mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40 972
Outcome: cited
The purpose of ordering security for costs against a party ordinarily resident outside the jurisdiction is to ensure that a successful party will have "a fund available within the jurisdiction of this Court against which it can enforce the judgment for costs, so that the respondent does not bear the risk as to certainty of enforcement in the foreign country and as to the time and complexity of the action there which might be necessary to effect enforcement" ( Energy Drilling Inc. v Petroz NL (1989) ATPR 40 954 per Gummow J at 50, 422). The reference to a "fund" within the jurisdiction seems to suggest that a reference to "no assets within the jurisdiction" within the general principles is to be treated as a reference to no assets which are readily accessible to enforcement and satisfaction of the costs order. In Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40 972, Hill J identified a number of factors, adopted by Kenny J in Mijac Investments Pty Ltd v Graham [2008] FCA 1251 at [9] which inform the exercise of the discretion. They include the nature of the risk that NVS will not be able to satisfy a costs order if made; the nature of NVS's claim including its chances of success; whether an order for security would shut NVS out of pursuing its claim; whether any contended impecuniosity on the part of NVS arises from conduct the very subject of the proceeding; and any discretionary matters peculiar to the relevant case, such as delay.
Case: Mijac Investments Pty Ltd v Graham [2008] FCA 1251
Outcome: cited
The purpose of ordering security for costs against a party ordinarily resident outside the jurisdiction is to ensure that a successful party will have "a fund available within the jurisdiction of this Court against which it can enforce the judgment for costs, so that the respondent does not bear the risk as to certainty of enforcement in the foreign country and as to the time and complexity of the action there which might be necessary to effect enforcement" ( Energy Drilling Inc. v Petroz NL (1989) ATPR 40 954 per Gummow J at 50, 422). The reference to a "fund" within the jurisdiction seems to suggest that a reference to "no assets within the jurisdiction" within the general principles is to be treated as a reference to no assets which are readily accessible to enforcement and satisfaction of the costs order. In Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40 972, Hill J identified a number of factors, adopted by Kenny J in Mijac Investments Pty Ltd v Graham [2008] FCA 1251 at [9] which inform the exercise of the discretion. They include the nature of the risk that NVS will not be able to satisfy a costs order if made; the nature of NVS's claim including its chances of success; whether an order for security would shut NVS out of pursuing its claim; whether any contended impecuniosity on the part of NVS arises from conduct the very subject of the proceeding; and any discretionary matters peculiar to the relevant case, such as delay.
Case: Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1
Outcome: cited
Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [13] [22]. "Injury" is concerned with an adverse effect upon an existing legal right, or "compensable" injury. Prejudicial alteration of position goes beyond that concept. There are many examples in the cases. It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; 107 FCR 93 at [17] [22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 ; and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329. 26 The decision in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 is a good illustration of where the dividing line might be drawn. Cases on the non-contravening side of the line include Burnie Port Corp Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440 and Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; 106 FCR 482. A case with some similarities to the present is National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90. It dealt with a situation where there was a surplus of employees for genuine business reasons. A "spill and fill" selection and retrenchment process was held not to be capable of giving rise to an injury to any particular employee in his or her employment and could not be said to have altered the position of any individual employee to his or her prejudice. (See also Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [29] and [31].)
Case: Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 
Outcome: referred to
Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].
Case: BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 
Outcome: followed
A "before and after" test is usually applied to see whether there has been any injury to, or prejudicial alteration of, the position of the employee by reason of any act of the employer (eg per Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289, 3 IR 176; per Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329 at [127] ). Applying what had been said by the Full Court in an earlier interlocutory appeal ( BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [35] ), it was succinctly put by Kenny J in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [54] as follows: "Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur." The clarification of that approach by the Full Court in Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; (2001) 107 FCR 93 at [21] does not detract from it for present purposes. The same questions must be asked. Here, there should be a negative answer to each limb. 35 Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].
Case: Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 ; (2005) 221 CLR 539 
Outcome: cited
There is a respectable argument that an employee cannot be indefinitely denied work to do if work of an appropriate kind is available ( Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 ; (2005) 221 CLR 539 , particularly per Callinan and Heydon JJ at [80]; Squires v Flight Stewards Assn of Australia (1982) 2 IR 155 at 164; Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159 at [410] [431]). No such appropriate work was available here.
Case: Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 
Outcome: cited
A "before and after" test is usually applied to see whether there has been any injury to, or prejudicial alteration of, the position of the employee by reason of any act of the employer (eg per Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289, 3 IR 176; per Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329 at [127] ). Applying what had been said by the Full Court in an earlier interlocutory appeal ( BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [35] ), it was succinctly put by Kenny J in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [54] as follows: "Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur." The clarification of that approach by the Full Court in Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; (2001) 107 FCR 93 at [21] does not detract from it for present purposes. The same questions must be asked. Here, there should be a negative answer to each limb.
Case: Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99
Outcome: cited
There may be circumstances where the conduct of the employer towards an employee is such that the employee, upon leaving, can assert that he or she has been constructively dismissed, triggering whatever rights the employee may have upon dismissal ( Westen v Union des Assurances de Paris (1996) 88 IR 259 at 261; Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99 at 106; in the case of position redundancy see Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; (2002) 125 FCR 9 at [27] ; cf Martech International Pty Ltd v Energy World Corp Ltd [2007] FCAFC 35 at [19] ). In the present case, that may have included a claim pursuant to cl 21.5. That case could have been pursued by or on behalf of these employees. That course was adopted in Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613 , (2001) 111 IR 241 (although set aside in the result on appeal Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; 125 FCR 9). Rather, the choice was made here to seek to use the freedom of association provisions to, in effect, act as a means of specific enforcement of cl 21.5.
Case: Burnie Port Corp Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440
Outcome: cited
The decision in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 is a good illustration of where the dividing line might be drawn. Cases on the non-contravening side of the line include Burnie Port Corp Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440 and Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; 106 FCR 482. A case with some similarities to the present is National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90. It dealt with a situation where there was a surplus of employees for genuine business reasons. A "spill and fill" selection and retrenchment process was held not to be capable of giving rise to an injury to any particular employee in his or her employment and could not be said to have altered the position of any individual employee to his or her prejudice. (See also Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [29] and [31].)
Case: Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; (2002) 125 FCR 9
Outcome: cited
There may be circumstances where the conduct of the employer towards an employee is such that the employee, upon leaving, can assert that he or she has been constructively dismissed, triggering whatever rights the employee may have upon dismissal ( Westen v Union des Assurances de Paris (1996) 88 IR 259 at 261; Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99 at 106; in the case of position redundancy see Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; (2002) 125 FCR 9 at [27] ; cf Martech International Pty Ltd v Energy World Corp Ltd [2007] FCAFC 35 at [19] ). In the present case, that may have included a claim pursuant to cl 21.5. That case could have been pursued by or on behalf of these employees. That course was adopted in Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613 , (2001) 111 IR 241 (although set aside in the result on appeal Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; 125 FCR 9). Rather, the choice was made here to seek to use the freedom of association provisions to, in effect, act as a means of specific enforcement of cl 21.5.
Case: Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; (2001) 107 FCR 93
Outcome: cited
A "before and after" test is usually applied to see whether there has been any injury to, or prejudicial alteration of, the position of the employee by reason of any act of the employer (eg per Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289, 3 IR 176; per Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329 at [127] ). Applying what had been said by the Full Court in an earlier interlocutory appeal ( BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [35] ), it was succinctly put by Kenny J in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [54] as follows: "Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur." The clarification of that approach by the Full Court in Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; (2001) 107 FCR 93 at [21] does not detract from it for present purposes. The same questions must be asked. Here, there should be a negative answer to each limb. 25 Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [13] [22]. "Injury" is concerned with an adverse effect upon an existing legal right, or "compensable" injury. Prejudicial alteration of position goes beyond that concept. There are many examples in the cases. It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; 107 FCR 93 at [17] [22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 ; and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329.
Case: Connington v Municipality of Kogarah [1913] AR (NSW) 40 
Outcome: cited
Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].
Case: Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159
Outcome: cited
There is a respectable argument that an employee cannot be indefinitely denied work to do if work of an appropriate kind is available ( Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 ; (2005) 221 CLR 539 , particularly per Callinan and Heydon JJ at [80]; Squires v Flight Stewards Assn of Australia (1982) 2 IR 155 at 164; Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159 at [410] [431]). No such appropriate work was available here.
Case: Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613 , (2001) 111 IR 241
Outcome: cited
There may be circumstances where the conduct of the employer towards an employee is such that the employee, upon leaving, can assert that he or she has been constructively dismissed, triggering whatever rights the employee may have upon dismissal ( Westen v Union des Assurances de Paris (1996) 88 IR 259 at 261; Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99 at 106; in the case of position redundancy see Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; (2002) 125 FCR 9 at [27] ; cf Martech International Pty Ltd v Energy World Corp Ltd [2007] FCAFC 35 at [19] ). In the present case, that may have included a claim pursuant to cl 21.5. That case could have been pursued by or on behalf of these employees. That course was adopted in Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613 , (2001) 111 IR 241 (although set aside in the result on appeal Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; 125 FCR 9). Rather, the choice was made here to seek to use the freedom of association provisions to, in effect, act as a means of specific enforcement of cl 21.5.
Case: Grayndler v Broun [1928] AR (NSW) 46
Outcome: cited
Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].
Case: Grayndler v Cunich [1939] HCA 32 ; (1939) 62 CLR 573 
Outcome: cited
Another instance may be provided by what was said by Street J in Hunt v Railway Commissioners (NSW); Ex parte Brown-Smith [1928] AR (NSW) 151 at 154 (albeit dealing with a differently framed section): "and the dismissal must, I think, be a dismissal by an employer really as a matter of victimisation, or the capricious use of his power to dismiss in order, to retaliate upon the employee for his having dared to assert a claim to rights under the award." In dealing with that section, Evatt J in Grayndler v Cunich [1939] HCA 32 ; (1939) 62 CLR 573 said at 595: "we are not investigating a case where a business or department is being closed down, but a case where an employer has determined (1) that the enterprise as a whole shall be conducted entirely upon conditions of private bargaining which are less favourable to employees than award conditions, and also (2) that every employee who qualifies himself to obtain the better award conditions shall immediately be dismissed. This is one of the obvious cases which sec. 9 was designed to cover." This case is not analogous to those examples.