case_outcome: distinguished

case_text: The Tribunal Member held that the respondent's injury arose out of her employment. He relied on and sought to apply the decision of the High Court in Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115. The Member noted that in that case the fact that a serviceman's accident occurred on a military base after a social gathering was held to be a relevant matter as to whether the event arose out of Defence service. The Member considered that the High Court had adopted a broad interpretation of the words 'arose out of' in a particular section comparable to that to be considered under the Act, and that this broad interpretation was to be applied here. 13 On his application of the Roncevich principles, the Member said that the existence of several factors was sufficient to make the injury and the employment causally connected. They were: • the injury occurred at the RAAF Fairbairn site; • at the relevant time the respondent was living with the permission of her employer, which had been given pursuant to a policy issued by that employer; • in living at the base, the respondent was taking advantage of a financial benefit of her employment offered by her employer; and • the injury was occasioned by another RAAF employee living at RAAF Fairbairn at that time. 14 In reaching that finding, the Tribunal Member relied upon the 'ordinary meaning' of the words used in the definition of 'injury' in s 4 of the Act, namely 'arising out of ... the employee's employment'. Section 6(1)(a) of the Act provides an extended definition of 'arising out of' employment, but the Tribunal thought it not necessary to rely on that provision. Nevertheless, the Tribunal found that, had it been necessary to turn to that provision, it would have the effect that the respondent's injury 'arose out of' her employment. 15 The Tribunal Member also found that the respondent's injury occurred in a period between two discrete episodes of work, and therefore could not be said to have arisen 'in the course of' her employment. 24 The applicant pointed out that the expression 'arising out of' poses a test which is not satisfied by a merely temporal connection. Rather, a causal connection is necessary: Roncevich . So much was common ground. The applicant submitted that the Tribunal had failed to observe and apply this test, and that instead (and erroneously) the Tribunal had treated merely temporal factors as sufficient to establish causation. The applicant argued that no causal connection existed between the respondent's injury and her employment. Relying on March v Stramare [1991] HCA 12 ; (1991) 171 CLR 506, Carslogie Steamship Co Limited v Royal Norwegian Government [1951] UKHL 4 ; [1952] AC 292, and Chappel v Hart [1998] HCA 55 ; (1998) 195 CLR 232, the applicant asserted that a causal connection between 'employment' and 'injury' can only exist when some aspect of the employment can properly be said to have increased the risk of the injury being sustained. Temporal factors which merely secure the presence of the claimant at the place where, or at the time when, he or she is injured are not enough to forge a causal connection with the injury without that increase in risk: March v Stramare per Mason CJ at 516.5. That doctrine, adopted for tortious liability also applies in workers' compensation cases: the test is the same. In Migge v Wormald Bros Industries Limited (1972) 2 NSWLR 29 at 44, in a judgment endorsed by the High Court on appeal, see Migge v Wormald Bros Industries Limited (1973) 47 ALJR 236 per Barwick CJ, McTiernan, Menzies, Gibbs and Stephen JJ), Mason JA said: 'Moreover, the expression takes up the concept of causation as it is known to the law, without seeking to modify it. In Baker v Willoughby in an opinion which commanded the assent of a majority of the House Lord Reid said that causation in tort does not differ from causation under the workers' compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasized repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.' (References omitted.) I note that the question in Migge was one of whether an injured worker who decided to undergo an operation against medical advice had thereby introduced a novus actus interveniens so as to break a causal chain of claimed incapacity necessitated by the relevant statutory phrase: 'results from'. 25 In light of these authorities, the applicant argued that it was incumbent upon the Tribunal to ask itself, and answer, the following question: did any of the four factors identified by the Tribunal separately, or in combination, increase the risk of the respondent being injured? The Tribunal had not asked itself this question, as demonstrated by the absence of any reasoning directed to that topic in the 'Reasons for Decision'. Rather, the Tribunal identified temporal factors which merely secured the presence of the respondent at the place where, and at the time when, she was injured. The applicant argued that, however broad an interpretation is given to the words 'arising out of', they still pose a test of causation which is not satisfied by merely temporal connections (of time and place). 26 The applicant submitted that the four factors relied upon by the Tribunal were simply contextual factors which helped explain the time and place at which the respondent sustained her injury. Those factors would have been rendered wholly immaterial had the respondent decided to go away from the base for the time she was rostered off. While, in one sense, it may be true to say that, were it not for the respondent's employment she would probably never have met the assailant and would not have been living on the RAAF Fairbairn base etc, and so may never have sustained the particular injury in question, the 'but for' test has been decisively rejected as a reliable test of causation, in favour of common sense. Thus, while it was conceded that, but for the respondent's decision to stay on the RAAF Fairbairn base during her rostered time off, she would not have been injured at that time and place, as a matter of common sense causation, that decision could not be regarded as causally related to the employment nor to the injury itself. 27 Counsel argued that the true basis for the Tribunal's finding that the respondent's employment caused her injury arose from only two factors: first, that she and another employee were permitted to live on the RAAF Fairbairn base; and second, that the injury occurred on the base as a result of the actions of that other employee. Thus, although the Tribunal purportedly identified four relevant factors, all four related to 'living on Base'. 28 The applicant also distinguished Roncevich. The army base where the accident occurred in Roncevich was also the veteran's place of work, RAAF Fairbairn was not the respondent's place of work. The social function the respondent attended was not work-related, whereas in Roncevich it was. Unlike Roncevich , the respondent consumed no alcohol supplied or subsidised by the RAAF at that social function. Similarly, in the present case, there was no expectation on the part of the RAAF that the respondent consume alcohol at that social function, let alone to the point of intoxication such an expectation existed in Roncevich . Finally, in the present case, and unlike the circumstances in Roncevich , the respondent's injury did not occur in the course of a momentary break in attending to work-related matters. Rather, she had not worked the day before and she was not rostered for duty the next day. 29 The applicant argued that in Roncevich , the High Court had in fact, though sub silentio , considered that various work-related factors could properly be regarded as having increased the risk of injury particularly Mr Roncevich's work-induced intoxication. Those employment factors were not mere ingredients in the context (or scene-setting) of the serviceman's injury. So much could be seen from the following : • the High Court emphasised that to satisfy the 'arising out of the ... employment' test connection between employment and injury must be a causal one; • in context, the Court used the word 'temporal' of or denoting time or time and space'; • the Court had really considered that it was open to conclude that Mr Roncevich's injury 'arose out of or was attributable' to defence service because such service materially increased the risk of injury by entailing that Mr Roncevich had to iron his uniform for the next day; and • Roncevich is consistent with the causal factors being confined to work-related factors which increased the risk of injury. 30 In the alternative, the applicant submitted that, if the Court should take the view that the Tribunal had not conflated temporal and causative factors, the Tribunal had failed to give any reasons as to why the four factors which it relied upon were regarded as having increased the risk of injury to the respondent. 44 This overlap was said to be significant in light of the High Court's decision in Roncevich , Hatzimanolis and Danvers . However, the latter two cases are both akin to 'camping out' cases. They turned on the application of the 'in the course of the employment' test. No question arises before me as to that conception in the present case. 45 Here, the respondent was entitled to apply to live on base as a term and condition of her employment, and it was financially beneficial for her to do so. The respondent argued that, by this financial inducement to her, the RAAF thereby 'invited' or 'encouraged' her to take up the option, such that her case was not materially distinguishable from Danvers where a peripatetic railway worker was free, but it was not practicable, for him to reside other than in the railway van provided. 46 The respondent asserted that whilst living on base she was 'no doubt' subject to military discipline. This element and the fact that the injury occurred on the base, were factors identified by the High Court in Roncevich as relevant to the finding of a causal nexus. The significance of these matters must, I think, be conceded as tending against the applicant's asserted 'increased risks' requirement. I note that there was, however, no finding about military discipline here, nor was there any exploration of the military instruments which might, as a matter of law, have settled the matter. 47 The respondent relied on Tuite as authority that there is no need for a claimant to show that the incidents of service life materially increased the risk of the particular injury. Davies J said at 542: 'If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury ..., it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere ... . The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease'. However, in Tuite the Court acknowledged that there is a distinction between the operative cause of an injury and the mere provision of a setting for it. 54 It is a question of law whether there is any evidence sufficient to find that a statutory test of the kind here in question has been complied with. This is not a case of ordinary words with a plain meaning but of a compound statutory concept employing what have become terms of legal art, or something close to them: Roncevich at 123. The revised questions of law are adequate to engage the Court's jurisdiction. Had my conclusion been different, I would have reformulated them a little before answering them. 55 Counsel for the applicant ably made a respectable argument as to the meaning of the phrase 'injury ... arising out of ... the employee's employment'. In the view I take it is neither necessary nor desirable that I resolve that question to finality. I am however inclined, on a tentative basis, to think that the requirement asserted by the applicant that the employee must show some elevation of the risk of the injury sustained, which elevation must result from the employment, is mistaken and that it is enough that there can be shown, as a matter of common sense, some substantial link or connection with the employment which is causal and not merely temporal. Among other things, some of the matters regarded by the High Court in Roncevich as relevant to the 'arising out of ... test' were not, it would seem, of any notable relevance to a restricted view of causation, such as that urged by the applicant, but were relevant to the less restrictive view I am inclined to favour. Questions might, however, possibly arise as to whether the test so stated could, as a matter of law, be satisfied by the matters to which the Senior Member referred. 56 Roncevich is, as the applicants argued, clearly distinguishable on the facts of the present case. The 'in the course of the employment' test was not available in that case. It might be thought that its facts would readily fit within such a conception. Such a factor may well assist to provide evidence also of a causal, as well as a temporal link. 57 It must be acknowledged that, on the scant known facts, this case would, if it fits at all within the meaning of 'arising out of ....', without its s 6(1)(a) extension, sit at the very margins of the concept. 58 It is unnecessary to proceed further down that track because, in my view, for the reasons I give below, s 6(1)(a) compels the rejection of the applicant's case. It is undesirable to do so because many potentially relevant facts appear not to have been elucidated, for example: How long was Ms Roberts' posting in Canberra? To what extent was there any real advantage to the military in having her quartered where she was? What was the extent of any encouragement by the RAAF for her to live on the Base as distinct from elsewhere? Had her assailant become drunk at the Base 'Club'? Was the 'Club' organised by the Air Force? Were personnel smiled on, as in Roncevich, for drinking heartily or even more than that? Was the assailant, on that account, affected by liquor? Did disinhibition by liquor account for his behaviour? Was the respondent, on account of a RAAF-tolerated drinking culture, so affected? If so, did the influence of alcohol lead to any lack of care by her as to providing, unwittingly, the opportunity for her assailant to intrude upon her by leaving her window open on a May night in Canberra? Was she, at the time, subject to military discipline? Why was the matter solely investigated in a military context without calling in the civilian police? The answers to questions like these may have assisted one party or the other notwithstanding that, apparently, they were not forensically elucidated by either party for the Tribunal's benefit. 59 It is unnecessary to deal with the applicant's major submission because, in my opinion, the Senior Member's alternative basis for his conclusion, namely reliance on s 6(1)(a), is not shown to be affected by any error of law.


case_outcome: discussed

case_title: Schmid v Comcare (2004) 77 ALD 782

case_text: The only cases dealing with s 6(1)(a) are Kennedy and Schmid v Comcare (2004) 77 ALD 782. In Schmid , Weinberg J took a similar approach to that of Tamberlin J in Kennedy . His Honour considered that it could not have been Parliament's intention that the 'but for' test should be construed literally: a degree of 'proximity', going beyond temporal connections of time and place, was required under s 6(1)(a). This approach was said to be consistent with that taken by McMahon D P in Re Mulligan and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1995) 36 ALD 699. 61 In that sense, a 'commonsense or practical' approach (per Tamberlin J in Kennedy ) or a requirement for some degree of 'proximity' (per Weinberg J in Schmid ) may be necessary to confine the unbounded logical possibilities of a 'but for' test within limits that may be imputed to the legislature as acceptable. Courts must take care however, lest in the guise of avoiding a construction that would result in a clear anomaly, they try to rewrite a legislative provision closer to their own, and possibly highly contestable, views of what would be a fair and 'common sense' law to deal with the subject at hand.


case_outcome: referred to

case_text: application of O 11 r 16 should now be considered in the light of the principles discussed in relation to s 31A: see Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers) [2006] FCA 1416 at [11] , namely that a proceeding need not be hopeless or bound to fail before the Court can strike out a pleading or part of a pleading. In deciding whether to strike out, the Court must have regard to the adequacy of the pleading and must take the evidence at its highest. That is, the Court must assess the pleadings as if the facts alleged are true: see ACCC v Alice Car & Truck Rentals Pty Ltd (unreported, O'Loughlin J, 5 March 1997). The Court should err on the side of striking out rather than giving summary judgment where the underlying complaint of a pleading supports a reasonable cause of action, although the pleading itself has deficiencies: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691 at [1] . ISSUES NOW AGREED Quantum of Pecuniary relief


case_outcome: followed

case_text: to s 43 of the Court Act, the Court has an unfettered general discretion in respect of the award of costs, provided that such discretion is exercised judicially: see Ruddock and Others v Vardarlis and Others (No 2) (2001) 115 FCR 229 at [9]. The general rule is that costs follow the event: see Ruddock at [11]. In AWB Ltd v Honourable Terrance Rhoderic Hudson Cole (No 6) [2006] FCA 1274 , Young J, at [16]-[17], ordered each party to pay their own costs, given that each had achieved a ' substantial measure of success '. His Honour could not find that either party could be considered the ' successful litigant '.


case_title: Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers) [2006] FCA 1416


case_text: observations of French J in Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [19] - [21] are particularly useful in distinguishing between the requirements for a summary judgment under s 31A and a strike out as discussed below. His Honour observed that s 31A renders judgment, and is thus distinct from a strike out, which can be followed by the amendment of a pleading. Thus judgment should only be entered where no amendment of pleadings or particulars is possible, that is, where there is a defect in the pleadings which cannot be cured. Order 11 rule 16 of the Rules Order 11 rule 16 of the Rules provides: Where a pleading− (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause, prejudice, embarrassment or delay in the proceeding; or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.


case_text: test which was applied generally on an application for summary judgment prior to insertion of s 31A in the Court Act was that referred to in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others [1964] HCA 69 ; (1964) 112 CLR 125. At 129 Barwick CJ determined the test to be applied where an application is made to strike out a claim. His Honour said: At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument" ; "so to speak apparent at a glance". Section 31A of the Court Act has been said to impose a less stringent test than that described in General Steel Industries and may be understood to enable summary dismissal of unmeritorious matters: see Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 at [26] and Gordon J in Jefferson Ford at [124]. Gordon J at [126] said that ' whether a proceeding or part of a proceeding has no reasonable prospects of success ' requires: 1. identification of the cause of action pleaded; 2. identification of the pleaded facts said to give rise to that cause of action; 3. a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; 5. identification of any facts pleaded which are said to give rise to the defence; and 6. a review of the evidence (if any) tendered in defence of the claim.


case_text: International Writing Institute Inc v Rimala Pty Ltd and Another (1995) 57 FCR 135 the Full Court said (at 139): Conversion occurs when goods are dealt with in a manner inconsistent with the rights of the owner, but this must be clear... Whilst it is possible that conversion occurs at some different point...the sale of the goods will, generally speaking, provide the necessary certainty. Crucially, in relation to s 116 of the Copyright Act , the conduct referred to in paragraphs 67A to 67E attaches to conversion of an ' infringing copy '. The term ' infringing copy ' is relevantly defined in s 10 of the Copyright Act to mean ' a copy of the film... being an article (which may be an electronic reproduction or copy of the...film) the making of which constituted an infringement of the copyright in the...film '. The word ' copy ' is defined to mean ' any article or thing in which visual images or sounds comprising the film are embodied '. Findings relating to the conversion claim For the reasons considered hereunder, the Court concludes that the existing pleadings are deficient.


case_outcome: considered

case_text: has been a judicial difference of opinion in two recent decisions of the Full Court concerning the interpretation of s 31A: see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60 ; (2008) 167 FCR 372 and Wills v Australian Broadcasting Corporation (2009) 253 ALR 228. Section 31A of the Court Act has been said to impose a less stringent test than that described in General Steel Industries and may be understood to enable summary dismissal of unmeritorious matters: see Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 at [26] and Gordon J in Jefferson Ford at [124]. Gordon J at [126] said that ' whether a proceeding or part of a proceeding has no reasonable prospects of success ' requires: 1. identification of the cause of action pleaded; 2. identification of the pleaded facts said to give rise to that cause of action; 3. a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; 5. identification of any facts pleaded which are said to give rise to the defence; and 6. a review of the evidence (if any) tendered in defence of the claim. Despite some difference in the judicial approach of Finkelstein J and Gordon J in Jefferson Ford , the Court is prepared to follow the observations of Gordon J as providing a practical guide to the interpretation of s 31A of the Court Act. The conflict between Gordon J and Rares J in Jefferson Ford (see [129], [73]) and which was not resolved in Wills , relating to whether judges retain a general discretion to enter summary judgment under s 31A, is irrelevant to the current judgment, and accordingly it is unnecessary for the Court to consider the conflicting judicial opinions.


case_outcome: cited

case_text: 31A of the Court Act has been said to impose a less stringent test than that described in General Steel Industries and may be understood to enable summary dismissal of unmeritorious matters: see Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 at [26] and Gordon J in Jefferson Ford at [124]. Gordon J at [126] said that ' whether a proceeding or part of a proceeding has no reasonable prospects of success ' requires: 1. identification of the cause of action pleaded; 2. identification of the pleaded facts said to give rise to that cause of action; 3. a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; 5. identification of any facts pleaded which are said to give rise to the defence; and 6. a review of the evidence (if any) tendered in defence of the claim.


case_title: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (No 2) [2008] FCA 691


case_title: Oakley v Lyster [1931] 1 KB 148

case_text: relies upon the principles referred to in Oakley v Lyster [1931] 1 KB 148 at 153 in support of its contention that the tort of conversion involves deliberate intent. The principles concerning conversion under s 116 have been considered recently by the Full Court in Venus Adult Shops Pty Ltd and Others v Fraserside Holdings Ltd and Another [2006] FCAFC 188 ; (2006) 157 FCR 442 at [85] to [94]. At [88] the Full Court said: The essence of conversion is interference with a right of possession. It is nevertheless properly described as a "varied and somewhat amorphous tort" serving two distinct functions. One function is tortious, whereby it compensates a person deprived of the use of goods. However it also acts as a "surrogate for the Roman vindicatio ; that is, in order to give a dispossessed owner the means to recover his goods in specie , or if that is not appropriate their market value" − Tettenborn, Wiley and Bennett; The Law of Damages (LexisNexis UK, 2003) p 294. The conduct which may constitute conversion is diverse. It has been said to include: (i) refusal to return; (ii) taking; (iii) receipt; (iv) disposal or deprivation of title; (v) destruction; (vi) loss as a bailee; (vii) keeping. The diversity of that list raises questions about the universal appropriateness of a "market value" approach to the assessment of damages − Tettenborn A, "Damages in Conversion: the Exception or the Anomaly" (1993) 52 CLJ 128. Relying upon the observations in Oakley v Lyster , iiNet has also submitted that conversion is an intentional tort, and Roadshow's pleadings relating to this cause of action are thereby deficient for failing to plead this integer. Such contention raises the question whether intentional dealing with the property of Roadshow is an integral requirement of the tort of conversion. As such contention is arguable, the Court concludes that to strike out the pleading on the basis that intentional dealing is not pleaded or to arrive at an interlocutory judgment on such question is inappropriate. This issue will require detailed argument at the hearing. Paragraph 67F of the ASOC primary infringement claim In addition to Roadshow's claim that the iiNet users have infringed copyright in the films and that iiNet has authorised such conduct, Roadshow relies upon some of the same paragraphs as the conversion claim in support of a claim that iiNet itself has infringed the copyright in the films ('primary infringement'). The fact that paragraph 67F refers only to paragraph 67B(b) for such claim, together with the Amended Particulars, suggests that Roadshow alleges the primary infringement claim only arises from the data which is stored transiently in iiNet's facilities and which was discussed at [46] of this judgment, and not the transmission of such data. The issues the Court has raised regarding the definition of ' infringing copy ', and whether that could apply on the facts pleaded, do not arise in relation to this claim. If it is found that there was transient storage of the whole or substantial part of the films, this may give rise to there being a ' copy ' for the purposes of s 86(c) of the Copyright Act , and consequently the problems discussed above in relation to ' electronic transmission ' do not apply. The Court finds no deficiency in the pleading of the primary infringement claim. Separate hearings The Court now considers iiNet's claim in paragraph nine of its Notice of Motion for a separate determination of the issues relating to the 86 identified films from the other films in the catalogue of Roadshow.


case_title: Ruddock and Others v Vardarlis and Others (No 2) (2001) 115 FCR 229


case_title: Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878

case_text: Roadshow establishes an infringement of copyright in the 86 films, such finding may provide a basis to extend any injunctive relief to the whole film catalogue. Such an order was made in Kazaa at 94 and Universal Music Pty Ltd v Cooper [2005] FCA 1878 , in proceedings which are not dissimilar to the current proceedings. The Court considers that it would not be appropriate for the hearing to be limited only to the 86 identified films, and accordingly rejects iiNet's motion. ROADSHOW'S MOTION Paragraph 63 of the Defence Adequacy of iiNet's Defence Roadshow, by paragraph three of its Notice of Motion, seeks to have paragraph 63(l) of the Defence struck out. Paragraph 63 of the ASOC alleges, inter alia, that iiNet took no action to cause the alleged infringements of copyright by iiNet's users to cease. Paragraph 63(l) of the Defence which responds in part to such claim states that notifications made by the AFACT to iiNet, using data collected by DtecNet of allegedly infringing iiNet users, ' were mere allegations of copyright infringement '. Roadshow submits that the statement that the notifications constitute ' mere allegations ' uses terminology which is not a term of art, nor is it found in the copyright legislation. The Court has no difficulty in understanding such pleading as being a statement that the AFACT notifications did no more than bring to iiNet's attention an allegation of copyright infringement. Whether the notifications from DtecNet of alleged infringement are sufficient to prove infringement by iiNet's users or might be used as evidence that iiNet was aware of the infringement of its users is necessarily a matter requiring evidence and thus is a matter for determination at the hearing. So considered, there is nothing further which needs to be added to the pleading. The Court rejects Roadshow's assertion that such statement is inadequate.


case_text: the Court considers that it is appropriate that the issues of liability and the question of damages be separated, the Court will make such orders to separate liability from quantum of pecuniary relief such as occurred in Universal Music Australia Pty Ltd and Others v Sharman Licence Holdings Ltd and Others [2005] FCA 1242 ; 65 IPR 289 at 295 (' Kazaa ') and Universal Music Australia Pty Ltd and Others v Cooper and Others [2005] FCA 972 ; (2005) 150 FCR 1 at [148] . Sufficiency of certain paragraphs of iiNet's Defence


case_title: Universal Music Australia Pty Ltd and Others v Sharman Licence Holdings Ltd and Others [2005] FCA 1242 ; 65 IPR 289


case_text: relies upon the principles referred to in Oakley v Lyster [1931] 1 KB 148 at 153 in support of its contention that the tort of conversion involves deliberate intent. The principles concerning conversion under s 116 have been considered recently by the Full Court in Venus Adult Shops Pty Ltd and Others v Fraserside Holdings Ltd and Another [2006] FCAFC 188 ; (2006) 157 FCR 442 at [85] to [94]. At [88] the Full Court said: The essence of conversion is interference with a right of possession. It is nevertheless properly described as a "varied and somewhat amorphous tort" serving two distinct functions. One function is tortious, whereby it compensates a person deprived of the use of goods. However it also acts as a "surrogate for the Roman vindicatio ; that is, in order to give a dispossessed owner the means to recover his goods in specie , or if that is not appropriate their market value" − Tettenborn, Wiley and Bennett; The Law of Damages (LexisNexis UK, 2003) p 294. The conduct which may constitute conversion is diverse. It has been said to include: (i) refusal to return; (ii) taking; (iii) receipt; (iv) disposal or deprivation of title; (v) destruction; (vi) loss as a bailee; (vii) keeping. The diversity of that list raises questions about the universal appropriateness of a "market value" approach to the assessment of damages − Tettenborn A, "Damages in Conversion: the Exception or the Anomaly" (1993) 52 CLJ 128.


case_text: has been a judicial difference of opinion in two recent decisions of the Full Court concerning the interpretation of s 31A: see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60 ; (2008) 167 FCR 372 and Wills v Australian Broadcasting Corporation (2009) 253 ALR 228. Despite some difference in the judicial approach of Finkelstein J and Gordon J in Jefferson Ford , the Court is prepared to follow the observations of Gordon J as providing a practical guide to the interpretation of s 31A of the Court Act. The conflict between Gordon J and Rares J in Jefferson Ford (see [129], [73]) and which was not resolved in Wills , relating to whether judges retain a general discretion to enter summary judgment under s 31A, is irrelevant to the current judgment, and accordingly it is unnecessary for the Court to consider the conflicting judicial opinions.


case_text: One peculiarity of this appeal was that the application for review nominated a Post Office Box in Melbourne as the appellant's address for service. On 23 November 2000, a letter was sent to the Post Office Box, inviting the appellant to attend a hearing on 8 February 2001. Although a copy of that letter was also sent by facsimile to the appellant's representative, there was no requirement that the Tribunal do so since the provisions of the Act which were referred to in the case of SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199 at 207 had then not been enacted. 3 On 6 December 2000, the Tribunal received correspondence stating that the appellant intended to attend the hearing. That correspondence had a signature on it which purported to be the appellant's. When the matter came on for hearing before me, the appellant said that it was not his signature, and that this correspondence indicated to the Tribunal he intended to attend the hearing. The correspondence stated the appellant's name and provided the same residential address that he had previously given to the Department of Immigration and Citizenship (in Noble Park, Victoria) as his address for service. It is worth noting that the invitation to appear at the hearing had also been sent to that address. 4 Before the Federal Magistrate, the appellant gave evidence that, although he had lived at Noble Park in 2000, he had left there when he travelled to Sydney. Although the Federal Magistrate expressed concerns about the appellant's general credibility and was unsure whether he had left the Noble Park address by December 2000, his Honour considered it unnecessary to draw a conclusion on that matter. The Federal Magistrate found that there was nothing before the Tribunal which would to cause it to doubt that the appellant had received the notification of the hearing and intended to attend it. This was especially the case since the appellant never gave the Tribunal his telephone numbers. 5 In the opinion of the Federal Magistrate, the Tribunal was not required to conduct any other inquiry or follow any other procedure before determining the application in accordance with s 426A of the Act . The Federal Magistrate also found that there was no basis upon which to decide that s 425 of the Act was vitiated by any improper exercise of power or any other failure by the Tribunal. The decision of the Federal Magistrate at [14]-[18] deals with these matters in detail, and I can see no error in his Honour's or the Tribunal's reasoning. 6 Accordingly, the appeal is dismissed with. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 20 February 2008 The appellant appeared in person Counsel for the Respondent: Ms B. Nolan Solicitor for the Respondent: Sparke Helmore Lawyers Date of Hearing: 20 February 2008 Date of Judgment: 20 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/121.html


case_text: were made that each proceeding be listed for further hearing to determine whether the final form of relief might be influenced by the commencement on 1 July 2009 of the Fair Work Act 2009 (Cth), the Fair Work (Registered Organisations) Act 2009 (Cth) and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth); the dissolution of the interlocutory injunction made in the John Holland proceeding pending the trial of the action or further order; whether any order for costs ought to be made in either proceeding; and the steps that needed to be taken to determine the question of whether the Court should exercise its discretion to impose a pecuniary penalty on the CFMEU, the AMWU and the CEPU (which I will describe collectively as the respondents) in respect of the contraventions of ss 767(1) and 768(1) of the Act and if so in what amount and by reference to what considerations; and whether any penalty imposed on any of those respondents should be paid to John Holland or paid into the Consolidated Revenue Fund of the Commonwealth. By operation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), the repealed Workplace Relations Act 1996 (Cth) continues to apply to conduct that occurred prior to the repeal of the Act. John Holland and the CFMEU, the AMWU and the CEPU have agreed that declarations in the following terms ought to be made in QUD63 of 2009: An order declaring that the John Holland Pty Ltd Abbots Point Coal Terminal Expansion Workplace Agreement 2008 (the "Expansion Agreement") applies to work performed by employees of John Holland Pty Ltd at the Abbot Point Coal Terminal owned by the Ports Corporation of Queensland ("PCQ") in connection with PCQ's project to expand the throughput capacity of the Terminal to 50 million tonnes per annum (the "X50 Expansion"); An order declaring that the Expansion Agreement covers exhaustively all work to be performed by employees of John Holland Pty Ltd at PCQ's Abbot Point site in connection with PCQ's "X50 Expansion" project under contract Q08-004 between PCQ and John Holland Pty Ltd to the exclusion of any work which might be performed by members of the first, second and third respondents; An order declaring that the Bargaining Period Notices issued by the first, second and third respondents respectively on or about 20 November 2008 in relation to the operations of John Holland Pty Ltd at the Terminal pursuant to PCQ's "X50 Expansion" project are invalid and of no effect. Those parties also agree that there is no utility in granting a declaration in terms of paragraph 5 of the Further Amended Application filed by John Holland on 28 April 2009, which is framed in terms of conduct related to the repealed s 760 of the Act. Similarly, those parties agree that no order for a final injunction ought to be made and the interlocutory injunction ought to be dissolved. The parties propose to submit short minutes of an order to the Court for the dissolution of the interlocutory injunction. Declarations will be made under s 23 of the Federal Court of Australia Act 1976 and s 847 of the Act in the above terms.


case_text: reasons are to be read in conjunction with the reasons for judgment in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 786. In proceeding QUD63 of 2009, John Holland sought particular declarations as to the conduct; an injunction restraining the first, second and third respondents from engaging in any industrial action at or in connection with John Holland's X50 worksite operations at Abbot Point; an order imposing pecuniary penalties on each of the first three respondents pursuant to s 769 of the Act in respect of the contraventions of ss 767(1) and 768(1); and an order pursuant to s 841 of the Act that any penalties imposed on those parties be paid to John Holland. In proceeding QUD66 of 2009, the AMWU, the ETU and the CFMEU and Messrs Bradley, Lowth, Ong and Robinson sought declarations that John Holland had contravened ss 767(3) and 767(7) of the Act in hindering and obstructing the officials in their exercise of a contended right of entry to the X50 worksite on 19 November 2008, 13 February 2009 and 5 March 2009. Those applicants also sought an order for the imposition of a pecuniary penalty in respect of the contended contraventions, an order for payment of any pecuniary penalty to the Union applicants, and an order for payment of compensation to the officials.


case_text: Act confers on the Court the exercise of a statutory discretion as to whether the conduct warrants the imposition of a pecuniary penalty and if so the amount of the penalty up to a statutory maximum. The discretion is said to be "at large" ( A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6] per Gyles J) unaided by any mandatory statutory criteria.


case_text: the discretion is at large and informed by the particular circumstances of a contravention, the discretion should be exercised broadly according to settled principle which nevertheless recognises the important flexibility necessary to adapt the exercise of the discretion to particular conduct, the contextual circumstances of that conduct and any other matter relevant to the exercise of the discretion. Judges of this Court have sought to isolate principles or criteria informing the exercise of the discretion to impose a pecuniary penalty and the quantum of the penalty. The observations of Branson J in Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231 at [8] are well known and have been applied regularly in this Court (some examples of which are Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122 per Ryan J at [44]; Alfred v Walter Construction Group Limited [2005] FCA 497 per Branson J at [10]; Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237 per Branson J at [4]; Hadgkiss v Blevin [2004] FCA 917 per Conti J at [3]; Kelly v Fitzpatrick (2007) 166 IR 14 per Tracey J and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [39]; McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302; (2006) 158 IR 181 at [92]).


case_title: Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122


case_title: Alfred v Walter Construction Group Limited [2005] FCA 497


case_title: Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237


case_title: Hadgkiss v Blevin [2004] FCA 917


case_title: Kelly v Fitzpatrick (2007) 166 IR 14

case_text: the discretion is at large and informed by the particular circumstances of a contravention, the discretion should be exercised broadly according to settled principle which nevertheless recognises the important flexibility necessary to adapt the exercise of the discretion to particular conduct, the contextual circumstances of that conduct and any other matter relevant to the exercise of the discretion. Judges of this Court have sought to isolate principles or criteria informing the exercise of the discretion to impose a pecuniary penalty and the quantum of the penalty. The observations of Branson J in Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231 at [8] are well known and have been applied regularly in this Court (some examples of which are Australian Nursing Federation v Alcheringa Hostel Inc. (2004) 138 IR 122 per Ryan J at [44]; Alfred v Walter Construction Group Limited [2005] FCA 497 per Branson J at [10]; Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 237 per Branson J at [4]; Hadgkiss v Blevin [2004] FCA 917 per Conti J at [3]; Kelly v Fitzpatrick (2007) 166 IR 14 per Tracey J and Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [39]; McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302; (2006) 158 IR 181 at [92]). Branson J, in formulating observations at [8] in CFMEU v Coal & Allied Operations Pty Ltd (No. 2) recognised that the list of factors her Honour took into account was not intended to comprise an exhaustive list. Tracey J in Kelly v Fitzpatrick and Stuart-Mahoney v CFMEU formulated a potentially relevant checklist of considerations. These considerations are useful but the overriding principle is that identified by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 at [91] in these terms: Checklists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations. I have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B & P Caelli Constructions Pty Ltd & Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J. It is fair to say that that approach has not been generally supported in the authorities. Rather than commence the assessment by determining an overall penalty and then distributing the amount of that penalty amongst the various contraventions either arithmetically or by reference to a weighted distribution, the better approach to the application of the totality principle involves an assessment of a penalty appropriate to each contravention and then a final overall assessment of the sum of the penalties to consider whether the aggregate is "just and appropriate". This approach is consistent with Mill v The Queen (supra) and has been applied by Goldberg J in ACCC v Australian Safeway Stores Pty Ltd ; Jessup J in Ponzio v B & P Caelli Constructions; Jessup J in Williams v CFMEU (No. 2) [2009] FCA 548 and Tracey J in Kelly v Fitzpatrick (supra). The approach has been described by Gummow, Callinan and Heydon JJ in Johnson v R (supra) at [26] in these terms: The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency.


case_title: Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426


case_title: McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA1302; (2006) 158 IR 181


case_text: J, in formulating observations at [8] in CFMEU v Coal & Allied Operations Pty Ltd (No. 2) recognised that the list of factors her Honour took into account was not intended to comprise an exhaustive list. Tracey J in Kelly v Fitzpatrick and Stuart-Mahoney v CFMEU formulated a potentially relevant checklist of considerations. These considerations are useful but the overriding principle is that identified by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 at [91] in these terms: Checklists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations. I have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B & P Caelli Constructions Pty Ltd & Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J. Since this approach represents orthodoxy although not immutably so, it seems to me that it ought to be applied on the footing of assessing whether the overall result is just and appropriate having regard to the penalty imposed in respect of each contravention. I note the observations of Buchanan J in Australian Ophthalmic Supplies v McAlary-Smith at [97]. At [102] Buchanan J said this: The totality principle is a guide to sentencing practice. It must be adapted to the circumstances. It is designed to avoid injustice in the overall result. It is not a principle which suggests that a penalty should necessarily be reduced from an aggregate total fixed for multiple offences. Rather, it involves a final check to ensure that a total or aggregate penalty is not, in all the circumstances, excessive. It may not be.


case_title: Pearce v The Queen (1998) 194 CLR 610 at [40] and Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585

case_text: am conscious of the discussion of the principles directed to whether a number of events might be treated as one course of conduct. I particularly note the discussion in Pearce v The Queen (1998) 194 CLR 610 at [40] and Hamberger v Construction Forestry Mining & Energy Union [2002] FCA 585 and the important distinction between the principles relating to a course of conduct and the application of the totality principle ( Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 per Stone and Buchanan JJ at [41] to [58]. In Hamberger , Cooper J noted that the conduct which had occurred on 29 January 1999 and 26 February 1999 (about a month apart) was focused upon the removal of a particular person from a site because he would not join an industrial association. The conduct was unified by a common purpose and on each occasion directed to a particular individual. Accordingly, Cooper J treated the incidents as having arisen in a single course of conduct. His Honour noted that although part of a single course of conduct and thus not attracting a separate penalty in respect of each separate contravention, the persistence in the conduct over time was a circumstance of aggravation in assessing the culpability of the conduct viewed as a whole.


case_title: Hamberger v Construction Forestry Mining & Energy Union [2002] FCA 585


case_text: am conscious of the discussion of the principles directed to whether a number of events might be treated as one course of conduct. I particularly note the discussion in Pearce v The Queen (1998) 194 CLR 610 at [40] and Hamberger v Construction Forestry Mining & Energy Union [2002] FCA 585 and the important distinction between the principles relating to a course of conduct and the application of the totality principle ( Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 per Stone and Buchanan JJ at [41] to [58]. In Hamberger , Cooper J noted that the conduct which had occurred on 29 January 1999 and 26 February 1999 (about a month apart) was focused upon the removal of a particular person from a site because he would not join an industrial association. The conduct was unified by a common purpose and on each occasion directed to a particular individual. Accordingly, Cooper J treated the incidents as having arisen in a single course of conduct. His Honour noted that although part of a single course of conduct and thus not attracting a separate penalty in respect of each separate contravention, the persistence in the conduct over time was a circumstance of aggravation in assessing the culpability of the conduct viewed as a whole. I have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B & P Caelli Constructions Pty Ltd & Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J.


case_title: Mill v The Queen (1988) 166 CLR 59

case_text: have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B & P Caelli Constructions Pty Ltd & Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J. It is fair to say that that approach has not been generally supported in the authorities. Rather than commence the assessment by determining an overall penalty and then distributing the amount of that penalty amongst the various contraventions either arithmetically or by reference to a weighted distribution, the better approach to the application of the totality principle involves an assessment of a penalty appropriate to each contravention and then a final overall assessment of the sum of the penalties to consider whether the aggregate is "just and appropriate". This approach is consistent with Mill v The Queen (supra) and has been applied by Goldberg J in ACCC v Australian Safeway Stores Pty Ltd ; Jessup J in Ponzio v B & P Caelli Constructions; Jessup J in Williams v CFMEU (No. 2) [2009] FCA 548 and Tracey J in Kelly v Fitzpatrick (supra). The approach has been described by Gummow, Callinan and Heydon JJ in Johnson v R (supra) at [26] in these terms: The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency.


case_title: Johnson v R (2004) 205 ALR 346


case_title: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36


case_text: have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B & P Caelli Constructions Pty Ltd & Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J. It is fair to say that that approach has not been generally supported in the authorities. Rather than commence the assessment by determining an overall penalty and then distributing the amount of that penalty amongst the various contraventions either arithmetically or by reference to a weighted distribution, the better approach to the application of the totality principle involves an assessment of a penalty appropriate to each contravention and then a final overall assessment of the sum of the penalties to consider whether the aggregate is "just and appropriate". This approach is consistent with Mill v The Queen (supra) and has been applied by Goldberg J in ACCC v Australian Safeway Stores Pty Ltd ; Jessup J in Ponzio v B & P Caelli Constructions; Jessup J in Williams v CFMEU (No. 2) [2009] FCA 548 and Tracey J in Kelly v Fitzpatrick (supra). The approach has been described by Gummow, Callinan and Heydon JJ in Johnson v R (supra) at [26] in these terms: The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. One further matter should be mentioned in relation to the policy guiding the approach to imposing a penalty. In Ponzio v B & P Caelli Constructions (supra), Lander J at [93] put the principles in these terms with which I respectfully agree: There are three purposes at least for imposing a penalty: punishment; deterrence; and rehabilitation. The punishment must be proportionate to the offence and in accordance with the prevailing standards of punishment: R v Hunter . Therefore the circumstances of the offence or contravention are especially important. The penalty must recognise the need for deterrence, both personal and general. In regard to personal deterrence, an assessment must be made of the risk of re-offending. In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts . The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson . In some cases, although hardly in this type of contravention, rehabilitation is an important factor. [citations omitted] In Ponzio , Lander J was considering a contravention of s 187AA of the Act which prohibited an employer from making a payment to an employee in relation to a period during which the employee was engaged in industrial action. Previous contraventions The intervener has formulated a schedule consisting of 55 references to cases in which a pecuniary penalty was imposed on a Union involved in the present contraventions, in respect of previous breaches of the Act or the BCII Act or alternatively breaches by officials of one or more of those Unions. The applicant also relies upon these references. I advised the parties that I would only have regard to those cases within the schedule to which I was expressly taken and upon which the intervener and the applicant expressly rely. The previous contraventions relied upon are these.


case_text: have had regard to the discussion of the totality principle in Mill v The Queen (1988) 166 CLR 59 per the Court and particularly at 62-63; Johnson v R (2004) 205 ALR 346 and particularly per Gleeson CJ at [4] and [5] and per Gummow, Callinan and Heydon JJ at [26]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 per Goldberg J; Ponzio v B & P Caelli Constructions Pty Ltd & Ors [2007] FCAFC 65; 158 FCR 543 particularly per Jessup J at [145] to [147]; Mornington Inn Pty Ltd v Jordan (supra) and particularly per Stone and Buchanan JJ at [41] to [46]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (supra) per Gray J, per Graham J and per Buchanan J; Kelly v Fitzpatrick (supra) per Tracey J; and Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228 per Finkelstein J.


case_title: Williams v CFMEU (No. 2) [2009] FCA 548

case_text: is fair to say that that approach has not been generally supported in the authorities. Rather than commence the assessment by determining an overall penalty and then distributing the amount of that penalty amongst the various contraventions either arithmetically or by reference to a weighted distribution, the better approach to the application of the totality principle involves an assessment of a penalty appropriate to each contravention and then a final overall assessment of the sum of the penalties to consider whether the aggregate is "just and appropriate". This approach is consistent with Mill v The Queen (supra) and has been applied by Goldberg J in ACCC v Australian Safeway Stores Pty Ltd ; Jessup J in Ponzio v B & P Caelli Constructions; Jessup J in Williams v CFMEU (No. 2) [2009] FCA 548 and Tracey J in Kelly v Fitzpatrick (supra). The approach has been described by Gummow, Callinan and Heydon JJ in Johnson v R (supra) at [26] in these terms: The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. It seems to me that when Branson J formulated in CFMEU v Coal & Allied Operations Pty Ltd (No. 2) (supra at [17] of these reasons) a non-exhaustive list of considerations to be taken into account in the exercise of the discretion in respect of a contravention of what was Part XA of the Act, her Honour was not intending to convey the impression that by making reference to whether previous contraventions of Part XA of the Act had occurred, her Honour was suggesting that previous contraventions of other provisions of the Act or other contraventions relevant to the exercise of the discretion ought to be excluded from consideration. I respectfully agree with the observations on these matters of Jessup J in Williams v CFMEU (No. 2) and Dowsett J in Temple v Powell (2008) 173 IR 189 at [64]. I respectfully disagree with the approach adopted in Leighton Contractors Pty Ltd v CFMEU (2006) 164 IR 375 at 389 390 [67] per Le Miere J. I disagree in the sense that the exercise of the discretion ought not to be fettered by an exclusionary rule. Each case will turn on its own facts. Further, I do not accept that contraventions by a federally registered Union ought to be disregarded if the previous contraventions have occurred in a different geographical place from that within the area of responsibility of that part of the Union engaged in the contraventions under consideration in the imposition of a penalty. Otherwise, a Union registered under Commonwealth legislation operating nationally would be required to be treated as a collection of Balkan States rather than a nationally governed organisation conducting itself in a way consistent with the objectives of the Commonwealth legislation under which it is registered and legislation under which it operates in the modern Australian environment. In that sense, I respectfully agree with the observations of Kiefel J in Hadgkiss v CFMEU (2007) 162 IR 385 at [9] and [10]. The penalty


case_title: Standen v Feehan (2008) 175 IR 297

case_text: far as Part 15 of the Act is concerned the only penalty proceeding involving a contravention of the right of entry provisions is Standen v Feehan (2008) 175 IR 297 per Lander J (as to the contravening conduct) and (2008) 177 IR 276 (as to the penalty decision). Mr Feehan was an official of the CFMEU although the CFMEU was not a party to the proceeding. Mr Feehan in exercising powers of entry to premises under ss 285B and 285C of the Act intentionally hindered and obstructed a person in contravention of s 285E of the Act. A penalty of $1,300.00 was imposed on Mr Feehan. The maximum penalty was $2,000.00. As to questions of broader principle, Lander J considered at [16] of the penalty decision that punishment played some part in formulating a penalty for a contravention of the right of entry provisions but rehabilitation played no real part. Lander J was dealing with the imposition of a penalty on the individuals.


case_text: is also placed on Australian Building and Construction Commission v McLoughlin [2007] AIRC 717. The case involved conduct at a number of building sites by a CFMEU organiser in breach of entry provisions of the Act. The CFMEU was not a party to those proceedings. Reliance is also placed on Radisich v Buchan, Heath, Molina and the Construction, Forestry, Mining and Energy Union [2008] AIRC 324. In that proceeding before the Commission, an Australian Building and Construction Inspector sought orders for the suspension or revocation of entry permits issued under Part 15 of the Act to Buchan, Heath and Molina, officials of the CFMEU, on the footing that each official was said to have abused the right of entry in a number of ways including, at [7], [8] and [9], entering particular sites, failing to avoid unnecessary obstruction, refusing directions to leave, misleading the occupier as to a right of entry and intentionally asserting a right of entry. The actions of the officials were also actions of the CFMEU [10]. The conduct was also said to include attending sites with Mr McDonald, the Assistant State Secretary for the Construction and General Division Western Australia Divisional Branch of the CFMEU, at which Mr McDonald who did not hold an entry permit under Part 15 purported to exercise rights of entry. The CFMEU consented to orders ( PR 984581 , AIRC, Perth, 18 November 2008) involving the suspension of the permits of Buchan and Molina (Heath no longer being a Union official) and Orders 4, 5 and 6(a) in these terms: 4. The following condition is imposed on all current permits and all permits to be issued in the next 2 years in respect of the Construction and General Division, Western Australia Divisional Branch of the CFMEU: "The permit holder is not permitted to enter or remain on premises being construction sites in the company of, or in concert with, Joseph McDonald except where McDonald has been invited in advance on to those premises by an owner and has complied with the requirements of the direction in order 5." 5. A duly authorised officer of the CFMEU give written direction to Mr McDonald that Mr McDonald must not purport to rely on any right of entry under the Workplace Relations Act 1996 in order to facilitate access to construction sites when he in fact holds no right of entry permit under the Act. (a) The CFMEU not apply to the Registrar under s.740 of the Act for the issue of a permit to Mr McDonald for a period of 2 years from the date of this order. ... Mr McDonald of course was a senior official of the CFMEU.


case_title: Radisich v Buchan, Heath, Molina and the CFMEU [20008] AIRC 324


case_title: Alfred v Quirk [2008] AIRC 781

case_text: Alfred v Quirk [2008] AIRC 781 a CFMEU organiser, Mr Quirk, was found at [44] to have abused a right of entry to a worksite at Castle Hill to hold discussions with employees by refusing to produce at the lunch huts his entry permit for the inspection of the employer's site manager, Mr Sukkar, in breach of s 765 of the Act. The CFMEU was not a party to the proceeding. Reliance is also placed on Hadgkiss v Sunland Constructions Pty Ltd (2007) 161 IR 317 (in which the CFMEU was a party) (the substantive proceeding) and Hadgkiss v CFMEU (2007) IR 385 (the penalty proceeding) as an example of conduct on the part of the CFMEU and CFMEU (Qld) through an organiser, Mr Oskam, which is said to bear the same essential characteristics of misrepresentation central to the contraventions in issue in these proceedings. In the Hadgkiss case, Mr Oskam made false and misleading statements to employees of a company concerning their obligation to join the Union, in contravention of s 298SC of the Act which was taken, by operation of the Act, to be conduct of the Unions. The applicant and the intervener in these proceedings say that this case is analogically relevant as the contravening conduct affecting John Holland involved misrepresentations by the officials to the employees of the right of the officials to enter the X50 worksite and hold discussions with those employees.


case_title: Hadgkiss v CFMEU (2007) 161 IR 317


case_title: Hadgkiss v CFMEU (2007) IR 385


case_text: similar effect are Hadgkiss v CFMEU (No 3) (2007) 160 IR 263 (the substantive proceeding); Hadgkiss v CFMEU (No 4) (2007) 161 IR 338 (a penalty proceeding); Hadgkiss v CFMEU (No 5) (2008) 178 IR 123 (a penalty proceeding) and CFMEU v Hadgkiss (No 2) [2009] FCAFC 17; (2009) 174 FCR 237. Reliance is placed on Inspector Cruse v CFMEU (2008) 175 IR 447 (the substantive proceeding) and Cruse v CFMEU (No 2) [2008] FCA 1637 (the penalty proceeding) as an example of contraventions of ss 298SC and 170NC of the Act by the CFMEU. The Union was vicariously liable for the conduct of its delegate, Mr Fry. The conduct involved Mr Fry falsely telling a self-employed building contractor engaged to do work on a building site that he was required to join the CFMEU (the s 298SC breach) and falsely telling the contractor that he was required to enter into an enterprise bargaining agreement (the s 170NC breach).


case_title: Hadgkiss v CFMEU (No 4) (2007) 161 IR 338


case_title: Hadgkiss v CFMEU (No 5) (2008) 178 IR 123


case_title: CFMEU v Hadgkiss (No 2) [2009] FCAFC 17; (2009) 174 FCR 237


case_title: Inspector Cruse v CFMEU (2008) 175 IR 447


case_title: Cruse v CFMEU (No. 2) [2008] FCA 1637


case_title: Temple v Powell (2008) 173 IR 189

case_text: seems to me that when Branson J formulated in CFMEU v Coal & Allied Operations Pty Ltd (No. 2) (supra at [17] of these reasons) a non-exhaustive list of considerations to be taken into account in the exercise of the discretion in respect of a contravention of what was Part XA of the Act, her Honour was not intending to convey the impression that by making reference to whether previous contraventions of Part XA of the Act had occurred, her Honour was suggesting that previous contraventions of other provisions of the Act or other contraventions relevant to the exercise of the discretion ought to be excluded from consideration. I respectfully agree with the observations on these matters of Jessup J in Williams v CFMEU (No. 2) and Dowsett J in Temple v Powell (2008) 173 IR 189 at [64]. I respectfully disagree with the approach adopted in Leighton Contractors Pty Ltd v CFMEU (2006) 164 IR 375 at 389 390 [67] per Le Miere J. I disagree in the sense that the exercise of the discretion ought not to be fettered by an exclusionary rule. Each case will turn on its own facts. Further, I do not accept that contraventions by a federally registered Union ought to be disregarded if the previous contraventions have occurred in a different geographical place from that within the area of responsibility of that part of the Union engaged in the contraventions under consideration in the imposition of a penalty. Otherwise, a Union registered under Commonwealth legislation operating nationally would be required to be treated as a collection of Balkan States rather than a nationally governed organisation conducting itself in a way consistent with the objectives of the Commonwealth legislation under which it is registered and legislation under which it operates in the modern Australian environment. In that sense, I respectfully agree with the observations of Kiefel J in Hadgkiss v CFMEU (2007) 162 IR 385 at [9] and [10]. The penalty


case_title: Leighton Contractors Pty Ltd v CFMEU (2006) 164 IR 375