mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 ; (2001) 109 FCR 378
Outcome: applied
The threat of disruption was a threat of "other action" ( National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 ; (2002) 117 FCR 114 at [95] ; Laing v Construction, Forestry, Mining and Energy Union [2003] FCA 1018 at [7] and [12] [13]). It can safely be concluded that Lane's intent in making the threats was to coerce the officers of LGB into agreeing to an EBA. The threat of disruption to work on the project by any available means was pressure that was illegitimate and unconscionable. LGB had completion of a project of some $16 million at stake. Any disruption to progress would have significant adverse financial consequences. It was clear enough that the threats also envisaged unlawful action. Threats of picketing were made. There would appear to be no lawful basis for picketing in relation to this site (cf Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 per Lockhart and Gummow JJ at 456 458, although on different legislation). Unlawful conduct had taken place. The direct action by Lane and Primmer on 21 October 2003 fell into that category. The conduct in breach of s 45D and the inducement of breach of contract to be found were unlawful as well as illegitimate and unconscionable. (See generally Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468 ; (2000) 106 FCR 16 at [19] [25]; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 ; (2001) 109 FCR 378 at [41] ; and National Tertiary Education Industry Union [2002] FCA 441 ; 117 FCR 114 at [97] [103].) 72 In my opinion, consistently with the reasons of the Full Court in Hanley [2000] FCA 1188 ; 100 FCR 530, each of CFMEU and CFMEU NSW was liable for breach of s 170NC by reason of the actions of Lane, both under the general law and pursuant to s 349 of the Act. I am also satisfied that Lane and those organisations can all be liable. The reasoning of Merkel J in Seven Network (Operations) Ltd [2001] FCA 456 ; 109 FCR 378 at [45] [47] to that effect receives support from the decision of the High Court in Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553.
Case: Williams v Hursey [1959] HCA 51 ; (1959) 103 CLR 30
Outcome: followed
It is quite clear that each of Lane, Primmer and Kelly knew that Silvestri P/L had been engaged to do the excavation work. The opening exchange on 20 October 2003 showed that Lane was aware that the existing contractor had been sacked. Lane and Primmer knew of Antonio Silvestri's proposed involvement on 20 October 2003 and each of them saw Antonio Silvestri working on the site on 21 October 2003. It was obvious that that was the result of a contract for reward with LGB. Silvestri P/L was not a charitable organisation and LGB was not a mendicant. It is not necessary to prove that Lane, Primmer and Kelly had knowledge of the precise terms of the agreement ( J T Stratford &amp; Son Ltd v Lindley [1965] AC 269 per Lord Pearce at 332F G; Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 293). The findings that I have already made involve each of Lane, Primmer and Kelly in deliberately taking steps to hinder or prevent Silvestri P/L from carrying out its contract with LGB and were, in fact, intended to cause Silvestri P/L and Antonio Silvestri to be banned from the site and the contract to be terminated. There could not be a clearer case than this of interference with contractual relations. There was no attempt to pursue a defence of justification. (See, generally, Williams v Hursey [1959] HCA 51 ; (1959) 103 CLR 30; Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (1989) 95 ALR 211; and Odco Pty Ltd 29 FCR 104 and the authorities referred to in those cases.)
Case: Sood v Crown Diagnostic Imaging Pty Ltd [2006] FCA 715 , 
Outcome: related
appeal from the making of a sequestration order by Raphael FM ( Crown Diagnostic Imaging Pty Ltd v Sood (No 2) [2006] FMCA 265) concerns the interplay between the bankruptcy legislation and the Federal proceeds of crime legislation, as did an earlier interlocutory issue ( Sood v Crown Diagnostic Imaging Pty Ltd [2006] FCA 715). The main question in the appeal is whether an order pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth) effectively stays execution on an outstanding judgment against the party subject to that order for the purposes of s 40(1)(g) and s 41(3)(b) of the Bankruptcy Act 1966 (Cth). There is also an issue as to whether the learned Federal Magistrate was in error in making a sequestration order in any event. The facts as to the main question are in a short compass. On 26 July 2004 the Director of Public Prosecutions (Commonwealth) obtained orders against Dr Suman Sood (the debtor), the relevant parts of which are as follows: '1. Pursuant to section 18 of the Proceeds of Crime Act 2002 ("the Act "), all the property (within the meaning of "property" as defined in section 338 of the Act ) of Suman Sood ("the Defendant"), including the property described in the First Schedule, but excluding her interest in any business, is not to be disposed of or otherwise dealt with by any person. 2. Pursuant to section 18 of the Act , specified property of another person, namely Suman Medical Pty Limited, being the property described in the Second Schedule is not to be disposed of or otherwise dealt with by any person.' Property is defined as follows: 'Real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible and includes an interest in any such real or personal property.' On 10 September 2004, Crown Diagnostic Imaging Pty Ltd (the creditor) obtained judgment in the Local Court against the debtor in the sum of $59 013.05. On 23 May 2005 a bankruptcy notice was issued by the Official Receiver at the instance of the creditor to the debtor, which notice was served upon the debtor on 24 May 2005. The bankruptcy notice was not complied with on or before 15 June 2005 as required.
Case: Director of Public Prosecutions v Sood (unreported, Supreme Court of New South Wales, Studdert J, 7 February 2006)
Outcome: related
24 provides that a court may allow a specified debt incurred in good faith by a person to be met out of property covered by a restraining order but, amongst other conditions, that can only be done if the person whose property is restrained has applied for the order (s 24(1)(d), s 24(2)(a)). The decision of the Supreme Court of New South Wales in relation to this very order in Director of Public Prosecutions v Sood (unreported, Supreme Court of New South Wales, Studdert J, 7 February 2006), establishes that an unsecured creditor has effectively no status to make an application concerning the effect of a s 18 order. No application pursuant to s 24 was made by the debtor prior to the issue and service of the bankruptcy notice. Concurrently with the enactment of the Proceeds of Crime Act 2002 , the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth) specifically dealt with the effect of orders pursuant to the Proceeds of Crime Act 2002 upon the Bankruptcy Act 1966 and introduced other amendments to that Act. Section 58A was introduced into the Bankruptcy Act 1966 and modifies the normal operation of s 58(1) that vests property in the Official Trustee or registered trustee as appropriate. Section 58A(1) provides that s 58(1) does not apply to any property of the bankrupt which is covered by a restraining order at the date of the bankruptcy. Section 82(3A) in its current form was also introduced and provides that an amount payable under a proceeds of crime law is not provable in bankruptcy. It was submitted on behalf of the Director of Public Prosecutions (who was permitted to appear as amicus) that a restraining order under the Proceeds of Crime Act has the effect of freezing action under the Bankruptcy Act 1966 and prevents property covered by it from being dealt with or distributed under that Act. It is correct that the 2002 amendments give primacy to the proceeds of crime regime over the bankruptcy regime to that extent. However, Parliament did not make any express provision in relation to bankruptcy notices or sequestration orders. Having considered the authorities in the light of the submissions from counsel in this case, I am left with the feeling that this area of the law needs to be sorted out by the High Court or the legislature. The concept of stay of execution has been stretched beyond recognition. It is difficult to find a basis in the words of the statute for the fine distinctions drawn in the cases. However, in the meantime, I must do the best I can.
Case: Boscolo v Botany Council [1996] FCA 897
Outcome: followed
must apply the test laid down by one Full Court in Wiltshire-Smith v Olsson (1995) 57 FCR 572 at 587 and applied by another in Boscolo v Botany Council [1996] FCA 897 whether in the eyes of ordinary fairness in business it will be said that the order has in a business sense prevented the debtor in paying. That test was not overruled in Ling v Enrobook Pty Ltd (1997) 74 FCR 19 , although the approval in that case of the decision of Heerey J in Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131 concerning the effect of a Mareeva injunction is of some significance here. I have found the subsequent analysis of that topic by Madgwick J in National Australia Bank Ltd v Pollak (2001) 186 ALR 44 at [41] [52] to be valuable . (See also Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567 at [15] [16].) I should add that Mathews J made no reference in Stuart-Jones to the debtor being able to make an application of the kind provided for by s 24 of the Proceeds of Crime Act 2002 under the New South Wales Act considered by her.
Case: Ling v Enrobook Pty Ltd (1997) 74 FCR 19 
Outcome: cited
must apply the test laid down by one Full Court in Wiltshire-Smith v Olsson (1995) 57 FCR 572 at 587 and applied by another in Boscolo v Botany Council [1996] FCA 897 whether in the eyes of ordinary fairness in business it will be said that the order has in a business sense prevented the debtor in paying. That test was not overruled in Ling v Enrobook Pty Ltd (1997) 74 FCR 19 , although the approval in that case of the decision of Heerey J in Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131 concerning the effect of a Mareeva injunction is of some significance here. I have found the subsequent analysis of that topic by Madgwick J in National Australia Bank Ltd v Pollak (2001) 186 ALR 44 at [41] [52] to be valuable . (See also Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567 at [15] [16].) I should add that Mathews J made no reference in Stuart-Jones to the debtor being able to make an application of the kind provided for by s 24 of the Proceeds of Crime Act 2002 under the New South Wales Act considered by her.
Case: National Australia Bank Ltd v Pollak (2001) 186 ALR 44
Outcome: cited
must apply the test laid down by one Full Court in Wiltshire-Smith v Olsson (1995) 57 FCR 572 at 587 and applied by another in Boscolo v Botany Council [1996] FCA 897 whether in the eyes of ordinary fairness in business it will be said that the order has in a business sense prevented the debtor in paying. That test was not overruled in Ling v Enrobook Pty Ltd (1997) 74 FCR 19 , although the approval in that case of the decision of Heerey J in Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131 concerning the effect of a Mareeva injunction is of some significance here. I have found the subsequent analysis of that topic by Madgwick J in National Australia Bank Ltd v Pollak (2001) 186 ALR 44 at [41] [52] to be valuable . (See also Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567 at [15] [16].) I should add that Mathews J made no reference in Stuart-Jones to the debtor being able to make an application of the kind provided for by s 24 of the Proceeds of Crime Act 2002 under the New South Wales Act considered by her.
Case: Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131
Outcome: cited
must apply the test laid down by one Full Court in Wiltshire-Smith v Olsson (1995) 57 FCR 572 at 587 and applied by another in Boscolo v Botany Council [1996] FCA 897 whether in the eyes of ordinary fairness in business it will be said that the order has in a business sense prevented the debtor in paying. That test was not overruled in Ling v Enrobook Pty Ltd (1997) 74 FCR 19 , although the approval in that case of the decision of Heerey J in Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131 concerning the effect of a Mareeva injunction is of some significance here. I have found the subsequent analysis of that topic by Madgwick J in National Australia Bank Ltd v Pollak (2001) 186 ALR 44 at [41] [52] to be valuable . (See also Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567 at [15] [16].) I should add that Mathews J made no reference in Stuart-Jones to the debtor being able to make an application of the kind provided for by s 24 of the Proceeds of Crime Act 2002 under the New South Wales Act considered by her.
Case: Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567
Outcome: cited
must apply the test laid down by one Full Court in Wiltshire-Smith v Olsson (1995) 57 FCR 572 at 587 and applied by another in Boscolo v Botany Council [1996] FCA 897 whether in the eyes of ordinary fairness in business it will be said that the order has in a business sense prevented the debtor in paying. That test was not overruled in Ling v Enrobook Pty Ltd (1997) 74 FCR 19 , although the approval in that case of the decision of Heerey J in Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131 concerning the effect of a Mareeva injunction is of some significance here. I have found the subsequent analysis of that topic by Madgwick J in National Australia Bank Ltd v Pollak (2001) 186 ALR 44 at [41] [52] to be valuable . (See also Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567 at [15] [16].) I should add that Mathews J made no reference in Stuart-Jones to the debtor being able to make an application of the kind provided for by s 24 of the Proceeds of Crime Act 2002 under the New South Wales Act considered by her.
Case: Wiltshire-Smith v Olsson (1995) 57 FCR 572
Outcome: applied
must apply the test laid down by one Full Court in Wiltshire-Smith v Olsson (1995) 57 FCR 572 at 587 and applied by another in Boscolo v Botany Council [1996] FCA 897 whether in the eyes of ordinary fairness in business it will be said that the order has in a business sense prevented the debtor in paying. That test was not overruled in Ling v Enrobook Pty Ltd (1997) 74 FCR 19 , although the approval in that case of the decision of Heerey J in Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131 concerning the effect of a Mareeva injunction is of some significance here. I have found the subsequent analysis of that topic by Madgwick J in National Australia Bank Ltd v Pollak (2001) 186 ALR 44 at [41] [52] to be valuable . (See also Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567 at [15] [16].) I should add that Mathews J made no reference in Stuart-Jones to the debtor being able to make an application of the kind provided for by s 24 of the Proceeds of Crime Act 2002 under the New South Wales Act considered by her.
Case: Australian Broadcasting Commission v Parish [1980] FCA 33 ; (1980) 29 ALR 228
Outcome: cited
Such further or other orders as the Court thinks appropriate. 2 This matter was heard by me on 4 June 2008 and again on 10 June 2008. At the conclusion of the hearing of 4 June 2008, it was clear that, from the perspective of both the applicant and Termicide Pest Control Pty Ltd ("the respondent"), the key issue was whether the Court was prepared to make the orders sought by the applicant in paras 2, 4 and 5 of the amended notice of motion. In relation to the remaining orders sought by the applicant: &#8226; The Court has already granted leave to issue the subpoenas sought in para 1 of the amended notice of motion. The only issue outstanding in relation to these subpoenas was a return date, which could be resolved once the Court had considered whether the trial dates should be vacated; and &#8226; In the event that I was to make the orders sought by the applicant in paras 2, 4 and 5 of the amended notice of motion, any orders as to discovery would properly be the subject of future directions in this matter. 3 During the hearing of 4 June 2008, Mr Peden for the applicant proffered an oral undertaking by the applicant in relation to contact by the applicant and its employees with clients of the respondent. Mr Looney for the respondent however submitted that any such undertaking once committed to writing should, inter alia , extend to associated entities of the applicant. 4 In relation to the proposed attendance at the premises of Vision Glass Recycling, Mr Peden also accepted that any order made by the Court should be such as to maintain confidentiality of process as contemplated in ex parte Fielder Gillespie Ltd [1984] 2 QdR 339 (cf Australian Broadcasting Commission v Parish [1980] FCA 33 ; (1980) 29 ALR 228). Mr Looney submitted that any order permitting attendance at the premises of Vision Glass Recycling should contemplate attendance by independent parties. 5 I shall return to these issues later in the judgment. 6 The respondent opposed the orders sought by the applicant. However, Mr Looney for the respondent also submitted that, as it was important to the respondent that the current trial dates remain even if the Court were minded to grant leave to the applicant to further amend the amended statement of claim, the Court could nonetheless refuse to vacate the trial dates, give the respondent leave to amend its defence, and give the respondent liberty to apply in relation to any further evidence the respondent wished to lead.
Case: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40
Outcome: cited
Conveniently, general principles relevant to the Court granting leave to amend pleadings were summarised recently in the judgment of Edmonds J in SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035. In relation to this issue I adopt the following statements of his Honour: " [14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 r 2(2) of the Rules makes explicit reference to this principle: All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths."
Case: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Outcome: cited
I have considered this issue, but take the view that an order for indemnity costs is inappropriate in these circumstances. As a general proposition, indemnity costs are awarded to an innocent party where, inter alia , the circumstances of the case are such as to warrant the Court in departing from the usual course. There should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice (cf Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233). An example of an award of indemnity costs against a party to proceedings in circumstances involving the adjournment of a trial was David Charles Robinson v Aware Industries Ltd (unreported, Weinberg J, 1 October 1998) where the reason for the vacation of the trial dates was the complete failure of the applicant in that case to prosecute his application including multiple failures to comply with directions of the Court.
Case: David Charles Robinson v Aware Industries Ltd (unreported, Weinberg J, 1 October 1998)
Outcome: cited
I have considered this issue, but take the view that an order for indemnity costs is inappropriate in these circumstances. As a general proposition, indemnity costs are awarded to an innocent party where, inter alia , the circumstances of the case are such as to warrant the Court in departing from the usual course. There should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice (cf Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233). An example of an award of indemnity costs against a party to proceedings in circumstances involving the adjournment of a trial was David Charles Robinson v Aware Industries Ltd (unreported, Weinberg J, 1 October 1998) where the reason for the vacation of the trial dates was the complete failure of the applicant in that case to prosecute his application including multiple failures to comply with directions of the Court.