mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Commonwealth of Australia v Duncan (1982) 44 ALR 249
Outcome: considered
Section 32 is the general provision dealing with journeys to and from employment. Journeys which fall within the terms of s 32 are deemed to constitute part of an employee's employment by the Commonwealth. The journeys which fall within the section are journeys which are to and from the employee's 'employment by the Commonwealth'. In Commonwealth of Australia v Duncan (1982) 44 ALR 249 the Full Court of this Court said that the question posed by s 32 was whether the employee was journeying to or from a state of activity called employment and not whether he was journeying to or from his place of employment (at 259 per Kelly J; at 266 per Fitzgerald J). The Tribunal member held that the circumstances of the case before him did not fall within the terms of s 32(1) because although the respondent was travelling to his place of employment, he was not travelling to his duties of employment. 14 Sections 33 and 34 deem certain journeys to be journeys to the employee's employment by the Commonwealth for the purposes of s 32(1). I will focus on journeys to the employee's employment by the Commonwealth. Both of the sections are subject to the provisions of ss 35 and 36 but, subject to one matter which I will mention, those sections are not relevant for present purposes. 15 Section 33(1) provides that where an employee (other than an employee to whom s 34 applies) makes a journey to his place of employment within the period prescribed in the section or if the journey would have ended within the prescribed period then he is deemed to have made a journey to his employment by the Commonwealth. The prescribed period is a period of one hour immediately before he commenced work or would have commenced work. An employee whose journey ended or would have ended before the prescribed period may nevertheless be deemed to have made a journey to his employment by the Commonwealth if ' the journey was made by the last means of transport : (i) that was conveniently available for use by the employee; (ii) that would ordinarily have enabled the employee to complete the journey before the time at which he intended to commence work; and (iii) that was of a kind that the employee could, having regard to all the circumstances of the case, have been reasonably expected to use, ...' (s 33(2)(b))
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
Before considering the rival contentions, I mention three matters of a general nature which were the subject of submissions. First, the respondent referred to the well-established principle that I should not analyse the reasons of the Tribunal with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. That is certainly a matter which I must bear in mind, although I think the 'principle' is of limited relevance here because both the Tribunal's reasons and the points of construction raised by the applicant are reasonably clear. Secondly, the respondent submits that in construing the sections of the Act, I should bear in mind that it is remedial or beneficial legislation and is to be interpreted liberally. Workers Compensation legislation is often referred to as a prime example of such legislation. However, I must also bear in mind the limits on this approach to statutory construction. In Victims Compensation Fund Corporation v Brown [2003] HCA 54 ; (2003) 77 ALJR 1797 (at [33] (footnotes omitted) Heydon J (with whom the other members of the Court agreed) said: 'To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the table to Sch 1 (which extends over 12 pages) are identified with considerable precision. The clauses in Sch 1 which precede the table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said,"The issue before the Court is the determination of the circumstances in which compensation is payable." The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances".'
Case: Victims Compensation Fund Corporation v Brown [2003] HCA 54 ; (2003) 77 ALJR 1797
Outcome: considered
Before considering the rival contentions, I mention three matters of a general nature which were the subject of submissions. First, the respondent referred to the well-established principle that I should not analyse the reasons of the Tribunal with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. That is certainly a matter which I must bear in mind, although I think the 'principle' is of limited relevance here because both the Tribunal's reasons and the points of construction raised by the applicant are reasonably clear. Secondly, the respondent submits that in construing the sections of the Act, I should bear in mind that it is remedial or beneficial legislation and is to be interpreted liberally. Workers Compensation legislation is often referred to as a prime example of such legislation. However, I must also bear in mind the limits on this approach to statutory construction. In Victims Compensation Fund Corporation v Brown [2003] HCA 54 ; (2003) 77 ALJR 1797 (at [33] (footnotes omitted) Heydon J (with whom the other members of the Court agreed) said: 'To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the table to Sch 1 (which extends over 12 pages) are identified with considerable precision. The clauses in Sch 1 which precede the table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said,"The issue before the Court is the determination of the circumstances in which compensation is payable." The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances".'
Case: Australian Prudential Regulation Authority v Siminton (No 2) [2006] FCA 336
Outcome: cited
I refused Mr Siminton's application. Similar strike-out applications had been made to Merkel J on 30 March 2006 and to me on 18 October 2006. Those applications had been supported by substantially the same arguments and, in both cases had been rejected: see Australian Prudential Regulation Authority v Siminton (No 2) [2006] FCA 336 ; Australian Prudential Regulation Authority v Siminton (No 5) [2006] FCA 1340. There was no substance to the argument advanced in support of the permanent stay applications when they were first made. It was not improved by repetition.
Case: Australian Prudential Regulation Authority v Siminton (No 5) [2006] FCA 1340
Outcome: cited
I refused Mr Siminton's application. Similar strike-out applications had been made to Merkel J on 30 March 2006 and to me on 18 October 2006. Those applications had been supported by substantially the same arguments and, in both cases had been rejected: see Australian Prudential Regulation Authority v Siminton (No 2) [2006] FCA 336 ; Australian Prudential Regulation Authority v Siminton (No 5) [2006] FCA 1340. There was no substance to the argument advanced in support of the permanent stay applications when they were first made. It was not improved by repetition.
Case: Australian Securities and Investment Commission v Burke [2000] NSWSC 694
Outcome: cited
Subject to hearing the parties I consider that the better course would be to appoint a receiver to deal with the funds which are subject to Gray J's order. This would seem to be an appropriate case for the appointment of a receiver, if not under s 57(1) of the Federal Court of Australia Act , under s 23 of that Act: see The University of Western Australia v Gray (No 6) [2006] FCA 1825 at [71] . This case bears many of the features which led Austin J, in Australian Securities and Investment Commission v Burke [2000] NSWSC 694 , to appoint a receiver. His Honour said (at [8]): "Without wishing to lay down any general rules, it appears to me that the extraordinary step of appointing a receiver may be justified, even though Mareva Orders are in place, in a case where there is real doubt about the existence and location of assets such as investments, and about the number and identity of claimants and the nature of their claims, and additionally the defendants are engaged in business activities which entail that any Mareva Orders must allow assets to be turned over in the course of business. Where these circumstances exist in combination, and especially where there are allegations of serious fraud involved, the Court may conclude, as I do in this case, that the Mareva Orders are not enough to ensure that the assets are preserved and protected, and indeed identified and brought in for the benefit of investors."
Case: Australian Federal Police v Cox (1986) 78 ALR 509
Outcome: referred to
In Smithers the High Court also upheld the constitutional validity of s 243E(2)(c)(i) of the Customs Act which empowered this Court to direct the Official Trustee to take control of specified property of a person if there existed reasonable grounds for the belief that the person had engaged in narcotics dealing and derived benefits therefrom. The Court held that s 51(xxxi) had no application because it did not involve an acquisition of property by the Commonwealth, much less an acquisition on just terms. The property was placed under the control of the Official Receiver in order to ensure that the pecuniary penalty provisions in s 243B could not be rendered nugatory by disposition of property. In Commissioner of Australian Federal Police v Cox (1986) 78 ALR 509 at 514-515 Pincus J held that the same reasoning supported the validity of s 243E(2)(c)(ii) which empowered the Court to make an order directing the Official Trustee to take control of all of the property of the person involved in narcotic dealings.
Case: Commissioner of State Savings Bank of Victoria v Permewan, Wright &amp; Company Limited [1914] HCA 83 ; (1914) 19 CLR 457
Outcome: referred to
The critical question is whether Mr Siminton can be said to have carried on any banking business at relevant times. "Banking business" is defined in s 5 of the Act to mean "a business that consists of banking within the meaning of paragraph 51(xiii) of the Constitution ." Section 51(xiii) does not contain the phrase "business of banking". It confers power on the Commonwealth Parliament to make laws with respect to "banking". This word, has, however, been treated by the High Court as referring to "the business of banking". In Melbourne Corporation v The Commonwealth [1947] HCA 26 ; (1947) 74 CLR 31 at 69 Starke J said: "Banking, within the meaning of the Constitution , relates to the business of a banker and covers all those various functions which a banker undertakes. But his main functions appear to be the taking of deposits and current accounts, the issue and payment of bills and cheques drawn on him and the collection of bills and cheques for his customers." Williams J (at 97) held that the legislation authorised by s 51(xiii) "is legislation with respect of the business of banking." Rich J (at 64-5) referred to and relied on the construction placed on the word "banking" by Isaacs J in Commissioner of State Savings Bank of Victoria v Permewan, Wright &amp; Company Limited [1914] HCA 83 ; (1914) 19 CLR 457: "While the word 'banking' is sometimes used in a colloquial and crude sense to mean the payment of money to the credit of a customer's account at a bank, the word in its normal and ordinary signification denotes the business of banking. Some assistance in defining 'banking' can be obtained from the Bills of Exchange Act 1909-1936. In this Act the word banker includes a body of persons, whether incorporated or not, who carry on the business of banking, and though banking is not defined in this Act it seems reasonable to believe that one legislative interpretation of the word would be the business carried on by a banker. In the case of Commissioners of State Savings Bank of Victoria v Permewan, Wright &amp; Company Limited Isaacs J ... said: 'the fundamental meaning of the term' (banking) 'is not, and never has been, different in Australia from that obtaining in England. Various writers attempt various definitions, more or less discordant and many of them referring to functions that are now very common and convenient, and even prominent, as if they were indispensable attributes. The essential characteristics of the business of banking are, however, all that are necessary to bring the appellants within the scope of the enactments' (s 83 of the Victorian Instruments Act 1980 and s 88 of the Bills of Exchange Act 1909 ) 'and these may be described as the collection of money by receiving deposits upon loan, repayable when and as expressly or impliedly agreed upon, and the utilisation of the money so collected by lending it again in such sums as are required. These are the essential functions of a banker as an instrument of society.'
Case: Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617
Outcome: referred to
In Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617 Gibbs J dealt with s 90AA of the Trade Practices Act 1965-1971 (Cth) (the forerunner of the present s 80 of that Act). His Honour said (at 651): "In my opinion s 90AA does not confer on the Court a discretion of an arbitrary kind. It appears from the section that the object of granting an injunction is to restrain a person who has already engaged in unlawful practice from again engaging in that practice. To acquire, rather than permit, the Court to grant an injunction once the condition precedent to its grant has been established would deny the Court the power to adapt a remedy of the needs of a case and would lead to an injustice; moreover, an injunction is in its nature a discretionary remedy. Since the discretion is conferred on a court and is to be exercised in proceedings inter partes, it must be concluded, when there is no indication in the Act to the contrary, that it is to be exercised judicially. The existence of the discretion does not alter the conclusion that the power conferred by s 90AA is a judicial power."
Case: Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10 ; (1994) 179 CLR 270
Outcome: discussed
The words "acquisition of property" in s 51(xxxi) of the Constitution are not to be read in isolation. In Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10 ; (1994) 179 CLR 270 at 285, Deane and Gaudron JJ observed that: "[T]he power conferred by s 51(xxxi) is one with respect to "acquisition of property on just terms". That phrase must be read in its entirety and, when so read, it indicates that s 51(xxxi) applies only to acquisitions of a kind that permit of just terms. It is not concerned with laws in connection with which "just terms" is an inconsistent or incongruous notion. Thus, it is not concerned with the law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorising seizure of the property of enemy aliens or the condemnation of prize. Laws of that kind do not involve acquisitions that permit of just terms and, thus, they are not laws with respect to "acquisition of property", as that expression is used in s 51(xxxi)." In Lawler the Court held that a provision of the Fisheries Management Act 1991 (Cth), which empowered a Court, which convicted a person who had engaged in unlicensed commercial fishing in Australian Waters, also to order forfeiture of the boat used to undertake the fishing. The statutory power to order forfeiture was held not to be a law with respect to the acquisition of property within the meaning of s 51(xxxi).
Case: R v Kirby; Ex parte Boilermakers Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254
Outcome: cited
The Separation of Powers Point. It will be convenient to deal with the final two arguments advanced by Mr Siminton together. They allege that s 65A of the Act confers legislative and executive power on the Court contrary to the implied limitation recognised in R v Kirby; Ex parte Boilermakers Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254. 22 As I understood the argument advanced by Mr Siminton it was that s 65A of the Act confers very wide powers on the Court. It is said that these powers are wide enough to enable the Court to act as a Royal Commission or Board of Inquiry, to award damages without the assistance of guiding criteria and to act as a surrogate or "collection service" for third persons who may wish to obtain damages from Mr Siminton.
Case: Sterling v Trade Practices Commission (1981) 51 FLR 1
Outcome: referred to
The hearing of an application, made under s 65A of the Act , is not a trial on indictment of any offence against a law of the Commonwealth and, in particular, of an offence against s 7 of the Act : cf Sterling v Trade Practices Commission (1981) 51 FLR 1 at 8. The application does not place Mr Siminton in jeopardy of a conviction for any offence or the imposition of any criminal penalty. 23 Section 65A of the Act was inserted in 2000, see Financial Sector Legislation Amendment Act (No 1) 2000 , s 20. Under the former legislation, ss 7 and 66 of the Act contained penalty provisions only. The inclusion of s 65A was designed to allow APRA, subject to Court approval, to act pre-emptively to stop undesirable activities rather than simply acting to impose punishment after the damage had occurred: see Explanatory Memorandum, Financial Sector Legislation Amendment Act (No 1) 2000 . Many of its sub-sections are drafted in the same or substantially the same terms as provisions to be found in other Commonwealth legislation. Comparisons can be drawn with s 80 of the Trade Practices Act 1974 (Cth), s 12GD of the Australian Securities and Investment Commission Act 1989 (Cth), and s 1324 of the Corporations Law 1989 (Cth). The constitutional validity of these equivalent provisions has been upheld by Court decisions spanning many years. Section 80(1) of the Trade Practices Act , which corresponds with s 65A(1) was held by Lockhart J to be a valid law of the Commonwealth Parliament in Trade Practices Commission v Sterling (1980) 28 ALR 497 at 517-9. An appeal from his Honour's decision was dealt with by a Full Court. The appellant did not, on appeal, seek to argue that his Honour's decision as to the validity of s 80(1) was wrong. It was, however, argued that sub-ss (4) and (5) of s 80 which contained provisions equivalent to those to be found in s 65A(3) were invalid, being beyond constitutional power. These submissions were rejected by the Full Court: see Sterling v Trade Practices Commission (1981) 51 FLR 1 at 7-9.
Case: The University of Western Australia v Gray (No 6) [2006] FCA 1825
Outcome: referred to
Subject to hearing the parties I consider that the better course would be to appoint a receiver to deal with the funds which are subject to Gray J's order. This would seem to be an appropriate case for the appointment of a receiver, if not under s 57(1) of the Federal Court of Australia Act , under s 23 of that Act: see The University of Western Australia v Gray (No 6) [2006] FCA 1825 at [71] . This case bears many of the features which led Austin J, in Australian Securities and Investment Commission v Burke [2000] NSWSC 694 , to appoint a receiver. His Honour said (at [8]): "Without wishing to lay down any general rules, it appears to me that the extraordinary step of appointing a receiver may be justified, even though Mareva Orders are in place, in a case where there is real doubt about the existence and location of assets such as investments, and about the number and identity of claimants and the nature of their claims, and additionally the defendants are engaged in business activities which entail that any Mareva Orders must allow assets to be turned over in the course of business. Where these circumstances exist in combination, and especially where there are allegations of serious fraud involved, the Court may conclude, as I do in this case, that the Mareva Orders are not enough to ensure that the assets are preserved and protected, and indeed identified and brought in for the benefit of investors."
Case: Trade Practices Commission v Mobil Oil Australia Limited (1985) 4 FCR 296
Outcome: referred to
In my view this is a case which requires the granting of injunctions which will restrain Mr Siminton from any repetition of his past misconduct. There is an appreciable risk that, unless restrained, Mr Siminton will resume the course of conduct which caused APRA to make this application. The granting of an injunction is also warranted as a means of marking the Court's disapproval of the flagrant breaches of the Act which had been perpetrated by Mr Siminton; see Trade Practices Commission v Mobil Oil Australia Limited (1985) 4 FCR 296 at 300. 69 Mr Siminton should be restrained from: &#8226; Receiving money from members of the public by way of deposit in the Terra Nova Cache or the Principality of Camside; &#8226; Assuming or using the words "bank", "banker" or "banking", or any words or phrases of like import, in relation to his business; and &#8226; Advertising, representing or stating that he will carry on banking business. The injunction should also prevent him undertaking such activities through servants or agents. Mr Siminton should also be required to publish and maintain on the first page that any user views on relevant websites, a notice warning them that neither the Terra Nova Cache nor the Principality of Camside are entities which may lawfully conduct a banking business in Australia. 70 APRA also seeks orders under s 65A(11) of the Act requiring Mr Siminton to pay damages to depositors in the Terra Nova Cache and an order, under s 57 of the Federal Court of Australia Act , appointing a receiver to deal with the funds which are subject to the Mareva Orders made by Gray J on 10 January 2006.