mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413
Outcome: discussed
Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 (" Transfield ") cannot be explained in the same way. In this case, Merkel J referred to Davids and said (at [46]): In my view nothing said by Wilcox and Cooper JJ in [Davids] detracts from the observations of French J in Laing to the effect that a picket line, established by unions or their organisers for the purpose of preventing or deterring or discouraging employees from attending at their employer's premises and from carrying out their work, could constitute industrial action for the purpose of s 127. At first blush, his Honour's analysis is apparently inconsistent with the view expressed in Davids that para (c) of the definition of "industrial action" in s 4(1) of the WR Act referred to bans, limitations or restrictions imposed by those performing the work. It is to be borne in mind, however, that the picket line in Transfield was made up of the applicant's and its subcontractors' employees. This fact may serve to avoid the apparent inconsistency.
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Langley (unreported, 26 February 2004, Federal Court of Australia, BC200404666)
Outcome: discussed
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Langley (unreported, 26 February 2004, Federal Court of Australia, BC200404666), where Finkelstein J was concerned with an application for an interlocutory injunction, it was sufficient for his Honour to note that whether or not picketing can be "industrial action", for the purposes of para (c) of the definition in s 4(1) of the WR Act was far from clear. As his Honour said (at [12]), a possible interpretation of the cases is that "picketers only engage in industrial action when they are limiting or restricting the performance of their own work". His Honour added: This is a reasonable approach which requires picketers to be manning the picket lines on a work day. It also seems to be the view of Goldberg J in Original Juice Co Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 675 [at para 32]. Whilst this approach was broadly supportive of the respondents' position, it also emphasised that the effect of Davids and Giudice was far from clear, a proposition reinforced by the intervening decisions referred to by Finkelstein J and in paragraphs [45] and [46] above.
Case: SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668
Outcome: applied
unparticularised bias claim was not put to the Magistrate. There is no substance in the complaint. There is nothing external to the Tribunal's reasons bearing on the claim. There is nothing in the reasons suggestive of bias. The Tribunal accepted parts of the applicant's claims, but rejected others, and gave its reasons for so doing. A bias case is not made out because parts of an applicant's claims are not accepted or are disbelieved. That does not show prejudgment or a closed mind. See SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [38] and Sun v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 ; (2002) 194 ALR 749 at [43] - [48] .
Case: Sun v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 ; (2002) 194 ALR 749
Outcome: applied
unparticularised bias claim was not put to the Magistrate. There is no substance in the complaint. There is nothing external to the Tribunal's reasons bearing on the claim. There is nothing in the reasons suggestive of bias. The Tribunal accepted parts of the applicant's claims, but rejected others, and gave its reasons for so doing. A bias case is not made out because parts of an applicant's claims are not accepted or are disbelieved. That does not show prejudgment or a closed mind. See SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [38] and Sun v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 ; (2002) 194 ALR 749 at [43] - [48] .
Case: Short v FW Hercus Pty Ltd (1993) 40 FCR 511
Outcome: cited
The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '... the entire document of which it is a part or to other documents with which there is an association'. It may also include '... ideas that gave rise to an expression in a document from which it has been taken' Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).
Case: Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345
Outcome: cited
The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '... the entire document of which it is a part or to other documents with which there is an association'. It may also include '... ideas that gave rise to an expression in a document from which it has been taken' Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).
Case: NAQF v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456
Outcome: cited
As Lindgren J observed in NAQF v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456, s 15AB assumes that the ordinary meaning of a provision '"taking into account its context in the Act and the purpose or object underlying the Act" has been identified before any occasion arises for the consideration of extrinsic materials' [70]. Ambiguity or obscurity is not necessary to the application of s 15AB as extrinsic materials may be relied upon to 'confirm' that the ordinary meaning conveyed by the text is the true meaning of the provision [69].
Case: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384
Outcome: cited
The attribution of purpose by reference to context in the wide sense does not await the discovery of an ambiguity in the text. The purpose or object underlying an Act is often determined by consideration of the statutory context CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). Nor does discovery of an ambiguity precede resort to extrinsic material under s 15AB. For as Dawson J said in Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235 (speaking of s 35 of the Interpretation of Legislation Act 1984 (Vic) in almost identical terms to s 15AA): 'The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done.'
Case: Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214
Outcome: cited
The attribution of purpose by reference to context in the wide sense does not await the discovery of an ambiguity in the text. The purpose or object underlying an Act is often determined by consideration of the statutory context CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). Nor does discovery of an ambiguity precede resort to extrinsic material under s 15AB. For as Dawson J said in Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235 (speaking of s 35 of the Interpretation of Legislation Act 1984 (Vic) in almost identical terms to s 15AA): 'The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done.'
Case: In the matter of applications to vary the Municipal Officers' (South Australia) Award 1973 (1981) 253 CAR 3
Outcome: cited
The class of local authority employees known as 'Community Services Officers' has existed for over 25 years in various contexts. Deputy President Isaac of the Australian Conciliation and Arbitration Commission said, in 1981: 'Community service officers are employed by many local councils in a variety of functions and under a variety of titles. The functions embrace recreation, sports and arts activities, care of the aged, child care, youth work, general welfare work and other such activities. Various titles are used in respect of community service officers involved in these activities Community Art Officer, Recreation Officer, Youth Officer, Project Officer, Community Aged Care Officer, Community Development Officer and so on.' - In the matter of applications to vary the Municipal Officers' (South Australia) Award 1973 (1981) 253 CAR 3.
Case: S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283
Outcome: followed
I accept the first respondent's submissions. In S58 of 2003 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 283 (" S58 ") a Full Court of this Court considered a similar claim. In S58 , as in the present case, the Tribunal had informed the visa applicant that it could not make a favourable decision solely on the basis of material then before it. The visa applicant's representative had then informed the Tribunal that the applicant would not appear at the hearing and the Tribunal should proceed "on the papers". The Tribunal proceeded with the hearing in the applicant's absence. In its reasons, the Tribunal had noted that, had the applicant appeared, it would have questioned him in some detail regarding certain documents and their contents. The applicant claimed that the Tribunal had breached procedural fairness by not informing him of its concerns about these documents. The Full Court, constituted by Ryan, Merkel and Conti JJ, held that there was no breach of procedural fairness. The Court said (at [25]): "In the present case, the appellant was fully aware that the success of his application depended on an affirmative finding that he had a well-founded fear of persecution for a Convention reason if he were returned to Bangladesh. He was given an invitation to attend a hearing before the Tribunal which, apparently on advice, he deliberately declined. Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them." The Court concluded (at [26]) that "the appellant was offered the opportunity to appear before the Tribunal and ... [h]e cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity".
Case: SZEYH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 93
Outcome: referred to
Much the same principles apply in this case. Rather than request an adjournment, the appellant advised the Tribunal that he was not going to appear at the hearing. He cannot now complain that he was denied an opportunity to appear. The appellant says that he would have requested an adjournment if the Tribunal had informed him that it would have granted one. Nevertheless, the fact remains that the appellant did not request an adjournment. Moreover, the appellant implored the Tribunal to continue in his absence. There is no breach of procedural fairness in these circumstances: see further SZEYH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 93 per Jacobson J.
Case: Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
Outcome: referred to
The first respondent submitted that there was no breach of s 426A or of natural justice. The first respondent noted that s 426A of the Migration Act 1958 (Cth) provides that, if the applicant is invited to appear before the Tribunal and does not appear, then the Tribunal "may make a decision without taking any further action to allow or enable the applicant to appear before it". The first respondent claimed that the Tribunal invited the appellant to appear before it and that the record showed that the appellant had received this invitation and was aware of the date of the hearing. Further, the appellant had informed the Tribunal that he would not appear and had "implored" the Tribunal to continue in his absence. The first respondent argued that there is no breach of natural justice where the Tribunal proceeds in such circumstances. The first respondent also referred to Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [66] and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] .
Case: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Outcome: referred to
The first respondent submitted that there was no breach of s 426A or of natural justice. The first respondent noted that s 426A of the Migration Act 1958 (Cth) provides that, if the applicant is invited to appear before the Tribunal and does not appear, then the Tribunal "may make a decision without taking any further action to allow or enable the applicant to appear before it". The first respondent claimed that the Tribunal invited the appellant to appear before it and that the record showed that the appellant had received this invitation and was aware of the date of the hearing. Further, the appellant had informed the Tribunal that he would not appear and had "implored" the Tribunal to continue in his absence. The first respondent argued that there is no breach of natural justice where the Tribunal proceeds in such circumstances. The first respondent also referred to Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [66] and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] .
Case: SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 494
Outcome: referred to
Further, I note that where the Tribunal decides to reschedule a contemplated hearing at the request of an applicant, s 425A does not apparently apply to the notice of the rescheduled hearing: see SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 and SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 494. 15 For these reasons, I would dismiss the appeal with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 28 June 2006 Counsel for the Applicant: No appearance by the Appellant Counsel for the Respondent: Mr R Knowles Solicitor for the Respondent: Clayton Utz Date of Hearing: 28 June 2006 Date of Judgment: 28 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/807.html
Case: Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 520 ; (1990) 27 FCR 388
Outcome: cited
principles which govern the question of whether the Court ought to dismiss a proceeding under Order 35A, rule 3(1) are well understood ( Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 520 ; (1990) 27 FCR 388 at 394 to 397 per Wilcox and Gummow JJ, with Pincus J electing, in separate reasons at pp 402 and 403, to put the circumstances influencing the exercise of the discretion on a broader footing; Welsh v Digilin Pty Ltd (2008) FCAFC 149: (2008) 250 ALR 13 at [11] [14] per Tamberlin, Greenwood and Collier JJ). The history of non-compliance on the part of an applicant party in a way that indicates an inability or unwillingness to cooperate with the Court or discharge obligations to the Court, provides a basis for dismissing the proceeding.
Case: Welsh v Digilin Pty Ltd (2008) FCAFC 149 ; (2008) 250 ALR 13
Outcome: cited
principles which govern the question of whether the Court ought to dismiss a proceeding under Order 35A, rule 3(1) are well understood ( Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 520 ; (1990) 27 FCR 388 at 394 to 397 per Wilcox and Gummow JJ, with Pincus J electing, in separate reasons at pp 402 and 403, to put the circumstances influencing the exercise of the discretion on a broader footing; Welsh v Digilin Pty Ltd (2008) FCAFC 149: (2008) 250 ALR 13 at [11] [14] per Tamberlin, Greenwood and Collier JJ). The history of non-compliance on the part of an applicant party in a way that indicates an inability or unwillingness to cooperate with the Court or discharge obligations to the Court, provides a basis for dismissing the proceeding.
Case: Spotwire Pty Ltd v Visa International Service Association Inc. [2003] FCA 762
Outcome: cited
counsel for the third respondent, supported by the first respondent, accepts that he is not able to put a proposition to the Court that having regard to the versions of the statement of claim which he has seen, a reader is not able to discern within the matrix of fact and law assembled in the document, a real question to be tried. As to that consideration see Spotwire Pty Ltd v Visa International Service Association Inc. [2003] FCA 762 at [10] ; SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 ; Douglas v Tickner (1994) 49 FCR 507 ; Orchard v Comrie (1998) 80 IR 76 and Global Brand Marketing Inc. v Cube Footwear Pty Ltd [2005] FCA 479).
Case: SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674
Outcome: cited
counsel for the third respondent, supported by the first respondent, accepts that he is not able to put a proposition to the Court that having regard to the versions of the statement of claim which he has seen, a reader is not able to discern within the matrix of fact and law assembled in the document, a real question to be tried. As to that consideration see Spotwire Pty Ltd v Visa International Service Association Inc. [2003] FCA 762 at [10] ; SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 ; Douglas v Tickner (1994) 49 FCR 507 ; Orchard v Comrie (1998) 80 IR 76 and Global Brand Marketing Inc. v Cube Footwear Pty Ltd [2005] FCA 479).
Case: Douglas v Tickner (1994) 49 FCR 507
Outcome: cited
counsel for the third respondent, supported by the first respondent, accepts that he is not able to put a proposition to the Court that having regard to the versions of the statement of claim which he has seen, a reader is not able to discern within the matrix of fact and law assembled in the document, a real question to be tried. As to that consideration see Spotwire Pty Ltd v Visa International Service Association Inc. [2003] FCA 762 at [10] ; SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 ; Douglas v Tickner (1994) 49 FCR 507 ; Orchard v Comrie (1998) 80 IR 76 and Global Brand Marketing Inc. v Cube Footwear Pty Ltd [2005] FCA 479).
Case: Orchard v Comrie (1998) 80 IR 76
Outcome: cited
counsel for the third respondent, supported by the first respondent, accepts that he is not able to put a proposition to the Court that having regard to the versions of the statement of claim which he has seen, a reader is not able to discern within the matrix of fact and law assembled in the document, a real question to be tried. As to that consideration see Spotwire Pty Ltd v Visa International Service Association Inc. [2003] FCA 762 at [10] ; SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 ; Douglas v Tickner (1994) 49 FCR 507 ; Orchard v Comrie (1998) 80 IR 76 and Global Brand Marketing Inc. v Cube Footwear Pty Ltd [2005] FCA 479).
Case: Global Brand Marketing Inc. v Cube Footwear Pty Ltd [2005] FCA 479)
Outcome: cited
counsel for the third respondent, supported by the first respondent, accepts that he is not able to put a proposition to the Court that having regard to the versions of the statement of claim which he has seen, a reader is not able to discern within the matrix of fact and law assembled in the document, a real question to be tried. As to that consideration see Spotwire Pty Ltd v Visa International Service Association Inc. [2003] FCA 762 at [10] ; SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 ; Douglas v Tickner (1994) 49 FCR 507 ; Orchard v Comrie (1998) 80 IR 76 and Global Brand Marketing Inc. v Cube Footwear Pty Ltd [2005] FCA 479).
Case: Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: cited
Keddies characterises Mr Woodgate's contentions as to the costs agreement as a submission that a term should be implied into the costs agreement that the moneys would be refunded if the verdict were set aside on appeal. Mr Woodgate rejected the assertion that his case relies on any implied term and the Court did not have the benefit of substantive submissions on this point. While an implied term requiring moneys to be repaid if a verdict were set aside is capable of clear expression and would arguably be reasonable and equitable in circumstances where a verdict in the District Court might later be overturned, it has not been established by Mr Woodgate that the remaining criteria for an implied term are satisfied ( Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 at 347).
Case: Commissioner for Railways (NSW) v Cavanough [1935] HCA 45 ; (1935) 53 CLR 220
Outcome: cited
Reversal on appeal generally annuls a judgment ab initio . However, a person may act under the authority of a judgment until reversed and such action is not avoided or invalid or unlawful ( Antoniadis ; Commissioner for Railways (NSW) v Cavanough [1935] HCA 45 ; (1935) 53 CLR 220 at 227; Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590 at 603). Whether ' what has been done can be undone will depend upon the availability of appropriate remedies, to bring about the appropriate relief' ( Wilde at 603). A change of position, made in good faith, is available as a defence against a claim for restitution ( Lipkin Gorman v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548).