orders made by consent.