case_text: Generally as to the setting aside of findings of fact that rest on credibility findings by the trial judge, the position is as summarised by McHugh J in Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [65] - [67] : 65 Whether an appellate court should intervene in a decision of a trial judge who has made findings based on the credibility or demeanour of a witness is governed by the principles stated in Abalos v Australian Postal Commission. In that case, I said [at 178-9]: [W]here a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion" [ Watt (or Thomas) v Thomas [1947] AC 484 at 488]. ... [W]hen a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. 66 Mason CJ, Deane, Dawson and Gaudron JJ, the other members of the Court, agreed with my judgment. Abalos was applied in Devries v Australian National Railways Commission [1993] HCA 78 ; [(1993) 177 CLR 472 at 479] where Brennan and Gaudron JJ and I said: More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against -- even strongly against -- that finding of fact. (Footnote omitted.) If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" [ SS Hontestroom v SS Sagaporack [1927] AC 37 at 47] or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" [ Brunskill [1985] HCA 61 ; (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57]. 67 There was nothing novel about these statements. They derived from principles in decisions of this Court and the House of Lords stretching over the best part of a century. 103 In the present case the appellants' attack on the credibility findings in respect of Ms Wills does not come near that standard of appellate review. 104 The "concentration camp" comment . It may be that Mr Hibberd was attempting to make the point that if different employees were working on different conditions he would have to ensure that people on the Award did not get such additional benefits as the AWA provided. However, the tone and context in which the term was used were very much matters for his Honour, who had the opportunity to assess the witnesses, and in particular Ms Wills. 105 The appellants say that his Honour failed to deal with submissions made as to fact and law; "little or no reference" was made to submissions by the appellants on the evidence. 106 The Federal Magistrates Court was established by the Federal Magistrates Act 1999 (Cth). One of the objects of that Act was "to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power": s 3(2)(a). Likewise s 42 provides: In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted. 107 His Honour's judgment, handed down expeditiously some six weeks after final submissions, extends over 51 pages. It deals in detail with the events at the Tavern in 2006. It makes clear findings of fact. It cites the appropriate legislation and authorities. It explains the reasoning which led to his Honour's decision. The appellants on reading the judgment would understand why they lost. Perhaps his Honour did not record and deal with every argument advanced on behalf of the appellants, but he was not obliged to do so.


case_outcome: cited

case_text: In the light of the Full Court's decision in Gama one does not say: "Contravention of s 400(5) is a serious matter; therefore the Briginshaw standard applies". Rather, the fact finder must look at the particular factual allegations. They can vary infinitely. Before reaching a finding which accepts those allegations as true (the onus of course being on the applicant), the fact finder must, amongst other things, take into account the gravity of the particular allegations: s 140(2)(c). Once the facts are fully found, including the making of inferences from primary fact, the question whether those facts fall within the statutory prescription of applying duress in connection with an AWA is a question of law: Hope v City of Bathurst [1980] HCA 16 ; (1980) 144 CLR 1 at 7.


case_text: No legal right or legitimate expectation of Ms Wills removed or threatened . Removal or threatened removal of something which can be characterised as a legal right or legitimate expectation is not an essential element of the concept of duress under the statute. In any event, with her established pattern of weekend work, an "unwritten agreement" as Mr Taylor termed it, Ms Wills plainly did have a legitimate expectation; cf Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33 at [43]. Of necessity, a legitimate expectation is something less than a legal right. 77 No actual or threatened detriment sufficient to constitute duress . The loss of shifts, particularly on weekends was, on the evidence, a serious detriment to Ms Wills. She was a student who depended on part time employment to survive. 94 Applying that approach to the present case, it may be doubted whether the particular allegations of fact in this case, for example that Mr Hibberd or Ms Bercheree said or did such and such or had such and such intention, really involve allegations of particular gravity. They are to be contrasted with allegations of adultery ( Briginshaw ) or fraud ( Rejfek ). The AWA regime is, or was at the time, part of a complex statutory industrial law system. Knowledge of its full ramifications amongst all employers is not self-evidently a circumstance on which courts can safely rely. Breaches of the law may well occur in ignorance. Moral opprobrium does not necessarily attach. Of course, particular factual allegations in AWA duress cases may involve allegations of reprehensible behaviour; see, for example, the conduct in Jordan . While the conduct alleged against Mr Hibberd certainly warranted the learned Magistrate's criticisms, I doubt if it could be characterised as conduct inherently unlikely to be engaged in by employers.


case_text: In Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117 ; (2006) 234 ALR 241 an issue arose as to the adequacy of the reasons of the trial judge. Weinberg J and I said: 44 As to the second matter, the obligations of the trial judge to give adequate reasons, on the appeal Kovan relied strongly on what was said by Nettle JA (with whom Batt and Vincent JJA agreed) in Hunter v Transport Accident Commission (2005) 43 MVR 130 at [21]. While noting that the extent of the reasons will depend on the circumstances of the case, his Honour said that the reasons should deal with the "substantial" points which have been raised, include findings on "material" questions of fact and provide an "intelligible" explanation of the reasoning from evidence to findings to ultimate conclusion. Reference to the evidence should not be limited to the evidence that has been accepted and acted upon, but "ordinarily" should deal with the "substantial" points made in evidence which has been rejected and explain why it has been rejected. The judge must deal with evidence which is "relevant and cogent", arguments which are "substantial" and issues which are "significant". 45 No matter how prescriptive the principles laid down, they inevitably involve disclaimers as to any universal applicability. Moreover, the passage from Hunter would give an unbalanced view if it were not read in conjunction with the firm warnings of courts of high authority against over-lengthy judgments. These are noted by the Full Court in Expectation [Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 ; (2004) 140 FCR 17] at [83] . Of the cases there referred to, particular note should be taken of what was said by the New South Wales Court of Appeal in Digi-Tech (Aust) Ltd v Brand [2004] NSWCA 58 ; (2004) 62 IPR 184 at [287] [290] and the following passage from the joint judgment of Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon [2003] HCA 48 ; (2003) 200 ALR 447 (at [62]): ... it should not be accepted that Newman J failed, at least in a general way, to consider the matters to which the Court of Appeal referred. The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case. 46 As the Full Court said in Expectation (at [71]), in the normal case statements by a trial judge of a general assertive nature can be accepted as encompassing a detailed consideration of the evidence. As their Honours immediately go on to say, such statements should be treated with some reserve where there has been "significant" delay between trial and judgment. After such a delay: ... a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision. ... 48 As to the suggested obligation on the trial judge to explain why evidence or argument of the losing party has been rejected, we would refer to what was said by Schiemann LJ in Customs and Excise Commissioners v A [2003] 2 All ER 736 at [82] [83], in a passage cited with approval in Digi-Tech (at [285]): ... judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; and (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice. Often it is not possible to reconcile neatly all evidence and arguments. Sometimes evidence or arguments of the losing party may be valid in themselves; it is just that there seem to the trial judge to be other and more persuasive items of evidence and points of argument the other way. If the trial judge does not mention such evidence or arguments of the losing party an appellate court may take a different view. It may reverse the decision below because it finds the appellant's evidence or arguments persuasive. But that will be because the appeal court took a different view of the facts or law from that of the trial judge, not because the trial judge made a legal error in the way his or her reasons were expressed -- provided the minimum requirements identified by Schiemann LJ are satisfied. 109 The other member of the Court in Kovan , Allsop J, said: 119 As to the discussion of the adequacy of the reasons of the primary judge, in addition to my complete agreement with Heerey and Weinberg JJ, I would only wish to make reference to what Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 (a decision affirmed sub nom Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155): [I]t is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law ... However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: In such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 at 350. A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide. See also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269 70 and 280 1. 110 These observations apply a fortiori to the Federal Magistrates Court with its statutory mandate for informality and expedition. 111 The appeal is dismissed. I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 15 May 2008 Counsel for the First and Second Appellants: N Clelland SC Counsel for the Third Appellant: G Livermore Solicitors for the Appellants: Simmons Wolfhagen Counsel for the Respondent: J Bourke and M Felman Solicitors for the Respondent: Clayton Utz Date of Hearing: 31 March and 1 April 2008 Date of Judgment: 15 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/646.html


case_text: Conduct was not illegitimate or unconscionable . Lawful conduct can constitute duress: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 165 ALR 67 at [367] . Characterising conduct as unconscionable involves a value judgement. His Honour was entitled to consider the relative age and power positions of the parties and the way in which Mr Hibberd exploited that position, for example by denying that Ms Wills had a pattern of weekend work. The picture of Mr Hibberd emerging from the evidence of Ms Wills, whom his Honour found to be "impressive" and "a young woman of some fortitude" (at [186]), was of a man behaving in an overbearing way to a vulnerable employee. 79 Not established that Mr Hibberd intentionally applied duress to Ms Wills in connection with an AWA . The conduct of Mr Hibberd and Ms Berechree, especially in their directions to Mr Taylor regarding the roster, was intentional conduct, plainly meant to apply pressure to Ms Wills in connection with an AWA. It had no other purpose that is apparent. Ms Wills' note, which disclosed at the very least that she was not about to sign the AWA and accept whatever Mr Hibberd was pleased to give her, was followed the next day by his directions. This was hardly a coincidence. 80 Not established Ms Wills regarded as a ringleader . This was a finding well open in the light of Ms Wills' conduct at the meetings of 7 and 27 August and Mr Hibberd's suggesting at the latter meeting that Ms Wills was acting as a bargaining agent. In any event, this is not a factual finding of critical importance. Whether or not Ms Wills was the ringleader, or seen as such by Mr Hibberd, unconscionable pressure was applied to her.


case_text: Her Honour referred to a number of authorities, including the High Court decisions in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Rejfek v McElroy (1965) 112 CLR 517. In the latter case the High Court at 521 made it plain that the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. (Emphasis added by Branson J in Gama at [131].)


case_outcome: applied

case_text: In any event, it may be that, if anything, his Honour's application of Briginshaw was too favourable to the appellants. I say that because the true nature and effect of Briginshaw has recently been the subject of detailed analysis by Branson J (with whom French and Jacobson JJ agreed) in Qantas Airways Ltd v Gama [2008] FCAFC 69. 93 Gama itself was a case of alleged racial discrimination. Branson J noted the various considerations which s 140 , in the circumstances of the case, required to be taken into account. With regard to "the gravity of the matter alleged", her Honour said at [137]: Without wishing to diminish the significance of the factual allegations made by Mr Gama, which themselves varied in gravity, more serious allegations of racial discrimination can be brought to mind. Her Honour had earlier noted at [133] that The legislative requirement for complaints of unlawful discrimination to be made in the first instance to the President [of the Human Rights and Equal Opportunity Commission] reflects a recognition, as it seems to me, that the practical implications of human rights principles are not always well understood by members of the Australian community. For this reason, not only may claims of discrimination lack substance but acts of discrimination may occur without the actor intending to breach those principles. For these reasons moral opprobrium may, but does not necessarily, attach to an allegation of discriminatory conduct. In conclusion, her Honour said at [139]: ...in my view, for the reasons given above, references to, for example, "the Briginshaw standard" or "the onerous Briginshaw test" and, in that context, to racial discrimination being a serious matter not lightly to be inferred, have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved and, I would add, the circumstances in which it is sought to be proved. 95 In the light of the Full Court's decision in Gama one does not say: "Contravention of s 400(5) is a serious matter; therefore the Briginshaw standard applies". Rather, the fact finder must look at the particular factual allegations. They can vary infinitely. Before reaching a finding which accepts those allegations as true (the onus of course being on the applicant), the fact finder must, amongst other things, take into account the gravity of the particular allegations: s 140(2)(c). Once the facts are fully found, including the making of inferences from primary fact, the question whether those facts fall within the statutory prescription of applying duress in connection with an AWA is a question of law: Hope v City of Bathurst [1980] HCA 16 ; (1980) 144 CLR 1 at 7. 96 Gama is an important decision, not least for throwing light on an intriguing phenomenon in Australian professional legal culture. The resilience of the common law is such that in practice the Evidence Act is often overlooked. In my own experience, in the period of well over a decade since the Evidence Act was introduced Briginshaw is without fail cited in witness actions with the possible exception of patent infringement cases but I do not recall ever being referred to s 140. This is not to say it never happens, but a search of the Federal Court internal judgment database reveals only six decisions, apart from Gama , (including one in the Full Court) in which the covering list of legislation and cases cited refers to both s 140 and Briginshaw .


case_title: Rejfek v McElroy (1965) 112 CLR 517

case_text: Her Honour referred to a number of authorities, including the High Court decisions in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Rejfek v McElroy (1965) 112 CLR 517. In the latter case the High Court at 521 made it plain that the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. (Emphasis added by Branson J in Gama at [131].) 94 Applying that approach to the present case, it may be doubted whether the particular allegations of fact in this case, for example that Mr Hibberd or Ms Bercheree said or did such and such or had such and such intention, really involve allegations of particular gravity. They are to be contrasted with allegations of adultery ( Briginshaw ) or fraud ( Rejfek ). The AWA regime is, or was at the time, part of a complex statutory industrial law system. Knowledge of its full ramifications amongst all employers is not self-evidently a circumstance on which courts can safely rely. Breaches of the law may well occur in ignorance. Moral opprobrium does not necessarily attach. Of course, particular factual allegations in AWA duress cases may involve allegations of reprehensible behaviour; see, for example, the conduct in Jordan . While the conduct alleged against Mr Hibberd certainly warranted the learned Magistrate's criticisms, I doubt if it could be characterised as conduct inherently unlikely to be engaged in by employers.


case_outcome: affirmed

case_title: Smith v Granada Tavern [2007] FMCA 904

case_text: Ms Emily Wills, a student at the University of Tasmania, is a casual employee at the Granada Tavern in Berriedale, a suburb of Hobart. The Tavern is owned by the first appellant (the Company), a company trading under that name. In an application brought by a Workplace Inspector, Burchardt FM in the Federal Magistrates Court found that the Company, its director the second appellant Mr Michael Hibberd, and the manager of the Tavern, the third appellant, Ms Jocelyn Berechree, had applied duress to Ms Wills in connection with an Australian Workplace Agreement (AWA) contrary to s 400(5) of the Workplace Relations Act 1996 (Cth): Smith v Granada Tavern [2007] FMCA 904. 2 His Honour imposed penalties of $24,750 on the Company, $4,950 on Mr Hibberd and $1,980 on Ms Berechree.


case_title: Gryst v Dromana [2008] FCA 1148

case_text: In Gryst v Dromana [2008] FCA 1148 I ordered that an application under s 459P of the Corporations Act 2001 (Cth) to wind up Dromana be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1975 (Cth). The issue now before me is that of costs.


case_text: Dromana seeks that Mr Gryst pay its costs of the proceedings on either an indemnity basis or a solicitor and client basis instead of, as is the usual case, on a party and party basis: on which see Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 156-157. The primary reason for it so doing is the assertion that the proceeding itself was an abuse of process. Reliance is placed upon Mr Gryst's own affidavit evidence that he commenced the winding up application "to try to obtain payment for services which [he] rendered". Alternatively, it is said that a departure from the ordinary practice of the court is warranted because Mr Gryst persisted in what should on proper consideration have been seen to be a hopeless case: see J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers WA Branch (No 2) (1993) 46 IR 301 at 303.


case_title: J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers WA Branch (No 2) (1993) 46 IR 301


case_text: When the matter first came on for hearing on 16 July 2008 before Registrar Christie, submissions were made to the effect that the winding up application would have to be dismissed on the grounds it was bound to fail because of the principles stated in Deputy Commissioner of Taxation v Tixana Pty Ltd (2003) 202 ALR 401. Before the matter was referred by Registrar Christie to me for it to be heard and determined, she indicated to Mr Gryst's then counsel that Tixana was not the only relevant case and that if she was hearing the matter she would as of course follow Tixana . It appears that some time after 16 July Mr Gryst engaged new counsel who in turn was informed by counsel for Dromana of the cases that stood in the way of the winding up application. These are the cases upon which I relied in my reasons for decision. Mr Gryst was subsequently advised that it was "extremely difficult and unlikely" that I would not follow the Tixana line of cases. Nonetheless, Mr Gryst proceeded with the matter and it met its inevitable fate. 7 While the above is simply a skeletal account of the circumstances leading up to the hearing, I am prepared to accept that, while Mr Gryst's conduct in the face of what had been pointed out to him provides grounds for suggesting that a departure from party and party costs might be warranted from a relatively early date, I consider that the appropriate point at which Mr Gryst's conduct can be said to have constituted persistence in a hopeless case was reached when Registrar Christie made plain what would have been its fate if heard by her, and did so by reference to Tixana indicating that it was not the only case relevant to the question. 8 While there are aspects of this matter about which Mr Gryst may feel some grievance and in particular the sequence of events which led to the statutory demand becoming stale those are not matters which in any way could justify his persistence in pursuing the winding up application in the face of what over time must have been obvious to him. He needlessly put Dromana to expense and this must be reflected in the costs order made. 9 Accordingly, I will order that Mr Gryst pay Dromana its costs on a party and party basis up to and including 16 July 2008 and thereafter on a solicitor and client basis.


case_text: respondent ("Coinvest") accepts that: Jemena Electricity Networks (Vic) Ltd is bound by the Award and the 2004 Agreement; The applicable principles concerning the operation of s 109 of the Constitution are well settled and were most recently comprehensively and authoritatively examined in Telstra Corporation Ltd v Worthing [1999] HCA 12 ; (1999) 197 CLR 61. Sections 170LZ(1) and 152 of the WR Act (as at before 27 March 2006) and s 17(1) of the WR Act thereafter, operate to ensure that a federal industrial instrument will prevail over inconsistent State laws even though that instrument is not a "law of the Commonwealth" within s 109 of the Constitution . The relevant alleged constitutional inconsistency is between the WR Act and the State law; see Metal Trades Industry Association of Australia v Amalgamated Metal Workers' and Shipwrights' Union [1983] HCA 28 ; (1983) 152 CLR 632 at 648 649 (per Mason, Brennan and Deane JJ); So far as is presently material, s 109 applies to affect the operation of a State law where: (i) that law alters, impairs or detracts from a law of the Commonwealth or the exercise of power under a Commonwealth law; or (ii) that law enters a field that the law of the Commonwealth was intended to cover exclusively or exhaustively. Contentions of Coinvest Whether a State law is inconsistent with a Federal law is the subject of principles which are "well-settled"; see Worthing at [27]. In Worthing the following categories of inconsistency were discussed: Where one law authorises what the other forbids; Where it is possible to obey both laws but one imposes a greater obligation than the other. Neither of those examples is currently relevant. The State law does not authorise anything forbidden by the industrial instruments. Section 12 of the State Act might be thought to have that effect, but properly analysed it only deals with disputes arising under the State Act and does not bear upon the settlement of disputes arising out of matters dealt with in the industrial instruments. The Court in Worthing , said at [28]: In Victoria v The Commonwealth , Dixon J stated two propositions which are presently material. The first was: When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. The second, which followed immediately in the same passage, was: Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent. The second proposition may apply in a given case where the first does not, yet, contrary to the approach taken in the Court of Appeal, if the first proposition applies, then s 109 of the Constitution operates even if, and without the occasion to consider whether, the second proposition applies. (i) Does the State Act (and the scheme under it) alter, impair or detract from the operation of the industrial instruments? The State Act and the scheme which it provides does not alter, impair or detract from the operation of the industrial instruments. Those instruments require the Jemena companies to grant long service leave to those of its employees who qualify for it after a period of continuous service. In contrast, the State Act requires the applicants to pay long service leave charges in respect of those of the employees whom they employ in construction work. The State Act places no obligation on the applicants to pay long service leave benefits to anyone or to grant long service leave to anyone. The State Act operates in a parallel fashion to the federal industrial instruments. Those instruments reward continuous service by an employee with one employer. The State Act imposes a charge on employees in the industry to make provision for employees in the industry to enable them to receive long service leave benefits and, with the agreement of the employer, actual long service leave. Long service leave charges can be recouped by an employer if the employer pays an employee long service leave benefits under the instruments. The State law and the federal instruments co-exist in harmony such that each of them may be considered supplementary to or cumulative upon the other; see Worthing at [27] and Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 at 483 , per Dixon J. There is nothing in the State Act which denies or varies a right, or privilege conferred by the federal instruments; see Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 290, per Wilson J. (ii) Does the State Act enter a field intended to be covered by the federal instruments?


case_text: respondent ("Coinvest") accepts that: Jemena Electricity Networks (Vic) Ltd is bound by the Award and the 2004 Agreement; The applicable principles concerning the operation of s 109 of the Constitution are well settled and were most recently comprehensively and authoritatively examined in Telstra Corporation Ltd v Worthing [1999] HCA 12 ; (1999) 197 CLR 61. Sections 170LZ(1) and 152 of the WR Act (as at before 27 March 2006) and s 17(1) of the WR Act thereafter, operate to ensure that a federal industrial instrument will prevail over inconsistent State laws even though that instrument is not a "law of the Commonwealth" within s 109 of the Constitution . The relevant alleged constitutional inconsistency is between the WR Act and the State law; see Metal Trades Industry Association of Australia v Amalgamated Metal Workers' and Shipwrights' Union [1983] HCA 28 ; (1983) 152 CLR 632 at 648 649 (per Mason, Brennan and Deane JJ); So far as is presently material, s 109 applies to affect the operation of a State law where: (i) that law alters, impairs or detracts from a law of the Commonwealth or the exercise of power under a Commonwealth law; or (ii) that law enters a field that the law of the Commonwealth was intended to cover exclusively or exhaustively. Contentions of Coinvest


case_outcome: discussed

case_text: different subject matters with which the State Act and the federal instruments are concerned with reflect the different purposes served by them. The saving of different purposes will not result in inconsistency; see Wardley at 253, per Stephen J; Airlines of NSW Pty Ltd v The State of New South Wales [1964] HCA 2 ; (1964) 113 CLR 1 at 42 per Taylor J, 48 per Menzies J and 52 per Windeyer J. Further, New South Wales v Commonwealth (Hospital Benefits Case) [1983] HCA 8 ; (1983) 151 CLR 302 shows the importance of identifying a relevant field before inquiring whether a State law has entered into it. Once it is shown that the fields are different, inconsistency cannot arise. In that case, the Commonwealth Act dealt with the payment of hospital benefits, which the State Act did not deal with, but rather imposed a tax on health funds. Here the State law imposes a tax and makes provision of benefits on an industry basis to be made not from employers but from the Fund to which various employers contribute. Many charges will be paid in respect of employees who never qualify for long service leave with one employer or at all. The State Act does not enter a field intended to be covered by the federal industrial instruments. Result


case_outcome: referred to

case_text: State law and the federal instruments co-exist in harmony such that each of them may be considered supplementary to or cumulative upon the other; see Worthing at [27] and Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 at 483 , per Dixon J. There is nothing in the State Act which denies or varies a right, or privilege conferred by the federal instruments; see Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 290, per Wilson J. (ii) Does the State Act enter a field intended to be covered by the federal instruments? The different subject matters with which the State Act and the federal instruments are concerned with reflect the different purposes served by them. The saving of different purposes will not result in inconsistency; see Wardley at 253, per Stephen J; Airlines of NSW Pty Ltd v The State of New South Wales [1964] HCA 2 ; (1964) 113 CLR 1 at 42 per Taylor J, 48 per Menzies J and 52 per Windeyer J. Further, New South Wales v Commonwealth (Hospital Benefits Case) [1983] HCA 8 ; (1983) 151 CLR 302 shows the importance of identifying a relevant field before inquiring whether a State law has entered into it. Once it is shown that the fields are different, inconsistency cannot arise. In that case, the Commonwealth Act dealt with the payment of hospital benefits, which the State Act did not deal with, but rather imposed a tax on health funds. Here the State law imposes a tax and makes provision of benefits on an industry basis to be made not from employers but from the Fund to which various employers contribute. Many charges will be paid in respect of employees who never qualify for long service leave with one employer or at all. The State Act does not enter a field intended to be covered by the federal industrial instruments. Result


case_title: Airlines of NSW Pty Ltd v The State of New South Wales [1964] HCA 2 ; (1964) 113 CLR 1


case_text: State law and the federal instruments co-exist in harmony such that each of them may be considered supplementary to or cumulative upon the other; see Worthing at [27] and Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472 at 483 , per Dixon J. There is nothing in the State Act which denies or varies a right, or privilege conferred by the federal instruments; see Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 290, per Wilson J. (ii) Does the State Act enter a field intended to be covered by the federal instruments?


case_text: I consider that any employee who is engaged on terms and conditions specified in cll 6.3.3(c), 6.3.3(d) and 6.8 of the PSA is entitled during long service leave to payment of the sum prescribed in each of those clauses in addition to the base rate of pay specified in cl 5.2.1 for each ordinary hour of work. In my view this is the ordinary English literal meaning of the expression "full pay" in relation to those employees engaged under those clauses of the PSA. I agree with the submission of Mr Herbert that in relation to such employees any lesser sum would not be full payment for the time that they are absent from work, as contemplated by the definition of "full pay" in Sch 5 of the State Act. In so finding I respectfully echo comments of Layton J of the Industrial Court of South Australia in Glover v Tip Top Bakeries (1984) 8 IR 308 at 313 which comments, although made in the context of sick leave, nonetheless are applicable mutatis mutandis in this context: For such an employee, it would seem quite anomalous if he was to be paid less than his usual entitlement by way of [long service] leave entitlement as though he worked on day work alone. If that were so, the award would effectively discriminate against shift workers in comparison with day workers in their respective entitlements to [long service] leave. The day workers would receive their usual pay whereas the shift workers would always receive less than their usual pay. Such an effect would in my opinion be inconsistent with the use of the word "full" in the expression "on full pay". (cf observations of Crawford J in Turfrey v Attorney General (Tas) (1992) 45 IR 349 at 352 and Hall P in Ussher v Pharlark Pty Ltd [2004] QIC 22)


case_text: submissions were made by Counsel for both parties as to the rationale upon which the relevant provisions of the State Act applied in this case. However notwithstanding the different routes taken by each party, the destination was the same. In identifying the terms and conditions of employment of relevant employees as regulated by the PSA, and in particular in relation to long service leave, Ch 2 Pt 3 including s 43 and s 46 apply. A similar conclusion was drawn by Gray ACJ in Shop Distributive and Allied Employees' Association v Woolworths Ltd [2006] FCA 616 ; [2006] 151 FCR 513 in relation to the incorporation of equivalent Victorian legislation into the agreement the subject of that dispute. I do not consider it necessary to dwell further on the issue of application of Ch 2 Pt 3 of the State Act in these circumstances the necessity for the Court to interpret the relevant provisions of Ch 2 Pt 3 in relation to the operation of the PSA and the application of these provisions in determining the entitlement of relevant employees to long service leave are common ground. The clear tension in these proceedings arises from the different terminology used in s 43 and s 46 of the State Act, and the resolution of those differences in determining the entitlement of relevant employees to the current rate of pay on long service leave. The case put by the applicant is simple, namely that on the ordinary English literal meaning of s 43(2) of the State Act, when read in conjunction with the definition of "full pay", "full pay" for employees engaged under cll 6.3.3(c), 6.3.3(d) and 6.8 of the PSA must include payment of the amounts specified in each of those clauses in addition to the base rate of pay specified in cl 5.2.1 of the PSA. The rationale of this argument is that any lesser sum would not be payment in full for the time they are absent from work, and thus would not be "full pay" during their period of long service leave.


case_title: Turfrey v Attorney General (Tas) (1992) 45 IR 349


case_title: Ussher v Pharlark Pty Ltd [2004] QIC 22


case_outcome: followed

case_text: Another consideration for the Court is the prospects of success of Mr Snedden in the review of the magistrate's decision. Mr Snedden has not satisfied the Court that he has strong prospects of success in the s 21 review of the magistrate's s 19 determination. He has not been successful in any of his related applications which have now been dismissed. Mr Snedden has made three successive bail applications that have all been refused. Goldberg J in Cabal v United Mexican States (2000) 171 ALR 305 at [34] held that for a further application for bail to be successful an applicant would have to show that circumstances have since arisen which did not exist at the time of the earlier applications. Mr Snedden has not established any change in circumstances since his first application for bail was refused on 27 January 2006. 36 It is presumed that a person awaiting extradition will flee the jurisdiction if released on bail (see: Cabal 209 CLR at [63]). As such bail is ordinarily refused unless an applicant can satisfy the high burden of rebutting such presumption. In Cabal 209 CLR at [70] the High Court said: Unless the special circumstances are so cogent and the risk so very low that the proper exercise of discretion requires the grant of bail, any real risk of flight should be decisive against the grant of bail. 37 In these circumstances the Court cannot conclude that there is no real risk of flight if Mr Snedden was to be granted bail.


case_text: The facts surrounding the detention of Mr Snedden have already been dealt with by this Court: see Dragan Vasiljkovic v Minister for Justice and Customs [2006] FCA 1346. For convenience the Court will set out a brief background to the proceedings hereunder. 3 Mr Snedden, also known as Dragan Vasiljkovic, was taken into custody in Sydney on 19 January 2006 pursuant to a warrant issued under s 12(1) of the Act. Section 12(1)(b) empowers a Magistrate to issue a warrant if satisfied that 'the person is an extraditable person in relation to the extradition country' . The Magistrate issued the warrant after Warrant KIO-86/05 was issued in Croatia for the temporary arrest of Mr Snedden in respect of offences alleged to have been committed by him against the Basic Criminal Code of the Republic of Croatia. Those offences are alleged to have been committed during the Serbia-Croatia conflict in the early 1990s, and include involvement in the murder of two persons. 4 On 18 March 2006 the Minister for Justice and Customs ('the Minister') issued a notice pursuant to s 16(1) of the Act informing the magistrate that an extradition request had been received from the Republic of Croatia. 5 Following his arrest on 19 January 2006 Mr Snedden has made three applications for bail to various magistrates. On 25 January 2006 Mr Snedden also instituted proceedings in the High Court of Australia for a writ of habeas corpus, challenging the constitutional validity of both s 15 of the Act and the Extradition (Croatia) Regulations 2004 (Cth) ('the Regulations'). On 15 June 2006 the High Court dismissed the special case: see Vasiljkovic v The Commonwealth of Australia (2006) 227 CLR 614. The remainder of those proceedings were remitted by Gummow J to this Court and became proceedings NSD118/2007. Mr Snedden also commenced proceedings on 7 July 2006 in this Court (NSD1312/2006) seeking an order in the nature of habeas corpus against the Minister and two magistrates and an order that the Minister, the Governor of Parklea Correction Centre and a magistrate be restrained from taking any steps to facilitate Mr Snedden's surrender to Croatia. An interlocutory motion of the Minister to have such proceedings adjourned pending the magistrate's determination of Mr Snedden's eligibility for surrender pursuant to s 19 of the Act was granted on 13 October 2006: see Dragan Vasiljkovic [2006] FCA 1346. Subsequently on 19 November 2007 both NSD1312/2006 and NSD118/2007 were dismissed on 19 November 2007. 29 But for Mr Snedden's October 2006 application to the Court (see Dragan Vasiljkovic [2006] FCA 1346) and his proceedings to review the decision of the magistrate, the extradition would in all probability have been concluded. Accordingly the extradition process is in its final stages. In Cabal 209 CLR at [62], the High Court said: In determining whether bail will be granted, one of the most important factors will be the stage which the proceedings have reached. As the case proceeds through the legal system, the chance of obtaining bail reduces, despite the existence of special circumstances. As the case against the defendant is confirmed at each step in the judicial hierarchy, the public interest in extraditing the defendant weighs more heavily against him or her. 30 The claim that Mr Snedden is being held in detention unlawfully because of the one month period prescribed in the Croatian warrant misconstrues the facts. The Croatian warrant does provide for his detention for no longer than one month. However that provision relates to his detention in Croatia, not in Australia. 31 Mr Snedden has dual citizenship being a citizen of both Serbia and Australia. Until he returned to Australia in 2004 he had been residing for a period of 15 years in Serbia. He has strong political contacts within Serbia and has been involved in Serbia with his charitable foundation as well as the establishment of the first golf course in Serbia. Because of his substantial support in the 1992 elections in Serbia and of his participation in 2000 in the removal of the existing president, it is apparent that Mr Snedden is widely known in that country.


case_outcome: considered

case_text: A further matter which is to be considered by the Court is the advancement of Mr Snedden's extradition proceedings. The stages in the extradition process were succinctly stated in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 where the Court said at [389]: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.


case_text: Mr Snedden relies upon the fact that the alleged offences for which the warrant was issued for his arrest in Croatia occurred in 1991. No action was taken by Croatia to investigate such offences until shortly after the publication of the article in The Australian . Further, the Statement of Reasons contained in the decision of the County Court in Sibenik which investigated the alleged offences contains the following statement: The suspect, Dragan Vasiljkovic known as "Captain Dragan", is a national of Serbia and Montenegro and Australia. His address is not known so that it is obvious that he is on the run. In this particular case, he has been charged with the criminal offences which, according to the law, carry a prison sentence of over 2 years since these are serious criminal offences against humanity. Mr Snedden submits that there is no evidence that he is 'on the run' and in fact he has resided in Australia since 2004. He submits that unlike the facts in United Mexican States v Cabal [2001] HCA 61 ; (2001) 209 CLR 165, there are no documents or other records which suggest that he would attempt to flee the jurisdiction. Mr Snedden refers to the observations of the High Court in Cabal 209 CLR at [57] which address the risk of flight and submits that there is, in the present circumstances, no evidence whatsoever to support the concern of risk of flight. Mr Snedden submits that he, unlike the applicant in Cabal [2001] HCA 61 ; 209 CLR 165 did not flee from any other country. He arrived back in Australia of his own accord in 2004 prior to any investigations being made into his activities. 20 Mr Snedden also submits that there are strong prospects of success in his review application and refers to the evidence contained in the statements of Mr Platter and Mr Schneider. Mr Snedden also refers to his continuing defamation proceedings in the New South Wales Supreme Court as an additional reason against flight. He submits that he wishes to 'clear his name' , and to proceed to a hearing, but his confinement is hindering his ability to pay his legal counsel. 21 Mr Snedden points to the lack of any substantial evidence in the extradition documents and the long delay on the part of Croatia to request that the Australian Government assist in the extradition proceedings. 23 In Cabal [2001] HCA 61 ; 209 CLR 165 at [62] the High Court said: Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted. For example, the defendant may pose a risk to the community or a particular individual. In addition, bail must become harder to obtain as the case proceeds through the judicial system. Once the Magistrate has found that the defendant is eligible for surrender, public interest factors similar to those that require a convicted defendant to be imprisoned also require that a defendant in extradition proceedings be kept in custody. Before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for review has strong prospects of success as well as special circumstances and an absence of risk of flight. 24 If the existence of special circumstances are proved which might justify bail, other considerations then arise as referred to by the High Court in Cabal [2001] HCA 61 ; 209 CLR 165. At [74] the High Court said: It is no doubt true that the test is not whether the proven special circumstances are such that it is not probable that the applicant will abscond. But it is not a question of whether the personal and other public interests outweigh the objects and rationale of the Act. Once special circumstances are proved, the Court must consider all the circumstances of the case, the chief of which is the risk of flight. If a real risk of flight exists, the proper exercise of the discretion will ordinarily require the refusal of bail. Conversely, if special circumstances are proved and there is no real risk of flight, bail may be granted unless the defendant may be a danger to the community or some specific individual. 25 The reasons for the magistrate's decision made on 12 April 2007 have been tendered. No submissions have been made by Mr Snedden concerning any error of law or other defect in such reasons which could lead to the decision being set aside. On this motion therefore the Court has no basis to assume that they are incorrect. Accordingly the evidence of special circumstances within s 21(6)(f)(iv) of the Act is to be considered by a review of other evidence. 26 Insofar as Mr Snedden claims that he is not guilty of any of the offences referred to in the Croatian warrant, the Magistrate was bound by s 19(5) of the Act not to receive evidence which contradicts the allegations that the person has engaged in such conduct. On this application for bail the Court has received such evidence but limited only for the express purpose of the bail application. Accordingly, the evidence contained in Mr Snedden's affidavit and that of Mr Platter and Mr Schneider relating to Mr Snedden's lack of involvement in the alleged crimes cannot form any part of the challenge to the Magistrate's decision.


case_text: Following his arrest on 19 January 2006 Mr Snedden has made three applications for bail to various magistrates. On 25 January 2006 Mr Snedden also instituted proceedings in the High Court of Australia for a writ of habeas corpus, challenging the constitutional validity of both s 15 of the Act and the Extradition (Croatia) Regulations 2004 (Cth) ('the Regulations'). On 15 June 2006 the High Court dismissed the special case: see Vasiljkovic v The Commonwealth of Australia (2006) 227 CLR 614. The remainder of those proceedings were remitted by Gummow J to this Court and became proceedings NSD118/2007. Mr Snedden also commenced proceedings on 7 July 2006 in this Court (NSD1312/2006) seeking an order in the nature of habeas corpus against the Minister and two magistrates and an order that the Minister, the Governor of Parklea Correction Centre and a magistrate be restrained from taking any steps to facilitate Mr Snedden's surrender to Croatia. An interlocutory motion of the Minister to have such proceedings adjourned pending the magistrate's determination of Mr Snedden's eligibility for surrender pursuant to s 19 of the Act was granted on 13 October 2006: see Dragan Vasiljkovic [2006] FCA 1346. Subsequently on 19 November 2007 both NSD1312/2006 and NSD118/2007 were dismissed on 19 November 2007. 13 On 8 December 2005 The Australian newspaper published an article which alleged that Mr Snedden was a war criminal and on 12 December 2005 the County Court in Sibenik began investigating such claims. Mr Snedden believes that there was an association between the newspaper article, the investigation and his confinement such that but for the allegedly defamatory statements in the The Australian such investigation would not have occurred. On 11 November 2005 Mr Snedden instituted defamation proceedings against Nationwide News Pty Limited, the publisher of The Australian , in the Supreme Court of New South Wales. On 18 July 2007 a jury determined that the article was defamatory of him. Those proceedings remain current and the hearing for damages is pending. On 14 September 2007 Nationwide News Pty Limited filed its defence to the claim and has pleaded that the facts in the article was true. 14 Mr Snedden denies that he is guilty of any of the charges which led to the request for his extradition to Croatia. 15 Steven Platter, a video documentary producer currently residing in the United States was a close colleague of Mr Snedden during four years of war in the former Yugoslavia. Mr Platter provided a character reference for Mr Snedden in which he states that he was deeply impressed by Mr Snedden's professionalism as a soldier, and praised Mr Snedden's dedication to his charity foundation. Although Mr Platter's statement was unsworn the Court accepted its contents on the undertaking of Mr Snedden's counsel that a verified statement will be provided. Richard Schneider, an Austrian journalist, also provided a statement which the Court accepted on the same basis. Mr Schneider met Mr Snedden for the purpose of an interview in July 1991 and was later employed by Mr Snedden as a driver at a training centre for troops in the city of Benkovac. Mr Schneider categorically states that Mr Snedden did not commit the crimes during 1991 1993 for which he is charged and that such allegations are false, politically motivated and without factual foundation. 39 Incarceration without substantive judicial order is a consequence of Australia's extradition procedures. In Vasiljkovic 227 CLR 614 Gummow and Hayne JJ observed that the involuntary detention of a person forms part of the process under Part II of the Act. However, it is not the function of the Australian judicial process to determine the guilt or innocence of that person in relation to the offences with which that person is charged: see Vasiljkovic 227 CLR at [105]. 40 The Court is not satisfied that there are special circumstances justifying the grant of bail and it follows that the application for bail is dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 12 December 2007 Counsel for the Applicant: C.A Evatt, R. Rasmussen Solicitor for the Applicant: Dennis & Company Solicitors Counsel for the Respondent: J. Renwick, H. Younan Solicitor for the Respondent: Commonwealth Director of Public Prosecutions Date of Hearing: 22, 23 November 2007 Date of Judgment: 12 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1902.html


case_text: support of the motions reference was made to s 31A of the Federal Court of Australia Act 1976 (Cth) which was inserted in that Act by the Migration Litigation Reform Act 2005 (Cth) Pt 7 Sch 1 which provides for striking out of claims or defences which do not have a reasonable prospect of success. However, that provision does not apply to proceedings like the present one which were commenced before the amendment. As a consequence I must apply the high standard mandated by General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 and Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62, namely that the case is "so clearly untenable that it cannot possibly succeed".


case_title: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62


case_text: senior counsel for the valuers relied particularly on what was said by Brennan CJ in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241, a claim brought by a financier against the auditors of a borrower corporation. The High Court held that the statement of claim did not disclose a cause of action in negligence against the auditors. His Honour said at 252 "... that mere foreseeability of the possibility that a statement made or advice given by A to B might be communicated to a class of which C is a member and that C might enter into some transaction as the result thereof and suffer financial loss is not sufficient to impose on A duty of care owed to C in the making of the statement or the giving of the advice." However his Honour went on to say: "But, in every case, it is necessary for the plaintiff to allege and prove that the defendant knew or ought reasonably to have known that the information or advice would be communicated to the plaintiff, either individually or as a member of an identified class, that the information or advice would be so communicated for a purpose that would be very likely to lead the plaintiff to enter into a transaction of the kind that the plaintiff does enter into and that it would be very likely that the plaintiff would enter into such a transaction or reliance on the information or advice and thereby risk the incurring of economic loss if the statement should be untrue or the advice should be unsound. If any of these elements be wanting, the plaintiff fails to establish that the defendant owed the plaintiff a duty to use reasonable care in making this statement or giving advice. The statement of claim does not plead these elements." The significance of the pleading in that case was pointed out by Gaudron J in Perre v Apand Pty Ltd [1999] HCA 36 ; (1999) 198 CLR 180 where her Honour said at [30] that in Esanda : "... it was not pleaded that the auditors in question knew or ought to have known that a finance provider would rely on their audited statement of accounts and thus, it was held, on the pleadings, that no duty of care was owed by the auditors to the finance provider." In the present case of course, as has been seen, that matter has been pleaded in pars 39A and 52A. It seems to me to be arguable, at least for the purpose of resisting a strike-out application, that an identified class in the sense used by Brennan CJ would include the class of persons who were clients of Boyds and who had requested Boyds to seek the advice of valuers in relation to these particular properties, in a context where no doubt Boyds themselves were providing other financial advice. The circumstance that a Melbourne firm of accountants was seeking valuations of farming properties in Tasmania itself arguably tends to show that the valuations were not being sought by the accountants themselves acting as principals. In support of the motions reliance was placed on the decision of the New South Wales Court of Appeal in Ta Ho Ma Pty Ltd v Allen [1999] NSWCA 202 ; (1999) 47 NSWLR 1. Senior counsel referred to what was said by Giles JA said at [17]: "So a valuer who puts out a negligent valuation does not incur an open ended liability to any and every financier who relies on it, even if it was reasonably foreseeable that the financer would rely on it. The particular financier may be outside the class of person to whom the valuer owes a duty to take care in making the statement in the valuation, in the same manner as Esanda was outside the class of persons to whom the auditors owed a duty of care on the case as pleaded in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241; the auditors owed a duty of care to the members of Excel, but not to Esanda."


case_text: significance of the pleading in that case was pointed out by Gaudron J in Perre v Apand Pty Ltd [1999] HCA 36 ; (1999) 198 CLR 180 where her Honour said at [30] that in Esanda : "... it was not pleaded that the auditors in question knew or ought to have known that a finance provider would rely on their audited statement of accounts and thus, it was held, on the pleadings, that no duty of care was owed by the auditors to the finance provider." In the present case of course, as has been seen, that matter has been pleaded in pars 39A and 52A. The case is certainly not authority for any proposition that a valuer only owes a duty of care to the client who directly retains him or her. If that were the law, there would have been a short answer to the plaintiff's claim since the chain went from valuer defendant to owner to solicitor to lender plaintiff. On the facts, as Handley JA noted at [6], it was not a case where the valuer contemplated that a class of persons might rely on his valuation. Giles JA at [24] pointed out that where a valuer puts out a negligent valuation the class of persons to whom the duty of care "...will normally be confined, apart from any other considerations, to those persons whom the valuer knows or ought to know will reasonably rely on the valuation." (Emphasis in original) In other words, given expectation of reasonable reliance, there can be a duty owed by a valuer to a class of persons. The identification of that class will obviously depend on the circumstances. 23 Perre , a decision of the High Court handed down shortly after Ta Ho Ma, demonstrates the flexibility and pragmatism of the law of negligence in identifying the class of persons to whom a duty of care is owed in a particular case and the absence of any bright line rule: see per Gleeson CJ at [7]. It was held that the defendant, which brought infected seed potatoes on to a farm in South Australia, owed a duty of care to growers within 20 kilometres of the farm because such persons would be prevented by Western Australian law from exporting potatoes to that State. The plaintiffs "were members of a class whose members, whether numerous or not, were ascertainable by (the defendant)": per McHugh J at [50]. As I have said, it is arguable that in the present case there was an identifiable class constituted by clients of Boyds on whose behalf that firm was seeking the valuations in connection with some commercial dealing involving the specified properties. The disclaimers are not conclusive if, as a matter of fact, the valuers must be taken to have expected that such clients of Boyds would reasonably rely on the valuations. Otherwise, one might ask, what would be the point of obtaining the valuations? It was also argued that the allegations of reliance were "mere statements of conclusion". However reliance can be inferred from the representations contained in the valuations and the applicant's purchase of the properties: Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215 at 230, Henderson v Amadio (No1) (1995) 62 FCR 1 at 166, Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545 at [45]. To the extent that such authorities deal with proof of reliance in the context of causation there is no logical ground why the reasoning should not apply where reliance is an element in the establishment of a duty of care. On behalf of Mantach it was submitted that the pleading "does not identify the qualities and standards by which it says that only 35.9 ha of Broadmoor was available for cropping". This seems to be a matter of evidence. In this context it would seem that pyrethrum is the kind of cropping referred to. The particulars of negligence are reasonably specific and do, contrary to the submissions on behalf of Mantach, identify the basis upon which it is alleged that the firm departed from the standard of care required of an expert in arriving at an opinion. In particular, it appears to be alleged that the valuers failed to independently check the cropping area and simply relied on the vendors. The motions will be dismissed with costs. Counsel for the applicant conceded that some formal amendments may be needed to the statement of claim. There will be leave to file and serve a further amended statement of claim within fourteen days. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey Associate: Dated: 17 August Counsel for the Applicant: M O'Farrell Solicitors for the Applicant: Ware & Partners Counsel for the fourth Respondent: P Riordan SC Solicitors for the fourth Respondent: Phillips Fox Counsel for the fifth Respondent: I Faulkner SC and R W Pearce Solicitors for the fifth Respondent: Douglas & Collins Date of Hearing: 8 August 2006 Date of Judgment: 17 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1080.html


case_outcome: distinguished

case_text: support of the motions reliance was placed on the decision of the New South Wales Court of Appeal in Ta Ho Ma Pty Ltd v Allen [1999] NSWCA 202 ; (1999) 47 NSWLR 1. Senior counsel referred to what was said by Giles JA said at [17]: "So a valuer who puts out a negligent valuation does not incur an open ended liability to any and every financier who relies on it, even if it was reasonably foreseeable that the financer would rely on it. The particular financier may be outside the class of person to whom the valuer owes a duty to take care in making the statement in the valuation, in the same manner as Esanda was outside the class of persons to whom the auditors owed a duty of care on the case as pleaded in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241; the auditors owed a duty of care to the members of Excel, but not to Esanda." In Ta Ho Ma an owner of property obtained a valuation from the defendant. Some 81/2 months later the owner telephoned a solicitor (apparently not the owner's own solicitor) seeking a loan and advising of the valuation. The solicitor in turn contacted the plaintiff who advanced a loan on the basis of the defendant's valuation which by this time was 91/2 months old. The Court of Appeal held that the defendant owed no duty of care to the plaintiff because, having regard to the age of the valuation, there could be no expectation of reasonable reliance by the plaintiff: see per Handley JA at [12]-[14], per Giles JA at [18], [24], [28], per Sheppard AJA at [105]. The case is certainly not authority for any proposition that a valuer only owes a duty of care to the client who directly retains him or her. If that were the law, there would have been a short answer to the plaintiff's claim since the chain went from valuer defendant to owner to solicitor to lender plaintiff. On the facts, as Handley JA noted at [6], it was not a case where the valuer contemplated that a class of persons might rely on his valuation. Giles JA at [24] pointed out that where a valuer puts out a negligent valuation the class of persons to whom the duty of care "...will normally be confined, apart from any other considerations, to those persons whom the valuer knows or ought to know will reasonably rely on the valuation." (Emphasis in original) In other words, given expectation of reasonable reliance, there can be a duty owed by a valuer to a class of persons. The identification of that class will obviously depend on the circumstances. 23 Perre , a decision of the High Court handed down shortly after Ta Ho Ma, demonstrates the flexibility and pragmatism of the law of negligence in identifying the class of persons to whom a duty of care is owed in a particular case and the absence of any bright line rule: see per Gleeson CJ at [7]. It was held that the defendant, which brought infected seed potatoes on to a farm in South Australia, owed a duty of care to growers within 20 kilometres of the farm because such persons would be prevented by Western Australian law from exporting potatoes to that State. The plaintiffs "were members of a class whose members, whether numerous or not, were ascertainable by (the defendant)": per McHugh J at [50]. As I have said, it is arguable that in the present case there was an identifiable class constituted by clients of Boyds on whose behalf that firm was seeking the valuations in connection with some commercial dealing involving the specified properties. The disclaimers are not conclusive if, as a matter of fact, the valuers must be taken to have expected that such clients of Boyds would reasonably rely on the valuations. Otherwise, one might ask, what would be the point of obtaining the valuations? It was also argued that the allegations of reliance were "mere statements of conclusion". However reliance can be inferred from the representations contained in the valuations and the applicant's purchase of the properties: Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215 at 230, Henderson v Amadio (No1) (1995) 62 FCR 1 at 166, Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545 at [45]. To the extent that such authorities deal with proof of reliance in the context of causation there is no logical ground why the reasoning should not apply where reliance is an element in the establishment of a duty of care. On behalf of Mantach it was submitted that the pleading "does not identify the qualities and standards by which it says that only 35.9 ha of Broadmoor was available for cropping". This seems to be a matter of evidence. In this context it would seem that pyrethrum is the kind of cropping referred to. The particulars of negligence are reasonably specific and do, contrary to the submissions on behalf of Mantach, identify the basis upon which it is alleged that the firm departed from the standard of care required of an expert in arriving at an opinion. In particular, it appears to be alleged that the valuers failed to independently check the cropping area and simply relied on the vendors. The motions will be dismissed with costs. Counsel for the applicant conceded that some formal amendments may be needed to the statement of claim. There will be leave to file and serve a further amended statement of claim within fourteen days. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey Associate: Dated: 17 August Counsel for the Applicant: M O'Farrell Solicitors for the Applicant: Ware & Partners Counsel for the fourth Respondent: P Riordan SC Solicitors for the fourth Respondent: Phillips Fox Counsel for the fifth Respondent: I Faulkner SC and R W Pearce Solicitors for the fifth Respondent: Douglas & Collins Date of Hearing: 8 August 2006 Date of Judgment: 17 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1080.html


case_text: case is certainly not authority for any proposition that a valuer only owes a duty of care to the client who directly retains him or her. If that were the law, there would have been a short answer to the plaintiff's claim since the chain went from valuer defendant to owner to solicitor to lender plaintiff. On the facts, as Handley JA noted at [6], it was not a case where the valuer contemplated that a class of persons might rely on his valuation. Giles JA at [24] pointed out that where a valuer puts out a negligent valuation the class of persons to whom the duty of care "...will normally be confined, apart from any other considerations, to those persons whom the valuer knows or ought to know will reasonably rely on the valuation." (Emphasis in original) In other words, given expectation of reasonable reliance, there can be a duty owed by a valuer to a class of persons. The identification of that class will obviously depend on the circumstances. 23 Perre , a decision of the High Court handed down shortly after Ta Ho Ma, demonstrates the flexibility and pragmatism of the law of negligence in identifying the class of persons to whom a duty of care is owed in a particular case and the absence of any bright line rule: see per Gleeson CJ at [7]. It was held that the defendant, which brought infected seed potatoes on to a farm in South Australia, owed a duty of care to growers within 20 kilometres of the farm because such persons would be prevented by Western Australian law from exporting potatoes to that State. The plaintiffs "were members of a class whose members, whether numerous or not, were ascertainable by (the defendant)": per McHugh J at [50]. As I have said, it is arguable that in the present case there was an identifiable class constituted by clients of Boyds on whose behalf that firm was seeking the valuations in connection with some commercial dealing involving the specified properties. The disclaimers are not conclusive if, as a matter of fact, the valuers must be taken to have expected that such clients of Boyds would reasonably rely on the valuations. Otherwise, one might ask, what would be the point of obtaining the valuations? It was also argued that the allegations of reliance were "mere statements of conclusion". However reliance can be inferred from the representations contained in the valuations and the applicant's purchase of the properties: Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215 at 230, Henderson v Amadio (No1) (1995) 62 FCR 1 at 166, Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545 at [45]. To the extent that such authorities deal with proof of reliance in the context of causation there is no logical ground why the reasoning should not apply where reliance is an element in the establishment of a duty of care. On behalf of Mantach it was submitted that the pleading "does not identify the qualities and standards by which it says that only 35.9 ha of Broadmoor was available for cropping". This seems to be a matter of evidence. In this context it would seem that pyrethrum is the kind of cropping referred to. The particulars of negligence are reasonably specific and do, contrary to the submissions on behalf of Mantach, identify the basis upon which it is alleged that the firm departed from the standard of care required of an expert in arriving at an opinion. In particular, it appears to be alleged that the valuers failed to independently check the cropping area and simply relied on the vendors. The motions will be dismissed with costs. Counsel for the applicant conceded that some formal amendments may be needed to the statement of claim. There will be leave to file and serve a further amended statement of claim within fourteen days. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey Associate: Dated: 17 August Counsel for the Applicant: M O'Farrell Solicitors for the Applicant: Ware & Partners Counsel for the fourth Respondent: P Riordan SC Solicitors for the fourth Respondent: Phillips Fox Counsel for the fifth Respondent: I Faulkner SC and R W Pearce Solicitors for the fifth Respondent: Douglas & Collins Date of Hearing: 8 August 2006 Date of Judgment: 17 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1080.html


case_title: Henderson v Amadio (No1) 1995) 62 FCR 1 at 166


case_title: Hanave Pty Ltd v LFOT Pty Ltd [1999] 43 IPR 545 at [45]


case_title: A ustralian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (2001) ATPR 41-815


case_text: Another factor which must be taken into account in the fixing of pecuniary penalties for multiple breaches of statutory stipulations is the totality principle. This principle is designed to ensure that the aggregate of the penalties imposed is not such as to be oppressive or crushing. Different views have been expressed as to the manner in which the principle ought properly to be applied. On one view the starting point should be the determination of an appropriate total penalty. That figure would then be divided by the number of breaches to produce a penalty for each breach: see CPSU v Telstra Corporation Limited (2001) 108 IR 228 at 230[7]. The orthodox position, however, which I consider should be adopted, is that the starting point is the determination of appropriate penalties for each contravention of the statutory norm. The aggregate figure is then considered with a view to ensuring that it is an appropriate response to the conduct which led to the breaches: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53. See also Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [145] per Jessup J. This approach was recently described, in the criminal context from which the totality principle is derived, as "the orthodox, but not necessarily immutable, practice" adopted by sentencing courts: see Johnson v R [2004] HCA 15 ; (2004) 205 ALR 346 at 356[26] per Gummow, Callinan & Heydon JJ.


case_text: The respondents have expressed contrition and have put in place mechanisms which are designed to ensure that there will be no repetition of the breaches which have led to the present proceeding. Specific deterrence does not, therefore, loom large as a consideration in determining penalty. It does not follow that the need for general deterrence may be disregarded. As Finkelstein J said in CPSU v Telstra Corporation Limited (2001) 108 IR 228 at 231: "even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law's disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct ..." No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction "must be imposed at a meaningful level": see Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] ATPR 41-815 at [13]. 29 In fixing appropriate penalties for breach of each of the relevant Award terms it is necessary to bear in mind that, with the exception of the breach of Clause 12.5 (casual loadings), there were repeated breaches of each of the terms over a period in excess of five years. For a little more than half of this period the maximum penalty (calculated, having regard to s 178(2) and 719 (2), as single breaches of each relevant term) was $2,200. It was $6,600 for the rest of the period. The breaches of Clause 12.5 occurred wholly within the period during which the maximum penalty was $2,200. It is also necessary to bear in mind that the various breaches had a differential financial impact on Mr Paynting. The failure to pay him for overtime hours worked on weekdays accounted for well over half the shortfall. The bulk of this sum is attributable to a failure to comply with Clause 12.5. The next most serious shortfall was in the payment of ordinary hours. Again, it was the failure to take into account Mr Paynting's entitlement to the casual loading which was the main contributor to this underpayment. The underpayments for Saturday, Sunday and public holiday work were relatively minor. 30 Another factor which must be taken into account in the fixing of pecuniary penalties for multiple breaches of statutory stipulations is the totality principle. This principle is designed to ensure that the aggregate of the penalties imposed is not such as to be oppressive or crushing. Different views have been expressed as to the manner in which the principle ought properly to be applied. On one view the starting point should be the determination of an appropriate total penalty. That figure would then be divided by the number of breaches to produce a penalty for each breach: see CPSU v Telstra Corporation Limited (2001) 108 IR 228 at 230[7]. The orthodox position, however, which I consider should be adopted, is that the starting point is the determination of appropriate penalties for each contravention of the statutory norm. The aggregate figure is then considered with a view to ensuring that it is an appropriate response to the conduct which led to the breaches: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53. See also Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [145] per Jessup J. This approach was recently described, in the criminal context from which the totality principle is derived, as "the orthodox, but not necessarily immutable, practice" adopted by sentencing courts: see Johnson v R [2004] HCA 15 ; (2004) 205 ALR 346 at 356[26] per Gummow, Callinan & Heydon JJ.


case_text: The parties' agreement about the identification of the terms which had been breached was founded on the construction of s 178(2) which was adopted by Gray J in Gibbs v The Mayor, Councillors and the Citizens of the City of Altona (1992) 37 FCR 216 at 223. His Honour there held that "each separate obligation found in an award is to be regarded as a 'term', for the purposes of s 178..." His Honour further held that, in ascertaining what constitutes a 'term', regard should be had "not [to] matters of form, such as how the award maker has chosen to designate by numbers or letters the various provisions of an award, but on matters of substance, namely the different obligations which can be spelt out." In the present case the parties have fixed on the particular provisions of the Award to which it was necessary to have resort for the purpose of calculating Mr Paynting's minimum legal entitlements to wages. In my view the parties were correct to approach the matter in this manner. The six "terms" which have been identified applied throughout the relevant period and, depending on the days of which Mr Paynting worked, imposed obligations on the respondents as to the level of remuneration payable to him. Whilst the Award was varied from time to time to increase the amounts prescribed by the various terms, the substantial obligation did not vary: it was that the prescribed amount should be paid to Mr Paynting. 12 When calculating Mr Paynting's entitlements under the Award for any given day, it was necessary, in many instances, to have regard to more than one of the aforementioned terms. For example, in the period between 8 February 2001 and 23 June 2004, when he was working on a casual basis, his ordinary hourly rate was supplemented by the casual loading and, if the work was undertaken on a Saturday, a further loading was payable. 13 The parties have agreed that the breaches of particular terms led to the following underpayments: (a) Underpayment of wages for ordinary hours: (i) Clause 12.5.3: $21,711.17 (ii) Clause 15.1: $3,486.60 (b) Underpayment of wages for overtime hours Monday to Friday: (i) Clauses 12.5.4 and 37.2: $38,233.64 (ii) Clause 37.2: $23,468.85 (c) Underpayment of wages for Saturday hours: (i) Clauses 12.5.4, 33.2.1 and 37.2: $2,223.45 (ii) Clauses 33.2.1 and 37.2: $460.82 (d) Underpayment of wages for Sunday hours: (i) Clauses 12.5.4 and 35: $4,838.39 (ii) Clause 35: $1,941.87 (e) Underpayment of wages for public holiday hours: (i) Clauses 12.5.4 and 42.7.1: $79.09 (ii) Clause 42.6.1: $220.88


case_text: In Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Mowbray FM identified "a 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". Those considerations were derived from a number of decisions of this Court. I gratefully adopt, as potentially relevant and applicable, the various considerations identified by him. They were: • The nature and extent of the conduct which led to the breaches. • The circumstances in which that conduct took place. • The nature and extent of any loss or damage sustained as a result of the breaches. • Whether there had been similar previous conduct by the respondent. • Whether the breaches were properly distinct or arose out of the one course of conduct. • The size of the business enterprise involved. • Whether or not the breaches were deliberate. • Whether senior management was involved in the breaches. • Whether the party committing the breach had exhibited contrition. • Whether the party committing the breach had taken corrective action. • Whether the party committing the breach had cooperated with the enforcement authorities. • The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and • The need for specific and general deterrence. The parties accepted that these considerations should guide the exercise of my discretion in the present proceeding. 15 The various breaches of Award terms which occurred in this case can all be traced to a single source. That source was the decision, made by the first respondent, to offer Mr Paynting employment at an hourly rate. Mr Paynting accepted that offer. Throughout the relevant period Mr Paynting was paid, either at the originally agreed rate, or, subsequently, at higher agreed rates. The wages paid to Mr Paynting were calculated on the basis of the agreed hourly rates. Over a period of a little more than five years this led to the underpayment of $96,664.76 in wages which would have been paid to him had the Award requirements been observed. This underpayment represented about a third of Mr Paynting's wages entitlement under the Award. The amount is significant. Although the shortfall was paid in full to Mr Paynting in April 2007 he was deprived of the financial benefits which timely payment of the correct wages would have provided. 16 The respondents operate their business, in what was described in argument as, "an informal partnership". The first respondent ceased formal eduction at the end of Year 8; the second respondent at the end of Year 9. The business operates from a base in rural Victoria. The first respondent is one of six drivers employed in the business. The second respondent works one day a week in the business attending to the payment of wages and accounts rendered. Day to day administration is in the hands of an employed manager. The turnover of the business has fluctuated over time. Between 1996 and 2006 the turnover in each year has fallen within the range of $1.2 million to $1.5 million. The average operating profit over this period, prior to any drawings by the respondents, has been $64,383 per year. In order to make good the underpayment to Mr Paynting it was necessary for the business to extend its overdraft. Apart from an accountant, the business had no external professional advisers. In particular, it did not retain anyone with expertise in industrial law. The respondents were not members of any employer or industry association. 17 The respondents gave uncontradicted evidence that, at all relevant times, prior to June 2006, they were unaware of the existence of the Award or of its application to their business. This was despite the fact that a series of certified letters which related to the making of the Award and its predecessors and the respondency of the business to it was sent to their business address. There was no evidence as to why this correspondence did not come to the respondents' attention or, if it did, why they had overlooked it. Counsel for the respondents accepted that there were avenues available to them which would have enabled them to ascertain their obligations had they been aware of those avenues and minded to utilise them. In these circumstances I infer that the respondent's ignorance of their obligations under the Award, on the view most favourable to them, was the result of carelessness and inadvertence. 18 As already noted the underpayments totalled $96,664.76. They occurred over a period of a little over five years and represented approximately one third of the amount to which Mr Paynting was entitled.


case_title: Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65


case_text: My Chambers indicated to Burness that I did not want any further written submissions or further affidavit material from him in response to the defendants at this stage in the proceeding. By a subsequent letter dated 4 January 2006, my associate drew the parties' attention to Burns Philp Investments Pty Ltd v Dickens (1993) 11 ACLC 525; GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218 at 228; and Re Glowbind Pty Ltd (in Liq); Takchi v Parbery [2003] NSWSC 1190 ; (2003) 181 FLR 208 and invited their submissions on these cases, as well as costs, including the position of RAM Parts. 41 Section 536 gives the Court a discretionary power: that is, it " may inquire into the matter" (emphasis added): see Re Glowbind Pty Ltd (in Liq); Takchi v Parbery [2003] NSWSC 1190 ; (2003) 181 FLR 208 (" Glowblind ") at 217 per Burchett AJ. Importantly, s 536 does not provide an automatic right to an inquiry upon application. As his Honour said in Glowblind at 217: "Where an inquiry under s 536 is appropriate, this will be because the court considers that inquiry to be 'in the public interest', and 'it is satisfied that there is a prima facie case' to justify subjecting the liquidator to it." See also Burns Philp Investments Pty Ltd v Dickens (1993) 11 ACLC 525 (" Dickens ") at 526, where Young J noted that "it is not in the public interest that anybody who feels that he or she or it has a grievance against the liquidator which they hope might be able to be proved in due course may set in train a full blown inquiry".


case_text: My Chambers indicated to Burness that I did not want any further written submissions or further affidavit material from him in response to the defendants at this stage in the proceeding. By a subsequent letter dated 4 January 2006, my associate drew the parties' attention to Burns Philp Investments Pty Ltd v Dickens (1993) 11 ACLC 525; GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218 at 228; and Re Glowbind Pty Ltd (in Liq); Takchi v Parbery [2003] NSWSC 1190 ; (2003) 181 FLR 208 and invited their submissions on these cases, as well as costs, including the position of RAM Parts. 43 With respect to the first two factors, the complainant must show more than inadvertent error or misjudgement on the liquidator's part. This is because s 536 does not provide a procedure for challenging a liquidator's decisions generally. Rather, the section "is concerned with aspects of the conduct of liquidators which are liable to attract sanctions or control for what might be broadly described as disciplinary reasons": GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218 at 228 (" GIS Electrical ") per Steytler J with whom Templeman and Miller JJ agreed; also Glowblind at 217. This is seen in the language directing the Court's attention to whether the liquidator has "faithfully" performed his or her duties. 46 First, save for costs, the defendants no longer have a proprietary or pecuniary interest in the outcome of the application to set aside the warrant. This factor weighs against conducting an inquiry: see GIS Electrical at 233. Moreover, the factor has particular force in this case because the defendants voluntarily settled all remaining disputes concerning the property seized under the warrant. This can be contrasted to the facts of GIS Electrical where the complainant (who alleged overpayment of liquidator's fees) had no stake in an inquiry because a secured creditor would have recovered any returned fees ahead of the complainant. Here, the defendants have no stake in the outcome of an inquiry because of their own actions. 47 In weighing this factor, it is irrelevant that the defendants concluded the settlements as a matter of practical expedience. Parties entering into settlements may have many different reasons for agreeing to settle a dispute that is before the Court and in the ordinary case the Court will not inquire into them. As to the defendants' allegation that they were "bullied" into settlement, it must be borne in mind that the compromise that led to the consent orders of 10 October 2005 was concluded by the parties' legal representatives. At various times, all the defendants have had the benefit of legal representation. If indeed any defendant wanted to apply to set aside an agreement reached with Burness on any proper ground, then that defendant would be required to make such application in a separate proceeding. 48 The Court is no longer in a position to remedy any prejudice allegedly suffered by the defendants as a result of the warrant. When they filed their application, Edwards affirmed that: " [I] t is unfair and prejudicial to Ann Langdon; Max Latimer; Robert McDermott and Murray Dewar to have the onus of proving ownership in circumstances when they have to give evidence where the Liquidator will seek to cause those persons to incriminate themselves where there is no basis for the Warrant in the first place." As they have now settled the disputes concerning the vehicles, the defendants will no longer be asked to prove ownership of the vehicles. Paradoxically, the defendants would only be subject to cross-examination on these issues if the defendants' application were to proceed to trial. 49 The Court may consider delay by a complainant as a factor weighing against further inquiry: see GIS Electrical at 233. Delay is of particular importance in this case. Even if I were to accept that McDermott and Latimer were at some stages unable to challenge the warrant on account of their financial hardship and McDermott's bankruptcy, this does not excuse the extremely lengthy delay. The defendants, including McDermott and Latimer, were able to contest the plaintiff's application to dispose of the vehicles. For example, McDermott, Latimer and Langdon filed a statement of facts and contentions on 29 October 2004 in connection with the plaintiff's application addressing many of the same issues that they raise now in support of the defendants' application to set aside the warrant. There is nothing in the material that they have now filed in the Court that would indicate that they could not also have challenged the warrant at that time. It is apparent that legal proceedings of this kind were contemplated by McDermott, Latimer and Martinek in December 2003 and January 2004. The fact that at a late stage in the history of the proceeding the defendants received advice from senior counsel that led them to make the defendants' application does not provide a sufficient explanation for the delay to justify the inquiry they seek. 50 Furthermore, the defendants have provided no reasonable explanation for the delay by McDonald, Giuffre(y) or Martinek, all of whom join in the application to set aside the warrant. There is no evidence that the financial state of McDonald, Giuffre(y) or Martinek was such as to disable them from making such an application at an earlier date. As already noted, McDonald, Giuffre(y) and Martinek filed affidavits seeking to explain why they agreed to compromise their claims and, in essence, claiming that they were very reluctant to settle with Burness. None of their accounts would provide an adequate excuse for the extraordinary delay in making the application to set aside the warrant. Overall, even if their respective accounts were accepted for present purposes, the defendants have not provided a reasonable excuse for their collective delay. 51 It is difficult to overemphasize the defendants' delay. Their application was not filed until over 20 months after the warrant was served. In that time, there had been extensive litigation concerning the disposal of property seized under the warrant. This litigation had proceeded to hearing where the defendants were represented by senior counsel. Nevertheless, the defendants did not file their application until over a month after this hearing started. In these circumstances, I find there was no reasonable excuse for this delay.