mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tisand Pty Ltd v the Owners of the Ship MV Cape Moreton (Ex Freya) [2005] FCAFC 68 ; (2005) 143 FCR 43
Outcome: referred to
In Tisand Pty Ltd v the Owners of the Ship MV Cape Moreton (Ex Freya) [2005] FCAFC 68 ; (2005) 143 FCR 43, the Full Court discussed the approach to interpretation of the Act at [59] to [65]. I need not set out those passages here. To those comments, only two matters need be added for emphasis, for the purposes of this case. First, provisions conferring jurisdiction or granting powers to a court should be interpreted liberally and without imposing limitations not found in the express words: The 'Shin Kobe Maru' (HC) at 421. Secondly, a particular aspect of the importance of the context provided by the ALRC Report (otherwise discussed in The 'Cape Moreton' above) is the consideration referred to by the High Court in The 'Iran Amanat' at 138, as follows: The Australian legislation having been enacted against the background of English legislation and authority set out above, the definition of "relevant person" should be understood as having the same meaning as the courts had given to the corresponding words in the English statute. When the Parliament has enacted legislation, affecting the subject of international shipping, and followed a statutory precedent from overseas which has by then received a settled construction, there is every reason to construe the statutory language in the same way in this country unless such construction is unreasonable or inapplicable to Australian circumstances.
Case: The 'Moschanthy' [1971] 1 Lloyd's Rep 37
Outcome: applied
As the High Court said in The 'Shin Kobe Maru' the question is whether a claim made bears a certain legal character. The High Court in that case also said (at 422) that the word "claim": ...would ordinarily be construed as the assertion of a right or interest recognized by the law and carrying an entitlement to relief. This analysis must be undertaken "by reference to the nature of the plaintiff's case as put forward, without reference to ... whether it is likely to succeed or not": The 'Moschanthy' [1971] 1 Lloyd's Rep 37 at 42. See also Baltic Shipping Co Ltd v Pegasus Lines SA [1996] 3 NZLR 641 at 647-48. Statements in some of the cases of the necessity to show some strength in the case before the jurisdiction of the court is attracted (that is before the court is legitimately seized of authority to adjudicate) appear impermissibly to combine the attraction of jurisdiction with its exercise: cf The 'Bass Reefer' (1992) 37 FCR 375. See generally, Toh, KS Admiralty Law and Practice (Butterworths Asia, 1998) p 40 and the cases there discussed.
Case: Westpac Banking Corporation v Paterson (2001) 187 ALR 168
Outcome: referred to
Here, by the time the question is to be assessed (the hearing of the motion) the proceeding was constituted by the amended writ, the application to further amend the writ and the statement of claim. The jurisdiction of the court is not to be assessed frozen at an anterior point of time: Westpac Banking Corporation v Paterson (2001) 187 ALR 168. Whilst the authority given in s 15 is to commence a proceeding, it is legitimate (at least so long as there is no fundamental change in the identity of the claim in the proceeding, as there is not here in any of the amendments) to have regard to documents (such as the statement of claim) filed after the commencement of the proceeding which illuminate its nature and character. 125 Here, the plaintiff's claim is that there is a maritime lien arising from all the circumstances pleaded: see [31] of the statement of claim. These circumstances include an assertion that there has been damage done by a ship. This, of course, is a recognised basis of a lien: s 15(2)(b). 126 Though [1] of the amended writ has an ambiguity arising from the second half of the paragraph, reading the amended writ and statement of claim together, the assertions therein amount to a proceeding on a maritime lien for damage done by a ship. Once this conclusion is drawn the Court has authority to hear the proceeding.
Case: Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2005] FCA 613
Outcome: cited
At the conclusion of the hearing on 9 May 2005, I granted an interim injunction until 5.00 pm on 16 May 2005 essentially, in the terms sought by the applicant. I also ordered that by 5.00 pm on 10 May 2005 the applicant apply for the matter to be listed before the Australian Industrial Relations Commission ('AIRC'), that the respondent file and serve any affidavits in opposition to the extension of the injunction by Friday, 13 May 2005, and that the matter be adjourned for further hearing to 10.00 am on 16 May 2005. I also ordered that the costs of the application for an interim injunction should be costs in the cause. My reasons are set out in Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2005] FCA 613. 10 The hearing listed to take place on 16 May 2005 did not proceed because prior to the hearing on that day the respondent advised the applicant that the notice of intended industrial action which had precipitated the application for the interim injunction had been withdrawn, and the foreshadowed industrial action notice was cancelled. 11 Thereafter, neither party took any further steps to progress the substantive application, and on 20 June 2005 the applicant filed a notice of motion for leave to discontinue with an order that the respondent pay its costs.
Case: Re McJannet; Ex parte The Australian Workers' Union of Employees Queensland (No 2) [1997] HCA 40 ; (1997) 189 CLR 654
Outcome: cited
Counsel for the applicant relied specifically upon the following observation by the High Court in Re McJannet; Ex parte The Australian Workers' Union of Employees, Queensland (No 2) [1997] HCA 40 ; (1997) 189 CLR 654 at 656 ('McJannet') : 'The test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 347(1) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act ...' 17 The applicant submitted that in this case, the right which it sought to enforce by bringing the application was a right, not under the Act , but a right under the TP Act in respect of a threatened breach of s 45D of that Act . The applicant submitted further that it did not matter that in order to succeed in vindicating its claim for relief under the TP Act that it would need to overcome a defence founded upon a statutory immunity to be found in s 170MT and s 170ML of the Act . The applicant argued that in determining whether s 347 of the Act had application, the inquiry was limited to whether the right sought to be vindicated by the applicant arose under the Act . The applicant submitted that 'if a defence raises issues arising under the Workplace Relations Act that is not a matter arising under the Act for the purposes of s 347'. 31 In my view, the observations of the High Court in the McJannet case which were relied upon by the applicant and which refer only to the source of the claim which is made and not the source of any defence to such claim, were not intended to derogate the pre-existing law which is articulated in the observations in each of the LNC and the Felton cases referred to above. The observations that the High Court made in the McJannet case which are relied upon by the applicant, are to be read subject to the context in which those observations were made. In McJannet , the prosecutors sought in the High Court a writ of prohibition against the judges of the Federal Court. The proceeding before the High Court was one where the prosecutor asserted that there was an absence of jurisdiction in the Federal Court to consider the proceeding which was before the Federal Court. The High Court was not therefore required to consider the characterisation of the 'matter' other than by reference to the characterisation of the claim by way of a writ of prohibition, which had been made in the High Court. There was in the proceeding before the High Court no attempt to enforce a duty arising under the Act , and, therefore, there was no need for the High Court to address the question of whether a claim arising under the Industrial Relations Act 1988 (Cth) (as the Act was then named), or a defence of immunity under that Act , would be included within the scope of 'a matter arising under the Act '.
Case: L.N.C. Industries Limited v B.M.W. (Australia) Limited [1983] HCA 31 ; (1983) 151 CLR 575
Outcome: cited
The respondent submitted the scope of 'the matter' in question was to be identified by reference to the scope of the 'justiciable controversy' to be determined in this application. The applicant argued that the determination of the justiciable controversy required the determination of both the applicant's claim and its defence, namely, that the impugned conduct was 'protected action' under the Act and afforded the respondent immunity from the suit brought by the applicant under the TP Act in respect of an alleged breach of s 45D of that Act . The respondent argued that this was a sufficient basis upon which the Court could conclude that the respondent was a party to a proceeding in a matter arising under the Act for the purposes of s 347 of the Act . In support of this submission, the respondent relied upon the following observations of the High Court in the case of L.N.C. Industries Limited v B.M.W. (Australia) Limited [1983] HCA 31 ; (1983) 151 CLR 575 at 581 ('L.N.C.') : 'It is true to say that a matter does not arise under a law made by the Parliament merely because the interpretation of the law is involved: Felton v Mulligan ((1971) 124 CLR 376, at pp. 374, 382, 396, 408, 416). On the other hand, a matter may arise under a law of the Parliament although the interpretation or validity of the law is not involved; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett ((1945) [1945] HCA 50 ; 70 CLR 141, at p. 154). The conclusion reached by Latham C.J. in that case, and stated in a passage that has often been cited with approval is, "that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law." Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth: Felton v Mulligan ((1971) [1971] HCA 39 ; 124 CLR [367] , at p. 408).'
Case: Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194
Outcome: cited
The applicant also relied upon the decision of Hill J in Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 ('Aust-Home Investments') , in support of its submission that the Court could have regard to the question of whether the respondent had acted unreasonably in relation to the threatened industrial action, and whether the applicant had acted reasonably in commencing the substantive application and seeking the interim injunction. In support of his submission that the respondent had acted unreasonably prior to the commencement of the applications, counsel for the applicant referred to the fact that in my reasons for granting the interim injunction, at [21], I had referred to inferences available on the evidence as it then stood, that in relation to at least one employer, the respondent did not genuinely try and negotiate for a collective agreement, before threatening industrial action. Counsel also referred to the fact that the respondent had not filed affidavits opposing the injunctions. Further, it was submitted that in the circumstances the applicant had no choice but to issue the application. 22 Counsel for the respondent submitted that this was a case where the Court should follow the general rule and not speculate on what would have happened had the matter gone to trial. Counsel for the respondent disputed that the respondent had acted unreasonably and submitted that any trial of the issues raised in the application would have required the Court to make credibility findings and findings as to the bona fides of officers of the respondent. Further, counsel also identified several legal arguments which were available to be raised at the trial in support of the respondent's case. Counsel referred to the following observations by Hill J in the Aust-Home Investments at 201: 'It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial: Stratford . This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue.' 23 Counsel for the respondent also disputed that the applicant had no choice but to commence the application because it could have proceeded in the AIRC. Counsel further submitted that the respondent and its members had decided to cancel the proposed industrial action after the parties had attended a conciliation conference convened in accordance with my order that the parties refer this matter to the AIRC.
Case: Homestyle Pty Ltd v The Western Australian Builders Labourers, Painters and Plasterers Union of Workers [2002] WASC 57
Outcome: cited
Counsel for the applicant also referred to the cases of Homestyle Pty Ltd v The Western Australian Builders Labourers, Painters and Plasterers Union of Workers [2002] WASC 57 ('Homestyle') and Metropolitan Properties Pty Limited v Caltex Petroleum Pty Limited [1999] WASC 153 ('Metropolitan Properties') as instances where a court had awarded a discontinuing plaintiff costs in respect of an interlocutory injunction where the requirement for the injunction has fallen away due to no fault on the part of the plaintiff. 25 Counsel for the respondent also submitted that the Homestyle and Metropolitan Properties cases, were distinguishable in that in each of those cases, there had been a contested hearing in relation to the interlocutory injunctions and costs had been reserved in respect of each of those injunctions whereas in this case, there had been no contested interlocutory hearing and the costs of the injunction application were 'costs in the cause'.
Case: Metropolitan Properties Pty Limited v Caltex Petroleum Pty Limited [1999] WASC 153
Outcome: cited
Counsel for the applicant also referred to the cases of Homestyle Pty Ltd v The Western Australian Builders Labourers, Painters and Plasterers Union of Workers [2002] WASC 57 ('Homestyle') and Metropolitan Properties Pty Limited v Caltex Petroleum Pty Limited [1999] WASC 153 ('Metropolitan Properties') as instances where a court had awarded a discontinuing plaintiff costs in respect of an interlocutory injunction where the requirement for the injunction has fallen away due to no fault on the part of the plaintiff. 25 Counsel for the respondent also submitted that the Homestyle and Metropolitan Properties cases, were distinguishable in that in each of those cases, there had been a contested hearing in relation to the interlocutory injunctions and costs had been reserved in respect of each of those injunctions whereas in this case, there had been no contested interlocutory hearing and the costs of the injunction application were 'costs in the cause'.
Case: J T Stratford &amp; Son Ltd v Lindley (No 2) [1969] 1 WLR 1547
Outcome: cited
Counsel for the respondent said that there were several similarities between this case and the case of J T Stratford &amp; Son Ltd v Lindley (No 2) [1969] 1 WLR 1547 where an interlocutory injunction had been obtained restraining the defendants who were trade union officials from enforcing an embargo on the plaintiff's barges as part of an industrial dispute. As in this case, the 'costs order' made in respect of the interlocutory injunction was that 'costs be in the cause'. Thereafter, the substantive action was not pursued and the action never came to trial. Eventually the defendants brought a summons to dismiss the action for want of prosecution and the plaintiff countered with a summons for leave to discontinue on the basis that the defendants pay the costs of the action including the costs of the interlocutory injunction. The Court of Appeal rejected the plaintiff's arguments that it should have the costs because they would very probably have won the action had it been tried on the merits. The Court of Appeal however upheld the decision that leave to discontinue should be given on the basis that there be no order for costs.
Case: Fencott v Mueller [1983] HCA 12 ; (1983) 152 CLR 570
Outcome: cited
It is accepted that the word 'matter' in s 347 of the Act is to be construed by reference to the way that the term was construed in Fencott v Mueller [1983] HCA 12 ; (1983) 152 CLR 570 at 603, namely, as a 'justiciable controversy identifiable independently of all the proceedings which are brought for its determination and encompassing all claims made in the scope of the controversy' (see, for example, Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at 445-446).
Case: Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439
Outcome: cited
It is accepted that the word 'matter' in s 347 of the Act is to be construed by reference to the way that the term was construed in Fencott v Mueller [1983] HCA 12 ; (1983) 152 CLR 570 at 603, namely, as a 'justiciable controversy identifiable independently of all the proceedings which are brought for its determination and encompassing all claims made in the scope of the controversy' (see, for example, Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at 445-446).
Case: BGC Contracting Pty Ltd v The Construction Forestry Mining &amp; Energy Union of Workers (No 2) [2005] FCA 908
Outcome: cited
Further, it is also accepted that the question of whether a 'matter' in a 'matter arising under the Act ' is to be determined by a reference to a test similar to that applied in deciding whether a matter is one 'arising under' a law of the Commonwealth for the purposes of s 76(ii) of the Constitution of the Commonwealth (see, for example, BGC Contracting Pty Ltd v The Construction Forestry Mining &amp; Energy Union of Workers (No 2) [2005] FCA 908).
Case: Lloyd Werft Bremerhaven GmbH v The Owners of the ship Zoya Kosmodemyanskaya as surrogate for the ships Taras Schevchenko, Delphin and Kazakhstan and Tor Shipping Co [1997] 1162 FCA (31 October 1997)
Outcome: distinguished
Mr Wood also referred me to a decision of a Full Court of this Court in Lloyd Werft Bremerhaven GmbH v The Owners of the ship Zoya Kosmodemyanskaya as surrogate for the ships Taras Schevchenko, Delphin and Kazakhstan and Tor Shipping Co [1997] 1162 FCA (31 October 1997). Mr Wood referred me to a passage of the judgment of Beaumont, Burchett and Lindgren JJ appearing at 24. Their Honours there observed that the adjectival rules to be applied at the hearing of the case were those appropriate to a final hearing, so that the Court's power to dispense with the rules of evidence, which is available on an interlocutory hearing, was not available. 13 I do not consider that the observations of the Full Court in Zoya are of assistance. Their Honours were dealing with an entirely different situation; the matter was an admiralty matter in which a party, who was said to be the owner of a vessel that had been arrested, sought an order setting aside the arrest of the ship. There was no question but that the ship was present in Australia's territorial waters. 14 Zoya was not a case in which there was a question of submission to the jurisdiction; the matter involved the construction and application of s 19 of the Admiralty Act 1988 (Cth). I do not consider that it follows from what their Honours said in that case that the hearing of the motion to set aside the order for service, or the originating process in the present case, is a final hearing in the way in which the admiralty matter was considered to be a final hearing in Zoya .
Case: Small v Commissioner of Railways (1938) 38 SR (NSW) 564
Outcome: referred to
There was debate before me in addition to the issue of principle which I have mentioned, about the terms of the notice to produce. Dr Bell submitted that the notice to produce infringed the fundamental principle, stated in authorities such as Small v Commissioner of Railways (1938) 38 SR (NSW) 564, that a notice to produce or subpoena ought not to be used as a substitute for discovery. 16 That issue does not arise because I have decided the issue of principle in favour of the respondent to the proceedings. Nevertheless, the tentative view that I have come to is the notice to produce is not a substitute for discovery because it does not call for a judgment as to the relevance of particular matters, and at this stage of the proceedings seems to me to sufficiently identify the documents. It is true, as Dr Bell observes, that the notice is drafted in very wide terms and there may be some room for further debate about the scope of the notice. Nevertheless, as I have said, that issue does not call for determination this morning.
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466
Outcome: applied
There are three distinct matters to which it is necessary to refer. The first relates to ss 45E and 45EA . The second, to accessorial liability and ss 76 and 75B of the TP Act. The third concerns the standard of proof in this matter and s 140(2) of the Evidence Act 1995 (Cth). The applicable principles in relation to each of these are not in dispute in these proceedings. They have been the subject of recent judicial consideration, notably in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ("CEPU") and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162.