mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Inspector Clarke v WL Meinhardt &amp; Partners Pty Ltd (unreported, Fisher CJ, 30 June 1992)
Outcome: distinguished
Justice Maidment referred to the decision of Fisher CJ in Inspector Clarke v WL Meinhardt &amp; Partners Pty Ltd (unreported, Fisher CJ, 30 June 1992) concerning prosecutions under ss 15 and 16 of the NSW Act. In Meinhardt , a defendant employer had designed a safety support system, the purpose of which was to safely incorporate a historical fa&ccedil;ade into a new building on the same construction site. A different party had constructed the system. The fa&ccedil;ade collapsed. Two of the defendant employer's workers were on site at the time of the collapse, inspecting integral elements of the support system. The defendant employer submitted that its own office was its place of work, rather than the construction site. Chief Justice Fisher rejected that submission and said (at 11): I consider the phrase 'at work' in s 15(1) of the Act has temporal connotations. It applies equally to all kinds of work. On a building site it would include entering, moving about and leaving a site, as well as here, inspection or reinspection, maintenance and periodic checks. Whilst this work was being performed the employer is subject to the duties cast upon him by the Act.
Case: Kiao v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: applied
It is established principle that, in the case of a statutory power, the statutory context will be of central importance in determining the content of procedural fairness: see, eg, Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396 , 444; Kiao v West [1985] HCA 81 ; (1985) 159 CLR 550 , 584-85; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 , 503-504; and National Companies &amp; Securities Commission v News Corp Ltd [1984] HCA 29 ; (1984) 156 CLR 296 , 326.
Case: Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214
Outcome: applied
Looking at the words of s 5 of the Act, the pit is a premises 'in which' the prescribed employees work. The words of the definition say that the place must be somewhere 'in which' Commonwealth employees work. A pit primarily used to access and maintain telecommunications infrastructure is a place 'in which' such employees work, in the sense that it is not a private place, nor a place disconnected with the work of such employees. The ordinary meaning of the words used in the definition of 'workplace' supports this construction, and to depart from this ordinary meaning can only be justified if to do so would be in accordance with a purposive construction: see, eg, Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at [235] per Dawson J. 39 Telstra does point particularly to one object of the Act in aid of its purposive construction, namely to protect persons only arising from the activities of the employees at work. One must be careful of the use to be made of objects clauses in legislation: see Pearce &amp; Geddes, Statutory Interpretation in Australia , (2006) (6 th ed) at [4.42]. However, in my view, this object is achieved by giving practical content to s 17 of the Act, not in the reading of the definition of 'workplace' as contended by Telstra. For instance, as the authorities relied on by Telstra indicate, the legislation there referred to does not require an employer to ensure that the product of the work is devoid of hazard. In my view, this is not because of a restricted meaning being given to the definition of 'workplace', but arises out of the scope of the obligations cast upon any defendant employer by s 17. 40 It is important to recall that definitions found in legislation are not to be treated as substantive provisions they are there as an aid to construction of the operative parts of the legislation. Consequently, the operation of any legislation must be viewed upon an examination of the substantive provisions themselves, interpreted in context and according to the defined sense of the words found therein.
Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: applied
In any event, as I have indicated, an obligation to make 'material' findings of fact means those findings which the decision-maker considers material, rather than factual findings which are subsequently argued were 'necessary' or 'objectively' material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [10] , [33]-[34], [68]. If there is no finding expressed on a particular question of fact, such an omission might expose a decision-maker to attack on other grounds (for example, ignoring relevant material, taking into account irrelevant considerations, misunderstanding the nature of the task), but it will not be a breach of the statutory obligation to give reasons: Yusuf at [10], [37] and [69]. 83 Therefore, the relevant question to ask here is whether Mr Smith, in the report, set out his conclusions, the reasons for the conclusions and the findings of fact which he considered material, and referred to the evidence on which those findings were based. 84 In my view, the reasons provided by Mr Smith rationally related to the evidence found during the investigation and are comprehensible in themselves. The report did set out Mr Smith's conclusions, the reasons for the conclusions and the findings of fact which he considered material, and the evidence on which these findings were based.
Case: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475
Outcome: applied
It is established principle that, in the case of a statutory power, the statutory context will be of central importance in determining the content of procedural fairness: see, eg, Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396 , 444; Kiao v West [1985] HCA 81 ; (1985) 159 CLR 550 , 584-85; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 , 503-504; and National Companies &amp; Securities Commission v News Corp Ltd [1984] HCA 29 ; (1984) 156 CLR 296 , 326.
Case: National Companies &amp; Securities Commission v News Corp Ltd [1984] HCA 29 ; (1984) 156 CLR 296
Outcome: applied
It is established principle that, in the case of a statutory power, the statutory context will be of central importance in determining the content of procedural fairness: see, eg, Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396 , 444; Kiao v West [1985] HCA 81 ; (1985) 159 CLR 550 , 584-85; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 , 503-504; and National Companies &amp; Securities Commission v News Corp Ltd [1984] HCA 29 ; (1984) 156 CLR 296 , 326.
Case: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: cited
Telstra submitted that if the investigator was entitled to make a finding of a breach of s 17 of the Act, and if he turned his mind to the correct legal test in respect of the elements of a breach of s 17, he nevertheless failed to comply with s 53(2) of the Act, because he failed to provide reasons for concluding that s 17 had been breached. Therefore, according to Telstra, the report was 'a purported report and a nullity': see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 , 388-91 at [91]-[93] per McHugh, Gummow, Kirby and Hayne JJ.
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: cited
Accepting that procedural fairness must be accorded, the respondents contended that in the making of the report under s 53 of the Act, procedural fairness was afforded to Telstra. The respondents contended that throughout the process Telstra was legally represented, and took every opportunity it could to put arguments and submissions to Mr Smith and to Comcare. It was argued by the respondents that Telstra advanced its case in correspondence from its lawyers as early as 20 December 2006. Mr Smith made it clear Telstra was free to make any submissions it considered appropriate. Further, the respondents contended that Telstra's solicitors re-stated Telstra's contentions about the matter on 16 January 2007 and 30 October 2007. The level of communication, it was said, throughout the investigation made it clear that Telstra had more than a reasonable opportunity to be heard about whether it was in breach of s 17 of the Act. There was, it was contended, no 'practical injustice' to Telstra, which is the gravaman of denial of procedural fairness: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 , 13-14 at [37]. 49 I consider that Telstra's complaint of lack of procedural fairness, and the other matters raised, are properly answered by recognising the scheme of the Act.
Case: Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396
Outcome: cited
It is established principle that, in the case of a statutory power, the statutory context will be of central importance in determining the content of procedural fairness: see, eg, Salemi v MacKellar (No 2) [1977] HCA 26 ; (1977) 137 CLR 396 , 444; Kiao v West [1985] HCA 81 ; (1985) 159 CLR 550 , 584-85; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 , 503-504; and National Companies &amp; Securities Commission v News Corp Ltd [1984] HCA 29 ; (1984) 156 CLR 296 , 326.
Case: Tsougranis v Inspector Carmody (No 2) [2006] NSWIRC 133
Outcome: distinguished
Telstra also relied upon passages where, after referring to Boral Elevators, the Full Bench of the NSW Industrial Court in Tsougranis v Inspector Carmody (No 2) [2006] NSWIRC 133 said: 40 On 3 September, the appellant had no employees at the site and the appellant did not enter or leave the site on that day. 41 The respondent contended that the work of the appellant continued on the site on 3 September 1998 even though he was not physically present, because his plans were still being used to construct the footings. 42 As Fisher CJ observed in respect of s 15(1) of the OH&amp;S Act, in Inspector Clarke v W.L. Meinhardt and Partners Pty Ltd (unreported, Matter Nos 1212 &amp; 1213 of 1990, 30 June 1992) the phrase "at work" has temporal connotations. Similarly, in our view, in respect of the duty under s 16(1), it is necessary to determine the temporal obligations on 3 September 1998 of the appellant. The legislation does not require the appellant to ensure the product of his work, his advice, directions and drawings, were devoid of hazard. No actual work was being performed or "being done" in the conduct of his undertaking at the site. In other words, the appellant was not giving advice, giving directions, or making drawings. The OH&amp;S Act is directed to workplaces and does not impose an obligation to ensure that the product of that work is free from hazard: Boral Elevators . Clearly, the site was the builder's place of work, but there was no evidence before his Honour of a continuance of the work of the appellant. The obligation falls upon the prosecutor to demonstrate that the elements of s 16 have been proved unless there is a clear admission which there was not in this case. 43 In Boral Elevators , Maidment J found that the obligation cast upon the defendant by s 16(1) was confined to the periods during which maintenance work was being conducted on a lift. His Honour found that the existence of a contractual obligation to regularly service a lift did not result in the lift being, at all times, a place of work within the sense of s 16 of the Act. 44 We would observe that the appellant had no employees present at the site. Nor was the particular site at the relevant time within the description in WorkCover Authority v Schrader (2002) 112 IR 284 at [64] (that is, the place of work was to be considered as including "areas that are affected by or in such proximity to what the defendant was contractually obliged to perform that they are properly considered to be the defendant's place of work"). The fact or existence of a plan that the appellant had prepared in relation to any particular location does not necessarily mean that the relevant location is his place of work. Such a construction is contrary to the ordinary reading of s 16(1).
Case: WAJH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 935
Outcome: distinguished
I do not have before me a situation where the decision-maker had undertaken to provide an opportunity for comment prior to making an adverse decision: see, eg, Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 ; (2002) 123 FCR 23 ; and WAJH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 935.
Case: WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montaro Pty Limited (unreported, Peterson J, 19 December 1997)
Outcome: distinguished
Boral Elevators was also approved by Peterson J in WorkCover Authority of New South Wales (Inspector Hughes) v Boral Montaro Pty Limited (unreported, Peterson J, 19 December 1997), a case which dealt with the concept of 'employer's place of work', again focusing attention (in keeping with the approach of Fisher CJ) on the performance of work.
Case: Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 ; (2002) 123 FCR 23
Outcome: distinguished
I do not have before me a situation where the decision-maker had undertaken to provide an opportunity for comment prior to making an adverse decision: see, eg, Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 ; (2002) 123 FCR 23 ; and WAJH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 935.
Case: Wyong Shire Council v Shirt [1980] HCA 12 ; (1980) 146 CLR 40
Outcome: cited
Telstra submitted that no breach of s 17 of the Act could occur unless there were reasonably practicable measures that could have been taken to negate or reduce the risk. Telstra referred to tort cases and argued that the investigator did not identify any 'alleviating action': (see Wyong Shire Council v Shirt [1980] HCA 12 ; (1980) 146 CLR 40 at 47-8).
Case: Armorduct Manufacturing Company Ltd v General Incandescent Company Ltd [1911] 2 KB 143
Outcome: cited
Section 468 of the Act provides that any disposition of property of a company, other than an exempt disposition, made after the commencement of the winding up of the company by the Court is void, unless the Court otherwise orders. In an application under s 468 or its equivalent, the Court has a discretion to order that a disposition of property is not void. It may be that, where a creditor has been prevented by force or by fraud or trickery from issuing execution or attachment prior to the commencement of a winding up, the Court would order that the execution or attachment is not void (see Armorduct Manufacturing Company Ltd v General Incandescent Company Ltd [1911] 2 KB 143 at 147. 27 However, there is no power given to the Court under s 569 to order that s 569 not apply. In any event, there is simply no evidence before the Court to suggest that there was any fraud or trickery that resulted in any delay in obtaining the garnishee order that resulted in the payment from the Bank to Sandos. Accordingly, there is no basis for suggesting that this ground for setting aside the statutory demand has any substance. 28 Sandos contends that it is, at most, liable to pay the amount received following the garnishee order, less an amount in respect of the costs of the garnishee order. It says that, since that amount has not been determined, it is not possible to determine the amount payable.
Case: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596
Outcome: applied
I have already set out s 23(1) and my conclusion that it confers a right on the examinee's lawyer and not the examinee. That right is sufficient to attract the rules of procedural fairness: Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ. ASIC argued that the exercise of investigative powers was not generally subject to the rules of procedural fairness. It instanced Ryan v Australian Securities and Investments Commission (2007) 158 FCR 301 at 317-323 [53]-[72] per Gyles J. The decision under challenge in that case, however, was a decision by ASIC to confer "eligible applicant" status on a person. The only effect of that was to permit such a person to apply for the issue of examination summonses which might result in the examination of a person. Gyles J ultimately held (at 321 [67]): In my opinion, the initiation of the exercise of a statutory power of an investigatory nature will not normally "destroy, defeat or prejudice" (to use the words from Annetts v McCann [1990] HCA 57 ; 170 CLR 596) or "imperil" (to use Meagher J's word) any relevant right or interest such as to require notice to be given to the object prior to exercise of the power. In any event, where, as here, the exercise of a power is anterior to that which has a direct effect upon the party, there is no such requirement.
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: cited
Granted that such an obligation existed, what were the inspectors to do? They needed to provide Atanaskovic Hartnell with an opportunity to persuade the inspectors that the direction should not be given. This was not done and breach is established. There may be difficult cases where the inspectors have before them confidential information the very nature of which requires that it not be shown to the lawyer or to his or her client. However, the inspectors did not suggest that they had relied on any such information in the present proceeding. There was a redacted portion of the reasons of 22 October 2008 but there was no intimation of what had been redacted. In any event, the Applicants did not complain that prejudicial but relevant material had been taken into account thereby: cf. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 [15] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
Case: Bell v Australian Securities Commission (1991) 31 FCR 184
Outcome: referred to
In Bell v Australian Securities Commission (1991) 31 FCR 184 at 189 Pincus J held that s 22 did not permit an inspector to exclude an examinee's lawyer. This conclusion was reversed by the Full Court: Australian Securities Commission v Bell (1991) 32 FCR 517 at 521 per Lockhart J, 528-529 per Sheppard J, 532-533 per Burchett J. The binding nature of that conclusion is not open to doubt.
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: cited
Where, as here, it is alleged that ASIC has acted outside its power in making an exclusion direction under s 22(1), ASIC is required to prove that the making of the order was "necessary" in the sense used in Bell . The reasonable necessity is based on the views of the inspector if it appears necessary to the inspector then that will suffice provided that his or her belief is reasonably held. Put another way, the encroachment of the power in s 22(1) into the field of operation of s 23(1) is subject to a condition precedent, namely, the satisfaction of the inspector that the encroachment is necessary. And, of course, it is not to be presumed that Parliament intended that the inspector's view could be formed capriciously hence, not only must be the opinion be formed but is must be reasonably held: cf. Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 654 per Gummow J; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 150 [34] per Gleeson CJ, Gummow, Kirby and Hayne JJ.
Case: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135
Outcome: cited
Where, as here, it is alleged that ASIC has acted outside its power in making an exclusion direction under s 22(1), ASIC is required to prove that the making of the order was "necessary" in the sense used in Bell . The reasonable necessity is based on the views of the inspector if it appears necessary to the inspector then that will suffice provided that his or her belief is reasonably held. Put another way, the encroachment of the power in s 22(1) into the field of operation of s 23(1) is subject to a condition precedent, namely, the satisfaction of the inspector that the encroachment is necessary. And, of course, it is not to be presumed that Parliament intended that the inspector's view could be formed capriciously hence, not only must be the opinion be formed but is must be reasonably held: cf. Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 654 per Gummow J; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 150 [34] per Gleeson CJ, Gummow, Kirby and Hayne JJ.
Case: Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241
Outcome: cited
Where confidential but prejudicial information is taken into account by a decision-maker, the Court may fashion its own procedures to determine whether the nature of the information is such as to reduce the obligation of procedural fairness to nothing: Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562 ; (2004) 148 A Crim R 74 at [100] - [104] per Smart AJ; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at 275-276 [143] - [144] per Weinberg, Bennett and Edmonds JJ. However, the difficult issues which may arise in that context were not ventilated in the present proceedings.