case_title: Re Wave Capital Ltd (2003) 47 ACSR 418

case_text: There is now a considerable body of case law on the nature of the discretion conferred by s 1322. In Re Wave Capital Ltd (2003) 47 ACSR 418 French J indicated at paras 29 and 30 that: "29. ... Like the discretion to validate invalid share issues under s 254E, the power conferred by s 1322 must be exercised having regard to the requirements of the purposes of the Corporations Act and any other relevant statutes whose application may be in issue. It must also be exercised having regard to the interests of all parties affected and the public interest in ensuring compliance with statute law and company constitutions. Evidence of a blatant disregard of the provisions of the Act or the constitution of the company may lead to refusal of relief: Re Onslow Salt Pty Ltd (2003) 198 ALR 344; 45 ACSR 322 and cases there cited. The provision is, however, remedial in character and should be given a liberal construction: Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 45 ACSR 702 at 707, [27] per Lindgren J citing Re Australian Koyo Ltd (1984) 8 ACLR 928 at 930 and Elderslie Finance Corp Ltd v Australian Securities Commission (1993) 11 ACSR 157 at 160. 30. There is a constructional question whether the time limits for seeking quotations referred to in ss 723 and 724 are time limits which can be extended by the court under s 1322(4)(d). The power conferred by s 1322(4)(d) is to make an order 'extending the period for doing any act ... under the Act or in relation to a corporation'. Section 723(3) does not in terms impose an obligation to apply for quotation within 7 days after the date of the prospectus. Rather, it conditions the validity of the share issue or transfer in response to an application under the prospectus upon the application for quotation having been made within that time. I am satisfied, however, that the ordinary meaning of the words of s 1322(4)(d) can readily accommodate the extension of the period for making an application for quotation. The same is true in my opinion of the 7 day period referred to in s 724(1)(b). This accords with the approach taken by Lindgren J in Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 45 ACSR 702 at 707, [28] where his Honour said: '[28] Courts have had no difficulty in treating s 1322(4)(d) as being available even though the "period for doing any act, matter or thing or instituting or taking any proceeding under [the legislation] or in relation to a corporation" in question did not form part of a provision which in terms imposed an absolute positive obligation to do the act, matter or thing or to institute or take the proceeding.' - citing Elderslie , above: Super John Pty Ltd v Futuris Rural Pty Ltd (1999) 32 CSR 398; 17 ACLC 1242; Pinnacle VRB Ltd v Reliable Power Inc [2001] VSC 262 ; (2001) 39 ACSR 8; 163 FLR 215; 19 ACLC 1450 and Brown v DML Resources Pty Ltd (in liq) (No 6) [2002] NSWSC 6 ; (2002) 40 ACSR 669; 166 FLR 393; 20 ACLC 537." These observations have been repeated and acted upon in some number of decisions of this Court: see for example Re Tony Barlow Australia Ltd (2005) 53 ACSR 1 at pars 20 to 21; Re Biron Capital Ltd (2005) 54 ACSR 548 at par 14 ff. It is important to re-emphasise in this matter that as yet no shares have been issued pursuant to the prospectus. For that reason no question of invalidity as such arises at this stage, see s 254E(1) of the Act. Nonetheless, it is the case that extending time in a manner proposed in this application, that is up to and including 5 December 2007 (the date upon which the quotation application was in fact lodged with the ASX) will have the effect of depriving subscribers of a right that they would otherwise enjoy by virtue of the provisions of s 724(2) of the Act.


case_outcome: cited

case_title: Re Tony Barlow Australia Ltd (2005) 53 ACSR 1


case_title: Re Biron Capital Ltd (2005) 54 ACSR 548


case_title: Australian Competition & Consumer Commission v Kokos International Pty Ltd (No 2) [2008] FCA 5

case_text: The facts of the case have been set out in an earlier judgment relating to the first four respondents given on 10 January 2008: Australian Competition & Consumer Commission v Kokos (No 2) [2008] FCA 5. Injunctive orders were made by consent and penalties imposed after argument in respect of those respondents. Declarations offered by consent were stood over pending the finalisation of the proceedings against all respondents. In a further judgment, delivered on 17 January 2008, I made injunctive orders against the fifth and sixth respondents and again imposed penalties. Declaration orders proposed by consent were stood over until the finalisation of the proceedings as a whole: Australian Competition & Consumer Commission v Kokos International Pty Ltd (No 3) [2008] FCA 20. The matter has come back before the Court for disposition as against the seventh and eighth respondents. Statements of agreed facts have been filed.


case_title: Australian Competition & Consumer Commission v Kokos International Pty Ltd (No 3) [2008] FCA 20


case_outcome: followed

case_text: However, in my view, the Tribunal did not approach the ultimate issue in the way I described the task in my earlier decision and in accordance with the approach necessary in evaluating whether the appellant was a fit and proper person. In determining whether a person is a fit and proper person the enquiry is directed not only to whether improper conduct has occurred, but whether it is likely to occur again, and whether the community will have confidence that it will not occur. This will involve an evaluation of character and reputation: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 , 380 per Toohey and Gaudron JJ. The Tribunal should have considered and, more importantly, evaluated all the material which was raised as to 'special circumstances' in the context of a separate and ultimate enquiry of whether the appellant, at the time of the Tribunal's decision, was the prescribed fit and proper person. 17 In my view, the Tribunal did not undertake this task in the passages referred to above where it purported to consider the ultimate issue. To say, for example, as the Tribunal did, the appellant's explanations 'showed a lack of understanding of the reason for lodgement' of tax returns may be accepted, but this needs to be placed in the context of the evidence as to his health and general circumstances at the time, and in the context of the evaluation referred to in Australian Broadcasting Tribunal 170 CLR 321. While the Tribunal had previously accepted the appellant's medical condition proved debilitating over the years, the required evaluation necessarily involves looking at both past conduct and likelihood of future conduct, and this evaluation was simply missing from the Tribunal's analysis. The general references back to evidence and principles of law did not equate to an evaluation of the evidence in this context of the ultimate issue. 18 While the main criticism of the reasoning of the Tribunal is the lack of evaluation, there are references made in the reasoning that indicate a failure to focus on all the relevant circumstances up to the Tribunal hearing date. The Tribunal specifically referred to matters which occurred many years ago. There was a reference to the lodgement rate ('at least in the 2002 year' (at [156] of the Tribunal's decision)), correspondence on 7 July 2004 (at [159]), and conduct in 2003 (at [159]). No attempt was made to put these events in context, nor to consider them in the context of later events and circumstances. 19 As I have indicated, I propose to order the appeal be allowed.


case_text: In considering the approach of the Tribunal, the Tribunal's reasons must be read as a whole and fairly. I accept that I should not be concerned with looseness of language, nor review the Tribunal's reasons with an 'eye keenly attuned to the perception of error': Politis v Federal Commissioner of Taxation (1988) 20 ATR 108 , 111; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322 ; (1993) 43 FCR 280 , 287.


case_text: The background to the relevant legislation has already been dealt with by me in earlier proceedings involving the parties: see Toohey v Tax Agents' Board of Victoria (2007) 67 ATR 522.


case_title: Politis v Federal Commissioner of Taxation (1988) 20 ATR 108


case_text: From the outset I acknowledge that the Tribunal did discuss the ultimate issue of whether the applicant was the prescribed fit and proper person. Further, the Tribunal did carefully consider the appropriate date at which it needed to consider the question before it, and the issue of 'special circumstances'. On the question of the appropriate date, the Tribunal dealt with the two possibilities separately (perhaps unnecessarily), and made findings for each accordingly. We now have the advantage of the decision in Shi v Migration Agents Registration Authority [2008] HCA 31 ; (2008) 248 ALR 390 , concerning the relevant time of assessment. As to the question of 'special circumstances', this was a matter of evaluation and factual analysis, upon which the Tribunal was entitled to make its 'factual classification' in the way it did: see Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439 , 477-78 at [108] per Hayne J. I find no error of law in the way the Tribunal approached these matters.


case_outcome: distinguished

case_text: The appellant desired that I determine the ultimate issue myself. The appellant relied on the approach taken in Statham v Federal Commissioner of Taxation (1988) 20 ATR 228. The question for determination in Statham was strikingly different from the question whether a person is the prescribed fit and proper person. As I have said, the determination of this issue involves an evaluation of many factors. Such an evaluation is quite different from determining the application of s 25(1) or s 26(a) of the Act to undisputed facts as was the case in Statham . To proceed in the way now pressed by the appellant would require an assessment of the appellant, and I have not had the advantage of seeing him in the witness box, being able to ask questions of him, or to make a proper evaluation of the type the relevant provisions require. 22 The appellant pressed that I could receive further evidence from the appellant, and then determine the matter of whether he is the prescribed fit and proper person. It was submitted that it was convenient and appropriate that I make whatever further findings of fact necessary, and take into account any further evidence of the appellant. 23 The appellant further contended that he would not be able to afford legal representation should the matter be remitted, and there would be an unacceptable delay if the matter were remitted. 28 Despite the history of this proceeding, in my view, it would not be convenient or appropriate for the Court to finally dispose of the matter in accordance with the power under ss 44(4) , 44 (5), (7) and (8) of the Administrative Appeals Tribunal Act 1975 (Cth) and the approach taken in Statham 20 ATR 228. I propose to make an order for remittal to the Tribunal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 27 November 2008 Counsel for the First Appellant: N Rosenbaum Solicitor for the First Appellant: Charlesworth Josem Partners Solicitor for the First Respondent: Australian Government Solicitors Counsel for the First Respondent: P D Nicholas Date of Hearing: 13 October 2008 Date of Judgment: 27 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1796.html


case_title: Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439


case_text: no-case submission had two limbs. The first limb concerned the proper construction of the definition of "building industrial action" in s 36(1) of the Building and Construction Industry Improvement Act . The Union and Mr Mates argued that, in order to constitute "building industrial action" within paras (b) and (c) of the definition in s 36(1) , the action in question must be that of employees in respect of their work. It followed, so they said, that there was an evidentiary hiatus in Mr Cahill's case because Mr Cahill had not adduced any evidence that any "ban, limitation or restriction" had been imposed by employees in respect of the work to which the ban, limitation or restriction related: see below at [9]. For the reasons previously stated, however, the Union and Mr Mates failed to persuade me that their construction should be adopted. I accepted that, if there was a ban, limitation or restriction on the performance of building work imposed by a union , then the definition of "building industrial action" might be satisfied: see Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292 (referred to below as "the No-case Ruling") at [59]. Also for the reasons previously given, I was satisfied that it was just and convenient for this ruling to be made without putting the Union and Mr Mates to their election. In the second limb of their no-case submission, the Union and Mr Mates contended that, taken at its highest from Mr Cahill's point of view, the evidence adduced by him did not make out the contraventions of ss 38 and 43 that he alleged in relation to the events of 21 and 22 February 2006 and following. For the reasons previously given, I declined to rule on this part of the no-case submission unless the Union and Mr Mates elected to call no further evidence: see the No-case Ruling at [30] and [60]. They were put to their election, and in respect of all causes of action. On 7 August 2008, the Union and Mr Mates elected not to call any evidence. At a directions hearing on 8 August 2008, I stated that I proposed to deliver my decision on the second part of the no-case submission at the same time as final judgment.


case_text: already noted, for relevant purposes, the Union was "an organisation". The term "building employee" is defined in s 4 to mean "a person whose employment consists of, or includes, building work; or ... a person who accepts an offer of engagement as an employee for work that consists of, or includes, building work". A reference to employees includes a reference to future employees: see Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202 ; (2000) 97 FCR 186 at 193 [23] - [24] per Ryan, Lee and Branson JJ. The maximum pecuniary penalty that may be imposed on a body corporate by reason of s 49(2)(a) of the Act is 1,000 penalty units, while the maximum pecuniary penalty that may be imposed on an individual is 200 penalty units. This equates to $110,000 in the case of a body corporate and $22,000 in the case of an individual: see Crimes Act 1914 (Cth), s 4AA. Mr Cahill alleged that, on 15, 17, 21 and 22 February 2006 and following, the Union and/or Mr Mates contravened s 43 of the Building and Construction Industry Improvement Act . In particular, Mr Cahill alleged that, by their conduct on 15 and 17 February 2006, the Union and/or Mr Mates threatened to take action with the intent to coerce ACN 117 918 064 Pty Ltd trading as Hardcorp: (a) to employ at the Mount Street site the Union's former shop steward (Jason Deans), the former occupational health and safety officer (Roslyn Singleton), and the former FEDFA shop steward (Aengus O'Donnell); and (b) to allocate and/or designate to Ms Singleton the responsibilities or duties of the OH&S officer at the Mount Street site.


case_outcome: referred to

case_text: regard to the evidence and s 140 of the Evidence Act 1995 (Cth), I find that, at the meeting of 15 February 2006, Mr Mates made demands on Mr Goss that Mr Deans, Mr O'Donnell and Ms Singleton be re-employed at the Mount Street site, and that Mr Deans and Mr O'Donnell be appointed as shop stewards and Ms Singleton be appointed as OH&S officer. All three individuals had previously been employed at the Mount Street site. Further, I find that Mr Mates threatened trouble at the site and that the project was "not going to happen" if his demands were not met. These threats constituted threatening to take action with intent to coerce Hardcorp to employ these three persons on the project at Mount Street and, amongst other things, to allocate to Ms Singleton the responsibilities or duties of OH&S officer on the project as it recommenced. Mr Mates' intent to coerce for a prohibited reason has been established in the manner outlined in the previous decisions of the Court: see Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 1610 ; (2000) 108 FCR 52 at 61-2 [24] per Ryan J and National Tertiary Education Industry Union v Commonwealth [2002] FCA 441 ; (2002) 117 FCR 114 at 142-143 [102] per Weinberg J. Accordingly, having regard to the evidence of Mr Moresi, Mr Palmer, Mr McMahon and Mr Mitchell and s 140 of the Evidence Act , I find that, on the morning of 21 February 2006, Mr Mates demanded that the crane crew from Independent Cranes shut down the crane and leave the site, which they ultimately did after speaking to their own office. In so doing, Mr Mates was carrying out his threats of 15 and 17 February 2006. Having regard to this fact and to Mr Mates' statements to Mr Moresi, Mr Palmer and Mr McMahon on the morning of 21 February 2006, I find that his intention in shutting down the crane was to coerce Hardcorp to re-employ Mr Deans, Mr O'Donnell and Ms Singleton at the Mount Street site, and, amongst other things, to have Ms Singleton appointed as OH&S officer on site: compare Telstra Corporation Ltd (2000) 108 FCR at 61 [24] and National Tertiary Education Industry Union (2002) 117 FCR at 142-143 [102]. For the reasons stated above, Mr Mates' conduct and intent are to be taken as that of the Union.


case_title: National Tertiary Education Industry Union v Commonwealth [2002] FCA 441 ; (2002) 117 FCR 114


case_text: Union is and was a "building association" within the meaning of s 4 of the Building and Construction Industry Improvement Act . Pursuant to s 69(1)(b) , "the following conduct in relation to a building association is taken to be conduct of the building association ... conduct of an officer or agent of the association acting in that capacity". Mr Mates was an officer of the association (s 69(3)) and acted in that capacity. At trial, counsel for the Union and Mr Mates made no argument to the contrary: see also Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 ; (2000) 100 FCR 530 at [76] - [78] per Ryan, Moore and Goldberg JJ and Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 at [33] per Le Miere J. Mr Mates' conduct is therefore taken to be the conduct of the Union. Should Mr Mates' intent to coerce Hardcorp for a prohibited reason be imputed to the Union? In order to answer this question, it is necessary to turn to s 826(1) of the Workplace Relations Act 1996 (Cth), which relevantly provides that: Where it is necessary to establish, for the purposes of this Act or the [Building and Construction Industry Improvement Act], the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and (b) that the officer, director, employee or agent had the state of mind. I have already found that Mr Mates had the requisite state of mind. There is a question as to whether Mr Mates engaged in the conduct "within the scope of his ... actual or apparent authority". There is no evidence of the scope of Mr Mates' actual authority. Having regard to the previous dealings between the Union and Mr Goss and his companies, however, and the admissions made by the Union (see [4] of the Defence), I am satisfied that Mr Mates acted within the scope of his apparent authority in respect of his conduct of 15 February 2006: see Hanley 100 FCR at [79]-[85]. In this regard, counsel for the Union and Mr Mates made no submission to the contrary. As already noted, the Union was an organisation for the purpose of s 43(2)(a) and therefore a person to whom the prohibition in s 43(1) might apply. Further, Hardcorp was a constitutional corporation for the purpose of s 43(2)(b) and, therefore, Mr Mates was a person to whom the prohibition in s 43(1) might apply. The latter would also be an alternative basis for supporting the application of the prohibition to the Union. Accordingly, I find that Mr Mates, in his own right, and the Union, through Mr Mates' conduct on 15 February 2006, breached s 43 of the Building and Construction Industry Improvement Act . The events of 16 February 2006 There was ample evidence that the picket was directed to recovering payments for sub-contractors and others to whom the Goss companies owed money. The picket followed immediately after the second creditors' meeting of Melbourne Transit (at which 2.4 cents in the dollar was offered to unsecured creditors). As noted above, on 23 February 2006, Mr Palmer observed that the picketers had handwritten signs that referred to "Goss needing to pay his debts". The picket line included creditors of Melbourne Transit. For reasons already indicated, I would accord little weight to Mr McMahon's uncorroborated evidence that he recognized only a "small percentage" on the picket line as subcontractors. The video evidence of the picket on 24 February 2006 showed that the then picketers were concerned with the repayment of debts. The evidence establishes that, on the balance of probabilities, the reason for the picket line was to pressure Mr Goss to make a better offer for the payment of debts than that made at the creditor's meeting on 21 February 2006. Apart from the fact that Mr Mates had stopped the crane the day before, there would have been very little reason for supposing that the picket was being organised so as to coerce Hardcorp to re-employ anyone or to allocate OH&S responsibilities to any particular individual. I do not consider that the reason for stopping the crane can, without more, be treated as the reason for the picket, especially when the creditors' meeting had intervened and there was evidence to the contrary. Mr Cahill has therefore failed to establish that the reason proscribed in s 43 was a substantial or operative reason (or a substantial and operative reason) for the organising of the picket: see Hanley 100 FCR at 541 [44]-[45] and National Tertiary Education Union 117 FCR at 139 [98]; and compare General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 616 per Mason J.


case_text: Union is and was a "building association" within the meaning of s 4 of the Building and Construction Industry Improvement Act . Pursuant to s 69(1)(b) , "the following conduct in relation to a building association is taken to be conduct of the building association ... conduct of an officer or agent of the association acting in that capacity". Mr Mates was an officer of the association (s 69(3)) and acted in that capacity. At trial, counsel for the Union and Mr Mates made no argument to the contrary: see also Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 ; (2000) 100 FCR 530 at [76] - [78] per Ryan, Moore and Goldberg JJ and Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 at [33] per Le Miere J. Mr Mates' conduct is therefore taken to be the conduct of the Union.


case_text: already noted, the contraventions alleged in respect of the events on site on 21 February 2006 and the picket line on 22 February 2006 and following were the subject of a no case submission. The question for the Court on a no case submission of the kind made is whether there is evidence upon which the Court could enter judgment for the applicant. Plainly enough, logically speaking, rejecting a no case submission does not necessarily entail the consequence that the claim succeeds. The difference between a ruling on a no case submission and final judgment is clear where a judge sits with a jury. Where a judge sits alone the distinction may be less easily seen. As Toohey J said in James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 400: Where a judge is sitting with a jury, the distinction between the arbiter of law and the arbiter of fact is of course apparent. If the judge decides that there is a case to go to the jury, it is then for the jury to uphold or dismiss the claim. While there is no logical inconsistency in rejecting a no case submission and thereafter rejecting the claim, the distinction is a fine one when a judge sits without a jury, given that the standard of proof is on the balance of probabilities and that inferences may be drawn by reason of the respondent's failure to adduce evidence. ... If a defendant elects not to call evidence, the judge has before him all the evidence upon which he is called to make a decision. Any distinction between the role of the judge in ruling on a no case submission and the role of the judge as an arbiter of fact becomes largely illusory ... The inconvenience of not putting the defendant to an election is apparent. If the judge's decision on the no case submission is upset on appeal, there must inevitably be a retrial.


case_text: Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 at 73-4, Perry J determined that the defendants should be put to their election and said: I realise that by putting the defendants to their election, I have effectively rendered it impracticable for the defendants to make any submission of no case to answer, even if they elect not to call any evidence. This is so, as if they do not call any evidence, it would not be appropriate for the court then to embark on the artificial exercise of determining whether there was a case to answer. The orderly disposal of the proceedings in those circumstances would require the defendants to proceed with their final submissions: see Toohey J, James v ANZ Bank at 400. But those considerations cannot deflect me from ruling in favour of the defendants being put to their election, if it is otherwise proper to do so. As noted above, this was also the view I came to and the course taken in this case. Accordingly, I turn to the evidence as it now stands. On 17 February 2006, Transit Joint Venture booked and paid for a crane crew and a crane from IC Hire Pty Ltd, trading as Independent Cranes, to attend the site on Tuesday, 21 February 2006. Monday, 20 February 2006, was a rostered day off for workers at the site. On 21 February 2006, Mr Mates attended Mount Street shortly after the crane and crane crew had come onto the site and begun to set up. The Union and Mr Mates did not dispute that Mr Mates told the crane crew to shut down the crane and leave. The crane crew spoke with Mr Mitchell at the office of Independent Cranes and left the site. Mr Cahill alleged that, by this conduct, the Union and Mr Mates contravened s 43 by taking action with the intent to coerce Hardcorp to employ Mr Deans, Ms Singleton and Mr O'Donnell; and/or (2) allocate and/or designate to Ms Singleton the duties or responsibilities of an OH&S officer: see [13] and [19] of the Statement of Claim. There was a further related allegation concerning s 38 , which is discussed below.


case_text: the history of the proceeding, the Union and Mr Mates put forward various explanations for Mr Mates' conduct on 21 February 2006, some of which were not pursued at trial and others were not pressed in final submissions, whether because of the Union's and Mr Mates' election not to call evidence or otherwise. Thus, [17A] of an amended defence dated 17 August 2007 pleaded that the crane was removed because of a malfunction and/or because of concerns about payment. Neither explanation was pursued at trial. I reject counsel for Mr Cahill's submission that I should treat this conduct on the Union's and Mr Mates' part as evidence of consciousness of guilt. I would not regard the relevant principle as applicable in the circumstances shown: compare Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678 ; (2004) 141 FCR 183 at 215-6 [244] - [248] . It is undeniable, however, that there is no evidence that might explain Mr Mates' conduct other than that to which I have already referred. For the reasons that appear below, I would not regard the evidence concerning the events of 22 February 2006 and thereafter as having much, if any, bearing on this incident. There was no evidence to support a suggestion that safety concerns motivated Mr Mates' conduct: compare [17] of amended defence and further amended defence dated 14 July 2008. In cross-examination, Mr Moresi, who had 10-15 years experience in the construction industry and with cranes, said that he had not heard Mr Mates or anyone else raise any safety issue when Mr Mates was on site on 21 February 2006. Mr Moresi said that responsibility for any safety issue affecting the crane lay with the crane crew and the site safety officer, managers and engineer. Mr Palmer's evidence was to the same effect, including that no safety issues touching the crane were raised with him on 21 February 2006. Mr McMahon's evidence was that, if there had been a safety issue with the crane, then, as a matter of practice, the crane crew would have immediately notified him as one of the site management personnel. Mr McMahon added that no-one from Independent Cranes and none of the crane crew had raised any safety, location, or other problem concerning the crane on 21 February 2006. The evidence established that Mr Mates told Mr Moresi, Mr Palmer and Mr McMahon that he had shut down the crane because there was no shop steward or OH&S representative on site. When Mr Moresi informed him that Mr Van Senten was shop steward and OH&S representative, Mr Mates persisted, saying he did not care. There is no reasonable explanation for Mr Mates' conduct once he was given this explanation. The only tenable explanation is that Mr Mates was carrying out his threats of 15 and 17 February 2006 that the project at Mount Street would not recommence unless Mr Deans, Mr O'Donnell and Ms Singleton were re-employed and took on their former responsibilities, including that Ms Singleton assumed OH&S responsibilities. It was telling that Mr Mates gave as his reason for his action that there was no shop steward or OH&S representative, because this reflected the demands that he had made to Mr Goss at his earlier meetings with him on 15 and 17 February 2006. The nature of Mr Mates' demands was reflected in that fact that, when he was told that Mr Van Senten was shop steward and OH&S representative, he said he did not care. In effect, Mr Mates signalled that he was only interested in his people being appointed to these positions. This too was consistent with his demands of 15 and 17 February 2006.


case_text: Mitchell was called by Mr Cahill to give evidence, but he gave no evidence that he had received a call from Mr Mates or any other Union representative that day or on any subsequent day. Indeed, Mr Mitchell was not asked whether Mr Mates or anyone else from the Union had telephoned him at Independent Cranes on 21 February 2006 or any other date. As counsel for the Union and Mr Mates said, it has to be borne in mind that, at this time, Mr Mitchell was in charge of bookings at Independent Cranes. If there had been a warning off as alleged, he might reasonably have been expected to know about it. Counsel for the Union and Mr Mates relied on the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. Counsel argued that the inference that there was no warning off might, in the absence of testimony from Mr Mitchell, be more comfortably drawn. I accept this submission in part: see Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68 at 112 [159] - [160] and Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (2007) 241 ALR 705 at 758 [384] per Jacobson J. I accept that, in the absence of any testimony from Mr Mitchell on the subject, it may be more comfortably inferred that, leaving aside what had happened earlier on 21 February 2006, no-one from the Union directly or expressly warned off Independent Cranes.


case_title: Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68


case_title: Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (2007) 241 ALR 705


case_text: summary, having regard to s 140 of the Evidence Act and the evidence before me, I reject as unproven Mr Cahill's further allegations that: (1) Mr Mates telephoned the Union's offices or a representative of the Union to instruct Mr Hill to ring Sergi Cranes and other crane operators to warn them off working at the Mount Street site; and (2) Mr Mates arranged for Mr Tadic and/or Mr Hill to contact Independent Cranes to ensure that the crane left the Mount Street site and did not return. See generally Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 and Granada Tavern v Smith (2008) 173 IR 328, [2008] FCA 646 at [85] and following.


case_title: Granada Tavern v Smith (2008) 173 IR 328, [2008] FCA 646


case_text: was evidence from Mr Goss that he telephoned Mark Lunedei of MC Labour to ask him why his people were there. Mr Lunedei did not give evidence at trial. Counsel for Mr Cahill argued that Mr Goss's evidence as to what Mr Lunedei said to him was admissible pursuant to s 87(1)(c) of the Evidence Act . I doubt that this was so: see Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 at 339-340 [53]-[54] and Orica Investments Pty Ltd v William McCartney [2007] NSWSC 645 at [53] . Even if it were admissible, however, I would not accord the evidence any weight, having regard to the fact that I considered Mr Goss exaggerated his evidence from time to time to implicate the Union and Mr Mates.


case_title: Orica Investments Pty Ltd v William McCartney [2007] NSWSC 645


case_text: was ample evidence that the picket was directed to recovering payments for sub-contractors and others to whom the Goss companies owed money. The picket followed immediately after the second creditors' meeting of Melbourne Transit (at which 2.4 cents in the dollar was offered to unsecured creditors). As noted above, on 23 February 2006, Mr Palmer observed that the picketers had handwritten signs that referred to "Goss needing to pay his debts". The picket line included creditors of Melbourne Transit. For reasons already indicated, I would accord little weight to Mr McMahon's uncorroborated evidence that he recognized only a "small percentage" on the picket line as subcontractors. The video evidence of the picket on 24 February 2006 showed that the then picketers were concerned with the repayment of debts. The evidence establishes that, on the balance of probabilities, the reason for the picket line was to pressure Mr Goss to make a better offer for the payment of debts than that made at the creditor's meeting on 21 February 2006. Apart from the fact that Mr Mates had stopped the crane the day before, there would have been very little reason for supposing that the picket was being organised so as to coerce Hardcorp to re-employ anyone or to allocate OH&S responsibilities to any particular individual. I do not consider that the reason for stopping the crane can, without more, be treated as the reason for the picket, especially when the creditors' meeting had intervened and there was evidence to the contrary. Mr Cahill has therefore failed to establish that the reason proscribed in s 43 was a substantial or operative reason (or a substantial and operative reason) for the organising of the picket: see Hanley 100 FCR at 541 [44]-[45] and National Tertiary Education Union 117 FCR at 139 [98]; and compare General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 616 per Mason J.


case_outcome: applied

case_text: In light of section 6 of the LR Act, the parties to the present interlocutory application agreed that the threshold issue arising is whether the foreshadowed claim for the application of a statutory charge on the part of the Insurers in favour of PCL is reasonably arguable. If the claim is reasonably arguable in the sense that it 'could be seriously put' ( Andjelkovic v AFG Insurances Ltd (1980) 47 FLR 348 at 356 per Blackburn CJ, the context whereof involved an issue as to statutory or alternatively contractual interpretation), then leave should be granted to join the Insurers, or at least that Insurer resident in Australia being of course Macquarie, notwithstanding its purported agency status, so that the issue as to availability of the statutory remedy referrable to the prevailing circumstances may be subsequently resolved at a final hearing of the proceedings. The parties further agreed that for the purposes of the present interlocutory application of PCL, the following general principles apply: (i) an action pursuant to section 6 of the LR Act cannot be commenced of course without the leave of the Court, and whilst some specific circumstances may be identified as operative against the grant of leave, any grant of leave or otherwise falls ultimately within the statutory discretion thereby vested in the Court; and (ii) the Court will not grant leave to commence proceedings in circumstances where on the basis of the material placed before the Court, the claim of an applicant for the statutory indemnity sought is not reasonably arguable. 42 I have reached the conclusion, subject to provision of evidence formally as to Mr Teves' status as a director and shareholder of PCL at the material times, being a circumstance of course asserted by PCL, that PCL has demonstrated satisfaction of the test exemplified in Andjelkovic, and subsequently as articulated more expansively in Fishwives , in relation to both successive insurance policies, and that it would be erroneous on my part to shut out PCL from pursing its presently framed causes of action at this interlocutory stage upon the demurrable basis advanced on behalf of the Insurers. I think that I should exercise my discretion in favour of the grant of the leave sought in relation to the operation of both policies, and thus in relation to the successive years of indemnity from 26 July 2003 to 26 July 2004 and from 26 July 2004 to 2005. The addition of SVB as a respondent is more problematical, but I gained the ultimate understanding that no objection would be raised in principle to the inclusion of SVB as an additional respondent, apparently as a representative of the individual Lloyds underwriters involved.


case_title: Fishwives Pty Ltd v FAI General Insurance Co Ltd & Ors (2002) 12 ANZ Insurance Cases 61-515

case_text: More recently in the context of an appeal to the Court of Appeal of the Supreme Court of New South Wales in Fishwives Pty Ltd v FAI General Insurance Co Ltd (2002) 12 ANZ Insurance Cases 61-515, Mason P (with whom Meagher and Handley JJA agreed) described the operation of the applicable principle in the following more comprehensive terms: '47. I do not accept the appellant's submission that the judge was bound to grant leave if there was an arguable case on the non-disclosure issue. I can readily accept that leave may be given where the Court is satisfied that there is an arguable point on the insurer's indemnity issue. It is now established that the grant of leave to proceed against an insurer does not foreclose the insurer's right to litigate issues going to its liability to indemnify the insured in the substantive proceedings.... But it does not follow, in my view, that a court that is positively satisfied of the insurer's entitlement to disclaim, after issue has been joined on that matter as between the plaintiff and the insurer, must exercise the discretion in favour of the grant of leave. The court is "seized of the discretion to grant leave" (National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1996) 9 ANZ Insurance Cases 61-335 at 76,711; (1996) 138 ALR 409 at 418 per Lindgren J), but it is not driven to exercise the discretion in a particular way.' The outcome of the appeal in that case was summarised by Mason P as follows: '48. In the present case Delaney DCJ was satisfied on the balance of probabilities that the insurer was entitled to disclaim. He was in my view entitled to reach this conclusion.' In reaching that conclusion, the Court of Appeal was presented with findings below as to facts establishing the objective falsity to answers provided in the insurance proposal form. It is the case of the Insurers on the present application of PCL for joinder of Macquarie and also SVB as additional respondents to the proceedings that I should find on the balance of probabilities that the Insurers are entitled to disclaim liability, and therefore that leave to join the Insurers should be refused. 7 PCL's business included the provision of loans to assist the funding of the purchase of real property, the loans being usually secured by mortgage over that real property. On 22 May 2003, ARMA provided valuations for mortgage lending purposes to PCL as prospective mortgagee in respect of two adjacent freehold properties comprising Lots 15 and 20 at Nos 22-24 Oyster Court Trinity Beach in the State of Queensland. The valuations were apparently signed by Mr Teves on behalf of ARMA, though the valuations were not tendered into evidence, the view understandably taken by the parties being that the same were not material to the resolution of the present interlocutory proceedings. 8 It is PCL's case that in reliance on those valuations, it lent to the freehold owner Brett Robinson the sum of $598,000 secured by way of registered first mortgage over the properties, and that when the freehold owner defaulted under the mortgage, PCL exercised its power of sale as mortgagee and sold the properties, thereby sustaining a shortfall in the available proceeds of sale in relation to the moneys by then secured by PCL's mortgage. PCL's case was further that the valuations were provided to PCL by the respondents ARMA and Mr Teves in breach of sections 52 and 53A of the TP Act, for the reason that the valuations substantially overstated the market values of the properties and those existing respondents did not have reasonable grounds for their assessments of market value. PCL has claimed damages in the first instance against ARMA as the provider of the valuations and Mr Teves as the author of the valuations, he being allegedly also a director of ARMA, but it is apparent that recovery from ARMA and Mr Teves individually is at least dubious. 42 I have reached the conclusion, subject to provision of evidence formally as to Mr Teves' status as a director and shareholder of PCL at the material times, being a circumstance of course asserted by PCL, that PCL has demonstrated satisfaction of the test exemplified in Andjelkovic, and subsequently as articulated more expansively in Fishwives , in relation to both successive insurance policies, and that it would be erroneous on my part to shut out PCL from pursing its presently framed causes of action at this interlocutory stage upon the demurrable basis advanced on behalf of the Insurers. I think that I should exercise my discretion in favour of the grant of the leave sought in relation to the operation of both policies, and thus in relation to the successive years of indemnity from 26 July 2003 to 26 July 2004 and from 26 July 2004 to 2005. The addition of SVB as a respondent is more problematical, but I gained the ultimate understanding that no objection would be raised in principle to the inclusion of SVB as an additional respondent, apparently as a representative of the individual Lloyds underwriters involved.


case_text: The Insurers rejoined that the words 'circumstances which might result in a claim' the subject of exclusion clause 4.1 of each policy included circumstances where a claim is possible in the sense, for instance, of being contingent upon crystallisation of some event, and that if such was not the case, there could never be any circumstances, short of the making of a claim per se , which could constitute circumstances which might result in a claim. The respondents drew attention to FAI General Insurance Co Limited v McSweeney ((1999) 10 ANZ Ins Cas 61-443 at 75,033-4), where this Court (Lindgren J) gave consideration to a policy condition containing a similar expression ' may give rise to a claim', and expressed the opinion that although it was not desirable to attempt to define precisely the shade of meaning to be signified by that expression in particular contexts, circumstances may be said to give rise to a claim if ' they would... immediately suggest to a reasonable person in the... insured's position who reflected upon those known circumstances, that the bringing of a claim against the insured in respect of them was a "definite risk" or a "real possibility" or "on the cards". It was therefore contended by the Insurers the second policy 'does not respond' to the claim of ARMA as valuer and hence also to that of PCL as mortgagee . 25 As appears further from the text of the letter dated 13 May 2004 which I have earlier extracted in full, it contains the opinion '[i]t appears your valuations significantly overvalued the properties, such that our client may suffer a shortfall upon sale of the properties' , and the statement of intention that '[w]e have been instructed to take action to recover any shortfall from you'. Moreover this letter warned '... that circumstances have arisen that may give rise, to a claim', being words reflected in the fourth indented paragraph of exclusion clause 4.1 of each of the first and second policies. The letter dated 23 April 2004 is to similar effect.


case_text: PCL drew attention to the well known principle of insurance law that an exclusion clause in an insurance policy should be construed narrowly and otherwise against the interests of the insurer, citing in that regard Derrington and Ashton, The Law of Liability Insurance (2 nd edition Lexis Nexis, 2005) at 10-2. PCL referred further to the principle enunciated in the unanimous reasons for judgment of the High Court in Darlington Futures Limited v Delco Australia Proprietary Limited [1986] HCA 82 ; (1986) 161 CLR 500 at 510 to the effect that in the event of ambiguity, an exclusion clause is to be construed contra proferentem . I have already extracted the material provisions of exclusion clause 4.1 of potential relevance. Given the content of the letters of PCL to Mr Teves, apparently a director and shareholder of ARMA during the term of the first policy (as well as the second policy), yet the absence of any sale of the properties the subject of ARMA's valuations prior to commencement of the second policy, being letters apparently not provided to Macquarie prior to the commencement of the term of the second policy, the Insurers contended that if the second policy was otherwise the subject of relevant cover, that absence of disclosure by ARMA to Macquarie of those notifications of apparent likely claim communicated by PCL to ARMA was fatal to invocation of any liability of the Insurers under the second policy. 27 It was PCL's further contention however that s 33 (of Division 3 of Part IV) of the Insurance Contracts Act 1984 (Cth) ('IC Act') so operates as to preclude, in the present circumstances, the Insurers from any effective reliance upon exclusion clause 4.1. Section 33, which is headed 'No other remedies' , stipulates as follows: 'The provisions of this Division are exclusive of any right that the insurer has otherwise than under this Act in respect of a failure by the insured to disclose a matter to the insurer before the contract was entered into and in respect of a misrepresentation or incorrect statement.'


case_title: Permanent Trustee Australia Limited v FAI Insurance Company Limited (1988) 153 ALR 529

case_text: PCL submitted that if exclusion clause 4.1 was to be applied adversely to PCL, it would effectively provide an additional right to Macquarie/SVB that they have 'otherwise than under [the IC Act] in respect of a failure by the insured to disclose a matter to the insurer before the contract was entered into and in respect of a misrepresentation or an incorrect statement' , and thus should be invalidated by reason of the operation of s 33 of the IC Act. PCL cited in that regard Permanent Trustee Australia Limited v FAI General Insurance Company Limited (1988) 153 ALR 529, where Hodgson CJ in Eq considered a policy condition, extracted at 536 under the heading ' Retroactive Liability ', which was claimed to have granted unlimited retroactive liability, qualified only by the words ' omitting claims or circumstances which may give rise to a claim which are known to the insured prior to the inception of this insurance' . PCL contended that such exclusion condition addressed in FAI was 'on all fours' with exclusion clause 4.1 of each of the present policies, and that what was addressed by his Honour was indeed the substance rather than the form of the exclusion clause there in issue. His Honour determined (at 568) that '... the retroactive clause should be interpreted as applying only if the insured knows the circumstances as circumstances which might give rise to a claim (being his Honour's emphasis), because otherwise the clause would have the unreasonable effect of excluding many or even most circumstances that were purportedly insured against'. Subsequently (at 589), his Honour added that '[i]f the retroactive clause had the effect of excluding liability for something which was in substance a non-disclosure, then I think s 33 would in any event, prevent the retroactive clause excluding liability'. PCL's submissions was that '... the only way that [Macquarie and SVB] can escape the making of the orders sought is... to persuade [the Federal Court] that Hodgson J... was wrong' in his approach to the resolution of Permanent Trustee .


case_title: Pech v Tilgals (1994) 94 ATC 4206

case_text: Counsel for the Insurers Macquarie and SVB drew attention to the reasons for subsequent decision of Dunford J in the Supreme Court of New South Wales in Pech v Tilgals (1994) 94 ATC 4206, where the circumstances involved a claim against an accountant for professional negligence, and a cross-claim by that accountant for indemnity against his professional indemnity insurer. The professional indemnity insurance policy excluded from cover claims '[a]rising from any circumstance or circumstances of which [the insured] shall became aware, prior to the commencement of insurance cover under this Policy... and which a reasonable Accountant in [the] position [of the insured] would at any time prior to the commencement of cover have considered may give rise to Claim' . His Honour first observed that the words '"at any time" (prior to the commencement of cover)' did not embrace circumstances which may have existed some time previously but which had been overtaken by subsequent events, as such a construction could at times lead to absurd results; rather in his Honour's view, those words referred to what a reasonable accountant should consider right down to the commencement of cover. 30 Assuming that policy language addressed in Pech to have relevantly similar effect as that of exclusion clause 4.1, two observations may be made. The first is that his Honour's observation cited above would have no application in relation to the operation of the first policy, but only the operation of the second policy, since the letters of 23 April 2004 and 13 May 2004 were written by PCL to Mr Teves during the currency of the first policy. The second is that the critical issue remains here as to the import of what was said in those letters concerning the implications as to what appear to have then constituted merely pending or proposed sales, rather than the implications of sales effected during that subsequent year of indemnity commencing 26 July 2004. It does not seem to me that Pech provides sufficient bearing upon the circumstances thus far in evidence in the present case. 31 PCL submitted next that s 14 of the IC Act, headed 'Parties not to rely on provisions except in the utmost good faith' , was also applicable to the present circumstances of claim, it providing by subsection (1) that '[i]f reliance by a party to a contract of insurance on a provision of the contract would be to fail to act with the utmost good faith, the party may not rely on the provision' . PCL's submission was that 'the effect of what the insurer seeks to do by relying on the exclusion is to penalise the insured for failing to notify the insurer of circumstances that might give rise to a claim during the previous policy year'. PCL asserted that the previous policy year of indemnity did not contain any provision that required the insured to notify any such circumstances. Accordingly PCL contended that '... where an insured is covered under successive policies of insurance, it is arguably a breach of duty of utmost good faith to rely on [an] exclusion which relates to the failure of the insured to perform an act during the prior policy of insurance when in fact there was no obligation of the insured pursuant to the prior policy to perform that act, namely to notify those circumstances'. The Insurers asserted on the other hand that PCL did not demonstrate 'how reliance upon a well known limitation in a claims made cover could amount to a lack of good faith', though no explicit evidence has yet been tendered as to the existence of the limitation being 'well known'. 32 PCL advanced an alternative claim for indemnity based on the first policy, that being of course issued by Macquarie to ARMA for the period of cover 26 July 2003 to 26 July 2004. It appears to have been common ground that the valuations the subject of the present proceedings were undertaken and signed by Mr Teves, who was not a named valuer in the so-called special conditions appearing on page 1 of the Schedule to the first policy, the only valuer named therein being Terrence Stewart (as I have earlier recorded). Upon that basis, the Insurers' case was that the first policy did not provide insurance in relation to the circumstances of PCL's claim, the first policy not extending to valuations undertaken and signed by persons other than 'Terrence Stewart' , and hence not extending to valuations undertaken and signed by 'Neil Teves' . The Insurers submitted that there was no averment or evidence at all about Mr Teves' role or association with ARMA at the time of the commencement of operation of the first policy, or about 'any negotiations between the insured and the insurer relating to the decision to name Mr Stewart (and not Mr Teves) in the policy', and that there was therefore no basis, pleaded or otherwise, for the proposition that the first policy was intended to include valuations undertaken or signed by Mr Teves. 33 PCL invoked reliance by way of rejoinder to those submissions of the Insurers upon the remedial provisions s 14 of the IC Act, appearing within Part II thereof under the heading 'The duty of the utmost good faith' , and which read as follows: '14 Parties not to rely on provisions except in the utmost good faith (1) If reliance by a party to a contract of insurance on a provision of the contract would be to fail to act with the utmost good faith, the party may not rely on the provision. (2) Subsection (1) does not limit the operation of section 13. (3) In deciding whether reliance by an insurer on a provision of the contract of insurance would be to fail to act with the utmost good faith, the court shall have regard to any notification of the provision that was given to the insured, whether a notification of a kind mentioned in section 37 or otherwise.' The preceding s 13 relates to the contracts of insurance being 'based on the utmost good faith' , and s 37 requires an insured to be 'clearly informed' in writing by the insurer of the effect of terms 'not usually included in contracts of insurance that provide similar insurance cover' . 34 PCL asserted that the purpose of ARMA in obtaining professional indemnity insurance from Macquarie was inferentially to acquire cover in respect of valuations conducted in the course of its business, and PCL informed the Court, seemingly without objection, that Mr Teves had been at all relevant times both a company director and a shareholder of ARMA. Upon that apparent footing of Mr Teves' involvement in ARMA to the extent of being a director and shareholder, PCL contended that 'given Mr Teves' position at ARMA, it is improbable in the extreme that his name was omitted from the schedule otherwise than by mistake or oversight'. However the Insurers drew attention to the circumstance that there had been no evidence tendered as to Mr Teves' role or association with ARMA at the time of commencement of the first policy. It would be inappropriate nevertheless to permit the present proceedings to be by interlocutory strike-out by reason largely of an apparent oversight on the part of PCL to have attended to such an evidentiary formality. One difficulty for PCL, so the Insurers contended in any event, was that no evidence had been provided to enable the Court to determine whether s 14 of the IC Act operates to preclude the proposed respondents from relying on such a mistake or oversight, being evidence for the purpose of proceedings for rectification of the first policy. Nevertheless it would be an unsatisfactory approach on my part to the resolution of the present interlocutory application to uphold the same in circumstances where there had emerged an apparency of a potentially viable basis for rectification of the first policy, albeit that such an evidently available course had not yet been formally commenced.


case_text: The applicants then sought an order to show cause in the High Court. On remitter to this Court a Full Court consisting of North, Madgwick and Siopis JJ dismissed the application: Wang v Australian Industrial Relations Commission [2006] FCAFC 31. 7 On 10 April 2006 the applicants filed an application for special leave to appeal to the High Court from the decision of the Full Court. A copy of the special leave application was produced to me. I am satisfied that it is confined to issues concerning the termination of their employment by Demos and the conduct of the matters in the Commission. The respondents are the Full Bench of the Commission, Commissioner Lewin and Demos. The Secretary is not a party. Of course if the application for special leave covered matters in the present proceedings it would not be appropriate for me to proceed with the Secretary's applications. However I am satisfied that is not the case. The present proceedings are confined to the complaints concerning Centrelink, the Secretary being the only respondent. 8 The initiating applications are in substantially the same form. Taking Mr Wang's application, it commences by alleging that it is made "as a result of several breaches of law by Centrelink ... against the applicant". Paragraphs 1 and 2 state: "1. Centrelink conspired to defraud, breached the criminal law and the common law, as well as committing misprision of serious offence. 2. Breaches of the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth), and Racial Discrimination Act 1975 (Cth)."


case_text: In their submissions the applicants submit "the Federal Court has general power to hear all matters subject only to express legislative restriction". This is fundamentally incorrect. Section 19(1) of the Federal Court of Australia Act 1976 (Cth) provides that the Court "has such original jurisdiction as is vested in it by laws made by the Parliament". The Federal Court only has such jurisdiction as is conferred on it by the Commonwealth Parliament, together with accrued jurisdiction over non-federal claims as arise out of transactions and facts common to the federal claims: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570.


case_title: Scott v Secretary, Department of Social Security (2000) 65 ALD 79 at [24]

case_text: The claims of the applicants are not within the jurisdiction of the Federal Court. The Court does not have jurisdiction to try criminal offences such as fraud and conspiracy. Breaches of the Social Security Act do not confer private rights for damages: Scott v Secretary Department of Social Security (2000) 65 ALD 79 at [24], Scott v Pedler [2004] FCAFC 67 at [1] , [53], [93], [102-103] and [106]. Nor is there any duty of care owed: Scott v Pedler . The Federal Court does not have a jurisdiction of general oversight of the administrative efficiency of federal government entities.


case_outcome: discussed

case_text: Because there is no jurisdiction for this Court to deal with various claims made it is not appropriate to consider whether any reasonable causes of action are raised. Such an exercise would amount to exercising a jurisdiction which the Court does not have. However, I should take this opportunity to correct an error I made in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 in relation to the new s 31A of the Federal Court of Australia Act which introduces for strikeout applications the lower threshold of "reasonable prospects of success" as against the test laid down in such cases as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 150. I was not referred in Duncan to item 44 of Pt 2 of Sch 1 to the misleadingly titled Migration Litigation Reform Act 2005 (Cth) (misleading because it applies to all litigation) which makes it clear that s 31A does not apply to proceedings commenced before that Act came into force.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 150


case_text: It is now well-established that the invitation that the Tribunal is required by s 425(1) of the Migration Act to give to an applicant is not a matter of form. The duty to give the invitation will not be performed if what the Tribunal then affords to an invited applicant is not a hearing that conforms with the requirements of s 425(1). This was made clear in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] - [39] . Section 425(1) requires that the invitation be to a hearing at which the applicant is "to give evidence and present arguments relating to the issues arising in relation to the decision under review." As SCAR itself makes clear, even if the Tribunal is unaware of the inability of the applicant to give evidence and present arguments about those issues, the hearing will have fallen short of the requirements of s 425(1) , so that the duty to invite the applicant to a hearing of the required kind will not have been fulfilled. In that case, the Tribunal was unaware that the applicant was undergoing medical treatment as a result of being affected badly by news of his father's recent death. In [39] of its reasons for judgment in SCAR , the Full Court relied on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 , in which it was held that the Tribunal had denied the applicant procedural fairness through inadvertence, because it was unaware of a letter seeking an adjournment of the hearing.


case_title: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553


case_text: The proceeding before this Court is an appeal from a judgment of the Federal Magistrates Court, published as SBLF v Minister for Immigration and Citizenship & Anor [2007] FMCA 1477. The learned federal magistrate dismissed an application by the appellant for judicial review of the decision of the Tribunal, signed on 7 August 2006 and handed down on 29 August 2006. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Citizenship, the first respondent to this appeal) (in both cases "the Minister"), refusing to grant to the appellant a protection visa. 3 It is accepted that the appellant is a citizen of Albania, who arrived in Australia on 2 November 2005, having obtained a visa to travel to Australia by using a false Italian passport. On 29 November 2005, the appellant applied for a protection visa. On 2 February 2006, the Minister's delegate made a decision to refuse to grant the visa. The appellant then applied to the Tribunal for review of that decision. Having been unsuccessful in that application, the appellant filed an application in the Federal Magistrates Court, for relief of the kind available under s 39B of the Judiciary Act 1903 (Cth), on 22 September 2006. He filed an amended application on 5 April 2007. The federal magistrate heard the application on 11 April 2007 and gave judgment on 31 August 2007. 4 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act "), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call those two instruments, taken together, the "Convention". For present purposes, it is sufficient to note that Australia has protection obligations to any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country 5 The appellant attempted to establish a well-founded fear of being persecuted, should he return to Albania, for reasons of religion and political opinion. He claimed that he professed the Catholic religion, in a country dominated by Muslims, and was consequently in danger of persecution by reason of his religion. He also claimed that he had expressed publicly his opposition to an extremist Muslim political party and so was in danger of persecution on the ground of political opinion. He claimed to have been assaulted and beaten severely. He claimed that shots had been fired at him. He claimed that his parents had been forced to sell their house for less than its value and to move their place of residence because of threats. He claimed that his persecutors were still making inquiries of his parents in Albania as to the appellant's whereabouts, and still making threats. He claimed to have been dismissed from employment. He said that he feared that, if he returned to Albania, the Muslims would make an example of him and would beat him and shoot him. 6 Section 414(1) of the Migration Act provides that, if a valid application is made for review of an RRT-reviewable decision (of which there is no dispute that the Minister's delegate's decision was one), "the Tribunal must review the decision." By s 415(1) , the Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Migration Act on the person who made the decision. It is well accepted that the Tribunal is required to perform its function by considering the subject matter of a decision of a delegate of the Minister afresh, on the material before the Tribunal, and not to decide whether that decision was correct on the material before the Minister's delegate. Section 420 of the Migration Act provides: (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. 7 Division 4 of Pt 7 of the Migration Act contains provisions concerning the conduct by the Tribunal of a review. Among them is s 425(1): The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 8 Section 425(2) contains exceptions to this obligation, none of which is applicable to the present case. 9 Also found in Div 4 of Pt 7 of the Migration Act is s 422B(1) , which provides: This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. 10 The appellant's original application for a protection visa was made with the assistance of a registered migration agent. The substance of his claim to have a well-founded fear of persecution for reasons of religion and political opinion was contained in a typewritten and signed statement 14 short paragraphs in length. The appellant's account of his experiences recorded in that statement was very brief. Before the Minister's delegate considered the matter, two invitations were sent to the appellant's migration agent, addressed to the appellant, offering opportunities to provide additional information to support the claims. The migration agent responded to the first invitation, without providing any substantive information. There was no response on behalf of the appellant to the second invitation. The Minister's delegate found that the appellant had "provided little or no evidence to support his claims". Consequently, the Minister's delegate was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.


case_title: Yung v Adams (1997) 80 FCR 453

case_text: This point was made in Yung v Adams (1997) 80 FCR 453 at 459 where Davies J observed that, notwithstanding the width of the definition of 'inappropriate conduct', it should be read subject to the legislative power under which the Act was passed: 'The Federal Parliament has no general power to regulate the activities of medical practitioners. Therefore, under Pt VAA, the power to discipline in relation to "inappropriate practice" must be understood as a power to discipline in relation to conduct which is related to the payments which are made by the Commonwealth under the Act by way of medical benefits and the like. Accordingly, the reference to "inappropriate practice" in s 82 refers to conduct in relation to which Commonwealth benefits were paid or payable and in respect of which the medical practitioner failed in some way to meet the standards of the general body of the members of the profession in which the services were rendered. The Commonwealth's interest is to see that the services which are provided by a medical practitioner and for which a Commonwealth benefit is or may be claimed are services in respect of which the medical practitioner provides due care and skill, that a claim if made is brought under the correct item and that overservicing does not occur.' 57 The applicant contends that the comments of Gibbs J quoted at [37] above are not to be taken as stating a 'blanket proposition' that any regulation of the manner in which practice is conducted is within power. This is clearly correct. However, his Honour's statement that: 'If the incident of practice which is regulated is not medical or dental, but financial or administrative, it is clearly outside the prohibition', cannot be used, as the applicant attempts to do, as authority for the proposition that any attempt to regulate an incident of practice which is medical or dental will fall within the prohibition. 58 The applicant puts forward the General Practitioners case as authority for the blanket proposition that it is constitutionally impermissible to regulate any performance by medical practitioner of his medical duties and functions; that such regulation was equated with compulsion and therefore with conscription. This however is not what is held in the General Practitioners case. What was crucial for Gibbs J in the General Practitioners case was that no medical service was compelled. This is quite clear from his Honour's comments at 559-60: 'The provisions in question in these proceedings do compel medical practitioners to perform certain duties in the course of carrying out their medical practices, but they do not go beyond regulating the manner in which some of the incidents of those practices are carried out, and they do not compel any medical practitioner to perform any medical services. Most of the duties imposed relate only to things done incidentally in the course of practice, rather than to a medical service itself. The only possible exception is s 16A (1), which requires that a request by a medical practitioner to an approved pathology practitioner to render a pathology service shall be made or confirmed in writing as prescribed. A request of that kind may be regarded as a medical service. However, s 16A(1) does not compel any medical practitioner to make such a request. What it requires is that the request, if made, be made or confirmed by written instrument which satisfies reg. 5. There is nothing in that regulation which affects in the slightest the performance by a medical practitioner of his medical duties and functions. The statutory requirements may impose on him more administrative work. In particular he is required to specify, in his own handwriting, the services to which the instrument relates, and cannot simply mark a form on which is printed a list of possible services. The reason why a condition of this kind is attached to the entitlement to medical benefits is no doubt that the use of the printed form might reasonably be regarded as likely to contribute to laxity and to facilitate fraud. However that may be, to require a practitioner to write out particulars of the service which he has decided to request another practitioner to perform is not to compel the practitioner making the request to perform a medical service. Even more clearly, the requirements of s 16A(2) with regard to accounts and receipts, and those of s 16A(3) with regard to the retention and production of any written request or confirmation, do not compel any medical practitioner to perform any medical service. ... For these reasons none of the provisions in question imposes any form of civil conscription contrary to s 51(xxiiiA) of the Constitution . 59 I have quoted his Honour's comments at length to make quite clear his Honour's position. His Honour found that the provisions in question did not breach the constitutional prohibition because, put simply, that which was compelled was not a medical service in itself; although it may have been incidental to a medical service; and where a medical service was regulated, as by requiring a request to be made in writing, the medical service itself was not compelled. These comments do not support the proposition that any regulation of the way in which a medical service is provided is unconstitutional. 60 In my view the General Practitioners case is directly applicable to the present situation. For the reasons I have given I do not find that the Medicare Scheme or the PSR Scheme impose any compulsion to provide medical services. The decision to provide medical services is a voluntary decision. The regulation of the manner in which such services are provided is properly incidental to the Commonwealth's power under s 51(xxiiiA) to provide medical services and does not offend the constitutional prohibition against civil conscription. In my view a proper application of the term 'inappropriate practice' would sufficiently confine the concept to matters which are within the incidental power of the Commonwealth. 61 For the above reasons the applicant's challenge to the constitutional validity of PSR Scheme must fail. The appeal must be dismissed with costs. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 23 February 2006 Counsel for the Applicant: Mr M A Robinson with Mr C Jackson Solicitor for the Applicant: Tress Cox Counsel for the Respondents: Mr A Robertson SC with Ms R Henderson Solicitor for the Respondents: Minter Ellison Date of Hearing: 14 June 2005 Date of Judgment: 23 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/126.html


case_text: The High Court has cautioned that when considering the ambit of the incidental power, whether arising by implication or expressly under s 51(xxxix) of the Constitution , it is important not to allow the incidental power to dominate the main power or, as Rich J said, not to put the cart before the horse; Attorney-General for Victoria v The Commonwealth [1935] HCA 31 ; (1935) 52 CLR 533 at 563. The point was well illustrated by Dixon J in the Pharmaceutical Benefits case. The legislation under consideration there rested on the power of the Commonwealth to appropriate money under s 81 of the Constitution . Dixon J concluded that even if one accepted that s 81 authorised the expenditure of money on any purpose that the Parliament might think fit without restriction, the scheme established under the legislation would still be invalid. His Honour, at 270, put the point thus: ' [T] he fact is that under the Pharmaceutical Benefits Act appropriation of money is the consequence of the plan; the plan is not consequential upon or incidental to the appropriation of money.' 52 Since the Pharmaceutical Benefits case, s 51(xxiiiA) has, of course, authorised the provision of services that were not possible under the previous constitutional arrangements. However, as the General Practitioners case shows, the incidental power is still relevant in an assessment of the constitutional standing of the PSR. 53 The applicant accepts that matters 'merely incidental to the core of clinical practice of medicine' do not fall within the constitutional prohibition because they might constitute a necessary part of the Commonwealth's administration of its benefits scheme. In the applicant's written submissions such incidental matters are said to include requirements about completing forms or with respect to accounts and receipts or financial and administrative matters. The applicant does not accept that it is incidental to the Commonwealth's provision of medical services either that it has the power to impose a standard which the services provided have to meet or the power to discipline medical practitioners whose services fail to meet that standard.


case_title: Attorney-General for Victoria v The Commonwealth [1945] HCA 30 ; (1945) 71 CLR 237

case_text: Section 51(xxiiiA) was inserted into the Constitution by amendment pursuant to s 128 of the Constitution . The proposed amendment had been approved by the necessary majorities of electors and was assented to on 19 December 1946. In explaining the background to this amendment in BMA at 285 , Williams J referred to the different views as to the proper scope of s 81 of the Constitution (Commonwealth power of appropriation) expressed in Attorney-General for Victoria v Commonwealth [1945] HCA 30 ; (1945) 71 CLR 237 (' Pharmaceutical Benefits Case') and to the likelihood, if the point arose for decision, that a majority of the Court would hold that the Commonwealth could only expend its money on those forms of social services expressly authorised by the Constitution , namely invalid and old age pensions authorised by s 51(xxiii). The extension of Commonwealth power to the provision of the benefits enumerated in s 51(xxiiiA) had been put beyond doubt by the amendment and concerns that the extension of power might lead to the nationalisation of medical and dental professions were met by the prohibition of civil conscription; see also D Mendelson, "Devaluation of a Constitutional Guarantee: The History of Section 51(xxiiiA) of the Commonwealth Constitution " (1999) 23 MULR 308 . 31 Williams J was also not prepared to confine the operation of the constitutional prohibition to direct legal compulsion; at 287. In his Honour's view, however, the fact that s 7A carried a penalty for non-compliance implied legal compulsion and by compelling medical practitioners, in the absence of a relevant request to the contrary, to write prescriptions on forms supplied by the Commonwealth, the section compelled the provision of a medical service to the Commonwealth. Williams J summarised his view at 289: 'The scheme of the Act is to make the provision of a pharmaceutical benefit conditional upon a medical practitioner prescribing particular treatment, so that in prescribing that treatment the medical practitioner is rendering a medical service to the Commonwealth. He is in effect certifying to the Commonwealth that the patient requires a pharmaceutical benefit within the meaning of the Act. ... He is compelled to render that service in the course of rendering a contractual service to his patient. But it is a service which forms no part of the implied contract for services created by a patient seeking the advice and treatment of a medical practitioner and the medical practitioner examining the patient with a view to giving him advice and treatment. It is a compulsory service to the Commonwealth for the purposes of the Act which is super-imposed upon the contract of the parties. It is a compulsory service whether the obligation is absolute or absolute unless performance is excused by the person in respect of whom or at whose request the prescription is written.' 37 Gibbs J disagreed with observations by some members of the majority in the BMA case (Latham CJ at 249, Williams J at 290 and Webb J at 294) to the effect that 'a law which compels people to perform services in a particular manner is a law which imposes civil conscription'. At 557, Gibbs J explained his disagreement thus: 'That expression, ['any form of civil conscription'] used in its natural meaning, and applied, as the context of par. (xxiiiA) requires, to medical and dental services, refers to any sort of compulsion to engage in practice as a doctor or a dentist or to perform particular medical or dental services. However, in its natural meaning it does not refer to compulsion to do, in a particular way, some act in the course of carrying on practice or performing a service, when there is no compulsion to carry on the practice or perform the service. ... it could not properly be said that it would be a form of civil conscription to require a person who had voluntarily engaged in civilian employment to perform the duties of that employment in accordance with the instructions given to him by his employers. ... There is nothing in the Constitution that would indicate that the expression "any form of civil conscription" where it appears s 51(xxiiiA) should be given an enlarged meaning which its words do not naturally bear. The words "any form of" do not, in my opinion, extend the meaning of "conscription", and that word connotes compulsion to serve rather than regulation of the manner in which a service is performed. Of course no express power is conferred on the Parliament to make laws to regulate the manner of performance of medical or dental services, but it appears clearly necessary to the effective exercise of the power conferred by s 51(xxiiiA) that the Parliament should be able to make laws as to the way in which medical and dental services provided by the Commonwealth under the authority of that paragraph are performed, and laws annexing conditions to the entitlement to any of the benefits provided under that authority even if those conditions may have the result that a medical or dental service must be rendered in a particular way if the benefit is to be obtained. I find it impossible to discern in the words in parenthesis in par. (xxiiiA) any intention to prevent the Parliament from making laws of that kind, provided that no compulsion to serve is imposed.


case_text: In making these submissions the applicant relies on the decision of the High Court in The General Practitioners Society in Australia v Commonwealth of Australia [1980] HCA 30 ; (1980) 145 CLR 532 ('General Practitioners case'). In the alternative the applicant submits that: (a) GPS is distinguishable and does not apply to the present case; and/or (b) the construction of 'civil conscription' in GPS is incorrect and should not be accepted by this Court. Rather, it is submitted, the broader view of what constitutes 'civil conscription' taken by Latham CJ, Rich, Williams and Webb JJ in Federal Council of the British Medical Association in Australia v Commonwealth [1949] HCA 44 ; (1949) 79 CLR 201 ('BMA case') should be accepted. 28 In the BMA case , the High Court held that the prohibition against civil conscription in s 51(xxiiiA) applied only to medical and dental services and not to the other elements of the section. At issue was the validity of s 7A of the Pharmaceutical Benefits Act 1947 (Cth) which required medical practitioners to use a prescribed form and adhere to a prescribed list of pharmaceuticals in writing a prescription if their patients were to be entitled to free pharmaceutical benefits. It was an offence, carrying a penalty of [sterling]50, for a medical practitioner to write a prescription other than in the statutory form unless asked to do so by the person for whom or at whose request the prescription was written. The majority of the High Court (Latham CJ, Rich, Williams and Webb JJ, Dixon and McTiernan JJ dissenting) held that the section imposed a form of civil conscription contrary to the prohibition in s 51(xxiiiA). 29 Latham CJ emphasised, at 243, that the power given to the Commonwealth under s 51(xxiiiA) is not a power to make laws with respect to pharmaceutical benefits and medical services but for the provision of such benefits and service. The Chief Justice accepted that in providing such benefits and services, the Commonwealth was entitled to rely upon the existing 'position in the community', that is, a system whereby private doctors prescribe medicine. His Honour found that the incidental power derived from s 51(xxxix) of the Constitution entitled the Commonwealth, when providing benefits out of public moneys, to take precautions so as to prevent injury to the public and the useless or dishonest expenditure of public moneys. 30 The Chief Justice also said (at 249) that the term 'civil conscription' is wider than 'industrial conscription' and is applicable to "any compulsion of law requiring that men should engage in a particular occupation, perform particular work, or perform work in a particular way." The Chief Justice emphasised that the words 'any form of' in s 51(xxiiiA) evinced an intention on the part of the Parliament to ensure that any service to which the limitation applied should be 'completely voluntary'. Considering s 7A, his Honour accepted that a doctor might escape the penalty by not writing a prescription but noted that if a doctor could not carry on practice without writing many prescriptions included in the prescribed list, the doctor is not given any live option. Given that the doctor had no power or right to procure or control a request that he not use the Commonwealth forms then he either had to use them or go out of practice. The Chief Justice viewed this as a very real form of compulsion commenting (at 253): 'There could in my opinion be no more effective means of compulsion than is to be found in a legal provision that unless a person acts in a particular way he shall not be allowed to earn his living in that way, and possibly in the only way, in which he is qualified to earn a living.' Webb J expressed a similar view at 292-3. 32 The aspects of the legislation that had led Webb J to conclude that the legislation involved a compulsory medical service were clearly identified by his Honour at 294: 'To reiterate: if s 7A had not been enacted a patient requesting a doctor to write a prescription on the Commonwealth form, which involves consulting and consideration of the Commonwealth Pharmaceutical Formulary or its addendum or both, would request a service which only a doctor can render, and which therefore is properly described as a medical service. But when this service is made compulsory by a fine, or loss of practice to avoid the fine ...then, having regard not only to the extent of the professional work involved but to the almost unlimited number of persons entitled to insist on the service at any time, it becomes, I think, not merely a compulsory service but a form of civil conscription within any meaning that can be given to that expression which, if not quite clear, was certainly intended to be comprehensive. It is civil conscription of doctors as doctors.' His Honour's comments on these aspects of the legislation are particularly instructive in the present proceeding. 33 The only other case in which the High Court has considered the meaning of 'civil conscription' in any detail is the General Practitioners case . Certain provisions of the HIA (ss 16A, 16B and 16C) and regulations made under the Act imposed conditions to be met before Commonwealth medical benefits were payable in respect of pathology services (other than prescribed pathology services) and also imposed obligations on some, at least, of the persons providing those services. It was necessary for those services to be provided by or on behalf of an 'approved pathology practitioner'. The conditions and obligations were designed to prevent the supply of unnecessary or excessive pathology services. 34 The legislative provisions operated in conjunction with an undertaking to be provided by approved pathology practitioners and a code of conduct. They had no application to a medical practitioner who was prepared to render pathology services for which no medical benefit would be payable and there was no legal compulsion on any medical practitioner to become an approved pathology practitioner. The arguments put to the Court that the legislation imposed a form of civil conscription were summarised by Gibbs J at 549: 'First, it was said that the laws positively require a practitioner to perform services of a medical kind. Secondly, it was said, the laws, by prohibiting practitioners from carrying on practice in what was formerly the normal way, compel them to carry on practice in a different way. ... it was argued for the plaintiffs that few practitioners would be able to attract patients, or to make a living from their profession, if medical benefits were not payable in respect of their services, and that therefore, if ss 16A, 16B and 16C are valid, a practitioner who intends to render pathology services (whether as a specialist or as a general practitioner) is compelled by practical considerations to apply to become an approved pathology practitioner.' 37 Gibbs J disagreed with observations by some members of the majority in the BMA case (Latham CJ at 249, Williams J at 290 and Webb J at 294) to the effect that 'a law which compels people to perform services in a particular manner is a law which imposes civil conscription'. At 557, Gibbs J explained his disagreement thus: 'That expression, ['any form of civil conscription'] used in its natural meaning, and applied, as the context of par. (xxiiiA) requires, to medical and dental services, refers to any sort of compulsion to engage in practice as a doctor or a dentist or to perform particular medical or dental services. However, in its natural meaning it does not refer to compulsion to do, in a particular way, some act in the course of carrying on practice or performing a service, when there is no compulsion to carry on the practice or perform the service. ... it could not properly be said that it would be a form of civil conscription to require a person who had voluntarily engaged in civilian employment to perform the duties of that employment in accordance with the instructions given to him by his employers. ... There is nothing in the Constitution that would indicate that the expression "any form of civil conscription" where it appears s 51(xxiiiA) should be given an enlarged meaning which its words do not naturally bear. The words "any form of" do not, in my opinion, extend the meaning of "conscription", and that word connotes compulsion to serve rather than regulation of the manner in which a service is performed. Of course no express power is conferred on the Parliament to make laws to regulate the manner of performance of medical or dental services, but it appears clearly necessary to the effective exercise of the power conferred by s 51(xxiiiA) that the Parliament should be able to make laws as to the way in which medical and dental services provided by the Commonwealth under the authority of that paragraph are performed, and laws annexing conditions to the entitlement to any of the benefits provided under that authority even if those conditions may have the result that a medical or dental service must be rendered in a particular way if the benefit is to be obtained. I find it impossible to discern in the words in parenthesis in par. (xxiiiA) any intention to prevent the Parliament from making laws of that kind, provided that no compulsion to serve is imposed.


case_text: There is no challenge to Dr Selim's standing to bring the present proceeding. The respondents have accepted that should the applicant be disqualified from participating in the Medicare Scheme, then for the period of the disqualification the applicant's patients would not receive benefits in respect of the applicant's professional services. The respondents accept that, depending on the length of any disqualification the applicant 'may lose a number of his patients'. The pervasiveness of the Medicare Scheme and its role in covering an individual's medical expenses or, at least, in subsidising those expenses, is sufficiently well known generally as to allow me to take judicial notice of this and of its impact on medical practitioners who are unable to participate in the scheme; Holland v Jones [1917] HCA 26 ; (1917) 23 CLR 149 ; Evidence Act 1995 (Cth) s 144. It is not difficult to conclude that the consequences for a medical practitioner who is excluded from the scheme would be sufficiently serious. The disadvantages of operating outside the Medicare Scheme are such as, in my view, to impose practical, if not legal compulsion, to participate in the Scheme. 22 The written submissions made on behalf of the applicant went into considerable detail about the repercussions for the applicant should he be disqualified from the Medicare Benefits Scheme for up to three years. These included the virtual devastation of his practice and loss of his livelihood. As I have explained above these submissions are not relevant to the issue I have to decide. The applicant sought judicial review of the decisions of the Director and the Committee. Jacobson J dismissed that application. I understand that, pending the outcome of the present constitutional challenge to the legislation, no penalties have been imposed on the applicant. Whether or not hardship submissions will be relevant to the assessment of any penalty is not for me to say. The issue of whether the PSR exceeds the powers of the Commonwealth however, cannot depend on issues of hardship particular to an individual practitioner. 23 It is not in contention that medical practitioners are not obliged to participate in the Medicare Scheme. Nevertheless, the applicant contends that the realities underlying the medical benefits scheme are such that 'realistically, economically and practically' it requires medical practitioners to become approved medical providers in order for them to practise as general practitioners. The applicant submits that the HIA requires general practitioners to provide medical services in a manner designated as 'appropriate' but which is 'unstated and undefined'. According to the applicant, this dictates the 'kinds of and manner in which medical services are actually provided' and attaches significant sanctions to a failure to conform including disqualification from participation in the scheme for up to three years, public reprimand and/or the imposition of substantial repayments of Medicare benefits paid to them or assigned to them by their patients. By so doing, the applicant submits, the HIA 'impermissibly' constitutes civil conscription.


case_title: The General Practitioners Society in Australia v The Commonwealth of Australia [1980] HCA 30 ; (1980) 145 CLR 532

case_text: In making these submissions the applicant relies on the decision of the High Court in The General Practitioners Society in Australia v Commonwealth of Australia [1980] HCA 30 ; (1980) 145 CLR 532 ('General Practitioners case'). In the alternative the applicant submits that: (a) GPS is distinguishable and does not apply to the present case; and/or (b) the construction of 'civil conscription' in GPS is incorrect and should not be accepted by this Court. Rather, it is submitted, the broader view of what constitutes 'civil conscription' taken by Latham CJ, Rich, Williams and Webb JJ in Federal Council of the British Medical Association in Australia v Commonwealth [1949] HCA 44 ; (1949) 79 CLR 201 ('BMA case') should be accepted.


case_text: decision of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision ( Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 ; (2009) 258 ALR 14 , Goldberg v Morrow [2004] FCA 1490 at [36] ). There is authority that the discretion in respect of ordering or refusing an adjournment miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present his case ( Thornberry v R (1995) 69 ALJR 777). Where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party, there is authority that adjournment should ordinarily be granted: Jordan v Smart [1961] NSWR 735.


case_title: Goldberg v Morrow [2004] FCA 1490


case_title: Jordan v Smart [1961] NSWR 735