case_text: The relevant principles are gathered together by French J (as he then was) (with whom Tamberlin J agreed) in Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020 ; (1999) 93 FCR 365 at [49] and [50] (pp 382 383) as follows: 49 The question of fact for the Court on an appeal from the Registrar in a case of alleged deceptive similarity between marks was posed by the High Court in Australian Woollen Mills Ltd v F S Walton & Co Ltd at 658: "whether in fact there is such a reasonable probability of deception or confusion that the use of the new mark and title should be restrained." The reference to "restrained" reflects the fact that unlike this case the Australian Woollen Mills Ltd case was an appeal in an infringement action. The judgment of the likelihood of deception or confusion is a very practical one and what has long been accepted as the proper approach to making that judgment was set out in Australian Woollen Mills Ltd . It requires assessment of the effect of the challenged mark upon the minds of potential customers. Impression or recollection taken away from the point at which the challenged mark is observed will be the basis of any belief about a connection between the new and the old marks. The effect of spoken description must be considered. What confusion or deception may be expected is to be based upon the behaviour of ordinary people. As potential buyers of goods they are not to be credited with high perception or habitual caution. Exceptional carelessness or stupidity may be disregarded. The question ultimately is not susceptible of much discussion (at 659): "It depends on a combination of visual impression and judicial estimation of the effect likely to be produced in the course of the ordinary conduct of affairs." 50 In Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd at 594-595, which concerned the 1905 Act, Kitto J set out a number of propositions which have frequently been quoted and applied to the 1955 Act. The essential elements of those propositions continue to apply to the issue of deceptive similarity under the 1995 Act. Applied also to service marks and absent the imposition of an onus upon the applicant they may be restated as follows: (i) To show that a trade mark is deceptively similar to another it is necessary to show a real tangible danger of deception or confusion occurring. A mere possibility is not sufficient. (ii) A trade mark is likely to cause confusion if the result of its use will be that a number of persons are caused to wonder whether it might not be the case that the two products or closely related products and services come from the same source. It is enough if the ordinary person entertains a reasonable doubt. It may be interpolated that this is another way of expressing the proposition that the trade mark is likely to cause confusion if there is a real likelihood that some people will wonder or be left in doubt about whether the two sets of products or the products and services in question come from the same source. (iii) In considering whether there is a likelihood of deception or confusion all surrounding circumstances have to be taken into consideration. These include the circumstances in which the marks will be used, the circumstances in which the goods or services will be bought and sold and the character of the probable acquirers of the goods and services. (iv) The rights of the parties are to be determined as at the date of the application. (v) The question of deceptive similarity must be considered in respect of all goods or services coming within the specification in the application and in respect of which registration is desired, not only in respect of those goods or services on which it is proposed to immediately use the mark. The question is not limited to whether a particular use will give rise to deception or confusion. It must be based upon what the applicant can do if registration is obtained. In respect of the last proposition, Mason J observed in Berlei Hestia Industries Ltd v Bali Co Inc [1973] HCA 43 ; (1973) 129 CLR 353 at 362: "the question whether there is a likelihood of confusion is to be answered, not by reference to the manner in which the respondent has used its mark in the past, but by reference to the use to which it can properly put the mark. The issue is whether that use would give rise to a real danger of confusion." 155 The mere possibility of confusion is not enough. As Kitto J said in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595: It is not necessary, in order to find that a trade mark offends against the section, to prove that there is an actual probability of deception leading to a passing-off. While a mere possibility of confusion is not enough--for there must be a real, tangible danger of its occurring (Reckitt & Colman (Australia) Ltd. v. Boden [3], at pp. 94, 95; Sym Choon & Co. Ltd. v. Gordon Choons Nuts Ltd. [4], at p. 79)--it is sufficient if the result of the user of the mark will be that a number of persons will be caused to wonder whether it might not be the case that the two products come from the same source. It is enough if the ordinary person entertains a reasonable doubt. (iii) In considering the probability of deception, all the surrounding circumstances have to be taken into consideration. (This includes the circumstances in which the marks will be used, the circumstances in which the goods will be bought and sold, and the character of the probable purchasers of the goods: Jafferjee v. Scarlett [5], at p. 120).


case_outcome: cited

case_text: It is, as McHugh J observed in Solomons at [37], a long recognised rule of statutory construction that a reference to courts, matters, things and persons in the legislation of a State (or Territory) is a reference to courts, matters, things and persons in that State (or Territory). Statutory provisions can be "picked up" by s 79 even though they are expressed in terms applying specifically to State or Territory courts ( Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at [72] per Gleeson CJ, Gaudron and Gummow JJ citing Kruger v The Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 140 per Gaudron J; Solomons at [58] per McHugh J). There may also be statutory provisions couched in terms which make it impossible for them to be "picked up" ( Edensor at [72]-[74] per Gleeson CJ, Gaudron and Gummow JJ; Solomons at [24] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ). 7 A court exercising federal jurisdiction has no jurisdiction to apply an Act which, upon its proper construction, applies only to State matters ( Solomons at [33] per McHugh J). Justice McHugh commented in Edensor at [141] and affirmed in Solomons at [59] that it is not the literal interpretation of a State Act that determines whether it is applied in Federal Courts but the substance of the Act. The nature of some State and Territory statutes may make them inapplicable to proceedings in the federal jurisdiction. 17 In neither the constitutional challenge nor the substantive proceedings is the Court called upon to interpret or apply a Territory law, but laws of the Commonwealth. Section 79 of the Judiciary Act does not change the meaning of the State or Territory Act that is "picked up", nor does it operate to give a State or Territory law a new or extended meaning when it is made applicable in federal jurisdiction ( Edensor at [134] per McHugh J; Solomons at [60] per McHugh J). For these reasons, s 79 of the Judiciary Act does not operate to make s 21(1) of the Human Rights Act applicable to the present proceedings, which involve the application and interpretation of Commonwealth, not Territory, laws.


case_text: I have already dealt with various applications by Mr Priestley that I disqualify myself on the grounds of reasonable apprehension of bias and an asserted lack of independence and impartiality because, he says, neither I nor any judge of the Federal Court can hear and determine the constitutional challenge. In doing so, I applied the common law test as described in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 ( Priestley at [24]). In Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 228 CLR 45 at [66] , Gummow, Hayne and Crennan JJ described the requirements as discussed by the High Court in Ebner in terms that included the requirement that a court or tribunal must be "independent" and "impartial". Those are the same terms as used in s 21(1) of the Human Rights Act . Section 21(1) does not relevantly change or add to the test as laid out in Ebner and Forge . It is the same test that I applied in Priestley .


case_title: Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 228 CLR 45


case_outcome: considered

case_title: Priestley v Godwin [2008] FCA 1179

case_text: As set out in Priestley v Godwin [2008] FCA 1179 , Mr Priestley made a number of applications for me to disqualify myself from determining the constitutional challenge. I refused to disqualify myself on three of the grounds advanced by Mr Priestley. I reserved my decision in respect of a fourth ground based on the contention that, by s 79 of the Judiciary Act 1903 (Cth) ('the Judiciary Act '), the Human Rights Act 2004 (ACT) ('the Human Rights Act ') applies to these proceedings, being heard in the Australian Capital Territory ('the ACT') ('the fourth ground'). 4 Section 79 of the Judiciary Act relevantly provides: State or Territory laws to govern where applicable (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable . (emphasis added) ... (3) This subsection covers a law of a State or Territory that would be applicable to the suit if it did not involve federal jurisdiction, including, for example, a law doing any of the following: (a) limiting the period for bringing the suit to recover the amount; (b) requiring prior notice to be given to the person against whom the suit is brought; (c) barring the suit on the grounds that the person bringing the suit has charged someone else for the amount. 19 I have already dealt with various applications by Mr Priestley that I disqualify myself on the grounds of reasonable apprehension of bias and an asserted lack of independence and impartiality because, he says, neither I nor any judge of the Federal Court can hear and determine the constitutional challenge. In doing so, I applied the common law test as described in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 ( Priestley at [24]). In Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 228 CLR 45 at [66] , Gummow, Hayne and Crennan JJ described the requirements as discussed by the High Court in Ebner in terms that included the requirement that a court or tribunal must be "independent" and "impartial". Those are the same terms as used in s 21(1) of the Human Rights Act . Section 21(1) does not relevantly change or add to the test as laid out in Ebner and Forge . It is the same test that I applied in Priestley . 21 Mr Priestley has not advanced any arguments as to my competence or independence, or the appearance of independence, or of impartiality, that were not advanced in his previous applications. His submission remains based on his contention that neither I nor any judge of the Federal Court can hear and determine the constitutional challenge. That has been dealt with in Priestley . The result is the same under the common law and, if it applied, under s 21(1) of the Human Rights Act . In his submission that the requirements in Article 14.1 of the ICCPR must be considered separately by reason of s 21(1) of the Human Rights Act , Mr Priestley has not added to the substance of the grounds for disqualification or recusal that he made previously. 22 It follows that the application that I disqualify myself from determining these proceedings on the fourth ground should be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 25 September 2008 The Applicant was self represented Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 16 July 2008 Date of last submissions: 23 July 2008 Date of Judgment: 25 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1453.html


case_text: As was pointed out in Solomons v District Court of New South Wales [2002] HCA 47 ; (2002) 211 CLR 119 at [22] , s 79 is couched in mandatory terms. The section is addressed to courts exercising federal jurisdiction and is limited to cases to which the State or Territory laws in question are applicable ( Solomons at [23]). 6 It is, as McHugh J observed in Solomons at [37], a long recognised rule of statutory construction that a reference to courts, matters, things and persons in the legislation of a State (or Territory) is a reference to courts, matters, things and persons in that State (or Territory). Statutory provisions can be "picked up" by s 79 even though they are expressed in terms applying specifically to State or Territory courts ( Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559 at [72] per Gleeson CJ, Gaudron and Gummow JJ citing Kruger v The Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 140 per Gaudron J; Solomons at [58] per McHugh J). There may also be statutory provisions couched in terms which make it impossible for them to be "picked up" ( Edensor at [72]-[74] per Gleeson CJ, Gaudron and Gummow JJ; Solomons at [24] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ). 7 A court exercising federal jurisdiction has no jurisdiction to apply an Act which, upon its proper construction, applies only to State matters ( Solomons at [33] per McHugh J). Justice McHugh commented in Edensor at [141] and affirmed in Solomons at [59] that it is not the literal interpretation of a State Act that determines whether it is applied in Federal Courts but the substance of the Act. The nature of some State and Territory statutes may make them inapplicable to proceedings in the federal jurisdiction. 17 In neither the constitutional challenge nor the substantive proceedings is the Court called upon to interpret or apply a Territory law, but laws of the Commonwealth. Section 79 of the Judiciary Act does not change the meaning of the State or Territory Act that is "picked up", nor does it operate to give a State or Territory law a new or extended meaning when it is made applicable in federal jurisdiction ( Edensor at [134] per McHugh J; Solomons at [60] per McHugh J). For these reasons, s 79 of the Judiciary Act does not operate to make s 21(1) of the Human Rights Act applicable to the present proceedings, which involve the application and interpretation of Commonwealth, not Territory, laws.


case_text: In my view, and contrary to the Secretary's submission, the first question (relating to the construction of s 1170(1)) raised by Mr Clark is one of law: that question of law is whether the notion of receipt of two payments in a particular statutory provision signifies, as the Secretary submits, simply the historical event of their being received, or, as Mr Clark submits, something like "receipt and retention of them" or "being in receipt of them" or "continuing enjoyment of them". The respondent cites Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at [26] ; Collector of Customs v Agfa-Gavaert Limited [1996] HCA 36 ; (1996) 186 CLR 389 ( Agfa-Gavaert ) at 395-396; and Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 in support of the proposition that the question set out at [2] above is not a question of law because the words "receives both" in s 1170(1) are used according to their ordinary meaning. Therefore, the respondent argues, the question of whether the facts as found by the AAT fall within the meaning of those words is a question of fact. However, the meaning of a non-technical English word can give rise to associated questions of law, such as whether the word is used in its (presumably one and only) ordinary non-technical sense, and, most importantly, whether, and if so how, the meaning of the word in a particular case is affected by the statutory context in which it occurs: see the discussion in Agfa-Gavaert [1996] HCA 36 ; 186 CLR 389 at 395ff, and An v Minister for Immigration and Citizenship [2007] FCAFC 97.


case_title: Collector of Customs v Agfa-Gavaert Limited [1996] HCA 36 ; (1996) 186 CLR 389


case_title: Comcare v Etheridge (2006) 149 FLR 522


case_title: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1


case_outcome: referred to

case_text: In Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67 ; (2002) 116 FCR 348 ( Chamberlain ), Kiefel J addressed at some length the question of the circumstances that might be "special" within s 1184K. In particular, her Honour reviewed earlier cases and noted (at [32]) that two of them, Kertland v Secretary, Department of Family and Community Services [1999] FCA 1596 ; (1999) 95 FCR 64 and Secretary, Department of Social Security v Smith (1991) 30 FCR 56, were "unusual" in that in them "it could be seen, objectively, that there could not have been a double payment", so that "it might be concluded that the statutory assumption operated unjustly". Her Honour thought that that situation would not often arise and set those cases apart from the usual.


case_outcome: followed

case_text: Mr Clark's submissions go to the merits of the Tribunal's reasons. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 ( Yusuf ) at [67] [69], McHugh, Gummow and Hayne JJ made clear that statutory obligations of the present kind require a statement of the administrative tribunal's actual reasons and findings and references to the evidence or other material on which the findings were actually based ( Yusuf [2001] HCA 30 ; 206 CLR 323 was concerned with s 430 of the Migration Act 1958 (Cth)). 54 It is not shown that the statement of "reasons for decision" provided by the Tribunal did not contain its actual reasons for its decision, did not include its actual findings on material questions of fact, and did not contain a reference to the evidence or other material on which those findings were actually based. 55 I turn now to the first question relating to s 1184K. According to the amended notice of appeal, Mr Clark relies on the following ground: The Tribunal erred by not taking into account the following relevant matters: i. the unusual unfair or unjust consequences of strict adherence to s 1170(1) in the circumstances of this case; ii. the implication found in s 17(4) that consideration of the total amount of "periodic compensation payments" is to be deducted from the "lump sum compensation" upon its receipt thereby leaving the appellant in receipt of only one lump sum to the ultimate effect that "periodic compensation payments" have not been made; iii. the unintended effect, when considering the objects of the legislation that if the Appellant had received "compensation affected payments" and not "periodic compensation payments", that the commencement date of the preclusion period would then have commenced on 31 October 2000; iv. the unfairness occasioned by the limitation placed on the Appellant's claim for economic loss compensation after the age of 65 coupled with the requirement that "periodic compensation payments" calculated up to the age of 66 were deducted from the appellant's "lump sum compensation". 56 In its reasons, the AAT referred to Mr Clark's financial circumstances and health, the fact that he had been legally represented during his settlement negotiations, and that advice had been sought from, and given by, Centrelink. 57 Mr Clark complains that the AAT failed to address the true nature of the "special circumstances" on which he relied, namely, that the very provision in s 1170 for a preclusion period worked unjustly in his case. Much of what I have said above in dealing with the first question is relevant to this complaint.


case_text: In Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67 ; (2002) 116 FCR 348 ( Chamberlain ), Kiefel J addressed at some length the question of the circumstances that might be "special" within s 1184K. In particular, her Honour reviewed earlier cases and noted (at [32]) that two of them, Kertland v Secretary, Department of Family and Community Services [1999] FCA 1596 ; (1999) 95 FCR 64 and Secretary, Department of Social Security v Smith (1991) 30 FCR 56, were "unusual" in that in them "it could be seen, objectively, that there could not have been a double payment", so that "it might be concluded that the statutory assumption operated unjustly". Her Honour thought that that situation would not often arise and set those cases apart from the usual. 69 In Chamberlain [2002] FCA 67 ; 116 FCR 348 itself, the effect of the statutory formula was that the applicant would have to pay back more than twice the amount that had been allocated to loss of earnings and of earning capacity in her lump sum settlement. Nonetheless, her Honour thought that such a factor would be present in many cases and was simply an aspect of the outworking of the formula. Her Honour considered that it could not, by itself, amount to "special circumstances". 70 Like Mr Clark, Mrs Chamberlain was elderly. She was aged 60 years when, on 13 January 1999, she suffered personal injury in a motor vehicle accident. At the time she was in receipt of an age pension and she had previously received a disability support pension. She claimed to have been able and entitled to earn up to $50 per week from teaching music, without her pension entitlement being affected. Her claim was settled for $35,000 plus $4,000 for costs. The parties to the settlement allocated $31,500 to pain and suffering and medical expenses, and $3,500 to loss of earnings and of earning capacity. 71 Mrs Chamberlain had continued to receive the age pension from the time of the accident. At that time, it was ss 1165 and 1166 of the SS Act that provided for the lump sum preclusion period and refund in Mrs Chamberlain's case, and s 1184 of the SS Act that provided for a discretion in the Secretary to treat the whole or part of a compensation payment as not having been made or not liable to be made if the Secretary should think it appropriate to do so "in the special circumstances of the case". Under s 17(3)(a) , the compensation part of the LSP was $17,500. The preclusion period was arrived at by dividing that sum by $422.90, giving a period of 41 weeks. The period ran from the date of the injury, 13 January 1999, to 26 October 1999. The statutory formula produced the result that in respect of that period, Mrs Chamberlain was liable to pay to the Commonwealth $7,643.36 more than twice the sum of $3,500 mentioned above. 72 Kiefel J stated (at [34] [35]): [34] The basis for the Tribunal's view [that "special circumstances" were established] was its acceptance of what the parties to the settlement said had been offered and accepted for the economic loss component. It was far less than the statute assumed to be the case in applying the formulae. Again, however, this will be so in many, if not most, cases to which the Act applies. Further, the extent of the difference from the basis upon which the parties acted could not provide the necessary "special circumstance". The statute has selected a figure which may operate in an arbitrary way. [35] The statutory objectives in utilising the formulae, referred to above, must also be borne in mind. It is not intended that a decision-maker be required to consider contentions about what part of the compensation reflected the economic loss component. That is so whether one has regard to the application of the formulae or the discretion under s 1184. The latter does not alter the objective and must be read in light of it. 73 Her Honour set aside the Tribunal's decision. 74 If Chamberlain [2002] FCA 67 ; 116 FCR 348 is to be followed, the present application must be dismissed. 75 I respectfully agree with the approach that was taken by Kiefel J. The expression "special circumstances" in s 1184K does not embrace the circumstance that the 50 percent rule will yield a preclusion period beginning on a certain date that will or may be excessive, even grossly excessive, having regard to the component included in a lump sum settlement for loss of earnings or of earning capacity, to the age of the injured person, and perhaps to other circumstances. 76 Once one embarks on an inquiry of the kind that would be required in such a case, one is defeating the legislative intention. The Parliament must be taken to have contemplated as "usual" or "ordinary" the circumstances of people placed as Mr Clark is. In effect, by adopting the rough and ready 50 percent rule, the legislature has faced such people with a choice: not sue at all and to rely, instead, on such other entitlements as may be available; litigate to trial so that the Court will identify a figure for loss of earnings and of earning capacity; or settle subject to the operation of the 50 percent rule. 77 In the present case, Mr Clark must be taken to have decided against the former two courses. I do not know why he did so. In one sense, it seems unfair that Mr Clark should suffer a preclusion period until 15 February 2008, but I do not think that this constitutes "special circumstances" in the light of the legislative intention. 78 If the position were otherwise, the régime that was introduced in 1988 would be defeated because it would be again open to parties to a settlement to attribute an artificially low figure to loss of earnings and earning capacity, and to the injured person, through s 1184K of the SS Act, to initiate the very kind of investigation that it was the intention of the 1988 amending Act to eliminate. 79 For the above reasons, I do not think that the AAT erred in law in failing to exercise the discretion given by s 1184K of the SS Act.


case_text: It is useful to look at the policy considerations that informed the inclusion of the 50 percent rule in the SS Act. Provisions that were substantially the same as ss 17(3)(a) were introduced by the Social Security Amendment Act 1988 (Cth) (Act No 58 of 1988) . The Second Reading Speech on the Bill set out the reason for the rule (Australia, House of Representatives, Debates (13 April 1988) Vol HR160, p 1497 (Mrs Kelly, Minister for Defence Science and Personnel)): This Bill contains measures to improve the administration and integrity of the compensation recovery provisions. Where a person receives personal injury compensation that makes up for lost income the Social Security Act provides that pension or benefit may be reduced or recovered. This is one way in which social security expenditures are directed to those most in need. Settlements of lump sum compensation particularly in the workers compensation jurisdiction are being manipulated to obscure the economic loss component and to avoid recovery of social security payments. To prevent this abuse, the Minister announced on 8 February 1988 that, for future personal injury settlements made by agreement or by consent order, 50 per cent of lump sum compensation will be deemed to be in respect of economic loss. This Bill gives effect to that proposal. It is clear that the policy objective was to prevent manipulation to obscure the economic loss component in compensation payments and instead deem a flat 50 percent in all cases, with a reduced preclusion period to compensate for an RPCP component. In deciding Mr Clark's case, the AAT had regard to this policy, citing the discussion of the amendments and the background to them by von Doussa J in Secretary, Department of Social Security v Banks (1990) 20 ALD 19. 42 The construction supported by Mr Clark would itself result in an anomaly in relation to a young person whose loss of earning capacity accounted for a large part of his or her lump sum compensation payment. Assume a settlement for an LSP of $2,000,000, that there was an RPCP of $200,000, and that, although not specified, the sum of $2,000,000 included $1,400,000 for loss of earning capacity. According to the s 17(3) and s 17(4) formulae, the compensation part of the LSP would be only $900,000. On what basis in fairness would the injured young person have a claim to have the preclusion period (calculated by reference to that amount) begin back on the date of the injury, rather than the day after the end of the period covered by the periodical compensation payments of $200,000? The arbitrary figure of $900,000 would already be an understatement of the amount received for loss of earnings and of earning capacity, and to adopt the date of the injury as the start of the preclusion period would only increase the "over generous" treatment of the injured young person. In a perfect world, the preclusion period would run from the date of injury until the sum of $1,400,000 was exhausted, and in Mr Clark's case from 31 October 2000 until whatever amount was included in the sum of $280,000 for loss of earnings and of earning capacity was exhausted. But in an imperfect world in which settlement figures were being manipulated so as to understate the component for loss of earnings and of earning capacity, the legislature has solved the problem by the rough and ready 50 percent rule. 43 The provisions reflect a policy decision to treat that which remains after any repayment of any periodic compensation payments as relating, as to 50 percent, to loss of earnings or of earning capacity, in respect of the period after the expiry of the period covered by those payments. The provisions reflect an acceptance by the legislature that it is not practicable to achieve complete justice attuned to the circumstances of each individual case.


case_title: Secretary, Department of Social Security v Smith (1991) 30 FCR 56


case_text: The factual and procedural background to the present application was set out in Australian Securities & Investments Commission v Forestview Nominees Pty Ltd (Receivers and Managers Appointed) [2006] FCA 1530 concerning an appeal against a decision by the receivers and managers to refuse to release funds for legal representation of the company in these proceedings. So that these reasons may be self contained, it is convenient to reproduce the bulk of the factual and procedural background set out in the earlier judgment. 3 Forestview was incorporated in February 1994. Its current directors are Norman Phillip Carey, who has been a director since its incorporation, and his sister, Karen Sandra Carey-Hazell, who has been a director since 19 January 1996. The company is trustee of the Matheson Unit Trust. On 8 December 1998 the company granted a fixed and floating charge to Sandhurst Trustees Ltd (Sandhurst). The charge was assigned to Perpetual Nominees Ltd (Perpetual) as custodian of the ING Mortgage Pool for ING Funds Management Ltd as the responsible entity of The ING Mortgage Pool (ING) (ING Charge) on 28 June 2000. 4 Clause 2 of the ING Charge recited that Sandhurst, the mortgagee, had agreed to provide or continue providing credit or financial accommodation from time to time to, or at the request of, Forestview upon the condition that Forestview entered into the mortgage. The money secured by the Charge was defined expansively in cl 4.1.15 and included: '4.1.15.1 any money which at any time the Borrower in any capacity and whether alone or with others:- 4.1.15.1.1 is actually or contingently liable to pay to the Mortgagee; or 4.1.15.1.2 may become actually or contingently liable to pay to the Mortgagee in the future pursuant to any transaction or arrangement at any time entered into or made by the Mortgagee with any person;' Subclauses 4.1.15.2 and 4.1.15.3 are not material for present purposes. The definition was extended in 4.1.15.4 to: 'all moneys expended by the Mortgagee to make good any breach or non-compliance by the Mortgagor of any term, covenant, condition, or agreement on the part of the Mortgagor to be observed or performed under this document and all moneys incurred or spent by the Mortgagee in exercising or attempting to exercise any of the powers under this document together with interest on those moneys from the date of expenditure until repayment at the rate specified in this document and if more than one rate is specified then at the higher rate or if no rate is specified then at the Applicable Rate, and where the context permits means any part of that money;.'


case_title: National Wage Case (1988) 25 IR 170

case_text: The questions for determination arise in part from the reorganization of the electricity industry in Victoria and, according to Mr Urquhart, in part from the restructuring consequent upon the delivery of the National Wage Cases on 12 August 1988 and 7 August 1989: see (1988) 25 IR 170 and (1989) 30 IR 81.


case_title: National Wage Case (1989) 30 IR 81


case_outcome: applied

case_text: In substance, Mr Urquhart's case was that: (a) When Powercor contracted out its meter reading function to AMRS in 2002 and 2004, part of Powercor's business (namely, meter reading) was transmitted to AMRS. For Mr Urquhart, counsel argued that meter reading was part of Powercor's business prior to the VMM contract. He argued that Powercor took back this part of its business when the VMM contract terminated and, again, when the Marshmans contract ended. Counsel contended that the Electricity Industry Act 2000 (Vic) ("the Electricity Industry Act "), the Electricity Distribution Licence, and the numerous regulatory Codes illustrated "both the essential part metering play[ed] in the distribution of electricity as well as the ongoing obligations of the distributor, regardless of whether or not the task [had] been outsourced". Counsel argued that, "[b]y reason of the ... obligations imposed on distributors and conditions of licence meter reading and the related activities undertaken by meter readers [meter reading] was more than an ancillary part of the business of a distributor and [was] in fact a necessary part of the business". He submitted that whether or not Powercor performed meter reading between the contracts was irrelevant. For the duration of the contract between Powercor and AMRS, AMRS had "what ... Powercor has within its power to give". Counsel for Mr Urquhart relied on PP Consultants Pty Ltd v Finance Sector Union of Australia [2000] HCA 59 ; (2000) 201 CLR 648 (" PP Consultants "), Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9 ; (2005) 222 CLR 194 (" Gribbles ") and Stellar Call Centres Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union [2001] FCA 106 ; (2001) 106 FCR 302 (" Stellar Call Centres "). He also relied on Construction Forestry Mining & Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409 (" CFMEU v Henry Walker Eltin "), Minister of State for Employment, Workplace Relations and Small Business v Community and Public Sector Union [2001] FCA 316 ; (2001) 109 FCR 303 and North Western Health Care Network v Health Services Union of Australia [1999] FCA 897 ; (1999) 92 FCR 477 (" North Western Health Care "). (b) In these circumstances, by operation of ss 149(1)(d) and 170MB(2) of the Workplace Relations Act , the 1998 Award, the 1999 Agreement and the 2002 Agreement were binding on AMRS. Counsel for Mr Urquhart referred to the 1965 Award, 1969 Variations, the National Wage Cases , the 1998 Award, the 1999 Agreement and the 2002 Agreement in support of his submission that, whilst employed by AMRS, Mr Urquhart was entitled to be paid wages and superannuation at the rate for which the 1999 Agreement and the 2002 Agreement provided, and not at the rate he was in fact paid by AMRS, but with the loading prescribed by the 1998 Award. He referred to the principles for interpreting awards in various cases, including in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426. He contended that, properly construed, the underpayment that Mr Urquhart claimed in his relief (see [4]) included the loading for which the 1998 Award provided calculated by reference to the 1999 and 2002 certified agreement rates (as well as the difference between the amounts for which these certified agreements provided and that which he was actually paid). 39 AMRS responded that: (a) Powercor's contracting out of the meter reading function did not constitute a transmission of business as meter reading was not Powercor's business, or part of its business. Rather, meter reading was an ancillary function that supported the core business of Powercor, which was to distribute electricity. AMRS also relied on PP Consultants , Gribbles and Stellar Call Centres . AMRS submitted that meter reading was not an essential, or even significant, part of the business of distributing electricity. Nor was it part of the development or maintenance of the assets used to generate electricity, the use of which enabled a fee to be charged to the retailers. AMRS contended that there was a material difference between the metering of electricity use and the reading of meters. This distinction was apparent in each of the outsourcing contracts and in Powercor's distribution licence. (b) If it were wrong in the above submission, then there was no transmission of business to AMRS in 2002 and 2004 as it had already been transmitted to VMM in 1997. Powercor had not, since that time, "contracted in" the meter reading function. Hence, at the time of contracting out meter reading to AMRS, Powercor had no meter reading business left to transmit. Alternatively, there was no transmission because, under Powercor's distribution licence and the relevant Codes, Powercor retained the obligations with respect to meters and meter-reading. Further, there was no transfer of assets from Powercor to AMRS. (c) If Powercor's meter reading function constituted its business or part of its business and such business was transmitted to AMRS, then neither the 1998 Award, nor the 1999 Agreement and the 2002 Agreement applied to meter readers (such as Mr Urquhart). Therefore, Mr Urquhart was not entitled to be paid in accordance with those instruments. AMRS argued that, even if a generous approach was adopted to the interpretation of the 1998 Award, there was nothing in the 1998 Award that imposed a legal obligation on Powercor to classify, or pay, meter readers under the 1998 Award. Moreover, the history did not disclose that that there was any previous agreement or award relevant to the 1998 Award showing that meter readers were to be covered by the award. Neither the 1999 Agreement nor the 2002 Agreement expressly sets out which Powercor employees were to be covered by these agreements. Rather, by reference to Appendix C in the case of the 1999 Agreement and Appendix D in the case of the 2002 Agreement, each instrument sets out rates of pay within the structure of a 30-point pay scale. In the absence of express provision, AMRS contended that it was proper to consider the industrial and statutory context surrounding the Agreements. This required attention to the objective facts. AMRS argued that the translation exercise undertaken within Powercor after the 1997 Agreement was not relevant to the construction question. Even if this exercise could be taken into account in construing the 1999 Agreement, at the time of certification of the 1999 Agreement (and the 2002 Agreement), Powercor did not employ any standard meter readers. AMRS submitted that, in the circumstances, it could not be said that, viewed objectively, the pay point classification scheme in the two agreements was intended to cover standard meter readers. AMRS further argued that its approach was supported by the statutory context surrounding the certification of enterprise agreements. AMRS submitted that clause 8.2.2 of the 1998 Award made it clear that the loading of 25% attached to the rates of pay prescribed in the Award and not the rates in the 1999 or 2002 Agreements. 42 The first critical question is whether, for the purposes of ss 149(1)(d) and 170MB(2) of the Workplace Relations Act , AMRS is the transmittee of the business or part of the business of Powercor. Whether there has been transmission (or a succession or assignment), for these purposes, is a mixed question of fact and law. PP Consultants indicates how this question should be considered. 43 According to PP Consultants , as a general rule, in a case such as the present, it is necessary, first, to identify or characterise the business or the relevant part of the business of the first employer; secondly, to identify the character of the transferred business activities in the hands of the new employer; and, thirdly, to compare the two business: see PP Consultants at 655 per Gleeson CJ, Gaudron, McHugh and Gummow JJ. If, in substance, the business of the first employer has the same character as the transferred business activities in the hands of the new employer, then it may be possible to say the business, or a part of the business of the first employer had been transmitted to the new employer. If the business of the first employer does not have the same character as the transferred business activities of the new employer, then there can be no transmission (or succession or assignment). 44 The joint judgment in PP Consultants illustrates this approach. The analysis began with the proposition that St George Bank Ltd was in the business of banking and the activities in which it engaged at its branch at Byron Bay were part of its banking business (at 655). The pharmacist that the Bank appointed to carry on a branch agency after it closed this branch did not engage in the business of banking, although it engaged in banking activities (at 656). The pharmacist was, so their Honours held, carrying on the business of a banking agent. Their Honours said (at 656): All that has happened is that the Bank has changed the method by which it carried on its banking business in Byron Bay. Thus, no part of the Bank's business has been acquired by the [pharmacist], whether as successor, assignee or transmittee. On this approach, the fact that the activities carried on by the old and new employers were the same as far as the employees were concerned was immaterial. 47 Stellar Call Centres applied the reasoning in PP Consultants to an inquiry under ss 149(1)(d) and 170MB(1) (which, for present purposes, is in relevantly the same terms as s 170MB(2)). In the Full Court of this Court, Stellar Call Centres challenged the decision of the judge at first instance that, pursuant to ss 149(1)(d) and 170MB(1) of the Workplace Relations Act , it was bound by awards and certified agreements binding on Telstra Corporation Ltd ("Telstra"). The question was whether a part of Telstra's business that involved the taking and responding to telephone calls from Telstra's customers had been transmitted to Stellar Call Centres. The Full Court held that there was no such transmission, chiefly because the receiving of the calls from customers were "activities in support of Telstra's businesses in the telecommunication industry" but were "not themselves ... the business or part of the business of Telstra": see Stellar Call Centres at 311. The Full Court said (at 311): That business can appropriately be characterised as providing telecommunications services to its customers. In the course of conducting that business, Telstra is called upon to respond to enquiries, requests for services and complaints from its customers, including those made by telephone. However, the making of those responses is not a distinct 'part' of Telstra's business within the meaning of s 149(1) , as explained by the High Court, any more than, for example, cleaning undertaken as a necessary aspect of the conduct of a restaurant is a 'part' of the business of the restauranteur. The business of Stellar Call Centres was the provision of telephone answering services. The answering of calls was not, however, a part of Telstra's business; and, accordingly, there was no transmission of that part of Telstra's business. 66 In response, counsel for Mr Urquhart argued that "transmission" was a non-legal concept and did not depend upon privity or any formal legal transfer of rights between the parties. Moreover, he submitted that the Court should not give weight to the consideration as to whether or not Powercor technically retained rights or obligations with respect to meter reading, because to give weight to this consideration would not reflect commercial reality. He referred to North Western Health Care and Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd [2000] FCA 1683 ; (2000) 105 FCR 88 , which applied North Western Health Care . Both cases concerned, amongst other things, a transmission of the business of State government or department and, in any event, for the reasons appearing below, since PP Consultants and Gribbles , North Western Health Care can no longer be said reliably to state the law in this area. 68 Although the authors of the joint judgment in PP Consultants decided that case primarily on the basis of the characterisation test referred to earlier, holding that the pharmacy was not engaged in the banking business, they also added (at 656): Moreover, the Bank has not disposed of any part of its business. All that has happened is that the Bank has changed the method by which it carried on its banking business in Byron Bay. Thus, no part of the Bank's business has been acquired by the [pharmacy], whether as successor, assignee or transmittee. In effect, the joint judgment in PP Consultants set out two tests for succession, assignment and transmission a characterisation test (discussed above) and a disposal test. Both tests must be satisfied in order for the operation of the award (under s 149(1)(d)) or the certified agreement (under s 170MB(2)) to be attracted to the new employer. 69 As it happened, in his separate judgment, Callinan J (agreeing with the joint judgment in the result) considered the issue of disposal at greater length than in the joint judgment. After noting considerations that were not dissimilar to those relied on by AMRS, his Honour identified the question that he considered should be asked: see PP Consultants at 664. Adapted to this case, this question is, what 'business', which Powercor is said to have transmitted to AMRS, could AMRS sell or otherwise pass on to someone else? If this is a correct question to ask in connection with transmission, for the reasons stated below, the answer, as in PP Consultants , would be "no business". Callinan J's conclusion (at 665) that "[t]he business of the bank had not 'passed'"; rather "[a] new form of business was created (by agreement) and was to be carried on by a new operator as an agent" might also summarise the effect of the 2002 contract. Under the 2002 contract, the business of Powercor did not pass (and was not transmitted). Rather, under the contract, AMRS was to carry on a new business of meter reading for Powercor. 70 The foregoing notwithstanding, I might still be in some doubt as to the correct analysis to be followed had PP Consultants not been succeeded in the High Court by Gribbles . The combined effect of these two decisions is, so it seems to me, to make the relevant state of the law reasonably clear with respect to provisions like ss 149(1)(d) and 170MB(2) of the Workplace Relations Act . In Gribbles , the High Court confirmed that the characterisation test (identifying the business or part of a business) and the disposal test (determining whether the business or part of a business so characterised was disposed of) are separate and distinct questions. Thus, in their joint judgment in Gribbles , Gleeson CJ, Hayne, Callinan and Heydon JJ stated (at 213): [T]he need, when considering the application of s 149(1)(d) [is] to do two things. First, it is necessary to identify exactly what is meant in the context of the particular case, by 'the business or part of the business' of the former employer. Secondly, it is necessary to identify what part of that 'business' the former employer once had which is now enjoyed by the person allegedly bound by the award. 73 In this case, unlike Gribbles , there was a direct transaction between the former and the new employers, as expressed in the 2002 contract (and, subsequently, transactions expressed in the 2003 contract and the 2004 contract). Accordingly, this (like PP Consultants ) is one of the "many cases" where the answer is to be found by considering the transaction between the former and the new employers. 74 It is worth noting that, in Gribbles , the characterisation test was on the facts of the case easily satisfied in contrast to PP Consultants where it was not satisfied at all: see Gribbles at 214. The majority in Gribbles (at 214-15) thus focussed on the disposal test or, from the new employer's perspective, the enjoyment test, whilst this aspect called for very much less attention in PP Consultants . Considered in this way, PP Consultants and Gribbles are complementary aspects of the overarching question whether there has been a transmission, succession or assignment. 77 The majority judgment in Gribbles shows that some aspects of the transaction between Powercor and AMRS are more relevant than others to the disposal/enjoyment test. In particular, it must be asked whether the new employer has acquired any of the tangible or intangible assets of the old employer: compare Gribbles at 212. In Gribbles , the majority found that, by the relevant transaction, the new employer did not come to enjoy either the tangible assets of the former employer (i.e., the former employer's equipment) or the intangible assets of the former employer (i.e., the former employer's goodwill): see Gribbles 214. Further, citing Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 , the majority also recognised that, while both former and new employers employed the same employees, "no employee is an asset in the employer's balance sheet to be bought or sold": Gribbles at 214. Accordingly, the majority concluded that the former employer had not disposed of any part of its business and the new employer was not, therefore, a successor to or of any part of the business of the former employer because "[a]t no time did [the new employer] enjoy any asset of the [former employer], tangible or intangible, which [the former employer] had used in the pursuit of its business activities": see Gribbles at 204. This test is substantially identical to that proposed by Callinan J in PP Consultants (at 664) in that his Honour there asked whether there was anything for the new employer "to sell or otherwise pass on to someone else". 80 It might be said that the High Court's analysis of the operation of s 149(1)(d) and like provisions allows employers, in effect, to "contract out" of their obligations under awards and certified agreements with comparative ease. In PP Consultants (at 666) Callinan J sought to meet this objection, in the following way: Whilst it may be accepted that a purpose of the provision is to prevent evasion of obligations by employers who do succeed to a business or part thereof, there is another policy consideration which bears on this case. The legislation, it may be inferred requires a common identity of a business or part thereof, into whosoever hands it falls, on the assumption that a successor will have the same and continuing capacity to meet the obligations arising under an award as the former operator of the business. No such assumption may safely be made about a different business. 82 These fundamental differences in perspective and approach have been the subject of scholarly discussions, which have proposed alternative analyses: see, for example, Trent D Sebbens, "'Wake, O Wake' Transmission of Business Provisions in Outsourcing and Privatisation" (2003) 16 Australian Journal of Labour Law 133. This Court is, however, bound to follow PP Consultants and Gribbles , which provide a clear answer in this case.


case_text: In substance, Mr Urquhart's case was that: (a) When Powercor contracted out its meter reading function to AMRS in 2002 and 2004, part of Powercor's business (namely, meter reading) was transmitted to AMRS. For Mr Urquhart, counsel argued that meter reading was part of Powercor's business prior to the VMM contract. He argued that Powercor took back this part of its business when the VMM contract terminated and, again, when the Marshmans contract ended. Counsel contended that the Electricity Industry Act 2000 (Vic) ("the Electricity Industry Act "), the Electricity Distribution Licence, and the numerous regulatory Codes illustrated "both the essential part metering play[ed] in the distribution of electricity as well as the ongoing obligations of the distributor, regardless of whether or not the task [had] been outsourced". Counsel argued that, "[b]y reason of the ... obligations imposed on distributors and conditions of licence meter reading and the related activities undertaken by meter readers [meter reading] was more than an ancillary part of the business of a distributor and [was] in fact a necessary part of the business". He submitted that whether or not Powercor performed meter reading between the contracts was irrelevant. For the duration of the contract between Powercor and AMRS, AMRS had "what ... Powercor has within its power to give". Counsel for Mr Urquhart relied on PP Consultants Pty Ltd v Finance Sector Union of Australia [2000] HCA 59 ; (2000) 201 CLR 648 (" PP Consultants "), Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9 ; (2005) 222 CLR 194 (" Gribbles ") and Stellar Call Centres Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union [2001] FCA 106 ; (2001) 106 FCR 302 (" Stellar Call Centres "). He also relied on Construction Forestry Mining & Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409 (" CFMEU v Henry Walker Eltin "), Minister of State for Employment, Workplace Relations and Small Business v Community and Public Sector Union [2001] FCA 316 ; (2001) 109 FCR 303 and North Western Health Care Network v Health Services Union of Australia [1999] FCA 897 ; (1999) 92 FCR 477 (" North Western Health Care "). (b) In these circumstances, by operation of ss 149(1)(d) and 170MB(2) of the Workplace Relations Act , the 1998 Award, the 1999 Agreement and the 2002 Agreement were binding on AMRS. Counsel for Mr Urquhart referred to the 1965 Award, 1969 Variations, the National Wage Cases , the 1998 Award, the 1999 Agreement and the 2002 Agreement in support of his submission that, whilst employed by AMRS, Mr Urquhart was entitled to be paid wages and superannuation at the rate for which the 1999 Agreement and the 2002 Agreement provided, and not at the rate he was in fact paid by AMRS, but with the loading prescribed by the 1998 Award. He referred to the principles for interpreting awards in various cases, including in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426. He contended that, properly construed, the underpayment that Mr Urquhart claimed in his relief (see [4]) included the loading for which the 1998 Award provided calculated by reference to the 1999 and 2002 certified agreement rates (as well as the difference between the amounts for which these certified agreements provided and that which he was actually paid). 39 AMRS responded that: (a) Powercor's contracting out of the meter reading function did not constitute a transmission of business as meter reading was not Powercor's business, or part of its business. Rather, meter reading was an ancillary function that supported the core business of Powercor, which was to distribute electricity. AMRS also relied on PP Consultants , Gribbles and Stellar Call Centres . AMRS submitted that meter reading was not an essential, or even significant, part of the business of distributing electricity. Nor was it part of the development or maintenance of the assets used to generate electricity, the use of which enabled a fee to be charged to the retailers. AMRS contended that there was a material difference between the metering of electricity use and the reading of meters. This distinction was apparent in each of the outsourcing contracts and in Powercor's distribution licence. (b) If it were wrong in the above submission, then there was no transmission of business to AMRS in 2002 and 2004 as it had already been transmitted to VMM in 1997. Powercor had not, since that time, "contracted in" the meter reading function. Hence, at the time of contracting out meter reading to AMRS, Powercor had no meter reading business left to transmit. Alternatively, there was no transmission because, under Powercor's distribution licence and the relevant Codes, Powercor retained the obligations with respect to meters and meter-reading. Further, there was no transfer of assets from Powercor to AMRS. (c) If Powercor's meter reading function constituted its business or part of its business and such business was transmitted to AMRS, then neither the 1998 Award, nor the 1999 Agreement and the 2002 Agreement applied to meter readers (such as Mr Urquhart). Therefore, Mr Urquhart was not entitled to be paid in accordance with those instruments. AMRS argued that, even if a generous approach was adopted to the interpretation of the 1998 Award, there was nothing in the 1998 Award that imposed a legal obligation on Powercor to classify, or pay, meter readers under the 1998 Award. Moreover, the history did not disclose that that there was any previous agreement or award relevant to the 1998 Award showing that meter readers were to be covered by the award. Neither the 1999 Agreement nor the 2002 Agreement expressly sets out which Powercor employees were to be covered by these agreements. Rather, by reference to Appendix C in the case of the 1999 Agreement and Appendix D in the case of the 2002 Agreement, each instrument sets out rates of pay within the structure of a 30-point pay scale. In the absence of express provision, AMRS contended that it was proper to consider the industrial and statutory context surrounding the Agreements. This required attention to the objective facts. AMRS argued that the translation exercise undertaken within Powercor after the 1997 Agreement was not relevant to the construction question. Even if this exercise could be taken into account in construing the 1999 Agreement, at the time of certification of the 1999 Agreement (and the 2002 Agreement), Powercor did not employ any standard meter readers. AMRS submitted that, in the circumstances, it could not be said that, viewed objectively, the pay point classification scheme in the two agreements was intended to cover standard meter readers. AMRS further argued that its approach was supported by the statutory context surrounding the certification of enterprise agreements. AMRS submitted that clause 8.2.2 of the 1998 Award made it clear that the loading of 25% attached to the rates of pay prescribed in the Award and not the rates in the 1999 or 2002 Agreements. 45 Gribbles also concerned s 149(1)(d) of the Workplace Relations Act , although the focus in this case was on the meaning of the word "successor" in this provision. A company called Region Dell Pty Ltd conducted medical clinics, including one at Moorabbin. The company licensed the use of part of the Moorabbin clinic's premises for a radiology practice. The company also supplied the equipment. The radiology practice supplied the radiographers, consumables and the like. The company had granted three such licences the first, to Southern Radiology; the second until 31 August 1999, to MDIG; and the third, from 1 September 1999, to Gribbles. In 2000, Gribbles terminated the employment of the radiographers at Moorabbin. If Gribbles were bound by the Award that had bound MDIG, then Gribbles was bound to pay severance pay to the radiographers. This turned on whether Gribbles was a successor, for the purposes of s 149(1)(d) , to or to any part of the business of MDIG. In a joint judgment, Gleeson CJ, Hayne, Callinan and Heydon JJ held that it was not. 46 In the course of this judgment, their Honours touched on the meaning of the word "business" in this context. As their Honours said, to be a "successor" (or assignee or transmittee), it is not enough that the new employer pursues the same kind of business as the old: Gribbles at 211. What was meant by the word "business" in this context depends on s 149(1)(d) , which "focuses upon succession, assignment and transmission to or of a business which is identified as the business of an employer", which "necessarily directs attention to what it is that the former employer had which is to be described as the 'business' of that employer": Gribbles at 211. Their Honours went on to say (at 212): The 'business' of an employer may be constituted by a number of different assets, both tangible and intangible, that are used in the particular pursuit, whether of profit (if the 'business' is a commercial enterprise) or other ends ... In the case of a commercial enterprise, identifying the employer's 'business' will usually require identification both of the particular activity that is pursued and of the tangible and intangible assets that are used in that pursuit. The 'business' of an employer will be identified as the assets that the employer uses in the pursuit of the particular activity. It is the assets used in that way that can be assigned or transmitted and it is to the assets used in that way that an employer can be a successor. The new employer may be a successor, assignee or transmittee to or of the business, or part of the business, of an employer who was a party to the relevant industrial dispute if the new employer, having the beneficial use of assets which the former employer used in the relevant pursuit, uses those assets in the same or a similar pursuit. ... Whether the new employer is a successor, assignee or transmittee, will require examination of whether what the new employer has can be described as a part of the former employer's business. In s 149(1)(d) of the Workplace Relations Act , "the business or part of the business" of the former employer which in the present case is Powercor is thus to be characterised by reference to the particular activity that it pursued and the assets that it used in that pursuit. As Stellar Call Centres shows, whether a new employer "becomes the ... transmittee ... of the whole or a part of the business concerned", for the purposes of subs 170MB(2) depends on much the same inquiry. 66 In response, counsel for Mr Urquhart argued that "transmission" was a non-legal concept and did not depend upon privity or any formal legal transfer of rights between the parties. Moreover, he submitted that the Court should not give weight to the consideration as to whether or not Powercor technically retained rights or obligations with respect to meter reading, because to give weight to this consideration would not reflect commercial reality. He referred to North Western Health Care and Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd [2000] FCA 1683 ; (2000) 105 FCR 88 , which applied North Western Health Care . Both cases concerned, amongst other things, a transmission of the business of State government or department and, in any event, for the reasons appearing below, since PP Consultants and Gribbles , North Western Health Care can no longer be said reliably to state the law in this area. 70 The foregoing notwithstanding, I might still be in some doubt as to the correct analysis to be followed had PP Consultants not been succeeded in the High Court by Gribbles . The combined effect of these two decisions is, so it seems to me, to make the relevant state of the law reasonably clear with respect to provisions like ss 149(1)(d) and 170MB(2) of the Workplace Relations Act . In Gribbles , the High Court confirmed that the characterisation test (identifying the business or part of a business) and the disposal test (determining whether the business or part of a business so characterised was disposed of) are separate and distinct questions. Thus, in their joint judgment in Gribbles , Gleeson CJ, Hayne, Callinan and Heydon JJ stated (at 213): [T]he need, when considering the application of s 149(1)(d) [is] to do two things. First, it is necessary to identify exactly what is meant in the context of the particular case, by 'the business or part of the business' of the former employer. Secondly, it is necessary to identify what part of that 'business' the former employer once had which is now enjoyed by the person allegedly bound by the award. 71 Before discussing Gribbles further, I would acknowledge that, as counsel for Mr Urquhart observed, Gribbles is distinguishable in at least one respect from this case because Gribbles , in contrast to this case, involved no direct transaction between the former employer and the new employer. That is, Gribbles involved the question whether there had been a "succession" by the new employer to the old employer's business, and did not involve a question of "transmission": see Gribbles at 203-204 and 208. This distinction does not, however, affect the critical reasoning in Gribbles , as the majority judgment shows. 72 The majority in Gribbles (at 212) acknowledged the distinction, by observing that the answer as to whether there has been an assignment, succession or transmission: ... will be provided by looking at some transaction between the two employers. Where there has been some transaction between them, it will be possible to see whether the former employer transferred the whole, or part, of its business to the new employer. But in other cases there may be no transaction between the former employer and the employer alleged to be its successor ... Thus, the existence of some transaction between the two employers is not essential in order to show that one is the successor to the business of the other. Further, whether or not there was some transaction between the new employer and the former employer, there may be a real question about whether what the new employer enjoys is the whole or a part of the 'business' of the former employer. 73 In this case, unlike Gribbles , there was a direct transaction between the former and the new employers, as expressed in the 2002 contract (and, subsequently, transactions expressed in the 2003 contract and the 2004 contract). Accordingly, this (like PP Consultants ) is one of the "many cases" where the answer is to be found by considering the transaction between the former and the new employers. 74 It is worth noting that, in Gribbles , the characterisation test was on the facts of the case easily satisfied in contrast to PP Consultants where it was not satisfied at all: see Gribbles at 214. The majority in Gribbles (at 214-15) thus focussed on the disposal test or, from the new employer's perspective, the enjoyment test, whilst this aspect called for very much less attention in PP Consultants . Considered in this way, PP Consultants and Gribbles are complementary aspects of the overarching question whether there has been a transmission, succession or assignment. 75 Assuming (contrary to the finding above) that the characterisation test is satisfied since meter reading constituted a part of the business of Powercor, the critical question is that presented in Gribbles whether it can be properly said that Powercor disposed of a meter reading business, which is now enjoyed by AMRS. 76 In the present case, there is a degree of artificiality about this inquiry since it fails to take account of the fact that the former employer (Powercor) had entered into similar contracts with VMM and Marshmans immediately before entering into the 2002 contract with AMRS. In this context, if there was a transmission to AMRS, it must be assumed that either similar transmissions to VMM and Marshmans were limited to the duration of their respective contracts or, for some unapparent reason, the transactions between Powercor and VMM and Marshmans were relevantly different, with the consequence that there was no previous transmission. I do not stop to investigate these possibilities further because, in my view, there was no transmission between Powercor and AMRS. The critical question in Gribbles whether it can be said that Powercor disposed of a meter reading business that is now enjoyed by AMRS on the facts as disclosed in the evidence must be answered "no". 77 The majority judgment in Gribbles shows that some aspects of the transaction between Powercor and AMRS are more relevant than others to the disposal/enjoyment test. In particular, it must be asked whether the new employer has acquired any of the tangible or intangible assets of the old employer: compare Gribbles at 212. In Gribbles , the majority found that, by the relevant transaction, the new employer did not come to enjoy either the tangible assets of the former employer (i.e., the former employer's equipment) or the intangible assets of the former employer (i.e., the former employer's goodwill): see Gribbles 214. Further, citing Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 , the majority also recognised that, while both former and new employers employed the same employees, "no employee is an asset in the employer's balance sheet to be bought or sold": Gribbles at 214. Accordingly, the majority concluded that the former employer had not disposed of any part of its business and the new employer was not, therefore, a successor to or of any part of the business of the former employer because "[a]t no time did [the new employer] enjoy any asset of the [former employer], tangible or intangible, which [the former employer] had used in the pursuit of its business activities": see Gribbles at 204. This test is substantially identical to that proposed by Callinan J in PP Consultants (at 664) in that his Honour there asked whether there was anything for the new employer "to sell or otherwise pass on to someone else". 82 These fundamental differences in perspective and approach have been the subject of scholarly discussions, which have proposed alternative analyses: see, for example, Trent D Sebbens, "'Wake, O Wake' Transmission of Business Provisions in Outsourcing and Privatisation" (2003) 16 Australian Journal of Labour Law 133. This Court is, however, bound to follow PP Consultants and Gribbles , which provide a clear answer in this case.


case_text: In substance, Mr Urquhart's case was that: (a) When Powercor contracted out its meter reading function to AMRS in 2002 and 2004, part of Powercor's business (namely, meter reading) was transmitted to AMRS. For Mr Urquhart, counsel argued that meter reading was part of Powercor's business prior to the VMM contract. He argued that Powercor took back this part of its business when the VMM contract terminated and, again, when the Marshmans contract ended. Counsel contended that the Electricity Industry Act 2000 (Vic) ("the Electricity Industry Act "), the Electricity Distribution Licence, and the numerous regulatory Codes illustrated "both the essential part metering play[ed] in the distribution of electricity as well as the ongoing obligations of the distributor, regardless of whether or not the task [had] been outsourced". Counsel argued that, "[b]y reason of the ... obligations imposed on distributors and conditions of licence meter reading and the related activities undertaken by meter readers [meter reading] was more than an ancillary part of the business of a distributor and [was] in fact a necessary part of the business". He submitted that whether or not Powercor performed meter reading between the contracts was irrelevant. For the duration of the contract between Powercor and AMRS, AMRS had "what ... Powercor has within its power to give". Counsel for Mr Urquhart relied on PP Consultants Pty Ltd v Finance Sector Union of Australia [2000] HCA 59 ; (2000) 201 CLR 648 (" PP Consultants "), Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9 ; (2005) 222 CLR 194 (" Gribbles ") and Stellar Call Centres Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union [2001] FCA 106 ; (2001) 106 FCR 302 (" Stellar Call Centres "). He also relied on Construction Forestry Mining & Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409 (" CFMEU v Henry Walker Eltin "), Minister of State for Employment, Workplace Relations and Small Business v Community and Public Sector Union [2001] FCA 316 ; (2001) 109 FCR 303 and North Western Health Care Network v Health Services Union of Australia [1999] FCA 897 ; (1999) 92 FCR 477 (" North Western Health Care "). (b) In these circumstances, by operation of ss 149(1)(d) and 170MB(2) of the Workplace Relations Act , the 1998 Award, the 1999 Agreement and the 2002 Agreement were binding on AMRS. Counsel for Mr Urquhart referred to the 1965 Award, 1969 Variations, the National Wage Cases , the 1998 Award, the 1999 Agreement and the 2002 Agreement in support of his submission that, whilst employed by AMRS, Mr Urquhart was entitled to be paid wages and superannuation at the rate for which the 1999 Agreement and the 2002 Agreement provided, and not at the rate he was in fact paid by AMRS, but with the loading prescribed by the 1998 Award. He referred to the principles for interpreting awards in various cases, including in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426. He contended that, properly construed, the underpayment that Mr Urquhart claimed in his relief (see [4]) included the loading for which the 1998 Award provided calculated by reference to the 1999 and 2002 certified agreement rates (as well as the difference between the amounts for which these certified agreements provided and that which he was actually paid). 39 AMRS responded that: (a) Powercor's contracting out of the meter reading function did not constitute a transmission of business as meter reading was not Powercor's business, or part of its business. Rather, meter reading was an ancillary function that supported the core business of Powercor, which was to distribute electricity. AMRS also relied on PP Consultants , Gribbles and Stellar Call Centres . AMRS submitted that meter reading was not an essential, or even significant, part of the business of distributing electricity. Nor was it part of the development or maintenance of the assets used to generate electricity, the use of which enabled a fee to be charged to the retailers. AMRS contended that there was a material difference between the metering of electricity use and the reading of meters. This distinction was apparent in each of the outsourcing contracts and in Powercor's distribution licence. (b) If it were wrong in the above submission, then there was no transmission of business to AMRS in 2002 and 2004 as it had already been transmitted to VMM in 1997. Powercor had not, since that time, "contracted in" the meter reading function. Hence, at the time of contracting out meter reading to AMRS, Powercor had no meter reading business left to transmit. Alternatively, there was no transmission because, under Powercor's distribution licence and the relevant Codes, Powercor retained the obligations with respect to meters and meter-reading. Further, there was no transfer of assets from Powercor to AMRS. (c) If Powercor's meter reading function constituted its business or part of its business and such business was transmitted to AMRS, then neither the 1998 Award, nor the 1999 Agreement and the 2002 Agreement applied to meter readers (such as Mr Urquhart). Therefore, Mr Urquhart was not entitled to be paid in accordance with those instruments. AMRS argued that, even if a generous approach was adopted to the interpretation of the 1998 Award, there was nothing in the 1998 Award that imposed a legal obligation on Powercor to classify, or pay, meter readers under the 1998 Award. Moreover, the history did not disclose that that there was any previous agreement or award relevant to the 1998 Award showing that meter readers were to be covered by the award. Neither the 1999 Agreement nor the 2002 Agreement expressly sets out which Powercor employees were to be covered by these agreements. Rather, by reference to Appendix C in the case of the 1999 Agreement and Appendix D in the case of the 2002 Agreement, each instrument sets out rates of pay within the structure of a 30-point pay scale. In the absence of express provision, AMRS contended that it was proper to consider the industrial and statutory context surrounding the Agreements. This required attention to the objective facts. AMRS argued that the translation exercise undertaken within Powercor after the 1997 Agreement was not relevant to the construction question. Even if this exercise could be taken into account in construing the 1999 Agreement, at the time of certification of the 1999 Agreement (and the 2002 Agreement), Powercor did not employ any standard meter readers. AMRS submitted that, in the circumstances, it could not be said that, viewed objectively, the pay point classification scheme in the two agreements was intended to cover standard meter readers. AMRS further argued that its approach was supported by the statutory context surrounding the certification of enterprise agreements. AMRS submitted that clause 8.2.2 of the 1998 Award made it clear that the loading of 25% attached to the rates of pay prescribed in the Award and not the rates in the 1999 or 2002 Agreements. 46 In the course of this judgment, their Honours touched on the meaning of the word "business" in this context. As their Honours said, to be a "successor" (or assignee or transmittee), it is not enough that the new employer pursues the same kind of business as the old: Gribbles at 211. What was meant by the word "business" in this context depends on s 149(1)(d) , which "focuses upon succession, assignment and transmission to or of a business which is identified as the business of an employer", which "necessarily directs attention to what it is that the former employer had which is to be described as the 'business' of that employer": Gribbles at 211. Their Honours went on to say (at 212): The 'business' of an employer may be constituted by a number of different assets, both tangible and intangible, that are used in the particular pursuit, whether of profit (if the 'business' is a commercial enterprise) or other ends ... In the case of a commercial enterprise, identifying the employer's 'business' will usually require identification both of the particular activity that is pursued and of the tangible and intangible assets that are used in that pursuit. The 'business' of an employer will be identified as the assets that the employer uses in the pursuit of the particular activity. It is the assets used in that way that can be assigned or transmitted and it is to the assets used in that way that an employer can be a successor. The new employer may be a successor, assignee or transmittee to or of the business, or part of the business, of an employer who was a party to the relevant industrial dispute if the new employer, having the beneficial use of assets which the former employer used in the relevant pursuit, uses those assets in the same or a similar pursuit. ... Whether the new employer is a successor, assignee or transmittee, will require examination of whether what the new employer has can be described as a part of the former employer's business. In s 149(1)(d) of the Workplace Relations Act , "the business or part of the business" of the former employer which in the present case is Powercor is thus to be characterised by reference to the particular activity that it pursued and the assets that it used in that pursuit. As Stellar Call Centres shows, whether a new employer "becomes the ... transmittee ... of the whole or a part of the business concerned", for the purposes of subs 170MB(2) depends on much the same inquiry. 47 Stellar Call Centres applied the reasoning in PP Consultants to an inquiry under ss 149(1)(d) and 170MB(1) (which, for present purposes, is in relevantly the same terms as s 170MB(2)). In the Full Court of this Court, Stellar Call Centres challenged the decision of the judge at first instance that, pursuant to ss 149(1)(d) and 170MB(1) of the Workplace Relations Act , it was bound by awards and certified agreements binding on Telstra Corporation Ltd ("Telstra"). The question was whether a part of Telstra's business that involved the taking and responding to telephone calls from Telstra's customers had been transmitted to Stellar Call Centres. The Full Court held that there was no such transmission, chiefly because the receiving of the calls from customers were "activities in support of Telstra's businesses in the telecommunication industry" but were "not themselves ... the business or part of the business of Telstra": see Stellar Call Centres at 311. The Full Court said (at 311): That business can appropriately be characterised as providing telecommunications services to its customers. In the course of conducting that business, Telstra is called upon to respond to enquiries, requests for services and complaints from its customers, including those made by telephone. However, the making of those responses is not a distinct 'part' of Telstra's business within the meaning of s 149(1) , as explained by the High Court, any more than, for example, cleaning undertaken as a necessary aspect of the conduct of a restaurant is a 'part' of the business of the restauranteur. The business of Stellar Call Centres was the provision of telephone answering services. The answering of calls was not, however, a part of Telstra's business; and, accordingly, there was no transmission of that part of Telstra's business.


case_outcome: discussed

case_text: In substance, Mr Urquhart's case was that: (a) When Powercor contracted out its meter reading function to AMRS in 2002 and 2004, part of Powercor's business (namely, meter reading) was transmitted to AMRS. For Mr Urquhart, counsel argued that meter reading was part of Powercor's business prior to the VMM contract. He argued that Powercor took back this part of its business when the VMM contract terminated and, again, when the Marshmans contract ended. Counsel contended that the Electricity Industry Act 2000 (Vic) ("the Electricity Industry Act "), the Electricity Distribution Licence, and the numerous regulatory Codes illustrated "both the essential part metering play[ed] in the distribution of electricity as well as the ongoing obligations of the distributor, regardless of whether or not the task [had] been outsourced". Counsel argued that, "[b]y reason of the ... obligations imposed on distributors and conditions of licence meter reading and the related activities undertaken by meter readers [meter reading] was more than an ancillary part of the business of a distributor and [was] in fact a necessary part of the business". He submitted that whether or not Powercor performed meter reading between the contracts was irrelevant. For the duration of the contract between Powercor and AMRS, AMRS had "what ... Powercor has within its power to give". Counsel for Mr Urquhart relied on PP Consultants Pty Ltd v Finance Sector Union of Australia [2000] HCA 59 ; (2000) 201 CLR 648 (" PP Consultants "), Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9 ; (2005) 222 CLR 194 (" Gribbles ") and Stellar Call Centres Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union [2001] FCA 106 ; (2001) 106 FCR 302 (" Stellar Call Centres "). He also relied on Construction Forestry Mining & Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409 (" CFMEU v Henry Walker Eltin "), Minister of State for Employment, Workplace Relations and Small Business v Community and Public Sector Union [2001] FCA 316 ; (2001) 109 FCR 303 and North Western Health Care Network v Health Services Union of Australia [1999] FCA 897 ; (1999) 92 FCR 477 (" North Western Health Care "). (b) In these circumstances, by operation of ss 149(1)(d) and 170MB(2) of the Workplace Relations Act , the 1998 Award, the 1999 Agreement and the 2002 Agreement were binding on AMRS. Counsel for Mr Urquhart referred to the 1965 Award, 1969 Variations, the National Wage Cases , the 1998 Award, the 1999 Agreement and the 2002 Agreement in support of his submission that, whilst employed by AMRS, Mr Urquhart was entitled to be paid wages and superannuation at the rate for which the 1999 Agreement and the 2002 Agreement provided, and not at the rate he was in fact paid by AMRS, but with the loading prescribed by the 1998 Award. He referred to the principles for interpreting awards in various cases, including in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426. He contended that, properly construed, the underpayment that Mr Urquhart claimed in his relief (see [4]) included the loading for which the 1998 Award provided calculated by reference to the 1999 and 2002 certified agreement rates (as well as the difference between the amounts for which these certified agreements provided and that which he was actually paid).


case_title: Minister of State for Employment, Workplace Relations and Small Business v Community and Public Sector Union [2001] FCA 316 ; (2001) 109 FCR 303


case_text: In substance, Mr Urquhart's case was that: (a) When Powercor contracted out its meter reading function to AMRS in 2002 and 2004, part of Powercor's business (namely, meter reading) was transmitted to AMRS. For Mr Urquhart, counsel argued that meter reading was part of Powercor's business prior to the VMM contract. He argued that Powercor took back this part of its business when the VMM contract terminated and, again, when the Marshmans contract ended. Counsel contended that the Electricity Industry Act 2000 (Vic) ("the Electricity Industry Act "), the Electricity Distribution Licence, and the numerous regulatory Codes illustrated "both the essential part metering play[ed] in the distribution of electricity as well as the ongoing obligations of the distributor, regardless of whether or not the task [had] been outsourced". Counsel argued that, "[b]y reason of the ... obligations imposed on distributors and conditions of licence meter reading and the related activities undertaken by meter readers [meter reading] was more than an ancillary part of the business of a distributor and [was] in fact a necessary part of the business". He submitted that whether or not Powercor performed meter reading between the contracts was irrelevant. For the duration of the contract between Powercor and AMRS, AMRS had "what ... Powercor has within its power to give". Counsel for Mr Urquhart relied on PP Consultants Pty Ltd v Finance Sector Union of Australia [2000] HCA 59 ; (2000) 201 CLR 648 (" PP Consultants "), Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9 ; (2005) 222 CLR 194 (" Gribbles ") and Stellar Call Centres Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal Plumbing and Allied Services Union [2001] FCA 106 ; (2001) 106 FCR 302 (" Stellar Call Centres "). He also relied on Construction Forestry Mining & Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409 (" CFMEU v Henry Walker Eltin "), Minister of State for Employment, Workplace Relations and Small Business v Community and Public Sector Union [2001] FCA 316 ; (2001) 109 FCR 303 and North Western Health Care Network v Health Services Union of Australia [1999] FCA 897 ; (1999) 92 FCR 477 (" North Western Health Care "). (b) In these circumstances, by operation of ss 149(1)(d) and 170MB(2) of the Workplace Relations Act , the 1998 Award, the 1999 Agreement and the 2002 Agreement were binding on AMRS. Counsel for Mr Urquhart referred to the 1965 Award, 1969 Variations, the National Wage Cases , the 1998 Award, the 1999 Agreement and the 2002 Agreement in support of his submission that, whilst employed by AMRS, Mr Urquhart was entitled to be paid wages and superannuation at the rate for which the 1999 Agreement and the 2002 Agreement provided, and not at the rate he was in fact paid by AMRS, but with the loading prescribed by the 1998 Award. He referred to the principles for interpreting awards in various cases, including in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426. He contended that, properly construed, the underpayment that Mr Urquhart claimed in his relief (see [4]) included the loading for which the 1998 Award provided calculated by reference to the 1999 and 2002 certified agreement rates (as well as the difference between the amounts for which these certified agreements provided and that which he was actually paid). 66 In response, counsel for Mr Urquhart argued that "transmission" was a non-legal concept and did not depend upon privity or any formal legal transfer of rights between the parties. Moreover, he submitted that the Court should not give weight to the consideration as to whether or not Powercor technically retained rights or obligations with respect to meter reading, because to give weight to this consideration would not reflect commercial reality. He referred to North Western Health Care and Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd [2000] FCA 1683 ; (2000) 105 FCR 88 , which applied North Western Health Care . Both cases concerned, amongst other things, a transmission of the business of State government or department and, in any event, for the reasons appearing below, since PP Consultants and Gribbles , North Western Health Care can no longer be said reliably to state the law in this area. 81 This was a different approach to that of the Full Court of this Court in North Western Health Care in which R D Nicholson J stated that "[t]he policy objective of this provision is to make the power to settle industrial disputes effective by extending the instrument of settlement to 'the ever changing body of persons within the area of such disturbances'": North Western Health Care at 485; also 502 per Madgwick J.


case_title: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426


case_text: In response, counsel for Mr Urquhart argued that "transmission" was a non-legal concept and did not depend upon privity or any formal legal transfer of rights between the parties. Moreover, he submitted that the Court should not give weight to the consideration as to whether or not Powercor technically retained rights or obligations with respect to meter reading, because to give weight to this consideration would not reflect commercial reality. He referred to North Western Health Care and Australian Rail Tram and Bus Industry Union v Torrens Transit Services Pty Ltd [2000] FCA 1683 ; (2000) 105 FCR 88 , which applied North Western Health Care . Both cases concerned, amongst other things, a transmission of the business of State government or department and, in any event, for the reasons appearing below, since PP Consultants and Gribbles , North Western Health Care can no longer be said reliably to state the law in this area.


case_text: The majority judgment in Gribbles shows that some aspects of the transaction between Powercor and AMRS are more relevant than others to the disposal/enjoyment test. In particular, it must be asked whether the new employer has acquired any of the tangible or intangible assets of the old employer: compare Gribbles at 212. In Gribbles , the majority found that, by the relevant transaction, the new employer did not come to enjoy either the tangible assets of the former employer (i.e., the former employer's equipment) or the intangible assets of the former employer (i.e., the former employer's goodwill): see Gribbles 214. Further, citing Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 , the majority also recognised that, while both former and new employers employed the same employees, "no employee is an asset in the employer's balance sheet to be bought or sold": Gribbles at 214. Accordingly, the majority concluded that the former employer had not disposed of any part of its business and the new employer was not, therefore, a successor to or of any part of the business of the former employer because "[a]t no time did [the new employer] enjoy any asset of the [former employer], tangible or intangible, which [the former employer] had used in the pursuit of its business activities": see Gribbles at 204. This test is substantially identical to that proposed by Callinan J in PP Consultants (at 664) in that his Honour there asked whether there was anything for the new employer "to sell or otherwise pass on to someone else".


case_text: In X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 ; (2002) 116 FCR 319 the Full Court considered a situation in which the tribunal had refused to have regard to an applicant for review's diary records of a particular period because they had not been translated. The majority, Gray and Moore JJ, in separate reasons, discussed the obligation of a decision-maker to have regard to untranslated material put before him or her. Gray J referred to the decision of Wilcox, Whitlam and Marshall JJ in Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 at [25] . There the Full Court had noted that the tribunal may be under an obligation to obtain a translation of a particular document which was in a foreign language and whose relevance had been explained to the tribunal. However, in Cabal [2001] FCA 546 at [25] the Full Court held that, in general, the tribunal was not required to translate material in a foreign language or to consider large volumes of material whose relevance was not explained and its failure to do so was not a departure from the process of review mandated by the then provisions of the Act, in particular s 414(1). 12 In X v Minister for Immigration 116 FCR at 328 [30] the relevant passages sought to be relied on by X had been translated subsequently and were before the Full Court. In a later case Moore J summarised the effect of the authorities: S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 (affirmed [2004] FCAFC 171 , although this point was not dealt with by the Full Court). He said at [49] that: "Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely [on] it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3 ; (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546. In the present case the Tribunal asked the applicant, through the interpreter, a series of questions both about the newspaper article and the brother's letter. In so doing it ascertained the gist of each document for the purposes of understanding the way in which the applicant relied on them. Its approach was, in my opinion, unexceptionable."


case_text: The appellant argued that this statement indicated that the tribunal had, in effect, created a reversal of the onus of proof or imposed an onus on the appellant to satisfy it that he had not fabricated an account. He referred to Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 555 F-D where O'Connor, Branson and Marshall JJ noted that under the then provisions of the Act, the tribunal would have been mistaken to adopt a procedure which either placed on an applicant an onus of establishing that he was truthful or was based on the assumption that the purpose of the hearing before it was to discover whether the applicant for review was a truthful person. Undoubtedly, that is still apposite, but the reasons of an administration decision-maker cannot be read in isolation or construed minutely and finely with an eye keenly attuned to the perception of error. Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, said that such reasons are meant to inform. They are not to be scrutinised in over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons have been expressed. Their Honours emphasised that the Court was not to turn a judicial review of the exercise of jurisdiction by an executive decision-maker into a merits based review. 23 In Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423-424 [67]-[70]; [2000] HCA 1 ; 74 ALJR 405 at 417, McHugh J pointed out that it was quintessentially the function of the tribunal to come to a decision about the credibility of an applicant for review. If one took out of context the statement concerning fabrication, that I have quoted in the credibility section of the tribunal's findings and reasons, it may well fall within the criticism noted in Kopalapillai 86 FCR 555 F-G. However, in the context of the reasons as a whole, I am not satisfied that that is a fair or appropriate way to read the tribunal's reasoning on the appellant's credibility.