mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kelly v Fitzpatrick (2007) 166 IR 14
Outcome: referred to
I agree, with respect, with the approach of Gray J to the question of "course of conduct" under s 719(2) and the former s 178(2). Tracey J applied the same approach in Kelly v Fitzpatrick [2007] 166 IR 14 at 17. I therefore reject the submission of counsel for Mrs Healey, Mr Green, that there was one single course of conduct which was constituted by Mrs Healey paying a flat rate of pay to her employees instead of the award rate plus loadings and allowances. 24 As set out by Tracey J in Kelly v Fitzpatrick at 16-17, prior to 10 August 2004, the maximum penalty for breach of s 178 was $2,200 for an individual. Since that time it has been $6,600 for breach of s 178 and, on and after 27 March 2006, s 719. 25 The following 20 former employees of Mrs Healey commenced employment with her prior to 10 August 2004: &#8226; Hannah Bereznicki (junior on commencement) &#8226; Luke Buck &#8226; Sandra Buck &#8226; John de Little &#8226; Rebecca Denton &#8226; George Friend &#8226; Tom Friend (junior on commencement) &#8226; Meika Gale &#8226; Skye Gargan &#8226; Iain Hickman &#8226; Felipa Jarzynka &#8226; Catherine Keygan &#8226; Glen Logan &#8226; Fiona McKenzie &#8226; Chani Rigby (junior on commencement) &#8226; Stephanie Semmens &#8226; Luke Sorrentino &#8226; James Stoessiger &#8226; Drew Underwood, and &#8226; Sian Williams (junior on commencement). 26 The balance commenced after 10 August 2004. Three of them commenced as juniors. They were: &#8226; Jennifer Dalwood; &#8226; Tegan Gale, and &#8226; Jessica Hodgson.
Case: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Outcome: applied
Having determined an appropriate level of penalty for each of the contraventions of the award, I must now look at the aggregate of those penalties ($91,300) to form a view whether that figure is out of proportion to the overall conduct of Mrs Healey; see Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [23] per Gray J. This exercise may also be described as did Graham J in Australian Ophthalmic Supplies at [71] as ensuring that the figure provides an appropriate response to the conduct which led to their breaches. 31 The application of the totality principle does not mean that the figure arrived at before its consideration must be reduced. However, the Court must engage in what Gray J described in Australian Ophthalmic Supplies at [27] as an "instinctive synthesis" and arrive at a figure which Graham J said at [73] should be "just and appropriate". 32 The conduct which led to the breaches occurred over seven years. The only evidence before the Court to explain it is found in the agreed statement of facts at paragraphs 8 and 9 where reference is made to OWS receiving a complaint from Ms Tracey Pearce. At paragraph 9 the following is said: In her claim to OWS, Ms Pearce stated that during the course of her employment at the Theatre Royal Hotel, she was paid pursuant to wage rates contained in a purported AWA, and as a consequence believed that she had not been paid her correct rate of pay . 33 It is open to be inferred that, at least in the case of Ms Pearce, Mrs Healey attempted to apply an AWA which was inoperative for some reason relating to lack of compliance with legislative provisions concerning AWAs. There is no other evidence with respect to AWAs in which Mrs Healey is the employer. Even if the rates set were struck in accordance with incomplete AWAs, there is no evidence that any employee agreed to their terms. In any event, this does not explain other strange features of this matter such as the non-payment of Ms Jodi Buck, the downward adjustments in the rate applicable to Ms Hodgson and the attempt to give some loading to the rate of Mr Whitton but to no-one else.
Case: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 247 ALR 451
Outcome: cited
appellant argued that the reference to "evidence as whole" included a reference to the evidence about the appellant's activities in Australia. If that were so the inclusion of consideration of evidence about the appellant's activities in Australia would be contrary to s 91R(3) which required such evidence to be disregarded where, as here, the Court has found that those activities were undertaken to strengthen the appellant's claim: see SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 247 ALR 451. This argument should not be accepted. The reference to evidence as a whole read in context excludes the evidence of the appellant's Australian conduct. It is unreal to suggest that the Tribunal having just said that it disregards the appellant's conduct in Australia, in the next sentence contradicts itself. That this is not the case is confirmed by the reference in the concluding summary four paragraphs later where the Tribunal repeats: [I]t has disregarded his politically related conduct in Australia since July 2007 as it is not satisfied that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee. It follows from these reasons that the appeal will be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 9 June 2009 Counsel for the Appellant: Dr J Azzi Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 21 May 2009 Date of Judgment: 22 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/622.html
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
is no merit in a challenge which would seek to overturn the Federal Magistrate's decision on the basis that the Tribunal's reasons were unreasonable and that the Federal Magistrates Court should have so found. It is important to recall, and the Appellant's submissions both written and oral as is frequently the case do not, and did not, evidence this, that it is no part of the role of the judiciary, either in the Federal Magistrates Court or on this Court, to engage in the making of value judgments or fact finding in relation to whether or not one is satisfied in terms of the Act that there is a claim for a protection visa. To do so is to violate the role consigned to the judiciary and to ignore the counsel provided by Brennan J, as his Honour was, in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 30, about a threat to the legitimacy of judicial review by descending into matters that are consigned by the legislature to the value judgment of either the Minister, his delegates or the Tribunal. For these reasons then the appeal must be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 25 February 2009 Counsel for the Appellants: The male Appellant appeared in person on his own behalf and on behalf of his wife, the female Appellant. Counsel for the Respondents: Mr P Cleary Solicitor for the Respondents: Sparke Helmore Date of Hearing: 16 February 2009 Date of Judgment: 16 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/144.html
Case: Re Minister for Immigration; Ex parte Duraraijasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: applied
sees in those written submissions what, in substance, is a challenge to the credibility findings made by the Tribunal. Such findings are uniquely, "par excellence", as McHugh J stated in Re Minister for Immigration; Ex parte Duraraijasingham [2000] HCA 1 ; (2000) 168 ALR 407 at para 67, matters for the Tribunal. When one reads the Tribunal's reasons those findings are logical and reasonable; reasonable in the sense that they are made upon a basis that is readily discernible from the findings of fact the Tribunal chose to make on the material that it had before it.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: applied
422B of the Migration Act provides that the provisions found within Div 4 of Pt 7 are an exhaustive statement of the natural justice hearing rule. Those provisions include s 424A. In this instance it is at least arguable, having regard to the High Court's decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 , that the Tribunal went beyond the obligation imposed on it by s 424A of the Act. I make that observation because it is possible to regard the letter which the Tribunal sent as disclosing the thought processes of the Tribunal. Be this as it may, it is certainly not a basis for a jurisdictional error case that the Tribunal exceeded the obligation imposed on it by s 424A. This otherwise is a case where there is no basis for concluding that the Federal Magistrates Court was in error insofar as any jurisdictional error in relation to s 424A is concerned. The first ground of appeal has about it a generality such that when one departs from an apprehension that lying behind it might be a s 424A based challenge, one is in the area of speculation. Having regard to the way in which the argument developed this morning it seems to me that the procedural fairness challenge may well be on the basis of a failure to take into account the translated document, exhibit 1. The Federal Magistrate dealt in what, in my opinion, is an unexceptional way with a challenge of that kind as the learned Federal Magistrate apprehended it. The short point is that the Appellants were given an opportunity to submit a translated document. It is just that, for whatever reason, that opportunity was not availed of. As it happens, the essence of the document, as the learned Federal Magistrate notes, is no different to a finding made in the male Appellant's favour; namely, membership of Shiv Sena in 2001.
Case: SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
Outcome: cited
second of the grounds of appeal, insofar as it goes beyond procedural fairness, is not only a ground which does not appear to have been a basis of challenge before the Federal Magistrates Court, but also, in any event, a ground which would not warrant leave to advance it in this appeal. The Tribunal, in the passage from which I have quoted, looked to and made an express finding in respect of the foreseeable future in the event of a return to India. In this regard, the Tribunal referred to findings it had already made. It suffices to note that those findings were based on a preference of independent country information as to an absence of a particular threat of prosecution. There is, in the Tribunal's reasons in this case, no error of the kind described by Allsop J (as his Honour then was) in SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at paras 28, 29 and 30. What I have stated is sufficient to dispose of the appeal in respect of the grounds stated in the notice of appeal. Neither has any merit. On behalf of the Minister the course was taken, very properly, to engage with submissions advanced in the Appellant's written submissions, which did not find their way into the notice of appeal.
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: followed
with the principles enunciated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 19 and SZBJH v Minister for Immigration and Citizenship (supra) at [40]-[42] the Tribunal responded to, and dealt with, the claims which the appellant had articulated and which also arose on the materials before it.
Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389
Outcome: cited
if the Tribunal had addressed the question whether the appellant was a member of a social group, namely Muslim businessmen in Sri Lanka, its reasoning discloses that it would have rejected that claim having regard to its findings that the appellant had not been targeted in the past and would not be targeted in the reasonably foreseeable future for the reason of his race or his religion or his political opinion and that the extortion was directed at him based on a perception of his personal wealth and aimed at him individually in respect of which there was material upon which it was open to the Tribunal to make these findings: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 394-395. The ground of appeal based upon the Negombo incident does not disclose, in its terms, any jurisdictional error. In substance it challenges the Tribunal's fact finding process and conclusions. At the hearing of the appeal the appellant developed this ground by submitting that there was a constructive non-exercise of jurisdiction in that the Tribunal failed to consider the appellant's claim and instead looked at the Negombo incident in isolation. In short, the appellant submitted that the Tribunal did not address the substance of the appellant's case in relation to this incident. I reject that submission. The Tribunal articulated clearly the circumstances out of which the appellant's claim in relation to this incident arose. The appellant submitted that the Tribunal did not consider the incident in the context of the appellant's claim to be a refugee. That is not a correct analysis of the Tribunal's reasoning. In its reasoning, the Tribunal set out in some detail the claims made by the appellant in relation to this incident. The Tribunal also canvassed the incident with the appellant in the hearing as the transcript discloses. The Tribunal did not accept the appellant's evidence as to the circumstances involved with the incident as credible and did not accept his evidence. It was open to the Tribunal so to find on the material before it. The Tribunal then reasoned that even if it were to accept all the claims made by the appellant in relation to this incident it found that there was not an instance of "Convention persecution" since the appellant was detained as part of a sweep of the area following an explosion and was not targeted specifically, nor for any Convention reason. The Federal Magistrate found that the claim in relation to this incident fell squarely within the area of merits of review, and in my opinion, the Federal Magistrate did not err.
Case: Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179
Outcome: followed
Section 78B of the Judiciary Act , it should be noted, is not considered to have any present application. Section 78B(1) requires a cause to be " pending " in a federal court. At present there is no such cause " pending ". All that is before this Court is a proposal to file an amended application. Even if this be not correct, s 78B has no application where a pleading raises trivial or unarguable points: Deputy Commissioner of Taxation v Warwick (No 2) [2004] FCA 918 , 56 ATR 371. In Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 it was further observed that the matters there sought to be raised were frivolous or vexatious. It is considered that the proposed application in the present proceedings raises issues which are frivolous or vexatious or unarguable. Accordingly, section 78B does not require this Court not to proceed further. 16 The orders of the Court are: 1. The proceedings be dismissed as against both Respondents. 2. The First Applicant is not to commence any proceedings in this Court without the prior leave of the Court, excluding any application to appeal or seeking leave to appeal from this decision. 3. The Applicants to pay the costs of the First Respondent of and incidental to these proceedings including any reserved costs. 4. The Applicants to pay the costs of the Second Respondent of and incidental to these proceedings including any reserved costs. I certify that the preceding sixteen (16 ) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 31 March 2008 Counsel for the First Applicant: The First Applicant appeared in person Counsel for the First Respondent: G Curtis Counsel for the Second Respondent: J Turnbull Date of Hearing: 31 March 2008 Date of Judgment: 31 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/430.html
Case: Australian Competition and Consumer Commission v Chats House Investments Pty Limited (1996) 71 FCR 250
Outcome: cited
Branson J said in Australian Competition and Consumer Commission v Chats House Investments Pty Limited (1996) 71 FCR 250 at 258: ' it is appropriate for the Court to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent '. The Court's task is to assess whether the compromise is fair and reasonable ( Lopez v Star World Enterprises Pty Limited (1999) ATPR 41-678 ; [1999] FCA 104 at [15] per Finkelstein J).
Case: Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322
Outcome: applied
approach to be taken by the Court was recently reviewed by Jessup J in Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322. Jessup J pointed out that there is little specificity that can be attached to the words "fair" or "reasonable". His Honour expressed the opinion that the practical judicial approach appears to be to identify any features of a settlement that are obviously unreasonable or unfair ( Darwalla at [39]). The evidence establishes that the proposed global amount, the methodology for distribution and the effect of the settlement on the payments to be made to the individual members has been adequately set forth to each of those members of the Deacons client group. As was the case in Darwalla, no objection, and no matter said to be unfair or unreasonable, has been raised in this case by any group member who will be covered by the settlement. As a result, I, like Jessup J in Darwalla , am left with only the broadest criteria to assess the reasonableness and fairness of the proposed settlement. Global settlement sum Jessup J considered whether the overall settlement sum was reasonable having regard to: the manner of its calculation and its relationship to the best possible case outcome for the group as a whole; the prospects of achieving an outcome at or near the best probable case; the extent of the weaknesses, substantive or procedural, in the applicant's case; whether the settlement sum falls within the realistic range of likely outcomes; the forensic difficulties which would be involved in the conduct of the case to judgment; and the time and costs which have been saved by a settlement at that particular stage of the proceedings ( Darwalla at [41]). As noted by Jacobson J in Taylor v Telstra Corporation Ltd [2007] FCA 2008 at [63] , Jessup J also said at [50] that he did not consider that it was the Court's function under s 33V to second guess the applicants' advisors in the answer to the question whether the applicants ought to have accepted the respondent's offer. The question is whether the agreed settlement falls within the range of a fair and reasonable outcome, taking everything into account. As Jessup J also pointed out in Darwalla , there is rarely, if ever, a case in which there is a unique outcome which should be regarded as the only fair and reasonable one. As in Darwalla , there is a settlement distribution scheme which does not specify precisely what the final entitlement of each group member will be under the settlement, although in this case:
Case: Haslam v Money For Living (Aust) Pty Limited (Administrators Appointed) [2007] FCA 897
Outcome: cited
the present case, each Deacons client has had the benefit of advice from solicitors and counsel as to how his or her interests are best served in the litigation and by the proposed settlement. My task is to determine whether the proposed settlement is fair and reasonable having regard to the claims made on behalf of the group members who will be bound by the settlement ( Williams v FAI Homes Security Pty Ltd (No 4) [2000] FCA 1925 ; (2000) 180 ALR 459 at [19] per Goldberg J). While the nine factor test adopted by Goldberg J in Williams is not a rigid test to be applied, it is useful as a guide ( Haslam v Money For Living (Aust) Pty Limited (Administrators Appointed) [2007] FCA 897 at [20] per Gordon J.)
Case: Lopez v Star World Enterprises Pty Limited [1999] FCA 104 ; (1999) ATPR 41-678
Outcome: cited
Branson J said in Australian Competition and Consumer Commission v Chats House Investments Pty Limited (1996) 71 FCR 250 at 258: ' it is appropriate for the Court to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent '. The Court's task is to assess whether the compromise is fair and reasonable ( Lopez v Star World Enterprises Pty Limited (1999) ATPR 41-678 ; [1999] FCA 104 at [15] per Finkelstein J). The evidence provides a basis for calculating the total claims made by or on behalf of the Deacons clients and the percentage of these total claims made up by the individual claims of each Deacons client. This percentage is used to calculate the proportion of the global settlement sum to be paid to each Deacons client, allowing for costs. This enables the Court to understand the basis on which the amounts payable to the individual members of the group have been calculated. Where the global settlement and the method of distribution have been established, the fact that there is a degree of uncertainty in the precise distribution does not prevent approval being given to the settlement ( Lopez ). There has already been payment by the Deacons clients on account of costs incurred to date. The proposed schedule for distribution takes account of those payments of costs and it follows that the individual group members have been notified of, and approve the quantum of, the costs incurred. I am satisfied that there is no need for further evidence of the reasonableness of those costs. Accordingly, taking account of: the percentage of each claim to be paid to each Deacons client; the prospects of success in the proceedings affecting the likelihood that any Deacons client would obtain judgment for amounts significantly in excess of the settlement offer; the increased costs that would be incurred if the matter proceeded to its conclusion; the opinion of Mr Sharma; the fact that the proposed settlement was recommended by senior and junior counsel for the Deacons clients; the submissions of and support of the settlement by Ms Wilson, appearing for the Deacons clients; the submissions of support of the settlement by senior counsel for Airservices; the existence of a fair and reasonable settlement distribution scheme; and importantly, the fact that all members of the group of Deacons clients have approved the settlement; I am satisfied that it is appropriate so to approve it.
Case: Multiplex Funds Management v P Dawson Nominees [2007] FCAFC 200 ; (2007) 164 FCR 275
Outcome: cited
group was thus identified by criteria not limited to those associated with the nature of the claims themselves ( Multiplex Funds Management v P Dawson Nominees [2007] FCAFC 200 ; (2007) 164 FCR 275 at [137] [141] per Jacobson J). While I am informed that there are other former employees of Airservices not listed in Attachment 1 who otherwise come within the description set out in paragraph 2 of the application, those persons have not signed an agreement with Deacons. Those persons will not be bound by the proposed settlement. Following earlier unsuccessful attempts at settlement, including an attempted mediation, the matter has now been settled between the parties on the basis recorded in a "Deed of Release and Confidentiality".