mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421
Outcome: cited
utility of the declaration as a species of relief is now well accepted. It equally is well accepted that it is neither possible nor desirable to fetter the exercise of this discretionary power by laying down rules as to the manner of its exercise: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 437. Nonetheless, its exercise is confined by the considerations which mark out the boundaries of judicial power hence it must be directed to the determination of legal controversies and not to the answering of abstract, hypothetical, or moot questions or giving advisory opinions: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1991) 175 CLR 564 at 582; Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 355-356. An applicant must demonstrate a "real interest" in a "real question" the answering of which must produce some "real consequences for the parties": Forster at 437; and see generally Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 413-415.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1991) 175 CLR 564
Outcome: cited
utility of the declaration as a species of relief is now well accepted. It equally is well accepted that it is neither possible nor desirable to fetter the exercise of this discretionary power by laying down rules as to the manner of its exercise: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 437. Nonetheless, its exercise is confined by the considerations which mark out the boundaries of judicial power hence it must be directed to the determination of legal controversies and not to the answering of abstract, hypothetical, or moot questions or giving advisory opinions: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1991) 175 CLR 564 at 582; Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 355-356. An applicant must demonstrate a "real interest" in a "real question" the answering of which must produce some "real consequences for the parties": Forster at 437; and see generally Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 413-415.
Case: Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334
Outcome: cited
utility of the declaration as a species of relief is now well accepted. It equally is well accepted that it is neither possible nor desirable to fetter the exercise of this discretionary power by laying down rules as to the manner of its exercise: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 437. Nonetheless, its exercise is confined by the considerations which mark out the boundaries of judicial power hence it must be directed to the determination of legal controversies and not to the answering of abstract, hypothetical, or moot questions or giving advisory opinions: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1991) 175 CLR 564 at 582; Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 355-356. An applicant must demonstrate a "real interest" in a "real question" the answering of which must produce some "real consequences for the parties": Forster at 437; and see generally Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 413-415.
Case: Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406
Outcome: cited
utility of the declaration as a species of relief is now well accepted. It equally is well accepted that it is neither possible nor desirable to fetter the exercise of this discretionary power by laying down rules as to the manner of its exercise: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 437. Nonetheless, its exercise is confined by the considerations which mark out the boundaries of judicial power hence it must be directed to the determination of legal controversies and not to the answering of abstract, hypothetical, or moot questions or giving advisory opinions: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1991) 175 CLR 564 at 582; Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 355-356. An applicant must demonstrate a "real interest" in a "real question" the answering of which must produce some "real consequences for the parties": Forster at 437; and see generally Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 413-415.
Case: United Airlines v Secretary, Department of Transport and Communications [1990] FCA 427 ; (1990) 26 FCR 598
Outcome: cited
immediately present relevance to the duty to provide reasons under s 13(1), the Court as a matter of discretion ought not, except in exceptional circumstances, make a declaration in relation to the entitlement to a s 13(1) statement where the decision to which the statement relates has been set aside, revoked or superseded: see United Airlines v Secretary, Department of Transport and Communications [1990] FCA 427 ; (1990) 26 FCR 598 at 607. The reason for this is that in such cases the "real question" will not relate to the failure to give reasons as such, but to the correctness or otherwise of an existing operative decision for which the reasons have been sought. Having made all of the assumptions I have made in Mr Duncan's favour, he has not satisfied me that to make the declaration he seeks has real practical consequences. On 25 July 2006 he sought reasons for the decision not to make the manual available for inspection by members of the public. His complaint in substance, though, was that at that time he personally was aggrieved by the decision. On his making of that request, the CEO was likelihood bound to furnish that statement for the reasons I have given. I do not consider it necessary here to enter upon the question whether because of the decision of 21 July 2006 to give him the manual under s 9 he ceased to be aggrieved even though he was not aware of this decision until 27 June 2006, i.e. two days after he made his request for reasons. As with Hill J in United Airlines at 606-607, I incline to the view that duty once enlivened, was "not abrogated" by the later provision to him of the manual. What the later provision of the manual did, though, was to eliminate the substance of his grievance. He had been provided by the internal review officer in accordance with his s 9 entitlement with the manual to which he claimed the right to inspect and purchase. Mr Duncan has put on extensive evidence alleging ongoing causes of grievance to him. His complaint now is essentially that Centrelink still has not identified all the documents falling within s 9(1). The present is not an application for preliminary discovery with all of the conditions required to be satisfied before "information discovery" is allowed: see St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] . My sole concern, as ultimately was accepted at the hearing, was with the manual and its non-provision.
Case: St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147
Outcome: cited
made all of the assumptions I have made in Mr Duncan's favour, he has not satisfied me that to make the declaration he seeks has real practical consequences. On 25 July 2006 he sought reasons for the decision not to make the manual available for inspection by members of the public. His complaint in substance, though, was that at that time he personally was aggrieved by the decision. On his making of that request, the CEO was likelihood bound to furnish that statement for the reasons I have given. I do not consider it necessary here to enter upon the question whether because of the decision of 21 July 2006 to give him the manual under s 9 he ceased to be aggrieved even though he was not aware of this decision until 27 June 2006, i.e. two days after he made his request for reasons. As with Hill J in United Airlines at 606-607, I incline to the view that duty once enlivened, was "not abrogated" by the later provision to him of the manual. What the later provision of the manual did, though, was to eliminate the substance of his grievance. He had been provided by the internal review officer in accordance with his s 9 entitlement with the manual to which he claimed the right to inspect and purchase. Mr Duncan has put on extensive evidence alleging ongoing causes of grievance to him. His complaint now is essentially that Centrelink still has not identified all the documents falling within s 9(1). The present is not an application for preliminary discovery with all of the conditions required to be satisfied before "information discovery" is allowed: see St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147 at [26] . My sole concern, as ultimately was accepted at the hearing, was with the manual and its non-provision.
Case: Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Outcome: referred to
In submissions yesterday, counsel for the respondent referred to Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 ( "Mason" ) and Kelly v Fitzpatrick [2007] FCA 1080 ( "Kelly" ). In Kelly at [14] Tracey J adopted "as potentially relevant and applicable" to the question of penalty the "non-exhaustive range of considerations" referred to by Mowbray FM in Mason . Plainly enough, the particular circumstances of the contravention are relevant. These circumstances are set out in my earlier reasons for judgment: see generally Claveria v Pilkington Australia Ltd [2007] FCA 1692 , especially at [148]. This case involved the one breach, which occurred on the day of Mr Claveria's termination. In my previous reasons for judgment, I referred to the nature of the respondent's business. I previously found that the respondent terminated Mr Claveria's employment with it on 24 January 2007 for reasons that included retaliation for Mr Claveria's having recourse to the union in connection with perceived bullying and harassment on his manager's part. I have also referred to the factors that affected his manager, Mr Dunstan, at the time. I accept that Mr Dunstan was not at senior management level and was in the order of lower management. I have also referred to the fact that there was less than straight dealing on the respondent's part at and immediately subsequent to Mr Claveria's termination and to the statement in evidence by Mr Findlay, the respondent's human resources manager, that he knew that termination in retaliation for "going to the union" would be wrong and in breach of the Act .
Case: Kelly v Fitzpatrick [2007] FCA 1080
Outcome: cited
In submissions yesterday, counsel for the respondent referred to Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 ( "Mason" ) and Kelly v Fitzpatrick [2007] FCA 1080 ( "Kelly" ). In Kelly at [14] Tracey J adopted "as potentially relevant and applicable" to the question of penalty the "non-exhaustive range of considerations" referred to by Mowbray FM in Mason . Plainly enough, the particular circumstances of the contravention are relevant. These circumstances are set out in my earlier reasons for judgment: see generally Claveria v Pilkington Australia Ltd [2007] FCA 1692 , especially at [148]. This case involved the one breach, which occurred on the day of Mr Claveria's termination. In my previous reasons for judgment, I referred to the nature of the respondent's business. I previously found that the respondent terminated Mr Claveria's employment with it on 24 January 2007 for reasons that included retaliation for Mr Claveria's having recourse to the union in connection with perceived bullying and harassment on his manager's part. I have also referred to the factors that affected his manager, Mr Dunstan, at the time. I accept that Mr Dunstan was not at senior management level and was in the order of lower management. I have also referred to the fact that there was less than straight dealing on the respondent's part at and immediately subsequent to Mr Claveria's termination and to the statement in evidence by Mr Findlay, the respondent's human resources manager, that he knew that termination in retaliation for "going to the union" would be wrong and in breach of the Act . 5 I have previously noted that the respondent acted so as to deny Mr Claveria the freedom to pursue a basic right protected by the Act . The need for deterrence must be borne in mind. In light of the circumstances referred to above, it appears that general, as opposed to specific, deterrence is the more important factor in this case: compare Kelly at [28]. In this regard, counsel for Mr Claveria referred to Finance Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462 (" FSU ") at [41], where Merkel J reiterated earlier observations that "for a penalty to have the desired [deterrent] effect, it must be imposed at a meaningful level". As counsel for Mr Claveria rightly conceded, FSU concerned conduct of a very different nature to that impugned in the present case: see Merkel J's characterisation of the conduct in FSU at [59] as "flagrant and deliberate". Notwithstanding this (and the judgments of Spender, Branson and Marshall JJ on appeal: (2007) 161 IR 262), Merkel J's statement as to the relationship of the level of penalty to general deterrence remains apposite.
Case: Finance Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462
Outcome: cited
I have previously noted that the respondent acted so as to deny Mr Claveria the freedom to pursue a basic right protected by the Act . The need for deterrence must be borne in mind. In light of the circumstances referred to above, it appears that general, as opposed to specific, deterrence is the more important factor in this case: compare Kelly at [28]. In this regard, counsel for Mr Claveria referred to Finance Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462 (" FSU ") at [41], where Merkel J reiterated earlier observations that "for a penalty to have the desired [deterrent] effect, it must be imposed at a meaningful level". As counsel for Mr Claveria rightly conceded, FSU concerned conduct of a very different nature to that impugned in the present case: see Merkel J's characterisation of the conduct in FSU at [59] as "flagrant and deliberate". Notwithstanding this (and the judgments of Spender, Branson and Marshall JJ on appeal: (2007) 161 IR 262), Merkel J's statement as to the relationship of the level of penalty to general deterrence remains apposite.
Case: Claveria v Pilkington Australia Ltd [2007] FCA 1692
Outcome: cited
In submissions yesterday, counsel for the respondent referred to Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 ( "Mason" ) and Kelly v Fitzpatrick [2007] FCA 1080 ( "Kelly" ). In Kelly at [14] Tracey J adopted "as potentially relevant and applicable" to the question of penalty the "non-exhaustive range of considerations" referred to by Mowbray FM in Mason . Plainly enough, the particular circumstances of the contravention are relevant. These circumstances are set out in my earlier reasons for judgment: see generally Claveria v Pilkington Australia Ltd [2007] FCA 1692 , especially at [148]. This case involved the one breach, which occurred on the day of Mr Claveria's termination. In my previous reasons for judgment, I referred to the nature of the respondent's business. I previously found that the respondent terminated Mr Claveria's employment with it on 24 January 2007 for reasons that included retaliation for Mr Claveria's having recourse to the union in connection with perceived bullying and harassment on his manager's part. I have also referred to the factors that affected his manager, Mr Dunstan, at the time. I accept that Mr Dunstan was not at senior management level and was in the order of lower management. I have also referred to the fact that there was less than straight dealing on the respondent's part at and immediately subsequent to Mr Claveria's termination and to the statement in evidence by Mr Findlay, the respondent's human resources manager, that he knew that termination in retaliation for "going to the union" would be wrong and in breach of the Act .
Case: Vickery v Assetta [2004] FCA 555
Outcome: cited
Mitigating circumstances need to be borne in mind. In mitigation of penalty, the parties agreed that the respondent has "never before been found to have breached section 659 of the Workplace Relations Act 1996 (Cth) or like provisions in earlier legislation" and "has a history of cooperating with the union". The respondent submitted, and I accept, that it should be regarded as a first offender. I accept that the penalty should not be at the higher end of the range: compare Vickery v Assetta [2004] FCA 555 at [25] per Finkelstein J. 7 Section 841 of the Act provides that a penalty can be paid "to a particular ... person". The Court has held that a penalty can be paid to an applicant, such as Mr Claveria: see Vickery v Assetta at [25], Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360 at 365-6 per Marshall J, Stewart v Nickles [1999] FCA 888 per Ryan JR; and Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223 per Gray J. The respondent does not oppose this course. I would order that the penalty be paid to Mr Claveria.
Case: Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360
Outcome: cited
Section 841 of the Act provides that a penalty can be paid "to a particular ... person". The Court has held that a penalty can be paid to an applicant, such as Mr Claveria: see Vickery v Assetta at [25], Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360 at 365-6 per Marshall J, Stewart v Nickles [1999] FCA 888 per Ryan JR; and Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223 per Gray J. The respondent does not oppose this course. I would order that the penalty be paid to Mr Claveria.
Case: Stewart v Nickles [1999] FCA 888
Outcome: cited
Section 841 of the Act provides that a penalty can be paid "to a particular ... person". The Court has held that a penalty can be paid to an applicant, such as Mr Claveria: see Vickery v Assetta at [25], Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360 at 365-6 per Marshall J, Stewart v Nickles [1999] FCA 888 per Ryan JR; and Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223 per Gray J. The respondent does not oppose this course. I would order that the penalty be paid to Mr Claveria.
Case: Gibbs v Altona City Corporation (1992) 37 FCR 216
Outcome: cited
Section 841 of the Act provides that a penalty can be paid "to a particular ... person". The Court has held that a penalty can be paid to an applicant, such as Mr Claveria: see Vickery v Assetta at [25], Automotive, Food, Metals, Engineering, Printing &amp; Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360 at 365-6 per Marshall J, Stewart v Nickles [1999] FCA 888 per Ryan JR; and Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223 per Gray J. The respondent does not oppose this course. I would order that the penalty be paid to Mr Claveria.
Case: Furey v Civil Service Association of WA (Inc) [1999] FCA 1492 ; (1999) 91 FCR 407
Outcome: applied
Counsel for Mr Claveria argued that these superannuation contributions should be included. If these contributions were included, the cap or limit in s 665(3) would be $31,993.23. Counsel argued that these contributions were remuneration "received by" Mr Claveria because they were received by his superannuation trustee on his behalf. She argued that the expression "received by" was to be understood as "received by or on behalf of the employee". There is some force in this submission. In Furey v Civil Service Association of WA (Inc) [1999] FCA 1492 ; (1999) 91 FCR 407 at 421, Carr J held that held that the expression "pay to the employee" in s 170CM(4) of the Act as it then stood should be understood to mean "pay to or on behalf of the employee". That is, the Act imposed an obligation on an employee seeking to pay compensation instead of notice, to pay either to or for the benefit or on behalf of the employee everything that the employee would have been entitled to have been paid had he or she worked out the required period of notice. This obligation extended to superannuation payments. By failing to pay superannuation for the four week period in question, the respondent breached s 170CM of the Act . In so concluding, Carr J followed the approach of Finn J in Comcare v Fyfe [1999] FCA 1368: see also the decision of the Australian Industrial Relations Commission in Deane v Paper Australia Pty Ltd (2003) 121 IR 362 at 366, holding that the operation of the superannuation guarantee legislation rendered the employer's contribution a benefit to the employee and within the concept of "remuneration" for the purposes of calculating the limits imposed by the Act for applicants wishing to bring unfair dismissal proceedings.
Case: Comcare v Fyfe [1999] FCA 1368
Outcome: cited
Counsel for Mr Claveria argued that these superannuation contributions should be included. If these contributions were included, the cap or limit in s 665(3) would be $31,993.23. Counsel argued that these contributions were remuneration "received by" Mr Claveria because they were received by his superannuation trustee on his behalf. She argued that the expression "received by" was to be understood as "received by or on behalf of the employee". There is some force in this submission. In Furey v Civil Service Association of WA (Inc) [1999] FCA 1492 ; (1999) 91 FCR 407 at 421, Carr J held that held that the expression "pay to the employee" in s 170CM(4) of the Act as it then stood should be understood to mean "pay to or on behalf of the employee". That is, the Act imposed an obligation on an employee seeking to pay compensation instead of notice, to pay either to or for the benefit or on behalf of the employee everything that the employee would have been entitled to have been paid had he or she worked out the required period of notice. This obligation extended to superannuation payments. By failing to pay superannuation for the four week period in question, the respondent breached s 170CM of the Act . In so concluding, Carr J followed the approach of Finn J in Comcare v Fyfe [1999] FCA 1368: see also the decision of the Australian Industrial Relations Commission in Deane v Paper Australia Pty Ltd (2003) 121 IR 362 at 366, holding that the operation of the superannuation guarantee legislation rendered the employer's contribution a benefit to the employee and within the concept of "remuneration" for the purposes of calculating the limits imposed by the Act for applicants wishing to bring unfair dismissal proceedings.