mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: referred to
the upshot it was submitted by the College that no reasonable cause of action had been demonstrated, and the purported proceedings were manifestly and plainly untenable. The College acknowledged that the burden placed on a respondent in an application to dismiss a pleading is a high one and made reference, inter alia, to the following dicta of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.' Reference was also made by the College to General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128 (per Barwick CJ): '... in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.' It was the contention of the College that in the context of the current proceedings, the above principles had been satisfied and summary dismissal should be ordered.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: referred to
the upshot it was submitted by the College that no reasonable cause of action had been demonstrated, and the purported proceedings were manifestly and plainly untenable. The College acknowledged that the burden placed on a respondent in an application to dismiss a pleading is a high one and made reference, inter alia, to the following dicta of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.' Reference was also made by the College to General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128 (per Barwick CJ): '... in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.' It was the contention of the College that in the context of the current proceedings, the above principles had been satisfied and summary dismissal should be ordered.
Case: Esber v The Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430
Outcome: referred to
In my view the words 'rights' and 'obligations' in reg 2.19(1) carry the meaning that has been attributed to them in s 8(c) of the Acts Interpretations Act. In Esber v The Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430 at 440 Mason CJ, Deane, Toohey and Gaudron JJ stated that s 8 protects anything that may truly be described as a right including inchoate or contingent rights. I conclude that the right of the applicants to invoke the jurisdiction of the Court to impose a penalty pursuant to s 178(1) of the old Act, and the obligation of the Commonwealth to pay any penalty so imposed, survived the enactment of the Work Choices Act.
Case: Kelly v Fitzpatrick [2007] FCA 1080
Outcome: cited
Regulation 2.14 of Ch 7 of the Workplace Regulations provides support for this conclusion. As Tracey J observed in Kelly v Fitzpatrick [2007] FCA 1080 at [7] , that regulation authorises a workplace inspector to institute a proceeding in respect of an alleged breach of a matter under the old Act. I note incidentally that the maximum penalties prescribed by the old Act for a breach of s 178 are the same as the maximum penalties now prescribed by the new Act under which s 178 has been renumbered s 719. 21 CPSU is an organisation registered under the WR Act and an 'industrial association' within the meaning of Pt XA of the old Act. It is affiliated to the ACTU which is the peak trade union body in Australia. 22 It is not contentious that the individual applicants are all employed under the Public Service Act 1999 (Cth) ('the PS Act') and are thus APS employees (s 22 of the PS Act, s 15 of the Customs Administration Act 1985 (Cth) and s 4A of the Taxation Administration Act 1953 (Cth)). The Commonwealth is their employer. Their respective Agency Heads, on behalf of the Commonwealth, have all the rights, duties and powers of an employer in respect of them (s 20 of the PS Act). For those employees who work in DVA and DEST respectively, their Agency Head is the Secretary of their Department. For those who work in the ACS and the ATO respectively, their Agency Head is the Head of their Statutory Agency (s 7 of the PS Act).
Case: Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326
Outcome: cited
As indicated above, I have concluded that each of Mr McGill and Mr O'Connell was refused approval to take leave on 15 November 2005 because he proposed to attend the Day of Protest. I also accept that a threat was made to dock Mr McAninly's pay for the time that he spent at the Day of Protest because he attended the Day of Protest. However, despite the link discussed above between attendance at the Day of Protest and membership of an industrial association, I am satisfied that the relevant determinations made by officers of ACS, ATO, DVA and DEST respectively were not made because employees affected by the determinations were members of an industrial association. Rather the evidence shows that the immediate or operative reason for the determinations was the circulation of the DEWR Advice ( Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at [54]). The determinations were a direct consequence of the contravention of s 298K(1) that resulted from the circulation of the DEWR Advice. They illustrate how the DEWR Advice altered the position of Commonwealth employees who were members of CPSU to the employees' prejudice. The officers concerned felt obliged to ensure that their respective agencies complied with the DEWR Advice.
Case: McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 
Outcome: applied
In McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 at [355]-[357] Greenwood J gave consideration to whether conduct that applied generally to employees might nonetheless be conduct undertaken for a prohibited purpose so far as some of those employees were concerned. His Honour at [355] said: 'Dismissal of employees for a prohibited reason within a group of employees some of whom may be dismissed for a non-prohibited reason does not remove the individual or bilateral character of the prejudicial conduct on the part of the employer as against that employee. It would be an odd thing if the statutory quality of contravening conduct in respect of some employees could be dissolved amongst a group and remedial entitlements otherwise available to the affected individuals thereby lost.' 114 I conclude that the DEWR Advice was issued because a significant number of Commonwealth employees were members of CPSU and, as a consequence, it was recognised within DEWR that many of them might wish to attend the Day of Protest. For the reasons given by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd it is immaterial that the DEWR Advice might additionally have impacted on the positions of Commonwealth employees who were not members of an industrial association. Although the DEWR Advice did not in terms refer to membership of an industrial association, it was issued because of the CPSU membership of a significant number of Commonwealth employees.
Case: NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134
Outcome: followed
Second, if leave were granted to allow that additional ground, it is understood that the First Appellant would wish to now contend that that explanation provided by the Tribunal also fails to correctly record what transpired before the Tribunal. Her contention is that she did not object to the interpreter provided on the first two occasions but did object on the re-scheduled hearing. Leave to amend to raise a new ground may be refused where the new ground requires additional evidence to be adduced. See: NAJT v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCAFC 134 at [77] , [2005] FCAFC 134 ; 147 FCR 51 at 68. 19 Not only do these two factors indicate that leave to amend should be refused; they also support a conclusion that no prejudice has been occasioned to the First Appellant by the learned Magistrate not considering the " main application ." Even had the " main application " been considered, it is not considered that there is any real prospect that the outcome would have been any different. Any real prospect of success would depend upon rejecting the account given by the Tribunal. There was no transcript of the Tribunal proceedings available before the Federal Magistrate and, in the absence of a transcript, it is unlikely that the account given by the Tribunal would have been rejected by that Court or, for that matter, this Court. 20 A further issue which at one stage arose for resolution was the fate of the Appellant husband's application. Had this issue been pursued, questions would have arisen as to whether the Tribunal and the Federal Magistrates Court should have entertained that application, being an application advanced by the husband for the first time before the Tribunal.
Case: Auckland City Council v Ports of Auckland Ltd [2000] 3 NZLR 614
Outcome: cited
seems that a chattel which is brought onto land may: (a) remain a chattel; (b) become a fixture; or (c) become part and parcel of the land itself. I am aware that the third category has not yet been authoritatively recognised in Australia. It was approved by the House of Lords in Elitestone Ltd v Morris [1997] 1 WLR 687 at 690-691 (noted at (1997) 71 ALJ 820 and see Wessex Reserve Forces &amp; Cadets Association v White [2005] 3 EGLR 127) and by the New Zealand Court of Appeal in Auckland City Council v Ports of Auckland Ltd [2000] 3 NZLR 614 at [74] [75]. Consider the bitumen, line paint and other materials that may be brought onto land and used in the construction of a road or carpark. They cannot be removed and converted back into worthwhile chattels. A similar observation may be applicable to a house that can be removed only by being destroyed. It is odd to classify them as chattels that are affixed to the land. I need not decide whether the third category forms part of Australian law.
Case: Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136 
Outcome: cited
second basis of the Court's jurisdiction is this: such claims as the Administrators assert on behalf of NFD depend upon their status as DOCA administrators under Pt 5.3A of the Act, and those claims, either alone or together with Vopak's own claim, constitute a "matter" arising under a law of the Commonwealth Parliament: see Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at [135] [147]; Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136 at [10] .
Case: Australian Prudential Assurance Co Ltd v Coroneo (1938) 38 SR(NSW) 700
Outcome: followed
manner, degree and object of annexation remain important considerations. In the oft cited case in this area, Australian Prudential Assurance Co Ltd v Coroneo (1938) 38 SR(NSW) 700 , Jordan CJ stated (at 712): A fixture is a thing once a chattel which has become in law land through having been fixed to land. The question whether a chattel has become a fixture depends upon whether it has been fixed to land, and if so for what purpose . If a chattel is actually fixed to land to any extent, by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not: if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is: Holland v Hodgson [(1872) LR 7 CP 328 at 335]. [My emphasis]
Case: NH Dunn Pty Ltd v LM Ericsson Pty Ltd (1979) 2 BPR 9241
Outcome: referred to
emerges from the authorities is that there is no single or even primary test as to whether a thing remains a chattel or has become a fixture, and each case depends on its own facts: see, in particular, NH Dunn Pty Ltd v LM Ericsson Pty Ltd (1979) 2 BPR 9241.
Case: Elitestone Ltd v Morris [1997] UKHL 15 ; [1997] 1 WLR 687
Outcome: cited
seems that a chattel which is brought onto land may: (a) remain a chattel; (b) become a fixture; or (c) become part and parcel of the land itself. I am aware that the third category has not yet been authoritatively recognised in Australia. It was approved by the House of Lords in Elitestone Ltd v Morris [1997] 1 WLR 687 at 690-691 (noted at (1997) 71 ALJ 820 and see Wessex Reserve Forces &amp; Cadets Association v White [2005] 3 EGLR 127) and by the New Zealand Court of Appeal in Auckland City Council v Ports of Auckland Ltd [2000] 3 NZLR 614 at [74] [75]. Consider the bitumen, line paint and other materials that may be brought onto land and used in the construction of a road or carpark. They cannot be removed and converted back into worthwhile chattels. A similar observation may be applicable to a house that can be removed only by being destroyed. It is odd to classify them as chattels that are affixed to the land. I need not decide whether the third category forms part of Australian law.
Case: Eye Corp Australia Pty Ltd v Goliath Investments Pty Ltd (2006) 12 BPR 23, 949
Outcome: cited
submission raises indirectly a question that was referred to by Young CJ in Eq (as Young JA then was) in Eye Corp Australia Pty Ltd v Goliath Investments Pty Ltd (2006) 12 BPR 23, 949; [2006] NSWSC 159 at [26] [27]. His Honour posed the question as being which of two theories is correct: the theory that tenants' fixtures never become part of the freehold (his Honour referred to Mowats v Hudson (1911) 105 LT 400) , and the theory that they do but are subject to the tenant's right to detach them and thereby make them chattels again (his Honour referred to Horwitch v Symond (1914) 110 LT 106 (affirmed by the Court of Appeal (1915) 84 LJKB 1083)).
Case: Lees &amp; Leech Pty Ltd v Commissioner of Taxation (1997) 73 FCR 136 
Outcome: cited
Lees &amp; Leech Pty Ltd v Commissioner of Taxation (1997) 73 FCR 136 , Hill J said (at 149): ...When it is said that an item is a "tenants' fixture", all that is meant is that the tenant has a right to remove the item at the expiration of the term of the lease or a reasonable time thereafter: cf D'Arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317. If the item in question were not a fixture, a fortiori it would belong to the tenant and could be removed by the tenant at any time. Thus, the whole concept of tenants' fixtures assumes that the items in question have become fixtures but that the tenant has a right in equity in the land, co-extensive with the right of the tenant to come upon the land after the expiration of the lease and remove the fixture. The expression "tenants' fixtures" is apt to mislead unless adequately explained. The tenant does not own the freehold and a fixture does not belong to the tenant by virtue of being part of the freehold. Rather, fixtures are the property of the owner of the land, but in the case of "tenants' fixtures" they are subject to the tenant's right to remove them during the term of the lease or within a reasonable time thereafter and so convert them back into chattels. Under the general law, for the purposes of the limited exception to the quicquid plantatur maxim in favour of tenants' fixtures, the latter are things installed by a tenant for trade, domestic or ornamental purposes. If it matters, the fixtures with which I am concerned were all installed by NFD for the purpose of its trade. It may not matter because the right of removal is regulated by the Sublease which speaks generally of NFD's fixtures without reference to their purpose. In any event, so far as the evidence reveals, there were no fixtures installed by NFD for any purpose other than trade.
Case: Mowats v Hudson (1911) 105 LT 400
Outcome: referred to
submission raises indirectly a question that was referred to by Young CJ in Eq (as Young JA then was) in Eye Corp Australia Pty Ltd v Goliath Investments Pty Ltd (2006) 12 BPR 23, 949; [2006] NSWSC 159 at [26] [27]. His Honour posed the question as being which of two theories is correct: the theory that tenants' fixtures never become part of the freehold (his Honour referred to Mowats v Hudson (1911) 105 LT 400) , and the theory that they do but are subject to the tenant's right to detach them and thereby make them chattels again (his Honour referred to Horwitch v Symond (1914) 110 LT 106 (affirmed by the Court of Appeal (1915) 84 LJKB 1083)).
Case: National Australia Bank v Blacker [2000] FCA 1458 ; (2000) 104 FCR 288
Outcome: cited
cases on fixtures are numerous. As Windeyer J observed in Macrocom Pty Ltd v City West Centre Pty Ltd [1999] NSWSC 898 ; (2001) 10 BPR 18 ,631; [2001] NSWSC 374 at [19] , Conti J helpfully collected many of the authorities as to what constitutes a fixture in National Australia Bank v Blacker [2000] FCA 1458 ; (2000) 104 FCR 288 at [9] [17].
Case: New Zealand Government Property Corporation v HM &amp; S [1982] QB 1145
Outcome: cited
may be that there will be, vis-a-vis LDC, a deemed removal by Vopak, a sale, and a deemed reinstallation by Vopak or by the Buyer of NFD's fixtures. Deemed removal, or at least an ignoring of, tenants' fixtures is not unknown in the context of rent review clauses: see, for example, New Zealand Government Property Corporation v HM &amp; S Ltd [1982] QB 1145 ; Young v Dalgety [1987] 1 EGLR 116.
Case: North Shore Gas Co Ltd v Commissioner of Stamp Duties [1940] HCA 7 ; (1940) 63 CLR 52 
Outcome: followed
Shore Gas Co Ltd v Commissioner of Stamp Duties [1940] HCA 7 ; (1940) 63 CLR 52 ( North Shore Gas Co ), concerned the mains and service pipes of a gas company that were laid in streets and other convenient places in the area where the company supplied gas. All members of the High Court agreed that they were fixtures and were not within a proviso in the Second Schedule to the Stamp Duties Act 1920 (NSW) that exempted from stamp duty an agreement for the sale of "goods, wares or merchandise". This was so notwithstanding that under the gas company's Act of Parliament the mains and pipes remained the property of the company which was given express power to remove, alter, repair, replace or relay them. Dixon J (as the Chief Justice then was) said (at 67 68): The question for decision is, I think, whether the pipes and mains, considered as in situ and as part of such an undertaking, have no longer the quality of chattels personal. It must be steadily borne in mind that the agreement relates to the undertaking as a going concern. It contemplates a transfer of the mains and services as they lie in the ground; not as separate or detachable articles, but as an integral part of an undivided plant or system and actually in use. Ordinarily when the chattel elements by which a permanent system or apparatus is formed are assembled and embedded in the soil or established as part of a building they lose their independent nature and for the purpose of the law take on the character of land. Thus, if the land in which the mains were laid had belonged to the company for an estate in fee simple or for any less estate or interest and the company had not acted under its special statutory powers, the mains until removed would have formed part of the realty. ... The primary consequence of so fixing such things in the soil that they are treated as forming part of it is that ownership of the articles follows ownership of the land. Though removable tenants' fixtures may during the term be detached and become chattels belonging to the tenant, yet the better opinion appears to be that unless and until the tenant exercises his right of removal they form part of the realty... and for this reason, subject to the exercise of the tenant's right to convert them again into chattels, pass with the land. Whether personal property has become part of real property by virtue of being a fixture is not a matter of the subjective intention of the affixer. If we must speak in terms of intention, the only relevant intention is one that is objectively "presumed" from the manner, degree and object of affixation.
Case: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511
Outcome: cited
second basis of the Court's jurisdiction is this: such claims as the Administrators assert on behalf of NFD depend upon their status as DOCA administrators under Pt 5.3A of the Act, and those claims, either alone or together with Vopak's own claim, constitute a "matter" arising under a law of the Commonwealth Parliament: see Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at [135] [147]; Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136 at [10] .
Case: Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue [2004] VSCA 10 ; (2004) 12 VR 351
Outcome: distinguished
Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue [2004] VSCA 10 ; (2004) 12 VR 351 , it was decided for Victorian stamp duty purposes that certain petroleum storage tanks and other structures on leased premises were not fixtures. The decision, however, turned upon s 28(2) of the Landlord and Tenant Act 1958 (Vic) which provided that fixtures erected for any purpose by a tenant at his own cost and expense were to be the property of the tenant, and removable by him. It was held that this provision produced the result that eight storage tanks and other structures which, it was common ground, were fixtures under general law principles, were deprived of that characterisation by the statutory provision. The case is distinguishable as turning on the statutory provision. There is no comparable provision in the legislation of the Northern Territory. The small roadway constituting item (g) and the carpark constituting item (h) in [13] above are either part and parcel of the land itself or fixtures.
Case: Wessex Reserve Forces &amp; Cadets Association v White [2005] 3 EGLR 127
Outcome: cited
seems that a chattel which is brought onto land may: (a) remain a chattel; (b) become a fixture; or (c) become part and parcel of the land itself. I am aware that the third category has not yet been authoritatively recognised in Australia. It was approved by the House of Lords in Elitestone Ltd v Morris [1997] 1 WLR 687 at 690-691 (noted at (1997) 71 ALJ 820 and see Wessex Reserve Forces &amp; Cadets Association v White [2005] 3 EGLR 127) and by the New Zealand Court of Appeal in Auckland City Council v Ports of Auckland Ltd [2000] 3 NZLR 614 at [74] [75]. Consider the bitumen, line paint and other materials that may be brought onto land and used in the construction of a road or carpark. They cannot be removed and converted back into worthwhile chattels. A similar observation may be applicable to a house that can be removed only by being destroyed. It is odd to classify them as chattels that are affixed to the land. I need not decide whether the third category forms part of Australian law.