mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634
Outcome: referred to
Similarly in United Group Infrastructure the Court granted interim injunctions notwithstanding that the employees had returned to work. Nicholson J said at [44] that he was particularly influenced by the judgment in Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 at [22] [30] particularly at [22], [28] and [30]. 79 In Kestrel Coal Chesterman J said at [30]: This is not a case of idle threats. The defendants have in the past acted unlawfully in violation of the plaintiffs' rights. This factor makes the case different from those in which an injunction is sought because of conduct which is only apprehended. The principles applicable to quia timet injunctions are not entirely applicable. The fact that unlawful conduct has occurred makes the court more disposed towards ordering relief. See Dean and Chapter of Chester v Smelting Corporation Limited (1901) 85 LT 67 at 69 and Attorney-General v Beck [1980] 2 NSWLR 77 at 94 95. 80 This also is not a case of idle threats. The respondents have made good their threat to engage in a week of industrial action and, on 13 October, threatened further industrial action if the Demand is not met. Further, the respondents have shown a preparedness to engage in industrial action in contravention of the AIRC Order. In all the circumstances, and having regard to the main object of the BCII Act, it is just that the respondents should be restrained from engaging in further industrial action until the application can be heard or further order. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 31 October 2008 Counsel for the Applicant: Mr J Blackburn Solicitor for the Applicant: Mallesons Counsel for the Respondents: No appearance Counsel for the Intervener: Mr S D Harben Solicitor for the Intervener: Clayton Utz Date of Hearing: 28 October 2008 Date of Judgment: 28 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1629.html
Case: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 154 IR 228 
Outcome: cited
In Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 154 IR 228 Le Miere J, in circumstances similar to the present, granted an injunction under the BCII Act, notwithstanding that the workers had returned to work:
Case: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 
Outcome: cited
Section 49(3) confers power to grant an interim injunction without reaching a final decision that a contravention has occurred: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 at [7], [8]; Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 at [52].
Case: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 
Outcome: cited
Section 49(3) confers power to grant an interim injunction without reaching a final decision that a contravention has occurred: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 at [7], [8]; Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 at [52].
Case: Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 87
Outcome: cited
The impact on third parties, in this case Woodside, is a relevant consideration: Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 87 at 99-100.
Case: Reid v Smith [1905] HCA 54 ; (1905) 3 CLR 656
Outcome: cited
The degree of annexation test looks to the manner in which the object is attached to the land. If the object is attached to the land, other than by its own weight, there is a rebuttable presumption that it forms part of the land. The greater the degree of annexation, the stronger the presumption. If on the other hand, the object is attached only by its own weight, there is a rebuttable presumption that it is not part of the land, even if it has become embedded in the soil. In such a case the onus lies upon the person claiming that the object forms part of the land to prove that it was erected with the intention that it should become part of the land: Reid v Smith [1905] HCA 54 ; (1905) 3 CLR 656 at 668, 673-4, 675-6; Belgrave Nominees Pty Ltd &amp; Ors v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947 at 950-1. The courts will infer the degree of annexation from the surrounding circumstances including the nature of the object and the nature of the interest held in the land by the owner of the object. The test is objective, namely, what a reasonable person would consider to be the reason for attaching the object to the land.
Case: R v Thomson [1997] 1 Qd R 623
Outcome: cited
In R v Thomson [1997] 1 Qd R 623 Fitzgerald P said at 627-8: "probable" is another word of variable import which takes its meaning from the context in which it is used . . . In Johns v. R [1980] HCA 3 ; (1980) 143 CLR 108 , Stephen J seemed to accept at 121 that "probable" might sometimes be satisfied by "anything more than a bare possibility"; while, as will be seen below, sometimes the degree of probability required must be "overwhelming"; however, the more usual debate is whether "probable" requires more than a "real or substantial possibility" . . . . To complete the circle, just as the meaning of "likely" is sometimes expressed by reference to what is "probable", the meaning of "probable" is sometimes related to whether an event or consequence is "more likely than not" . . . Sometimes "probable" and "likely" are treated as synonymous; sometimes "probable" is regarded as a stronger word than "likely"; and sometimes "likely" is regarded as a stronger word than "probable". [references deleted]
Case: United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 148 IR 399
Outcome: cited
Consideration of the main object is a relevant consideration to the construction and application of the provisions of the BCII Act: United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 148 IR 399 at [23]-[25]; Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292 at [50] - [51] . 66 While the power to grant an interim injunction under s 49(3) should be exercised having regard to the principles applied by a court of equity, the main object of the BCII Act is also relevant consideration in applying its provisions: United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 148 IR 399 at [23]-[25]. 67 In my view, the applicant has a strong prima facie case and the balance of convenience is all one way. 68 The effect on the applicant if there is further industrial action will be significant. The estimated wasted costs alone exceed $600,000 a week. There are further potential consequences of industrial action such as damage to the applicant's reputation and loss of production. 78 Similarly in United Group Infrastructure the Court granted interim injunctions notwithstanding that the employees had returned to work. Nicholson J said at [44] that he was particularly influenced by the judgment in Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 at [22] [30] particularly at [22], [28] and [30].
Case: AB v LB (Mental Health Patient) [1980] 1 WLR 116
Outcome: cited
Honour could see no reason for construing s 494D as preventing the adoption by the Minister of a form of internet application which included provision for the notification of the name of an authorised recipient in the same form. His Honour rejected the submission that s 494D must be read as requiring a written signature from the visa applicant appointing the authorised recipient. He observed that it may often be administratively appropriate for a written and signed notice to be required by the Department, before being satisfied as to a due appointment. However, he could can find nothing in the terms or objects of s 494D which confined the Minister as to the manner in which he was to be satisfied that notice of an authorised recipient has been duly given. Nor could he find in s 494D any intention to exclude the normal presumption that Parliament intends to allow a person to act for the purposes of a statutory provision through an agent (cf. Christie v Permewan, Wright &amp; Co Ltd [1904] HCA 35 ; (1904) 1 CLR 693 at 700, McRae v Coulton (1986) 7 NSWLR 644 at 663, and AB v LB (Mental Health Patient) [1980] 1 WLR 116 at 121, cited in Bennion FAR, Statutory Interpretation &#8212; A Code (2nd ed, Butterworths, 1992), at 799 800). Considerations of convenience all pointed towards the section being intended to allow this.
Case: Christie v Permewan, Wright &amp; Co Ltd [1904] HCA 35 ; (1904) 1 CLR 693
Outcome: cited
Honour could see no reason for construing s 494D as preventing the adoption by the Minister of a form of internet application which included provision for the notification of the name of an authorised recipient in the same form. His Honour rejected the submission that s 494D must be read as requiring a written signature from the visa applicant appointing the authorised recipient. He observed that it may often be administratively appropriate for a written and signed notice to be required by the Department, before being satisfied as to a due appointment. However, he could can find nothing in the terms or objects of s 494D which confined the Minister as to the manner in which he was to be satisfied that notice of an authorised recipient has been duly given. Nor could he find in s 494D any intention to exclude the normal presumption that Parliament intends to allow a person to act for the purposes of a statutory provision through an agent (cf. Christie v Permewan, Wright &amp; Co Ltd [1904] HCA 35 ; (1904) 1 CLR 693 at 700, McRae v Coulton (1986) 7 NSWLR 644 at 663, and AB v LB (Mental Health Patient) [1980] 1 WLR 116 at 121, cited in Bennion FAR, Statutory Interpretation &#8212; A Code (2nd ed, Butterworths, 1992), at 799 800). Considerations of convenience all pointed towards the section being intended to allow this.
Case: Le v Minister for Immigration and Citizenship [2007] FCAFC 20 ; (2007) 157 FCR 321
Outcome: cited
Honour was referred to Le v Minister for Immigration and Citizenship [2007] FCAFC 20 ; (2007) 157 FCR 321 , where the Full Court referred to s 494D at [24] [27], however, his Honour could not find anything in these paragraphs to the contrary of his Honour's construction suggested in [18] above.
Case: Lee v Minister for Immigration &amp; Citizenship (2007) 159 FCR 181 
Outcome: referred to
was not disputed that the email was received by the firm at that address on 17 January 2008. Nor was it disputed that, if Mr Yat Tan had been properly appointed and was still acting as the appellant's authorised recipient under s 494D of the Act, the decision was deemed to have been duly received on that day by Mr Tan on behalf of the appellant pursuant to s 494D(2) (see also s 494B(5) , and SZFOH v Minister for Immigration &amp; Citizenship (2007) 159 FCR 199 , and Lee v Minister for Immigration &amp; Citizenship (2007) 159 FCR 181).
Case: Minister for Immigration &amp; Citizenship v SZLIX (2008) 245 ALR 501
Outcome: applied
Honour observed that the authorities subsequent to SZFDE v Minister for Immigration &amp; Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 , for example, Minister for Immigration &amp; Citizenship v SZLIX (2008) 245 ALR 501, SZLHP v Minister for Immigration &amp; Citizenship (2008) 172 FCR 170 and SZHVM v Minister for Immigration &amp; Citizenship (2008) 170 FCR 211, emphasised the need for a careful formulation of allegations of fraud coming within the principles referred to by the High Court, as well as careful attention to the necessary causal relationships between the suggested fraud and the suggested inconsistency with statutory procedures. Plainly, SZFDE required not only that there be fraud in the sense of dishonesty, but also that there be a causative connection between that and the Tribunal being 'disabled ... from the true discharge of its imperative statutory functions with respect to the conduct of the review': SZFDE at [51]; such that its decision was, in law, no decision at all: ( SZLIX at [18]; also [20]). If the appellant would in any event have been out of time, any dishonesty (assuming, contrary to his Honour's finding, that there was some dishonesty by anyone at Tan &amp; Tan) would not have made any difference. There would be no link between the suggested 'fraud' and the Tribunal's decision-making process: SZFNX v Minister for Immigration &amp; Citizenship [2007] FCA 1980 at [32] and [34] also speaks of this requirement.
Case: SZFNX v Minister for Immigration &amp; Citizenship [2007] FCA 1980
Outcome: applied
SZFDE required not only that there be fraud in the sense of dishonesty, but also that there be a causative connection between that and the Tribunal being 'disabled ... from the true discharge of its imperative statutory functions with respect to the conduct of the review': SZFDE at [51]; such that its decision was, in law, no decision at all: ( SZLIX at [18]; also [20]). If the appellant would in any event have been out of time, any dishonesty (assuming, contrary to his Honour's finding, that there was some dishonesty by anyone at Tan &amp; Tan) would not have made any difference. There would be no link between the suggested 'fraud' and the Tribunal's decision-making process: SZFNX v Minister for Immigration &amp; Citizenship [2007] FCA 1980 at [32] and [34] also speaks of this requirement.
Case: SZFOH v Minister for Immigration &amp; Citizenship (2007) 159 FCR 199
Outcome: referred to
was not disputed that the email was received by the firm at that address on 17 January 2008. Nor was it disputed that, if Mr Yat Tan had been properly appointed and was still acting as the appellant's authorised recipient under s 494D of the Act, the decision was deemed to have been duly received on that day by Mr Tan on behalf of the appellant pursuant to s 494D(2) (see also s 494B(5) , and SZFOH v Minister for Immigration &amp; Citizenship (2007) 159 FCR 199 , and Lee v Minister for Immigration &amp; Citizenship (2007) 159 FCR 181).
Case: SZHVM v Minister for Immigration &amp; Citizenship (2008) 170 FCR 211 
Outcome: cited
Honour observed that the authorities subsequent to SZFDE v Minister for Immigration &amp; Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 , for example, Minister for Immigration &amp; Citizenship v SZLIX (2008) 245 ALR 501, SZLHP v Minister for Immigration &amp; Citizenship (2008) 172 FCR 170 and SZHVM v Minister for Immigration &amp; Citizenship (2008) 170 FCR 211, emphasised the need for a careful formulation of allegations of fraud coming within the principles referred to by the High Court, as well as careful attention to the necessary causal relationships between the suggested fraud and the suggested inconsistency with statutory procedures.
Case: SZLHP v Minister for Immigration &amp; Citizenship (2008) 172 FCR 170
Outcome: cited
Honour observed that the authorities subsequent to SZFDE v Minister for Immigration &amp; Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 , for example, Minister for Immigration &amp; Citizenship v SZLIX (2008) 245 ALR 501, SZLHP v Minister for Immigration &amp; Citizenship (2008) 172 FCR 170 and SZHVM v Minister for Immigration &amp; Citizenship (2008) 170 FCR 211, emphasised the need for a careful formulation of allegations of fraud coming within the principles referred to by the High Court, as well as careful attention to the necessary causal relationships between the suggested fraud and the suggested inconsistency with statutory procedures.
Case: WACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 
Outcome: cited
was his Honour persuaded that anything in the High Court's decision in WACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 required him to construe s 494D as being confined in the manner of a notification as was submitted. His Honour therefore agreed with the Tribunal's conclusion that there was an expiry of the time limit on an appeal to the Tribunal, which commenced from the date when Mr Yat Tan received the delegate's decision. Ground 4 of the further amended application made a similar argument, but by reference to events subsequent to the lodging of the visa application and appointment of Mr Yat Tan as authorised recipient. It contended: The Tribunal made jurisdictional error in that it should have held that the notification of the decision was defective as it was not sent to the correct authorised recipient. DIAC was on constructive notice that Mr. Yat Tan was not the migration agent or the authorised recipient acting for the applicant. His Honour did not accept that at any time between the lodging of the visa application with its notice of authorised recipient, and the emailing of the delegate's decision to Mr Yat Tan, there was anything which occurred which could or should have caused the Department of Immigration to doubt the currency of the appointment of the notified authorised recipient. His Honour could not find anything in the correspondence which, as a matter of law, deprived that appointment of its effect for the purposes of s 494D. His Honour, therefore, did not accept this ground, or its arguments, as a basis for finding that the Tribunal had jurisdiction in the matter. Ground 5 contended: The Tribunal's decision was affected by fraud on the Tribunal, on DIAC and the applicant because Yat Tan was not the migration agent acting for the client and as such in reality was not the authorised recipient but Tat [sic] &amp; Tan and Yat Tan still gave the deceptive and fraudulent impression to DIAC that he was the migration agent for the applicant. In fact the work was carried out by other people under his name for benefit of Tan &amp; Tan. A non-migration agent was not supposed to represent the applicant with the DIAC. The fraudulent conduct which was alleged was described in the appellant's written submissions: The applicant was misled as to who his migration agent was. The correspondence from Tan &amp; Tan was carried out by people other than Yat Tan who should have acted for the applicant. Communication to the applicant was also carried out by people other than Yat Tan. There appears to be fraudulent effort by staff at Tan &amp; Tan to give the impression that Yat Tan was to be and indeed was the migration agent. [Alt]hough the applicant believed that he was represented by a licensed and qualified migration agent that was not the case in reality.
Case: Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1 ; (2001) 204 CLR 559
Outcome: referred to
authorities dealing with that provision establish that the intention of the provision is to place State courts exercising federal jurisdiction on the same general footing as the federal courts that could be created by Parliament. The leading authorities are Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 and Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1 ; (2001) 204 CLR 559.
Case: Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367
Outcome: referred to
authorities dealing with that provision establish that the intention of the provision is to place State courts exercising federal jurisdiction on the same general footing as the federal courts that could be created by Parliament. The leading authorities are Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 and Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1 ; (2001) 204 CLR 559.
Case: Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479
Outcome: cited
In Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480, McHugh J, citing Hughes v National Trustees Executors &amp; Agency Co of Australia Ltd [1978] VR 257 at 262 observed that the discretion to extend time for an appeal was for 'the sole purpose of enabling the court [or a judge] to do justice between the parties' and stated, in that context, it is always necessary to consider the prospects of success. In that case, his Honour decided that the proposed appeal in the matter before him had no prospect of success with the consequence that leave to appeal out of time was refused. 5 The grounds of appeal in the draft notice of appeal were expressed as follows: "GROUNDS: 1. The Court has not allow the applicant an adjournment to obtain further evidence required. 2. The Court has ignored in principal the affidavit sworn by the applicant. 3. The appeal is of public importance. ORDERS SOUGHT: 1. To allow this appeal to go ahead. 2. Compensation for loss 3. Costs. 4. And any other remedy the Court will allow."
Case: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: followed
The appellant submits that the above conclusion is partly derived from information contained in the statement accompanying the appellant's application for a protection visa relating to the political activities of the appellant's family. The appellant's application for a protection visa was not provided to the Tribunal by the applicant and accordingly, s 424A(1) applied to that statement: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 . 14 The respondent submits that the reasons for decision suggest that the appellant provided this information to the Tribunal. The respondent points in particular to the Tribunal's comments that: 'At the hearing before me the Applicant repeated that all his family had been involved in the PPP.' 15 The respondent also refers to the following paragraph: 'The Applicant said that as a member of the students' union and the PPP he had been engaged in welfare work, helping poor people and poor students with books and money. He said that he had campaigned for the PPP in the general election which the PPP had won (in 1993, although the Applicant could not remember the year) and in the general election in 1997 which the PPP lost to the PML. He said that his local MNA had been from the PPP between 1993 and 1996 but that at the election in 1997 the PML candidate had been elected. The Applicant said that he himself had stood in the election for local bodies in the late 19990s, which he said had been held on a non-party basis. He said, however, that he had not been elected because the PML was in power.'