mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Chilia Properties Pty Ltd, (admin apptd) (1997) 154 ALR 179
Outcome: followed
Senior counsel also submitted that there was no real conflict between the roles which Mr Herbert and Mr Read might have to perform as liquidators of the company and as provisional liquidators of Westpoint Management Pty Ltd. He submitted that the authorities are to the effect that it is desirable that where companies in a group go into liquidation, to the extent that it is possible to do so without there being a real conflict of interest, one liquidator should be appointed to the companies in liquidation. Mr Colvin SC relied upon the following observations of Lehane J in the case of Re Chilia Properties Pty Ltd, (admin apptd) (1997) 154 ALR 179 at 180 ('Chilia') : '...it is well established that in the absence of any real, as opposed to theoretical, conflict of interest it is generally desirable that the external administration of a group of companies should be placed in the hands of one administrator.' 21 Mr Colvin SC further submitted that, where there were dealings within a group of companies between companies that were under the effective control of the same persons, in assessing real conflict, a distinction should be drawn between dealings which affected the interests of external creditors and other external interests, and those which did not. Mr Colvin SC also submitted that it is well accepted that the courts would appoint a single liquidator to a group of companies, notwithstanding that there might be some possible theoretical conflict, on the basis that if a real conflict emerged during the course of the administration, that the liquidator could then make alternative arrangements as to how to deal with the real conflict. The fact that there might be a theoretical conflict should not be an inhibition on the appointment of a single liquidator. 22 Further, senior counsel for ASIC, submitted that a relevant consideration to be taken into account is the expressed position of the creditors. He said that the secured creditor, represented by the receivers and managers of the company and the Australian Taxation Office both supported the appointment of Mr Herbert and Mr Read as liquidators. 32 Firstly, I agree that the observations made by Lehane J in Chilia , referred to above, state the principles to be applied in this case. The principles are also reflected in the following observations by Hoffmann J (as he then was) in Re Arrows Ltd [1992] BCC 121, which were cited with approval by Warren J in Sisu Capital : '...It is by no means uncommon in the case of the insolvency of a substantial group of companies for cross-claims and conflicts of interest to arise between companies within the group. That does not usually deflect the court from appointing a single firm of insolvency practitioners in the first instance to deal with the whole insolvency of the group, leaving the question of potential conflict of interests to be dealt with if and when it arises.'
Case: Sisu Capital Fund Ltd v Tucker [2005] EWHC 2170 (Ch)
Outcome: cited
Mr Thomson also referred to Sisu Capital Fund Ltd v Tucker [2005] EWHC 2170 (Ch) ('Sisu Capital') particularly at pars 103-115, of the judgment of Warren J, in support of the proposition that courts are not inhibited by the fact that there might be theoretical conflicts, where considering whether to appoint a single liquidator to a number of companies within a group of companies. 27 Mr Thomson made the similar arguments to those advanced by Mr Colvin SC against the proposition that because Mr Francis and Mr Ryan had already undertaken work in investigating the affairs of the company, it would be more efficient if they were appointed as the liquidators. He also submitted that if Mr Francis and Mr Ryan were appointed there might be some suspicion that they were not sufficiently independent of Mr Carey, because Mr Carey had appointed them to the position of administrators. 28 Mr Shaw, for North Sydney Finance and Emu Brewery Mezzanine, made submissions in support of the appointment of Mr Francis and Mr Ryan as liquidators. 32 Firstly, I agree that the observations made by Lehane J in Chilia , referred to above, state the principles to be applied in this case. The principles are also reflected in the following observations by Hoffmann J (as he then was) in Re Arrows Ltd [1992] BCC 121, which were cited with approval by Warren J in Sisu Capital : '...It is by no means uncommon in the case of the insolvency of a substantial group of companies for cross-claims and conflicts of interest to arise between companies within the group. That does not usually deflect the court from appointing a single firm of insolvency practitioners in the first instance to deal with the whole insolvency of the group, leaving the question of potential conflict of interests to be dealt with if and when it arises.'
Case: Re Arrows Ltd [1992] BCC 121
Outcome: cited
Firstly, I agree that the observations made by Lehane J in Chilia , referred to above, state the principles to be applied in this case. The principles are also reflected in the following observations by Hoffmann J (as he then was) in Re Arrows Ltd [1992] BCC 121, which were cited with approval by Warren J in Sisu Capital : '...It is by no means uncommon in the case of the insolvency of a substantial group of companies for cross-claims and conflicts of interest to arise between companies within the group. That does not usually deflect the court from appointing a single firm of insolvency practitioners in the first instance to deal with the whole insolvency of the group, leaving the question of potential conflict of interests to be dealt with if and when it arises.'
Case: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: distinguished
The relevant principles are those applied in Minister for Immigration and Multicultural v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27, NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [36] - [39] and SZEGY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [8] and [20].
Case: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
Outcome: cited
The relevant principles are those applied in Minister for Immigration and Multicultural v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27, NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [36] - [39] and SZEGY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [8] and [20].
Case: SZEGY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: cited
The relevant principles are those applied in Minister for Immigration and Multicultural v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27, NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [36] - [39] and SZEGY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [8] and [20].
Case: Australasian Meat Industry Employees' Union v Australia Meat Holdings (1998) 82 IR 76
Outcome: cited
Before moving to apply these considerations to the facts set out in the Primary Reasons, two further points must be made. First, the Court has a discretion whether or not to impose a penalty: s 719 of the WR Act and see also Australasian Meat Industry Employees' Union v Australia Meat Holdings (1998) 82 IR 76 at 78 and Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [33] (which considered the discretion to impose penalty under s 178 of the WR Act prior to substantial amendments to the WR Act in 2005). In other words, there is no principle that a Court must, in all cases of proven breach, impose a penalty: Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [33].
Case: Clothing &amp; Allied Trades Union of Australia v J &amp; J Saggio Clothing Manufacturers Pty Ltd (1990) 34 IR 26 
Outcome: cited
Secondly, although there were technically two breaches by Telstra (one of the 2005 Enterprise Agreement and one of the TRA), as the analysis of the facts in the Primary Reasons demonstrate, this is a case where the breaches arose out of substantially the same conduct, being conduct that "impose[d] cumulative obligations or obligations that substantially overlap[ed]": cf Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223 and Clothing &amp; Allied Trades Union of Australia v J &amp; J Saggio Clothing Manufacturers Pty Ltd (1990) 34 IR 26 at 37.
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Limited (ACN 051 775 556) [2007] FCA 1515
Outcome: referred to
On 2 October 2007, I concluded that Telstra had breached the 2005 Enterprise Agreement by failing to pay Mr McDonald his previous rate of salary after he was redeployed to, and later accepted a redundancy package from, a lower paying position: see [2007] FCA 1515 ("the Primary Reasons"). The facts resulting in that conclusion are set out in paras [3] to [38] of the Primary Reasons. I do not propose to repeat them. These reasons for decision should be read with the Primary Reasons. I adopt the same defined terms in these reasons for decision. 4 The parties accept that as a result of the Primary Reasons, Telstra committed the following two breaches: (1) a breach of cl 17.4 of the 2005 Enterprise Agreement, by not paying Mr McDonald at the higher rate of pay after his redeployment in April 2006; and (2) a breach of cl 9.1 of the TRA, by not paying Mr McDonald severance pay at the higher rate of pay after Mr McDonald took voluntary redundancy in October 2006. 5 The CEPU now seeks consequential relief for those breaches in the form of an imposition of a penalty under s 178 of the Industrial Relations Act 1988 (Cth) ("the IR Act ") or s 719 of the Workplace Relations Act 1996 (Cth) ("the WR Act ") and additional declaratory relief. The Court has jurisdiction to grant declaratory relief under s 21 of the Federal Court of Australia Act 1976 (Cth).
Case: CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 
Outcome: cited
The breach of cl 9.1 of the TRA is entirely reliant upon, and arises out of, substantially the same course of conduct as the primary breach: Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216. Accordingly, any penalty would be determined by reference to the "totality principle": CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228. 15 Thirdly, in those circumstances, it is appropriate to determine the penalty by reference to the "totality principle" as described by Finkelstein J in CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 230 and Textile Clothing &amp; Footwear Union of Australia v Lotus Cove Pty Ltd [2004] FCA 43 at [44] . So much was conceded by the CEPU and by Telstra. 19 The Court should not be concerned to reimburse an applicant for costs incurred in bringing the application by the imposition of a penalty under s 719 of the WR Act . The legislative policy of the WR Act in relation to costs is found in s 824 of the WR Act , which states that a party should not pay costs except in two prescribed circumstances. In light of this policy, it would be inappropriate to impose a penalty for the purpose of reimbursement: Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [63]-[64]; Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34]. Only when it has been determined that a penalty is appropriate, is it necessary to have resort to s 841 of the WR Act to decide whether the penalty should be paid to the Commonwealth or to a "particular organisation or person": Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34] cf CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 232-233; Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union (No 2) (2001) 110 IR 372 at [8].
Case: Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 
Outcome: applied
As the Primary Reasons demonstrate, the breaches arose out of a disputed and disputable construction of the 2005 Enterprise Agreement and the TRA. Neither breach was flagrant, wilful or deliberate. Amendments to the WR Act increasing the penalty for breaches of industrial instruments arising out of unlawful industrial conduct indicate a legislative desire to deter and discourage such conduct. These changes in industrial law have led to general deterrence being referred to as the "most significant factor" in determining the applicable penalty: see Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [60], [72]. Where the unlawful conduct arises out of an arguable but erroneous construction of a relevant term, and the subsequent breach cannot be characterised as demonstrating a flagrant or wilful disregard for the agreement, this legislative purpose is not furthered by imposition of a penalty. In these circumstances, neither general nor specific deterrence is a significant factor weighing in favour of imposing a penalty. Moreover, Mr McDonald has been fully compensated for the loss suffered as a result of the breach. I do not consider that the circumstances in which the conduct took place warrant the Court exercising its discretion to impose a penalty on Telstra. 19 The Court should not be concerned to reimburse an applicant for costs incurred in bringing the application by the imposition of a penalty under s 719 of the WR Act . The legislative policy of the WR Act in relation to costs is found in s 824 of the WR Act , which states that a party should not pay costs except in two prescribed circumstances. In light of this policy, it would be inappropriate to impose a penalty for the purpose of reimbursement: Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [63]-[64]; Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34]. Only when it has been determined that a penalty is appropriate, is it necessary to have resort to s 841 of the WR Act to decide whether the penalty should be paid to the Commonwealth or to a "particular organisation or person": Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34] cf CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 232-233; Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union (No 2) (2001) 110 IR 372 at [8].
Case: Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 
Outcome: cited
The breach of cl 9.1 of the TRA is entirely reliant upon, and arises out of, substantially the same course of conduct as the primary breach: Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216. Accordingly, any penalty would be determined by reference to the "totality principle": CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228. 14 Secondly, although there were technically two breaches by Telstra (one of the 2005 Enterprise Agreement and one of the TRA), as the analysis of the facts in the Primary Reasons demonstrate, this is a case where the breaches arose out of substantially the same conduct, being conduct that "impose[d] cumulative obligations or obligations that substantially overlap[ed]": cf Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223 and Clothing &amp; Allied Trades Union of Australia v J &amp; J Saggio Clothing Manufacturers Pty Ltd (1990) 34 IR 26 at 37.
Case: Kelly v Fitzpatrick [2007] FCA 1080 
Outcome: referred to
In Kelly v Fitzpatrick [2007] FCA 1080 at [14] , Tracey J adopted the following "non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty" (citing Mason v Harrington Corporation Pty Ltd [2007] FMCA 7): "&#8226; The nature and extent of the conduct which led to the breaches. &#8226; The circumstances in which that conduct took place. &#8226; The nature and extent of any loss or damage sustained as a result of the breaches. &#8226; Whether there had been similar previous conduct by the respondent. &#8226; Whether the breaches were properly distinct or arose out of the one course of conduct. &#8226; The size of the business enterprise involved. &#8226; Whether or not the breaches were deliberate. &#8226; Whether senior management was involved in the breaches. &#8226; Whether the party committing the breach had exhibited contrition. &#8226; Whether the party committing the breach had taken corrective action. &#8226; Whether the party committing the breach had cooperated with the enforcement authorities. &#8226; The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and &#8226; The need for specific and general deterrence. "
Case: Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 
Outcome: cited
In Kelly v Fitzpatrick [2007] FCA 1080 at [14] , Tracey J adopted the following "non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty" (citing Mason v Harrington Corporation Pty Ltd [2007] FMCA 7): "&#8226; The nature and extent of the conduct which led to the breaches. &#8226; The circumstances in which that conduct took place. &#8226; The nature and extent of any loss or damage sustained as a result of the breaches. &#8226; Whether there had been similar previous conduct by the respondent. &#8226; Whether the breaches were properly distinct or arose out of the one course of conduct. &#8226; The size of the business enterprise involved. &#8226; Whether or not the breaches were deliberate. &#8226; Whether senior management was involved in the breaches. &#8226; Whether the party committing the breach had exhibited contrition. &#8226; Whether the party committing the breach had taken corrective action. &#8226; Whether the party committing the breach had cooperated with the enforcement authorities. &#8226; The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and &#8226; The need for specific and general deterrence. "
Case: Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union (No 2) (2001) 110 IR 372
Outcome: cited
The Court should not be concerned to reimburse an applicant for costs incurred in bringing the application by the imposition of a penalty under s 719 of the WR Act . The legislative policy of the WR Act in relation to costs is found in s 824 of the WR Act , which states that a party should not pay costs except in two prescribed circumstances. In light of this policy, it would be inappropriate to impose a penalty for the purpose of reimbursement: Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [63]-[64]; Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34]. Only when it has been determined that a penalty is appropriate, is it necessary to have resort to s 841 of the WR Act to decide whether the penalty should be paid to the Commonwealth or to a "particular organisation or person": Victoria University of Technology v Australian Education Union (1999) 91 IR 96 at [34] cf CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 232-233; Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union (No 2) (2001) 110 IR 372 at [8].
Case: Textile Clothing &amp; Footwear Union of Australia v Lotus Cove Pty Ltd [2004] FCA 43
Outcome: cited
Thirdly, in those circumstances, it is appropriate to determine the penalty by reference to the "totality principle" as described by Finkelstein J in CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228 at 230 and Textile Clothing &amp; Footwear Union of Australia v Lotus Cove Pty Ltd [2004] FCA 43 at [44] . So much was conceded by the CEPU and by Telstra.
Case: Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 
Outcome: cited
On the other hand, the CEPU submitted that the maximum penalty of $33,000 for breach of a certified agreement indicates the seriousness of a breach. In particular, the CEPU referred to the following additional facts and matters which it described as 'significant' in considering the imposition of a penalty: (1) the need to maintain the integrity of the certified agreement; (2) that the amount withheld from Mr McDonald was significant; (3) that there was no contrition demonstrated by Telstra; (4) the fact that the breach was not flagrant or wilful or deliberate was not determinative: Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 at [75]; (5) the need for specific and general deterrence having regard to size of Telstra and its workforce.
Case: Australian Competition and Consumer Commission v Real Estate Institute of WA Inc [1999] FCA 18 ; (1999) 161 ALR 79
Outcome: cited
The ACCC and Nudie filed joint submissions in support of the consent orders. They referred to the well established proposition that in such cases the Court will not impede settlements between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement. The Court will not ordinarily refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the Court's power to make and are otherwise appropriate. The Court will generally not substitute its own view of the orders or undertakings which it would have made provided that those which are suggested fall within the range of an appropriate disposition in the case: Australian Competition &amp; Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 at [20] . 12 I am satisfied that the Court has power to make the orders which are sought. I am also satisfied that the orders are appropriate. The declarations that are proposed are more numerous than would appear necessary and could have been collapsed into one or two declarations. That, however, is a matter of drafting rather than a matter of substance. The proposed injunction is expressed with sufficient precision to make it enforceable. 13 Having regard to the misleading promotion, which has been admitted, the corrective advertisement is appropriate. The compliance program is related to the contraventions which have occurred and is appropriate in the circumstances.