case_text: Although the decision of the Tribunal was not susceptible of appeal, original jurisdiction is conferred on this Court by s 476A(1)(b) and (2) to review the Tribunal's decision. The jurisdiction conferred is the same as that of the High Court of Australia under s 75(v) of the Constitution . In order to obtain relief in this Court's original jurisdiction, the Applicant must demonstrate jurisdictional error: Cockrell v Minister for Immigration & Citizenship [2008] FCAFC 160 at [4] . The Minister did not deny that a failure to consider a relevant consideration could amount to jurisdictional error (eg, Aporo v Minister for Immigration & Citizenship [2008] FCA 102 ; see also: Green v Minister for Immigration & Citizenship [2008] FCA 125 at [21] [29], [2008] FCA 125 ; 100 ALD 346) ; nor was any submission advanced that a failure to comply with s 43(2B) of the 1975 Act may not constitute jurisdictional error. The submission which was advanced on behalf of the Minister was that the Tribunal had committed no error, be it jurisdictional or otherwise. 41 Even if there had been a failure on the part of the Tribunal to consider the hardship which the decision would have upon him, such a failure would not have amounted to a failure to consider a matter which the Tribunal was " bound " to take into account, and any such failure would not have amounted to jurisdictional error. A comparable argument was advanced and rejected in Cockrell v Minister for Immigration & Citizenship [2008] FCAFC 160. The trial judge had there rejected the argument as follows: [53] I do not think the Tribunal member was bound to consider hardship to the applicant himself. It is possible that in any event he did so when considering the best interests of [the Applicant's son], but even if he did not, he did not err in law in not doing so. ...: Cockrell v Minister for Immigration and Citizenship [2007] FCA 1779 , 100 ALD 52. An appeal was dismissed. Gray, Finn and Mansfield JJ relevantly concluded: [31] Counsel for the appellant did not refer the Court to any other document, or transcript of evidence, in which any evidence or submission of hardship to the appellant was put before the Tribunal. Any evidence and submissions in support of the proposition that the appellant would suffer hardship is therefore vague, and is usually found in the context of assertions of hardship to others, particularly [his son]. It is difficult to see how the Tribunal could come to the conclusion that hardship to the appellant was a relevant factor, appropriate for it to take into account under cl 2.17 of Direction No 21. The specific mention in cl 2.17(c) of hardship to immediate family members lawfully resident in Australia tends to make it doubtful that hardship to the person cancellation of whose visa is being considered would be regarded as a relevant matter, at least in most cases. It must be assumed that the cancellation of a visa of a person who opposes that cancellation would cause that person hardship in any event. Unless a case of specific hardship were put before the decision-maker, it can hardly be expected that the decision-maker would take into account such a general consideration. To the extent to which hardship to the appellant by separation from [his son] is implicit in the cancellation of the appellant's visa, it is important that Direction No 21 only makes specific reference (in the circumstances of this case) to hardship to [his son]. It is at least implicit in the Tribunal's finding that the prospects of the appellant and [his son] developing a close relationship were doubtful that the Tribunal's view was that the appellant's removal to the United States would make no significant difference to his relationship with [his son], and therefore to any detriment he suffered from the absence of a such a relationship.


case_outcome: followed

case_text: The task to be undertaken by the Tribunal in the present proceeding -- as in other applications coming before it -- was essentially a consideration of the evidence adduced and the submissions advanced. Its task was to resolve the case sought to be advanced by the parties in a manner consistent with determining the " correct or preferable decision ". That task was one of determining the correct or preferable decision on the basis of the material then before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Bowen CJ and Deane J there held (at 419): The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. These observations are oft cited with approval: eg, Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ. See also: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J. 17 In determining the " correct or preferable " decision, the Tribunal will ordinarily be best " guided by the parties " in identifying the issues: Sullivan v Department of Transport (1970) 20 ALR 323 at 342. See also: A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 at [21] , [2002] FCA 200 ; 189 ALR 293 at 298 per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that "[c] ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute ": (1978) 20 ALR 323 at 342. It is " the duty of the Tribunal ", it has been said, " to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made ": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429 30. Before the Tribunal there is no requirement that " the point be taken ": Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 348 per Fox J.


case_outcome: cited

case_text: The task to be undertaken by the Tribunal in the present proceeding -- as in other applications coming before it -- was essentially a consideration of the evidence adduced and the submissions advanced. Its task was to resolve the case sought to be advanced by the parties in a manner consistent with determining the " correct or preferable decision ". That task was one of determining the correct or preferable decision on the basis of the material then before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Bowen CJ and Deane J there held (at 419): The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. These observations are oft cited with approval: eg, Esber v Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ. See also: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J.


case_text: Although the decision of the Tribunal was not susceptible of appeal, original jurisdiction is conferred on this Court by s 476A(1)(b) and (2) to review the Tribunal's decision. The jurisdiction conferred is the same as that of the High Court of Australia under s 75(v) of the Constitution . In order to obtain relief in this Court's original jurisdiction, the Applicant must demonstrate jurisdictional error: Cockrell v Minister for Immigration & Citizenship [2008] FCAFC 160 at [4] . The Minister did not deny that a failure to consider a relevant consideration could amount to jurisdictional error (eg, Aporo v Minister for Immigration & Citizenship [2008] FCA 102 ; see also: Green v Minister for Immigration & Citizenship [2008] FCA 125 at [21] [29], [2008] FCA 125 ; 100 ALD 346) ; nor was any submission advanced that a failure to comply with s 43(2B) of the 1975 Act may not constitute jurisdictional error. The submission which was advanced on behalf of the Minister was that the Tribunal had committed no error, be it jurisdictional or otherwise.


case_outcome: applied

case_text: In determining the " correct or preferable " decision, the Tribunal will ordinarily be best " guided by the parties " in identifying the issues: Sullivan v Department of Transport (1970) 20 ALR 323 at 342. See also: A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 at [21] , [2002] FCA 200 ; 189 ALR 293 at 298 per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that "[c] ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute ": (1978) 20 ALR 323 at 342. It is " the duty of the Tribunal ", it has been said, " to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made ": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429 30. Before the Tribunal there is no requirement that " the point be taken ": Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 348 per Fox J. 18 In determining the " correct or preferable " decision the Tribunal must also be satisfied that there is " enough material " before it on a matter of central importance to the decision to be reached ( Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343 per Bowen CJ). And "[t] he tribunal [is] required to make the correct or preferable decision on the material before it, regardless of the form which the parties' submissions [take]": McKeown v Repatriation Commission (1995) 39 ALD 30 at 33 per Jenkinson J. An error of law may be committed if the Tribunal ignores a central issue, even if no submission at all is directed to it: Australian Trade Commission v F & F Asia Pty Ltd (1996) 69 FCR 252 at 266 per Carr J. See also: Transport Accident Commission v Bausch (1998) 4 VR 249 at 263 per Tadgell JA (Batt and Buchanan JJA agreeing). 20 But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not been otherwise adduced or any general duty to pursue submissions not otherwise advanced. The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana ; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1. It was said there that a " judgment that the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made. The claim must emerge clearly from the materials before the Tribunal ": at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 at [50] , [2006] FCA 1759 ; 44 AAR 382 at 397 per Moore J; MZXMG v Minister for Immigration & Citizenship [2007] FCA 1884 at [13] [14] per Middleton J. In MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there " is no precise standard for determining when an issue is 'raised squarely', but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it ".


case_title: Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 , 183 ALR 188

case_text: When appearing before the Tribunal, s 39 of the Administrative Appeals Tribunal Act provides that the Tribunal is to " ensure that every party ... is given a reasonable opportunity to present his ... case ". The opportunity must be a " real and meaningful opportunity " and not a " hollow shell or an empty gesture ": cf Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [37] , [2003] FCAFC 126 ; 128 FCR 553 at 561. But it is no part of the Tribunal's task to ensure that a party takes the best advantage of that opportunity ( Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45] , [2000] FCA 570 ; 60 ALD 737 at 748). " Neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled ": Sullivan v Department of Transport (1970) 20 ALR 323 at 343 per Deane J. And it is no part of the Tribunal's task to make out an applicant's case for him: cf Abebe v Commonwealth [1999] HCA 14 at [187] , [2004] HCA 32 ; 197 CLR 510 at 576 per Gummow and Hayne JJ.


case_text: In determining the " correct or preferable " decision the Tribunal must also be satisfied that there is " enough material " before it on a matter of central importance to the decision to be reached ( Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 343 per Bowen CJ). And "[t] he tribunal [is] required to make the correct or preferable decision on the material before it, regardless of the form which the parties' submissions [take]": McKeown v Repatriation Commission (1995) 39 ALD 30 at 33 per Jenkinson J. An error of law may be committed if the Tribunal ignores a central issue, even if no submission at all is directed to it: Australian Trade Commission v F & F Asia Pty Ltd (1996) 69 FCR 252 at 266 per Carr J. See also: Transport Accident Commission v Bausch (1998) 4 VR 249 at 263 per Tadgell JA (Batt and Buchanan JJA agreeing).


case_text: Construing the Notice of Appeal as an application for judicial review, however, only confronted the Applicant with two further difficulties, namely: a) whether or not the Tribunal did in fact fail to consider the impact of the decision upon the Applicant and the hardship which would be occasioned to him if the delegate's decision was affirmed; and b) whether or not the Tribunal was, in any event, " bound " to take such a consideration into account. A failure to take a consideration into account only gives rise to a reviewable error if the consideration was one which a decision-maker was " bound " to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39 41 per Mason J. 9 The simple fact is that the Tribunal did consider the hardship which would be occasioned to the Applicant if the decision cancelling his visa was to be affirmed and it did make findings which referred to the evidence. The Applicant was given an opportunity for the merits of his position to be considered. Regrettably for the Applicant, the Administrative Appeals Tribunal resolved the merits of his claims adversely to him. 10 Even if there had been a failure to consider the impact upon the Applicant of a decision affirming the cancellation of his visa, it is not considered that any jurisdictional error would in any event have been committed by the Tribunal. 42 Similarly, in Vu v Minister for Immigration and Citizenship [2008] FCAFC 12 , 101 ALD 454 Tamberlin J concluded: [13] The second submission involved the assumption, as his Honour pointed out, that it was a relevant fact for the minister to consider whether Mr Vu could receive medical treatment, in particular methadone treatment, for his heroin addiction if he goes back to Vietnam. His Honour found that the minister was aware of that fact and took it into account when making her decision. We have grave doubts that any of the particular matters of hardship identified by Mr Vu, even if not taken into account by the minister, would show jurisdictional error in her decision. The minister clearly addressed both the issue of hardship generally and each of the topics to which the direction issued under s 499(1) of the Act required the decision-maker to consider when exercising discretion. The particular matters of hardship raised by Mr Vu are not matters which, either expressly or by necessary implication from s 501 of the Act, required the minister to have regard to each of them: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1981) 162 CLR 24 ; 66 ALR 299 ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 ; [2001] HCA 30. North and Mansfield JJ agreed.


case_text: Also relevant to the making of that determination is a proper understanding as to the role played by a statutory requirement to provide reasons. A primary purpose in imposing such a requirement is to inform the parties as to why their evidence or arguments have prevailed or been rejected. Reasons provided by an administrative tribunal, it is well accepted, are not to be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6 ; (1996) 185 CLR 259. In a passage which is now oft-cited, Brennan CJ, Toohey, McHugh and Gummow JJ there made the following observations as to the proper role of a reviewing court when considering a statement of reasons provided by the Administrative Appeals Tribunal: When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [1993] FCA 322 ; [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. ... (citations omitted) So construed, the reasons of the Tribunal in the present proceeding reveal a careful consideration of the evidence that was presented and a careful consideration of the case being advanced by the Applicant. No doubt because the Applicant was unrepresented, no clear submission was advanced that any particular aspect of hardship to the Applicant was a discrete matter which had to be separately addressed and resolved in any manner different to that set forth in the Tribunal's reasons. " Hardship ", it must be recognised, is a matter which may manifest itself in any one of a number of different ways. To that extent, it is a state of indeterminate content. But no particular piece of evidence could be identified which gave rise to any particular aspect of " hardship " which was not addressed by the Tribunal in its reasons. 38 Not surprisingly, the reasons of the Tribunal address the terms of Direction No 21. And, even though that Direction does not mention hardship to the Applicant as a matter specifically to be addressed, it was inevitable that a decision affirming the delegate's decision would operate to deny to him an ability to remain in Australia. His desire to remain was presumably the reason why he sought review by the Tribunal. Even though such reference as was made to the effect of the decision upon the Applicant may have been dealt with within the context of the Direction itself, hardship to the Applicant remained a matter taken into account by the Tribunal and adequately addressed by it in the reasons provided. 39 The manner in which the Tribunal has resolved the evidence and submissions advanced before it, it is considered, does not expose the Tribunal to any sustainable contention that it failed to consider the hardship that affirming the decision under review would occasion the Applicant, nor to any sustainable contention that it failed to make those findings of fact material to the decision it made.


case_title: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 , 206 CLR 323

case_text: Having considered the evidence and the submissions advanced, and extended to the Applicant a " reasonable opportunity " to present his case, the remaining task of the Tribunal was that set forth in s 43(2B) of the Administrative Appeals Tribunal Act , namely to make its findings on material questions of fact and refer to the evidence upon which those findings were based. That sub-section provides as follows: Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. This provision does not require the Tribunal to set forth all findings of fact, but only those findings on " material questions of fact ": cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [67] [68], [2001] HCA 30 ; 206 CLR 323 at 345 6. A more focussed submission in respect to hardship may have led the Tribunal to make a further finding. But the failure to make such a possible further finding does not expose reviewable error on the part of the Tribunal. 36 When determining whether the reasons for decision of the Tribunal have adequately dealt with the particular legal and factual issues which were advanced before it, the Court must take into account a variety of factors. These include the comparative importance (or lack of importance) of any particular submission being advanced for determination and whether the evidence being presented raises any issue in need of resolution (even if not expressly the subject of a submission, especially in the case of an unrepresented party). In the present proceeding, and in accordance with Direction No 21, the Tribunal gave consideration to those matters which the Minister and the Government " directed " should be given " particular importance " and those matters which it directed should be given " less individual weight ". Relevantly, " hardship " to a party whose visa was cancelled was not a matter specifically addressed by the Direction. 42 Similarly, in Vu v Minister for Immigration and Citizenship [2008] FCAFC 12 , 101 ALD 454 Tamberlin J concluded: [13] The second submission involved the assumption, as his Honour pointed out, that it was a relevant fact for the minister to consider whether Mr Vu could receive medical treatment, in particular methadone treatment, for his heroin addiction if he goes back to Vietnam. His Honour found that the minister was aware of that fact and took it into account when making her decision. We have grave doubts that any of the particular matters of hardship identified by Mr Vu, even if not taken into account by the minister, would show jurisdictional error in her decision. The minister clearly addressed both the issue of hardship generally and each of the topics to which the direction issued under s 499(1) of the Act required the decision-maker to consider when exercising discretion. The particular matters of hardship raised by Mr Vu are not matters which, either expressly or by necessary implication from s 501 of the Act, required the minister to have regard to each of them: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1981) 162 CLR 24 ; 66 ALR 299 ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 ; [2001] HCA 30. North and Mansfield JJ agreed.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 , 128 FCR 553


case_text: But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not been otherwise adduced or any general duty to pursue submissions not otherwise advanced. The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana ; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1. It was said there that a " judgment that the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made. The claim must emerge clearly from the materials before the Tribunal ": at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 at [50] , [2006] FCA 1759 ; 44 AAR 382 at 397 per Moore J; MZXMG v Minister for Immigration & Citizenship [2007] FCA 1884 at [13] [14] per Middleton J. In MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there " is no precise standard for determining when an issue is 'raised squarely', but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it ".


case_title: MZXMG v Minister for Immigration & Citizenship [2007] FCA 1884


case_title: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1


case_title: NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 , 189 ALR 293

case_text: In determining the " correct or preferable " decision, the Tribunal will ordinarily be best " guided by the parties " in identifying the issues: Sullivan v Department of Transport (1970) 20 ALR 323 at 342. See also: A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 at [21] , [2002] FCA 200 ; 189 ALR 293 at 298 per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that "[c] ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute ": (1978) 20 ALR 323 at 342. It is " the duty of the Tribunal ", it has been said, " to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made ": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429 30. Before the Tribunal there is no requirement that " the point be taken ": Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 348 per Fox J.


case_text: Although an unrepresented applicant is relevantly in no different position, both courts and tribunals are conscious of the difficulties confronting unrepresented litigants and are conscious of ensuring that any hearing is fair and just: Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 at [26] per Finn J. See also: Neil v Nott [1994] HCA 23 ; (1994) 68 ALJR 509. Brennan, Deane, Toohey, Gaudron and McHugh JJ there observed: A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. See also: Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943 at [51] [54], [2006] FCA 943 ; 91 ALD 362 at 372 per Cowdroy J.


case_title: Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943 , 91 ALD 362


case_title: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155


case_text: He first entered Australia in October 1992 and left within two weeks. He again entered Australia in August 2000. On the latter occasion he was granted a special category visa. Both before and after entering Australia the Applicant committed a number of criminal offences. His visa was cancelled by a delegate of the Minister on 5 June 2008 pursuant to s 501(2) of the Migration Act 1958 (Cth). He appealed that decision to the Administrative Appeals Tribunal and on 29 August 2008 the Tribunal affirmed the decision: Re Kasupene and Minister for Immigration & Citizenship [2008] AATA 766. 3 On 23 September 2008 the Applicant filed a Notice of Appeal in this Court and an Affidavit . The Notice of Appeal -- read together with the Affidavit -- identified the two grounds of appeal sought to be relied upon as being: (i) a failure to have regard to a relevant consideration, namely the hardship that the decision would occasion to the Applicant; and (ii) a failure on the part of the Tribunal to set out its findings on the question as to hardship and a failure to refer to the evidence upon which the findings were based -- as was required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). 4 An initial difficulty confronting the Applicant was the fact that the decision of the Tribunal is a " privative clause decision " and hence is not susceptible of appeal. The inability to appeal arises by reason of s 476A(1)(b) and (d) of the 1958 Act which relevantly provides as follows: Limited jurisdiction of the Federal Court (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977 , the Federal Court has original jurisdiction in relation to a migration decision if, and only if: ... (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or ... (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. (2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution .


case_title: Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181


case_text: In Sales v Minister for Immigration & Multicultural Affairs [2006] FCA 1807 this Direction was described as " a comprehensive and careful document ". Allsop J there observed: [14] The direction is a comprehensive and careful document of 11 pages. It makes clear in the preamble that the exercise of the discretion whether or not to cancel the visas will take into account a wide range of factors including the protection and the expectations of the Australian community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations of Australia. The preamble went on to say that the purpose of refusing or cancelling a visa under s 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community. The task to prepare material for a consideration of such matters, objectively understood, is wide-reaching and significant. Given the terms of s 499(2A) , it was Direction No 21 which properly provided the structure for the Tribunal's reasons and its consideration of the evidence. 24 Relevantly, Direction No 21 provides as follows: 2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. ... 2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children. ... 2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include: ... (c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence). ... 2.6 It is the Government's view that the following are examples of offences which are considered by the Government to be very serious: ... (f) ... assault or any other form of violence against persons; ... (l) serious theft (including "white collar" crimes): • such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government ... ... 2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways: (a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences ... ... The Tribunal in the present proceeding addressed, as it was required to do, those matters set forth in Direction No 21 . 25 Consistent with the Direction , the Tribunal addressed the three " primary " considerations set out in Direction No 21 , being: • the protection of the Australian community, and members of the community; • the expectations of the Australian community; and • the best interests of the child.


case_text: The terms of Direction No 21 , and the requirements of s 39 , it may finally be noted, were considered by the Full Court in Scorgie v Minister for Immigration & Citizenship [2008] FCAFC 101. There was there held to be on the facts of that case no failure to comply with s 39. And in Weti v Minister for Immigration & Citizenship [2007] FCA 1531 there was no breach of s 39 occasioned by the Tribunal adjourning a proceeding on the application of an unrepresented applicant -- but only for one day. The applicant had there known of the unavailability of her solicitor for some time. The factual issues were said not to be complex and there were no legal issues. Edmonds J was there " not persuaded that the Tribunal's decision to limit the adjournment of the proceedings to one day, resulting in the almost inevitable consequence that she would not be legally represented at the hearing on the following day, constitutes a denial of natural justice or procedural fairness in the form of a failure to provide her with a reasonable opportunity to adequately present her case ": [2007] FCA 1531 at [38] .


case_title: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 , 60 ALD 737


case_text: When appearing before the Tribunal, s 39 of the Administrative Appeals Tribunal Act provides that the Tribunal is to " ensure that every party ... is given a reasonable opportunity to present his ... case ". The opportunity must be a " real and meaningful opportunity " and not a " hollow shell or an empty gesture ": cf Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [37] , [2003] FCAFC 126 ; 128 FCR 553 at 561. But it is no part of the Tribunal's task to ensure that a party takes the best advantage of that opportunity ( Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45] , [2000] FCA 570 ; 60 ALD 737 at 748). " Neither the Act nor the common law imposes upon the tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled ": Sullivan v Department of Transport (1970) 20 ALR 323 at 343 per Deane J. And it is no part of the Tribunal's task to make out an applicant's case for him: cf Abebe v Commonwealth [1999] HCA 14 at [187] , [2004] HCA 32 ; 197 CLR 510 at 576 per Gummow and Hayne JJ. 17 In determining the " correct or preferable " decision, the Tribunal will ordinarily be best " guided by the parties " in identifying the issues: Sullivan v Department of Transport (1970) 20 ALR 323 at 342. See also: A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs [2002] FCA 200 at [21] , [2002] FCA 200 ; 189 ALR 293 at 298 per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that "[c] ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute ": (1978) 20 ALR 323 at 342. It is " the duty of the Tribunal ", it has been said, " to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made ": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429 30. Before the Tribunal there is no requirement that " the point be taken ": Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334 at 348 per Fox J.


case_title: SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759 , 44 AAR 382


case_text: Although the constraint imposed by s 476A(1) cannot be disregarded, it did not appear that anything would have been gained had the Applicant been directed to file an application seeking judicial review as opposed to treating the Notice of Appeal as though it were such an application. The Minister did not oppose this course. It is not considered that such a direction would have facilitated the expeditious hearing and resolution of the proceeding. The matter first came before the Court on 13 October 2008. The Applicant was then in detention at Villawood Detention Centre and it was desirable to have his grievances resolved as quickly as was consistent with a proper resolution of the issues raised in his Notice of Appeal . It is the practice of this Court to hear such cases as quickly as possible: eg, Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 at [42] , [2002] FCA 594 ; 120 FCR 1 at 11; SZLMA v Minister for Immigration & Citizenship [2008] FCA 69 at [1] . With the co-operation of those appearing for the Respondent Minister, arrangements were made to have the relevant evidence filed and served by 15 October 2008. The matter was listed for final hearing on 17 October 2008.


case_text: The fact that the Tribunal did not use the language of " hardship " that would be suffered by the Applicant -- as opposed to the " hardship " that would be occasioned to others -- it is considered, is not decisive. That which is decisive against the Applicant is the fact that the Tribunal considered the entirety of the evidence, including the evidence as to the effect that the decision would have upon him. Subject to a proper application of Direction No 21 , the weight to be given to the considerations addressed is a matter for the Tribunal alone: cf Black v Minister for Immigration & Citizenship [2007] FCAFC 189 at [33] [37], [2007] FCAFC 189 ; 99 ALD 1 at 8 9; Tapel v Minister for Immigration & Citizenship [2008] FCA 857 at [27] .


case_title: Transport Accident Commission v Bausch (1998) 4 VR 249


case_text: Similarly, in Vu v Minister for Immigration and Citizenship [2008] FCAFC 12 , 101 ALD 454 Tamberlin J concluded: [13] The second submission involved the assumption, as his Honour pointed out, that it was a relevant fact for the minister to consider whether Mr Vu could receive medical treatment, in particular methadone treatment, for his heroin addiction if he goes back to Vietnam. His Honour found that the minister was aware of that fact and took it into account when making her decision. We have grave doubts that any of the particular matters of hardship identified by Mr Vu, even if not taken into account by the minister, would show jurisdictional error in her decision. The minister clearly addressed both the issue of hardship generally and each of the topics to which the direction issued under s 499(1) of the Act required the decision-maker to consider when exercising discretion. The particular matters of hardship raised by Mr Vu are not matters which, either expressly or by necessary implication from s 501 of the Act, required the minister to have regard to each of them: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1981) 162 CLR 24 ; 66 ALR 299 ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 ; [2001] HCA 30. North and Mansfield JJ agreed.


case_outcome: considered

case_title: Weti v Minister for Immigration & Citizenship [2007] FCA 1531


case_outcome: referred to

case_text: There is a body of authority bearing on the foregoing subject to which I have already made reference starting at [26] of these reasons, for instance Stevens, Hollis and Damevski. Attention was drawn by CAO also to ACT Visiting Medical Officers Association v Australian Industrial Relations Commission (2006) 153 IR 228 and BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (2006) 151 IR 361, which will shortly be discussed. The majority of those decisions were made in the broader context of determining whether a particular worker was an employee or else an independent contractor of the beneficiary of his or her work. 136 CAO emphasised that the importance of those factors will vary with the circumstances, no single factor being normally determinative, and that a balancing exercise is to be undertaken in relation to all of the relevant factors ( ACT Visiting Medical Officers at [19]-[20], [27] and [30] and BHP Billiton at [114]). CAO pointed out additionally that the fact that a party is benefited by the activities of a person is not a sufficient indication that the person is an employee, pointing thereby to Hollis at [40], where in the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, the following observation was made: 'Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee.'


case_title: A/asian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd & Ors (T/as Sunland Wholesale Meats) (1998) 24 IR 467

case_text: More recently in A/asian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467 at 473, Gray J observed that the expression casual employee 'does not have a recognised legal meaning' , so that any issue as to the terms on which a casual employee is engaged 'becomes one of fact' . Accordingly it would seem that the expression has not materially changed in meaning since the High Court's decision in Doyle.


case_text: The next segment of written submissions of CAO may be summarised to the effect that there is no evidence which established that either of the applicants perceived himself to have been in a contractual relationship with CAO, for the following reasons: (i) the applicants did not assert in evidence that they were employed by CAO during the course of their encounter with CAO; (ii) the applicants did not describe themselves in their respective applications to MES for employment in November 2004 as having been previously employed by CAO, but rather as each having been a 'contractor' at the HVO with 'the contracting company' (thereby referring to MES); I refer in that regard to their respective job application forms for permanent employment with CAO at the HVO appearing at pp 1045 and 1414 of Exhibit 1; (iii) the applicants did not describe themselves in their respective curriculum vitae as having been employed by CAO, but referred merely to their 'employment history', in the case of Mr Wilton as 'Mining Earth Moving Services 2001', and in the case of Mr Cumberland as 'Plant Operator Mining Earthmoving Services Muswellbrook...'; (iv) Mr Wilton did not describe himself in his taxation returns as having been employed by CAO, but he identified MES as the payer of his salary and wages in each of the years 2001 to 2005. In relation to that documentary material, it was pointed out by CAO that regard may be paid to subsequent conduct in order to ascertain whether a contract had or still existed (citing Brambles at [25] and Damevski at [85]), just as it is permissible to have regard to subsequent conduct in order to determine whether an intention to contract existed ( Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550, Gleeson CJ with whose reasons Hope and Mahoney JJA agreed and Damevski at [141] and [147]). 128 In the context moreover of the framework by CAO of issues and contentions, CAO emphasised that inclusion of a term or condition as to remuneration was normally an 'essential term' for expression in contracts for the provision of personal services, and submitted that what it described as the lack of contemplation or discussion relevantly as to remuneration meant that CAO did not have an agreement with either of the applicants on essential terms. I was referred in that regard again to Australian Broadcasting Corporation , where Gleeson CJ at 552 described 'the price' being 'the most important subject of their transaction' . CAO further emphasised that the applicants bore the onus of proof of the formation of an agreement referrable to essential terms. 185 To those circumstances may be added the four reasons set out in [117] above as demonstrative of and consistent with objective perceptions or intentions of each of the applicants as to an absence of his involvement in any contractual relationship with CAO consistently I think with the principle said to have been acknowledged in Australian Broadcasting Corporation . Moreover the further circumstances concerning the applicants enumerated at [120] are I think indicative of and consistent with the absence of a contractual relationship of employer and employee at all material times as between each of the applicants as an employee of the one part and CAO as the employer of the other part. Conversely, each of the matters enumerated in [122] and [123] above exemplify circumstances to the effect that CAO was privy to a contractual arrangement with MES for the supply to CAO of labour for reward to MES of persons (such as the applicants) engaged by MES to undertake mining work at the CAO mining operations conducted in the HVO, being work involving of course the operation by such persons of the mining machinery of CAO. 186 I am further of the view that CAO is correct in its postulation that each of the matters enumerated at [124] above demonstrate not only a lack of sufficiently compelling indications capable of bearing upon the existence of an employment relationship between CAO and the applicants, but indeed serve to evince the converse. Explanation is thereby implicitly provided as to why there was no requirement for CAO to enter upon, and moreover why it did not enter upon, any contract of employment with either of the applicants, and why CAO never recorded in any documentation the existence of any relationship of employment as between itself and either of the applicants.


case_text: There is a body of authority bearing on the foregoing subject to which I have already made reference starting at [26] of these reasons, for instance Stevens, Hollis and Damevski. Attention was drawn by CAO also to ACT Visiting Medical Officers Association v Australian Industrial Relations Commission (2006) 153 IR 228 and BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (2006) 151 IR 361, which will shortly be discussed. The majority of those decisions were made in the broader context of determining whether a particular worker was an employee or else an independent contractor of the beneficiary of his or her work. 134 The effect and operation of that line of authority may be outlined as follows: (i) the totality of the relationship is to be considered; thus in Stevens , the following appears in the reasons for judgment of Mason J (as he then was) at 24: 'But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.' To that dictum may be added what I have earlier cited at [26] of my reasons from the joint judgment of Wilson and Dawson JJ in Stevens ; (ii) in the most recent of the foregoing five authorities above recorded ( ACT Visiting Medical Officers) , a Full Federal Court comprising Wilcox J, myself and Stone J in a joint judgment applied the principles emerging from analogous authority for the purpose of characterising relevantly the visiting medical officers engaged by public hospital authorities to provide medical services to public patients; the Full Court observed the practical realities inherent in the circumstance that in the course of their treatment of patients undertaken at the hospitals, the visiting medical doctors 'moved seamlessly between patients in the two groups' , being both private and public patients, as an integral part of the businesses that each of those doctors individually carried on; (iii) in BHP Billiton the person at the centre of the dispute had been employed by BHP Billiton and its precursors as a locomotive driver until he was made redundant in 1999; in 2001 he applied successfully for employment with a labour hire company then supplying contract drivers to BHP Billiton; from that time to 2004, and while directly employed by the labour hire company but working at BHP Billiton, he applied for advertised direct employee position with BHP Billiton on four separate occasions but was unsuccessful each time; the Union alleged that BHP Billiton had unreasonably refused to employ him, and that he was in any event jointly in the employ of entities inclusive of BHP Billiton; declaratory relief was sought to that latter effect, as was also an order in any event that such person be employed by BHP Billiton on an award; in the course of decision-making the Industrial Appeal Court of Western Australia was required to consider the Union's case that the person concerned was an employee of BHP Billiton according to ordinary concepts; the Union submitted that the correct approach to deciding the question as to the existence or otherwise of an employment relationship was to have regard to the totality of the relationship, citing inter alia in that context Hollis and Stevens . At [114] in the reasons for judgment of Le Miere J, with whose reasons Wheeler J agreed and Pullin J at least substantially agreed, it was observed as follows: 'In Hollis v Vabu and Stevens v Brodribb Sawmilling Co Pty Ltd the High Court set out the common law principles for distinguishing between an employee and a contractor. These principles do not embody a definition of employment as such. They rely instead on a test which involves the consideration of a number of established factors or indicia, some of which are characteristic of a contract of service and others of which suggest a non-employment relationship. The task of the court which must assess the employment status of a worker is to consider the parties' relationship in light of each of these indicia and to determine, on balance, into which legal category the relationship falls. The exercise is not a mechanical one. Rather it is a matter of obtaining the overall picture from the accumulation of detail.' 135 CAO submitted that the operation relevantly of the reasons for the respective decisions in Stevens, Hollis, Damevski, ACT Visiting Medical Officers and BHP Billiton , somewhat repetitively as in the preceding paragraph, as follows: (i) the totality of the relationship in issue between the parties is to be considered; (ii) the measure of control exercised by a putative employer over a worker is a prominent factor but not the sole criterion; and (iii) other factors include the manner in which work is performed, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and entitlements to leave, the deduction of income tax, the delegation of work by the putative employee, the presentation to the public of the putative employee as an emanation of the putative employer, the supply of a uniform and the description by the parties of their relationship in the contract the subject of consideration. 136 CAO emphasised that the importance of those factors will vary with the circumstances, no single factor being normally determinative, and that a balancing exercise is to be undertaken in relation to all of the relevant factors ( ACT Visiting Medical Officers at [19]-[20], [27] and [30] and BHP Billiton at [114]). CAO pointed out additionally that the fact that a party is benefited by the activities of a person is not a sufficient indication that the person is an employee, pointing thereby to Hollis at [40], where in the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, the following observation was made: 'Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee.' 192 I think that CAO is correct in its comprehensive case advanced, in a sense in the alternative, to the effect that the conduct and functions of the respective parties were not otherwise indicative of an employment relationship between the applicants and CAO, having regard to the totality thereof, and having regard in particular also to the criteria apparent from the authorities to which I have already referred, inclusive in particular of Stevens, Hollis, Damevski, ACT Visiting Medical Officers and BHP Billiton , keeping in mind in so doing that it is labour hire arrangements that are here inherently involved. I would acknowledge the relevance and force of all of the factors formulated in [135], each having varying significance without each being determinative in any fulfilment of the need for undertaking a balancing exercise in relation to all relevant factors bearing upon resolution of the principal issue arising as the existence or otherwise of relationships of employment. I would further acknowledge the prospective operation, in cases such as the present, of the principles enunciated generally in Mason and Humberstone , as well as perhaps more specifically in Drake , and additionally of course in Forstaff where reference to and examination of authority is undertaken by way of focus on labour hire arrangements.


case_text: It was submitted by the applicants in the light of the foregoing authorities that in determining whether each of them is entitled to the relief sought in the present proceedings against CAO, it is necessary to consider the total relationship between the applicants and CAO, and hence all the facts and circumstances bearing upon the applicants' particular employment. In so doing, it was further submitted that the Court is entitled to have regard to conduct that occurred after the relationship commenced. I was referred to what was observed by Heydon JA (as he then was) in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 163-164, commencing, 'The second relevant principle is that post-contractual conduct is admissible on the question of whether a contract was formed' , his Honour thereby citing authority, commencing with Howard Smith & Company Limited v Varawa [1907] HCA 38 ; (1907) 5 CLR 68 at 77, in the context of his discussion of principles of contract formation. Further in Brambles at 177 on the subject of limitations upon an offer and acceptance analysis, Heydon JA adopted the following dictum of the New South Wales Court of Appeal in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,118 (McHugh JA with whose reasons Hope and Mahoney JJA concurred) : 'Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In any dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.' It would be somewhat of an overstatement to describe the present context as involving a 'dynamic commercial relationship' , but nevertheless the foregoing dictum is by no means out of place in the present context. 117 The next segment of written submissions of CAO may be summarised to the effect that there is no evidence which established that either of the applicants perceived himself to have been in a contractual relationship with CAO, for the following reasons: (i) the applicants did not assert in evidence that they were employed by CAO during the course of their encounter with CAO; (ii) the applicants did not describe themselves in their respective applications to MES for employment in November 2004 as having been previously employed by CAO, but rather as each having been a 'contractor' at the HVO with 'the contracting company' (thereby referring to MES); I refer in that regard to their respective job application forms for permanent employment with CAO at the HVO appearing at pp 1045 and 1414 of Exhibit 1; (iii) the applicants did not describe themselves in their respective curriculum vitae as having been employed by CAO, but referred merely to their 'employment history', in the case of Mr Wilton as 'Mining Earth Moving Services 2001', and in the case of Mr Cumberland as 'Plant Operator Mining Earthmoving Services Muswellbrook...'; (iv) Mr Wilton did not describe himself in his taxation returns as having been employed by CAO, but he identified MES as the payer of his salary and wages in each of the years 2001 to 2005. In relation to that documentary material, it was pointed out by CAO that regard may be paid to subsequent conduct in order to ascertain whether a contract had or still existed (citing Brambles at [25] and Damevski at [85]), just as it is permissible to have regard to subsequent conduct in order to determine whether an intention to contract existed ( Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550, Gleeson CJ with whose reasons Hope and Mahoney JJA agreed and Damevski at [141] and [147]). 126 CAO acknowledged that the concept of a contract existing by mutual assent has been recognised in circumstances where the traditional analysis of offer and acceptance is inappropriate. I have earlier cited dicta (see [31] to [34]) in that regard appearing in Brambles, Integrated Computer Services and Damevski . In his concurring judgment in Brambles , Mason P referred to 'the difficulties of pressing too far classical theory of contract formation based upon offer and acceptance' . At the bottom line there must be satisfied at least the notion or test of mutual assent, viewed objectively from the point of view of reasonable persons on both sides to the objective candidature for establishment of a concluded bargain. Further in Brambles at [81], Heydon JA observed that '[i] n the light of the above cases, it is relevant to ask: in all the circumstances can an agreement be inferred? Has mutual assent been manifested? What would a reasonable person in the position of the Council and a reasonable person in the position of the defendant think as to whether there was a concluded bargain?' Merely because some dealings have occurred between the prospective parties to a bargain does not necessarily mean that a contract exists. As McHugh JA said further in Integrated Computer Services at 11,117, '[t] he question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances, shows a tacit understanding or agreement' , to which his Honour added '[t] he conduct of the parties, however, must be capable of proving all the essential elements of an express contract '.


case_outcome: discussed

case_text: The applicants drew attention to what was said to be 'the correct legal position' located within paras 52, 53 and 64 of the reasons for judgment of Mummery LJ in Dacas v Brook Street Bureau (UK) Ltd [2004] IRLR 358 (with which Sedley LJ was essentially in agreement). Brook Street was a United Kingdom Court of Appeal decision, the context whereof related to labour hire arrangements between Brook Street Bureau UK Ltd, a well known employment agency, and a local council's mental health hostel for the periodic cleaning thereof, which in the events that happened were physically undertaken at material times by the applicant Mrs Dacas. The Court of Appeal comprised Mummery and Sedley LJJ, whose reasons for decision were essentially in line, and Munby J who differed materially in what may be described as doctrinal reasoning to that of the other two members of the Court while reaching nevertheless the same ultimate decision. The difficulty to an understanding of the substrata to the appeal in its various aspects, as well as in its outcome, lies largely in relation to the procedural context to the appeal. For present purposes I will confine my consideration of the differences in principle concerning the implications of labour hire, though obiter , apparent in the reasons for decision of each of Mummery and Sedley LJJ compared to those of Munby J, and to the extent to which the statements of principle emerging from the respective reasons for judgment in Brook Street may have an operation in relation to the issues presently arising. 84 I would commence my consideration of the respective parties' approaches to the implications of Brook Street by recording that in the leading judgment, Mummery LJ observed that had the Court of Appeal been seized of all of the circumstances of the case, it may well have been open for the Court of Appeal to have found that Mrs Dacas was an employee of the local council to whom the services of Mrs Dacas had been provided by Brook Street Bureau by way of labour hire, and against which local Council their Lordships considered that her case for unfair dismissal should have been prosecuted rather than the labour hire agency Brook Street Bureau. As I foreshadowed, Sedley LJ took a similar approach in reasoning as well as in outcome to that taken by Mummery LJ. However Munby J adopted what I think may be described as the more conventional analytical approach. 85 It was in that context broadly stated that Mummery LJ made the following observations concerning the local borough Council's status as an employer or principal in relation to Mrs Dacas, which the applicants contended to be reflective of the correct approach here required to be adopted in principle: '17. The critical point is that, although the construction of the contractual documents is important, it is not necessarily determinative of the contract of service questions, as contractual documents do not always cover all the contractual territory or exhaust all the contractual possibilities. In determining the true nature of the relationship (if any) between each of the respective parties, it is necessary to consider the total situation occupied by the parties ... Although there was no express contract between the applicant and the end-user in this case, that absence does not preclude the implication of a contract between them. That depends on the evidence, which includes, but may not be confined to, the contractual documents.' ... 52. ... The formal written contracts... may not tell the whole of the story about the legal relationships affecting the work situation. They do not, as a matter of law, necessarily preclude the implication of a contract of service... There may be evidence of a pattern of regular mutual contact of a transactional character... from which a contract of service may be implied by the tribunal... . ... 53. I approach the question posed by this kind of case on the basis that the outcome, which would accord with practical reality and common sense, would be that, if it is legally and factually permissible to do so, the applicant has a contract, which is not a contract of service, with the employment agency, and that the applicant works under an implied contract, which is a contract of service, with the end-user and is therefore an employee of the end-user with a right not to be unfairly dismissed. The objective fact and degree of control over the work done by Mrs Dacas at West Drive over the years is crucial. The Council in fact exercised the relevant control over her work and over her... . The fact that the obligations were contained in express contracts made between Mrs Dacas and Brook Street and between Brook Street and the council does not prevent them from...being read across the triangular arrangements into an implied contract and taking effect as implied mutual obligations as between Mrs Dacas and the council. ... 86 CAO submitted that the foregoing analysis of Mummery LJ (and similarly that of Sedley LJ) 'falls rather short', and that '[t]he first question to be asked and answered is whether there was a contract at all between the worker and (1) the ultimate client of the labour hire agency or (2) the labour hire agency'. CAO seemingly acknowledged at the outset that in some circumstances there may be an overlap between the issue of intention to create legal relations and issues of agreement and consideration, reference being made in that regard to Carter J W and Harland D J, Contract Law of Australia (4 th ed, Butterworths 2002) p 163. In any event it was further submitted by CAO that whilst Mummery LJ did not explicitly identify what CAO described as that fundamental issue in contract law, there was conceivably 'just an echo of it' in his Lordship's reasons at [52] partly extracted above. Nevertheless, so the CAO submissions continued, his Lordship did not indicate it was necessary first to consider whether or not the relevant parties intended to enter upon legal relations. That absence of indication was said by CAO to also reside in the reasoning of Sedley LJ, where his Honour's discussion at [75] of the legal status of a worker was described by counsel for CAO as 'rather too compressed', and which reasoning had failed 'to address the fundamental questions of contractual analysis'. 87 CAO submitted further that it could not be correct, and would be contrary to Australian authority, for this Court to consider what is 'the nature of any implied contract before first answering the question did the parties intend to create legal relations', and further that '[t]he mere attendance by one party at the workplace of another does not give rise to the implication of a contract between those parties... [Sedley J's] reasoning impermissibly conflates the separate stages of contractual enquiry'. CAO further submitted, by way of contrast, that Munby J appeared to approach the case 'in a more conventional way' than was taken by Mummery and Sedley LJJ, and to have included the issue of intention 'in the mix of issues for considering what the facts actually proved including whether or not there was a contract with anyone at all'. I have explored in more comprehensive detail CAO's submissions in relation to Brook Street later in these reasons. 88 The applicants next drew attention to the decision of the United Kingdom Court of Appeal in Cable & Wireless plc v Muscat [2006] IRLR 354 handed down subsequently to Brook Street , where it was found by majority that a labour hire worker was employed by the host rather than by the agency through which the host had directed that he be engaged. Whilst the applicants acknowledged the facts in Cable and Wireless were distinguishable from Brook Street , the applicants placed reliance upon the acknowledgment by the Court of Appeal in Cable & Wireless upon the majority's views in Brook Street , which they submitted to be seemingly to the effect that so long as remuneration is being provided in reality by the employer, it matters not that it is not paid directly by that employer but by a third party pursuant to another arrangement made by the employer with that third party. Quoting from Cable & Wireless , the applicants asserted that a person who would otherwise be the worker's employer did not cease to be his employer by arranging for the wages to be paid per medium of a third party, and further that '[t]he essentials of a contract of employment are the obligation to provide work for remuneration and the obligation to perform it, coupled with control', whether the arrangements for payment are made directly or indirectly. I will later return to a further discussion of Cable & Wireless in the context of CAO's submissions. 92 It was therefore submitted by the applicants that 'the facts as to the total employment relationship demonstrate that there was an employment relationship between each of them and [CAO] from the commencement of their employment at the HVO'. Alternatively it was submitted by the applicants that 'an employment relationship came into existence before 1 July 2002', that being 'the commencement time of the claim'. Additionally, as I have foreshadowed it was submitted by the applicants that in principle, '[c]onduct which might not have manifested a mutual intention to enter into a contract had it lasted only a brief time may become unequivocal if it is maintained over a lengthy period of time', referring thereby to the reasons of Mummery LJ at [17] in Brook Street. Of course as I have already mentioned, Sedley LJ adopted a similar approach, but Munby J chose to differ. 157 I have taken the course of reviewing the United Kingdom Court of Appeal authorities of Brook Street and Cable & Wireless in some detail because of the extent to which the applicants sought to place reliance upon the approach and findings apparent in the respective reasons for judgment, in the case of Brook Street referrable to the reasoning of Mummery and Selby LJJ, and in the case of Cable & Wireless referrable to the approach taken generally in the joint judgment of all members of the Court of Appeal. CAO's submission was to the effect that the reasons in both decisions, other than that of Munby J in Brook Street , should not be accorded any effective, much less decisive, operation in relation at least to the relevant circumstances of the present case which CAO has outlined. I will first address CAO's submissions relating to Brook Street. 158 CAO emphasised at the outset the obiter nature of what it sought to isolate as significant aspects of the reasoning of Mummery and Sedley LJJ in Brook Street to the effect that should the tripartite arrangements the subject of consideration in those proceedings appear in the future differently structured, it may be open to an employment tribunal to find that a respondent such as Mrs Dacas was an employee of the Brook Street labour hire agency pursuant to an implied contract of service (see [68] appearing within the reasons of the leading judgment of Mummery LJ). CAO contended that obiter observations to any such effect should not be adopted by an Australian superior court. Moreover CAO drew attention to what was said to have been acknowledged by Mummery LJ at [49]-[50] to the effect that the notion of a contract of service requires the existence of at least minimum obligations as to the provision of work, and conversely of obligations to perform that work in the context of control by the provider of the work. CAO further emphasised in any event what was said by his Lordship at [49] concerning the need to eschew notions to the effect that 'an individual is an employee simply because he is not a self employed person' , but contended that '[i]f there was no interposed employment agency there would be no doubt that, even in the absence of an express contract, Mrs Dacas worked under a contract of service with the council: it was managing and controlling work done by her in the mutual expectation that she would be paid for what she was told to do and had in fact done', being a contention not at least directly relevant. 159 CAO drew attention to the purported characterisation of the so-called triangular arrangement appearing at [52]-[53] of the reasons of Mummery LJ. I have already extracted earlier (at [85] in these reasons) much of what appears in [53]; in [51] his Lordship referred to the legitimacy of having regard to ' the fact, if it be the case, that a series or a number of transactions are intended to operate in combination with one another or are ingredients of a wider transaction intended as a whole'. That approach does not sit readily with the approach taken in the Australian authorities in relation to circumstances involving labour hire operators (such as in Forstaff). CAO's contentions were in summary to the effect that the analysis of Mummery LJ (and implicitly therefore also of Sedley LJ) fell 'rather short', in that the first issue normally required to be resolved in labour hire cases, such as Brook Street , is simply whether there existed a contract at all between the worker and the client of the labour hire agency, or else between the worker and the labour hire agency. I was referred to Ermogenous and Teen Ranch , both of which involved an issue as to whether the parties mutually intended to enter into a contractual relationship, the element of intention in that regard being paramount. The respective factual circumstances in those United Kingdom and Australian cases were some distance removed from the industrial context of the relationships involved in the present proceedings. 160 CAO contended further in relation to Brook Street that neither Mummery LJ nor Sedley LJ 'clearly and crisply asked and answered' what CAO would contend to have been the critical issue, namely 'did the Council and Mrs Dacas intend to enter upon legal relations', before proceeding to consider the nature of any implied contract. CAO contended that it could not be correct, and would be contrary to Australian authority, for a court to enter upon a consideration of the nature of an implied contract before first resolving the issue as to whether or not the parties in dispute intended to create or enter upon a legal relationship in the first place. It was emphasised by CAO in that regard that merely the regular attendance by a person at the workplace of another person does not give rise to the implications of a contract between those persons, and moreover that his Lordship's reasoning geared to the doctrine of implied contracts 'impermissibly conflates the separate stages of contractual enquiry'. There is in my opinion force in principle inherent in those CAO submissions as to shortfalls in any assistance to be derived from the leading judgments in Brook Street . 161 The differing approach of Munby J, as the third member of the Court of Appeal in Brook Street , adopted at [83] what CAO described as a more conventional position in terms of authority. His Lordship's starting point was that 'the mere fact that there is a contract between the worker and the agency, and another contract between the agency and the end-user, plainly does not prevent there also being a contract between the worker and the end-user. Nor, of itself, does it prevent any contract between the worker and the end-user being a contract of service'. That approach is more in line with Australian authority and also with the United Kingdom approach taken subsequently in Viasystems in relation to what was described in the concluding sentence of [80] by Rix LJ . Where Munby J's reasoning departed at least implicitly from the approach of the other members of the Court of Appeal was in his isolation at [83] of two critical elements of an employment relationship, namely 'the obligation to remunerate and the right to control' . Munby J cited authority stating that the 'mutuality of obligation and the requirement of control on the part of the potential employer [are the] irreducible minimum for the existence of a contract of employment '. His Lordship further cited authority to the effect that ' [t] he significance of mutuality [is] that it determines whether there is a contract in existence at all' , and that ' [t] he significance of control [is] that it determines whether, if there is a contract in place, it can properly be classified as a contract of service, rather than some other kind of contract' . Moreover Munby J considered at [87] that ' [t] he requirement that there be mutuality of obligation necessarily focuses attention on the obligations (if any) undertaken by the end-user ', which his Lordship described as not inclusive of any obligation 'to provide the servant with work in addition to wages' , any such latter obligation being 'not very often to be found expressed in written contracts of employment' . 164 It was accordingly submitted by CAO that the reasoning of Munby J in Brook Street constituted 'a compelling demolition of the rather confusing approach by the majority [United Kingdom Court of Appeal] in that case', and a 'powerful cause for this Court not following that approach'. After concluding his analysis of authority, Munby J drew together at [101]-[103] (which I have reproduced below) his reasons for disagreement with the majority in Brook Street which I have foreshadowed, and in so doing, formulated an approach which CAO asserted to be here applicable to the determination of the present proceedings: '[101] Where, with all respect, I part company with my Lords is in relation to three matters. The first is the suggestion that the objective fact and degree of control over the work done by Mrs Dacas over the years is crucial. That, as it seems to me, somewhat overstates the position. And in any event it does not seem to me, with all respect, to meet the point made by Elias J in the Stephenson case. [102] The second is the suggestion that there is mutuality of obligation because the council was under an obligation to pay for the work that Mrs Dacas did for it and she received payment in respect of such work from Brook Street. In this connection [Mummery LJ] asks rhetorically, What was the council paying for, if not the work done by Mrs Dacas under its direction and for its benefit? The difficulty with this approach ... is that the council had no obligation to pay Mrs Dacas, that Brook Street's obligation to pay her arose independently of whether or not Brook Street was paid by the council, and that the Council did not set the rate of her pay. It needs also to be borne in mind that the sum contractually payable by the council to Brook Street was not simply the aggregate of the sums payable by Brook Street to Mrs Dacas and her fellow workers. It will also have included, in addition to Brook Street's profit, an element reflecting the cost to Brook Street of meeting its various obligations to the council. [103] The contract between Brook Street and the council was for the provision of services in accordance with a detailed specification and various other contractual documents ... The answer to my Lord's rhetorical question ... is that what the council was paying for was not the work done by Mrs Dacas and her fellow workers but the services supplied to it by Brook Street in accordance with the specification and the other contractual documents. The monies paid by the council to Brook Street were not payments of wages, nor were they calculated by reference to the wages payable by Brook Street to Mrs Dacas and her fellow workers. There was no mutuality.' The rhetorical question above '... what was the council paying for...' merits emphasis in particular in the light of what seems to me to be the prevailing authority at least in Australia to which I have referred, and would seek to follow. 165 Hence CAO submitted that it may 'clearly be seen', by reference to the evidence placed before this Court, that the critical elements identified by Munby J as fundamental to his Lordship's reasons for disagreement with the approach of the majority in Brook Street , and which were said by CAO to be fundamental to the resolution of the present issue arising according to the general law of Australia, require that this Court should find that there was no contract of employment made between CAO and each of the applicants. CAO identified that evidence to be in summary to the following effect: (i) there was no mutuality of obligation, CAO being under no obligation to make payment to either of Messrs Wilton or Cumberland for the work they respectively undertook at the HVO; (ii) instead the only obligation as to the payment of remuneration or other benefits to either of the applicants was an obligation which rested with MES and not CAO; (iii) moreover the obligation of MES to pay each of the applicants arose independently of whether or not MES had been or was to be paid by CAO for its supply of the applicants' services; (iv) the rates of pay which applied to each of the applicants were not set by CAO but by an industrial instrument to which MES was a party and to which CAO was not; (v) the charges levied by MES upon CAO pursuant to their discrete contractual arrangements did not simply represent the aggregate of the sums payable by MES to each of the applicants (and for that matter to any other MES supplied workers for the time being), but included a profit element for the benefit of MES and the costs otherwise incurred by MES in meeting its obligations to CAO, in relation to which Mr Touzell testified in his affidavit of 6 June 2006, being for instance costs of 'inducting' those employees at the HVO, personal protective equipment, administration costs such as processing the pay for the employees to be supplied (including of course Messrs Wilton and Cumberland), and other associated and incidental employment costs such as payroll tax and workers compensation insurance in respect of those employees so supplied; (vi) the Supply Agreement entered into between CAO and MES for the provision of services by MES to CAO accorded with a detailed specification; and (vii) what CAO was paying, purportedly in relation to the supply of services to it by MES, was not just for the work done by each of the applicants per se , but for the services supplied by MES, in accordance with the relevant specification and other contractual documents. In summary, so the CAO submission concluded, there was no mutuality of obligation between CAO and either of the applicants, and moreover there was no intention to create legal relationships between the CAO and either of the applicants; accordingly there was no contract at all between CAO and either of the applicants. 166 CAO further argued for completeness that 'the possible position left open in Brook Street' , being that the worker (Mrs Dacas) was an employee of the ultimate client of the labour hire agency, was distinguishable from the circumstances the subject of the present proceedings, because unlike the position described in the reasons for judgment of Mummery LJ in Brook Street at [64]: (i) the applicants and MES were undeniably in an employment relationship inter se ; consistently with that, MES paid to the applicants their respective wages; (ii) the role of MES was not merely that of an agency finding suitable work assignments for each of the applicants; (iii) MES provided certain clothing and personal protective equipment for use by the applicants in their working assignments in the HVO; (iv) CAO did not view MES as performing the task merely of 'staff supplier' or 'administrator of staff services'; and (v) CAO had its own individual instrument applicable to and governing its employment conditions, and what it was otherwise obliged to observe and undertake in relation to its own employees discretely from those of MES. 167 It was pointed out moreover by CAO that the United Kingdom Court of Appeal recognised in Brook Street in any event the force of the submission that control exercised by the end user in Brook Street was the product of the contractual arrangements between the labour hire agency and that end user. In that regard I was referred to [67] of the reasons for judgment of Mummery LJ, subsequent to which his Lordship acknowledged, at [68], at least the force of the arguments of Brook Street's counsel in attempted denial of the existence of any contract of service between that employment agency and Mrs Dacas. Incidentally in [67], his Lordship observed also that '[i] f the case raised policy issues as to the working conditions of people in the position of Mrs Dacas , that was a matter for legislation by Parliament and not for the courts' . 168 CAO drew further attention once more to the significance of the circumstance, that there was no contractual obligation imposed upon CAO to provide either of the applicants with work, and in that regard I was referred to Brook Street at [64]. CAO exemplified that circumstance by reference to the unavailability of work to the applicants, and hence of any requirement for them to report for work at the HVO, in the event of inclement weather or machinery breakdown, and further that it was open to CAO conversely to inform MES that it did not want a particular MES employee to work again at the mine for whatever reason (if any). 169 I would next move to a consideration of the detailed attention afforded by the parties to Cable & Wireless , which I have earlier foreshadowed that I would do more extensively in the context of my recitation of CAO's submissions than did the applicants, CAO having given perhaps more extensive attention to Cable & Wireless . That case was decided by the United Kingdom Court of Appeal subsequently of course to Brook Street by a different bench being Sir Anthony Clarke MR and Smith and Kay LJJ. The joint judgment of their Lordships at [35] expressed the opinion that '... the view of the majority in Dacas was correct'. It was submitted by CAO nevertheless that the decision in Cable & Wireless was 'not compelling', in that the United Kingdom Court of Appeal once more did not address 'the fundamental problem of intention to create legal relations as a threshold question', or more precisely, to create a contractual relationship. In that latter regard, it was submitted by CAO that the Court of Appeal's reasoning in Cable & Wireless was 'out of step with the law in Australia', exemplifying in that regard Ermogenous and Teen Ranch , and in any event, that the decision in Cable & Wireless was of little relevance to the present case because of what was described as its vastly different factual circumstances. 170 The factual context to Cable & Wireless was different and more complex than in Brook Street , and needs to be explained in some detail in order to provide an adequate understanding of the nature and extent of the issue which there arose for resolution, and any conceivably comparable context to that involved in the present case. The respondent Mr Muscat had been engaged as an employee of a telecommunications specialist with a company called Exodus Internet Ltd ('EIL'), when the company decided to reduce the number of its employees in order to facilitate a potential buy-out, but which nevertheless wanted to retain that worker's services. EIL informed Mr Muscat that he would have to become a so-called contractor, and to provide his services through a limited company. His employment was thereupon terminated and a company named E-Nuff Comms Ltd ('E-Nuff') was set up to receive his pay and car allowance. About three months later, EIL was effectively taken over corporately by Cable & Wireless. Mr Muscat was described by Cable & Wireless within the context of its organisational structure nevertheless as an employee, and he was given accordingly an employee number. The cost of all of the equipment upon or with which he worked was paid by Cable & Wireless. Mr Muscat continued to submit invoices for his services provided in the name of E-Nuff. Since however Cable & Wireless considered Mr Muscat to have remained associated with it, though by then as a contractor, Cable & Wireless informed him that it would not deal with him directly, but that as in the case of all other contractors seeking to make arrangements for the provision of their services to Cable & Wireless, he would have to engage with Cable & Wireless through an agency entity called Abraxas plc, which had been retained to supply contracted personnel to Cable & Wireless. On 13 August 2002, E-Nuff (at least implicitly at Mr Muscat's direction) entered into a contract for services in favour of Abraxas, which included as a retrospective element the period of time up to when Mr Muscat became aware of the requirement for him to deal with Cable & Wireless per medium of Abraxas. It was that contract for services which was described as crucial to the resolution of the Cable & Wireless proceedings, in that it was the case of Cable & Wireless that such contract for services changed the status of Mr Muscat from that of its employee. Subsequently in late November 2002 Cable & Wireless informed Mr Muscat that it would no longer require his services and on 31 December 2002 he ceased work directly or indirectly (that is, purportedly per medium of E-Nuff and no longer by himself directly) for Cable & Wireless. In March 2003 Mr Muscat made a claim for compensation upon Cable & Wireless for unfair dismissal. Cable & Wireless contended in response that Mr Muscat was not its employee, but that contention was rejected, it being found that Mr Muscat held an implied contract of employment with Cable & Wireless. The notion of implied contract of employment had been postulated by Mummery and Sedley LJJ in Brook Street . 182 As to the controversial notion of implied relationships of employment and the significance thereof adopted by the two substantially concurring members of the United Kingdom Court of Appeal in the labour hire context of Brook Street , I would conclude, as I have foreshadowed earlier in these reasons, that there is no good reason for any imputation to the present circumstances of any such notion, assuming that notion to be rightly cognisable in the general law of Australia, to the extent and for the purpose indicated in the Brook Street context of labour hire arrangements, being an association which I think to be at best doubtful. 183 It follows therefore, from what I have thus far concluded in relation to the applicants' submissions, that there are doctrinal obstacles of significant judicial precedent cognisable by the general law of Australia which stand in the way of recognition of any entitlement to the grant of the relief sought in the present proceedings. That is not to say of course that a contract of employment, whether oral or in writing, may not contain implied terms, and indeed such would I imagine normally or often be the case. Where the difficulty largely lies, as exposed by the traditional approach taken by the third judgment in Brook Street , is in imputing any implied contract of employment in circumstances of labour hire, that being a transaction which inherently constitutes dual contractual arrangements, one being between the provider of the hired worker and the hired worker, and the other being between that provider of the hired worker and a third person who hires the second-mentioned person from the labour hire provider in order to obtain the performance of work from such hired person. The implications relevantly of labour hire postulated in the reasons for judgment of Merkel J in Damevski at [174], as outlined in what is extracted in [34] above, are in my opinion apposite to the present context.


case_title: Building Workers' Industrial Union of Australia and Others v Odco Pty Ltd (1991) 29 FCR 104

case_text: Reference may also be made to Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104, where the context was that the respondent carried on business of supplying labour by way of hire to builders, construction managers and contractors in the building industry, and the issue arose whether workers thus sent to building sites by the respondent were the respondent's employees or the employees of the builder. A Full Federal Court (Wilcox, Burchett and Ryan JJ) found that no contract of employment, however characterised, had been made between the worker and the builder to whom his labour was supplied, because the element of consideration essential to a contract of employment, being the promise by the presumptive employer to pay for services as and where rendered, was absent in that case. In so finding, it was pointed out that the builder's only relevant obligation in that context was to make payment to the respondent labour supplier.


case_text: I should add in any event that the applicants drew attention to what appears in the joint reasons for judgment of Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410 at 420-421, as follows: 'A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported into the contract of employment. In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and, as we have said, the award operates with statutory force to secure those terms and conditions.' And at 436 McHugh and Gummow JJ further observed: 'The evolution in the common law as to the relationship of employment has been seen as a classic illustration of the shift from status (that of master and servant) to that of contract (between employer and employee).' 37 It was common ground between the parties that members of the mining crews, such as those whereof each of the applicants were respectively members from time to time, undertook exclusively for CAO similar duties involving the driving and operation of CAO's heavy mining equipment at the HVO. The applicants submitted that they were engaged in such work at CAO over approximately four years from June/July 2001 to April/May 2005. For that purpose they were provided by CAO at 12 monthly intervals with rosters which allocated them to designated crews and indicated their working times to apply for the ensuing year. Their respective periodic shifts rotated at weekly intervals from day shifts to night shifts, including weekends on the basis of payment of overtime. On occasions the applicants worked seven days in a given week. Timesheets in evidence filled out on MES forms provided to each applicant for completion reveal that Mr Wilton worked an average of 49 hours per week in the period of time up to 20 January 2002, and Mr Cumberland worked an average of 43 hours per week over a similar time. It was pointed out by CAO that the fact that the applicants performed duties similar to certain CAO employees was not surprising, given that CAO sought to achieve uniform levels of production, and further that it was efficient as well as safe for the applicants to work in the same physical contexts as CAO's employees. 38 From January 2002 onwards the shifts worked by the respective applicants were restructured. Each of the applicants was required to work a 12 hour shift roster rather than the eight hour roster previously in operation. MES timesheets filled out by each applicant were said by the applicants to show that 12 hour shifts were worked on two, three, four and sometimes five times per week, being rostered on any of the seven days of the week. An analysis of timesheets compiled after 20 January 2002, that is, after the applicants had been working 12 hour shifts, demonstrated that from that time until 15 May 2005, Mr Wilton worked on average 40 hours per week, and from 20 January 2002 until 26 December 2004, and Mr Cumberland worked an average of 36 hours per week. 109 It was contended by CAO at the outset that in order to constitute an employment relationship, the asserted parties thereto must be in a contractual relationship. So much was said to be at least implicitly exemplified by what appears in Byrne at 421 and 436. Given the variety of ways that a relationship of employer and employee may come about, formally or informally, the effectuation or otherwise of an employment relationship will not necessarily be readily cognisable, as the discussions for instance in Ermogenous at [24] and following under heading 'Intention to create contractual relations' exemplify and in Dalgety Farmers at [4] imply, see also the reference of Kirby A-CJ at [5] of Dalgety Farmers as to the need '... to look to the circumstances of the engagement and to ascertain who it was that offered employment, and whether the worker accepted that offer' .