case_text: In Gwynvill Properties Pty Ltd v Commissioner for Main Roads (1983) 50 LGRA 322 Cripps J made the following observation (at 326): The hypothetical development method is normally suspect because it depends on a number of assumptions and a number of estimates, e.g. cost of building, estimated gross rentals obtainable, probable outgoings and, most significantly, the rate percentum of return which could be expected and the profit and risk factor expressed in percentage terms. It has been said that because many estimates and assumptions must be made, the hypothetical development method ought not be used where some use can be made of a comparable sale.


case_outcome: applied

case_text: In some cases, compliance with a statutory requirement allows for no middle course, and is obligatory: see Hunter Resources Ltd v Melville [1988] HCA 5 ; (1988) 164 CLR 234 , 249 per Dawson J. 28 In the case of a valuation under the Determination, it is clear that a valuation must be provided by a professional valuer. There could be no middle course here--if not provided by a professional valuation there would be no 'valuation'.


case_outcome: cited

case_text: It was submitted by the taxpayer that a valuation under s 75- 10 (3) is (or is akin to) an expert determination that is only open to challenge on a narrow set of grounds. Reliance was placed upon comments of McHugh J, then a member of the New South Wales Court of Appeal, in Legal & General Life of Australia Ltd v Hudson Pty Ltd (1985) 1 NSWLR 314, where his Honour said that (at 335-36): While mistake or error on the part of the valuer is not by itself sufficient to invalidate the decision or the certificate of valuation, nevertheless, the mistake may be of a kind which shows that the valuation is not in accordance with the contract. A mistake concerning the identity of the premises to be valued could seldom, if ever, comply with the terms of the agreement between the parties. But a valuation which is the result of the mistaken application of the principles of valuation may still be made in accordance with the terms of the agreement. In each case the critical question must always be: Was the valuation made in accordance with the terms of a contract? If it is, it is nothing to the point that the valuation may have proceeded on the basis of error or that it constitutes a gross over or under value. Nor is it relevant that the valuer has taken into consideration matters which he should not have taken into account or has failed to take into account matters which he should have taken into account. The question is not whether there is an error in the discretionary judgment of the valuer. It is whether the valuation complies with the terms of the contract. 15 It was then submitted that although this decision concerned a valuation made under a contract, by adopting a valuation made in accordance with requirements specified by the Commissioner, s 75- 10 (3) establishes a means for determining value that is comparable to a contractual provision. The section does not provide any mechanism for such a valuation to be challenged. It was therefore of similar effect to a contractual term requiring the parties to abide by a valuation obtained in accordance with the contract. It was submitted that the Court should therefore adopt the principles set out in Legal & General Life of Australia Ltd 1 NSWLR 314 when determining what the Commissioner must establish in order to overturn Mr Nicodimou's valuation. 16 The taxpayer alternatively submitted that the valuation should be reviewed in accordance with the ordinary principles of administrative law. A relevant matter to take into account is only a matter that the valuer is 'bound' to take into account. The taxpayer submitted that the only relevant matters were specifically set out in what is described as Method 1 of the Determination.


case_text: The Commissioner contended that it appeared to be Mr Nicodimou's view that the relevant valuation principles positively forbade him from considering any information that post-dated 1 July 2000 in order to ascertain the market value of the strata units as at 1 July 2000. I agree that, if Mr Nicodimou held this view, it would be a fundamentally incorrect view: see, eg, McCathie v Federal Commissioner of Taxation [1944] HCA 9 ; (1944) 69 CLR 1 , 16-17; Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 , 436; and Closer Settlement 17 LGR (NSW) 62.


case_title: Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426


case_text: The taxpayer referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 where Mason J (as he then was) identified the following propositions in connection with a failure to take into account a relevant consideration (at 39-41): (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision. ... (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors -- and in this context I use this expression to refer to the factors which the decision-maker is bound to consider -- are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. ... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. ... (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned. It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. (references omitted) 18 Before I go to the appropriate approach to take in consideration of the GST Act and the Determination, Method 1 of the Determination provided for what is known as the hypothetical development method of valuation. It is convenient to briefly describe this valuation method. 32 In considering this matter, I have not found much assistance from the cases relied on by the taxpayer. The question is one of compliance with a statutory requirement and the consequences of any non-compliance. We are not dealing with a contractual setting, nor with the exercise of a power by a public official. However, even if it were appropriate to apply by analogy the principles referred to in Peko-Wallsend Ltd [1986] HCA 40 ; 162 CLR 24 , no different result would be reached in this proceeding. In the end it is a matter of determining what factors the professional valuer was bound to consider, and then to determine whether the failure to take into account a particular factor would result in invalidity. 33 It is thus now necessary to address the application of Method 1 by Mr Nicodimou. 34 As set out in cl 5 of the Determination, the methodology requires the valuer to assess the market value of the completed premises as at 1 July 2000, and then subtract from this figure the costs to complete the partially completed premises and the profit margin and holding costs. What is left is the price that the hypothetical developer would pay for the partially completed premises on 1 July 2000 and that is the value of those premises on 1 July 2000.


case_text: The methodology was also explained by Roper J (as he then was) in Closer Settlement Ltd v The Minister (1942) 17 LGR (NSW) 62 (at 65): In arriving at the value of land which is suitable for subdivision a familiar and appropriate method ... is to estimate from whatever comparable sales of land in subdivision are available the price which would be realized by the land when sold; then to estimate the costs involved in the subdivision and the length of time that the realization would take, making provision for the payment of rates and for interest on money outstanding; and an estimated net return on the subdivision is obtained. It is of course clear that a person purchasing land in globo for the purpose of subdividing it would not pay the sum of money which is the present equivalent of that estimated return. Many factors in the calculation are speculative: the land in subdivision may not realize the prices which are at present expected, and the subdivision may take longer to realize than is at present anticipated. To compensate for the risk involved in the venture the purchaser would certainly discount the estimated returns. See also Port Stephens Shire Council v Tellamist Pty Ltd (2004) NSWCA 353 at [225] - [229] .


case_text: This approach involves an analysis of the construction of the GST Act, and the result of any non-compliance being determined by reference to that construction: see, eg, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 , 390-91; and Tasker v Fullwood [1978] 1 NSWLR 20, 23-4.


case_text: The parties referred to a number of cases on various aspects of the operation of the GST Act and the Determination. The Commissioner submitted that the leading case on the meaning of statutory provisions that require the relevant person to 'have regard to' certain matters is R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322. That case dealt with sub-s 40AA(7) of the National Health Act 1953 (Cth) which provided: The Permanent Head shall, in determining the scale of fees ... have regard to costs necessarily incurred in providing nursing home care in the nursing home. 29 Equally the valuer 'must' have regard to three matters: the market value of the completed premises; the cost to complete the partly completed premises; and the profit margin and holding costs that are attributable to the period on or after the valuation date. Further, these matters would need to be given appropriate weight as important or essential elements in the making of the valuation: see R v Hunt [1979] HCA 32 ; 180 CLR 322 , 329. If the valuer did not have regard to these three matters, nor give them appropriate weight, then the language of s 75-10(3) and purpose for the valuation coming into existence, indicate that the valuation would be invalid and of no operation for the purposes of the Determination. 30 However, just because another valuer may come to a different valuation figure does not mean that the valuation relied on may not be in compliance with the requirements of s 75-10(3) and the Determination. Within any valuation there will be matters of subjective judgement undertaken by the professional valuer based upon his or her expertise and experience. 31 The fact that there may be matters of subjective analysis undertaken is encompassed and envisaged by the Determination which relies upon a professional valuer undertaking the task and coming to a valuation. However, in reaching the final valuation, the professional valuer must not deviate from the method of valuation dictated by the terms of the Determination. In this proceeding, the hypothetical development method of valuation was in fact adopted, and was the appropriate method as required by the Determination. To the extent that there are judgement calls to be made within the application of that method, then this would be a matter for the valuer's professional expertise upon which minds may differ in arriving at a particular value.


case_text: Undoubtedly, the 'conventional valuation technique' is the use of comparable sales evidence to determine market value (see River Bank Pty Ltd v Commonwealth (1974) 48 ALJR 483 , 484 per Stephen J). However, this may not be an appropriate method of valuation in any given case. Certainly it was not the valuation technique adopted, nor to be adopted, for the purpose of the valuation the subject of this proceeding.


case_text: In view of the above reasons, I have not needed to address whether the cumulative effect of each failure to comply with the Determination could lead to a conclusion of invalidity, rather than taking each failure to comply in isolation. In any given case, this issue may arise: see, eg, Rondo v R [2001] NSWCCA 540 ; (2001) 126 A Crim R 562 at 570-71 per Spigelman CJ. 76 Accordingly, the taxpayer's application should be dismissed. 77 No order as to costs is sought as the parties have entered into a funding agreement under the Commissioner's Test Case Funding Program. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 18 December 2008 Counsel for the Applicant: Mr J De Wijn QC with Mr M Flynn Solicitor for the Applicant: Arnold Bloch Leibler Counsel for the Respondent: Mr S Sharpley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 October 2008 Date of Judgment: 18 December 2008 ANNEXURE AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1918.html


case_title: Tasker v Fullwood [1978] 1 NSWLR 20


case_text: Mason J (as he then was, with Gibbs J (as he then was) agreeing) said (at 329): When sub-s (7) directs the Permanent Head to "have regard to" the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination. The Commissioner also referred to The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1982) 158 CLR 327 , 333 per Gibbs CJ and Faheem Khalid Lodhi v R [2007] NSWCA 360 , at [30] per Spigelman CJ.


case_outcome: referred to

case_text: Her Honour referred to the fact that the Federal Court is a national court and that the court has power under Order 30 rule 6(2) to minimise inconvenience by ordering that part of the proceeding be heard in Brisbane. That was a consideration to which Mansfield J referred in Arrowcrest Group Pty Limited v DTM Racing Wheels Pty Limited [2003] FCA 564 at [4] . 31 His Honour there pointed out that it is not uncommon that the court in the exercise of its power, and having regard to the convenience of the parties or witnesses and the most efficient and economic means of conducting a trial to direct that part of the trial be heard in another place.


case_text: In Austal Ships Pty Ltd v Stena Rederi Aktiebolag [2004] FCA 302 at [9] , Crennan J observed that there is need on the part of an applicant to demonstrate "a sound reason" for the proceedings to be conducted or continued elsewhere. 16 Mr Gillard for the applicant accepts that it is necessary for him to demonstrate that there is a sound or good reason. What Mr Gillard puts in this case as the good reason for transfer is, in his submission, the fact that the communications between the parties for the establishment of what is said to be the joint venture consists of documents which were communicated between the respondent's offices in Brisbane and the applicant's offices in the United States. Accordingly, all of the respondent's documents are now located in Brisbane. 17 It is possible that some of the documents were originally in Darwin, which is where the project was undertaken, but the evidence establishes, as I understand it, that any documents of the respondents that were located in Darwin are now to be found in Brisbane. 18 Mr Gillard points to the fact that in the application the applicant seeks an order for inspection of all relevant documents which are defined in very wide terms in a note to the application. These documents are documents which concern the profits made from what is said to be the joint venture between the parties. There is further reference to this in [20] of the statement of claim, which pleads that the applicant has suffered loss and damage and states in the particulars that particulars will be provided after access is given to the relevant documents as defined in the broad terms which I have mentioned in the application. 19 Mr Gillard says that the interlocutory steps in the proceeding would be more conveniently carried out if the proceedings are transferred to Brisbane. He says that this is demonstrated by the need for the inspection of the documents which I have mentioned.


case_text: On the other hand, in Inverness Medical Switzerland GMBH v Advanced Clinical Systems Pty Limited [2002] FCA 1261 , Stone J, in circumstances which are quite similar to the present case declined to exercise the discretion under s 48. Her Honour observed at [5] that the relative inconvenience for the parties seemed to be finely balanced. That seems to me to be the position in the present case.


case_text: The principles upon which the discretion is to be exercised in an application under s 48 were stated by a Full Court in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 (" Sentry "). The decision in that case has been followed on numerous occasions. 14 The Court referred at 162 to the unfettered nature of the discretion and pointed out that the discretion should be exercised flexibly having regard to the circumstances of the particular case. Their Honours observed that there is no onus of proof in the strict sense to be discharged; the court must be satisfied that there is sound reason to direct that the proceedings be conducted or continued elsewhere. Weight is to be given to the fact that the proceedings have been commenced in the proper place, which in this case is in Sydney. However, if the proper place has been chosen capriciously then no weight will be given to the choice of the proper place of the proceedings. The test was stated at page 162 as follows: "The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not be defined more closely or precisely." 28 However, in that case, all of the parties were residents of Victoria and his Honour went on to find at [13] that in the absence of any indication of a substantive connection with New South Wales, it was in the interests of justice and in the interests of the most effective administration of the court within the principles stated in Sentry that the proceedings be removed to the Victorian Registry pursuant to s 48 of the Act. 34 I have given the matter very careful consideration and I consider that notwithstanding the fact that the documents of the respondents are presently in Brisbane and will have to be transported to New South Wales, from the material so far put before me, the case can be most suitably conducted in New South Wales in the interests of all the parties and in the interests of the ends of justice and the most efficient administration of the court, consistently with the statement of principle referred to in Sentry at 162. 35 Accordingly, I have come to the view that the order I will make is that the motion be dismissed. 36 I will make an order that the costs of the motion be the applicant's costs in the proceedings. I certify that the preceding thirty six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 10 April 2006 Solicitor for the Applicant: Clayton Utz Solicitor for the Respondent: Hemming + Hart Date of Hearing: 6 April 2006 Date of Judgment: 6 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/399.html


case_title: Wilson v Rambaldi [2001] FCA 1038

case_text: In Wilson v Rambaldi [2001] FCA 1038 (" Wilson v Rambaldi "), Tamberlin J exercised the court's power under s 48 to change the venue from New South Wales to Victoria. He pointed at [11] to the fact that the evidence did not establish any relevant connection of the matter with New South Wales with the exception of an assertion that it was not possible to obtain legal representation in Victoria. 32 These proceedings are at a very early stage. The respondents have not yet filed their defence and no evidence is before me on the applicant's case. It seems to me that the considerations which led Tamberlin J to exercise the discretion under s 48 in favour of a change of venue in Wilson v Rambaldi are not present here. This is because, as I have said, in that case all of the parties were resident in Victoria. 33 Here, the applicant has a presence in New South Wales and the choice of venue is not capricious. Accordingly, the considerations which led Tamberlin J in Wilson v Rambaldi to find an absence of any substantive connection with New South Wales are not present here.


case_outcome: followed

case_text: Castlemaine Tooheys Limited v State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 , Mason A-CJ said at 153 that in order to secure an interlocutory injunction in private law cases: "The plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted and (3) that the balance of convenience requires the granting of an injunction." See also Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 24; Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 at 121-122.


case_title: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1


case_title: Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96


case_title: Queensland v JL Holdings [1997] HCA 1 ; (1997) 189 CLR 146

case_text: It was said from the Bar table that Deltapine made a conscious decision not to raise this particular claim until late last year. I agree with counsel for Bayer that the decision of the High Court in Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 does not mean that parties have a right to withhold amendments or other procedural steps to suit their tactical assessments of the case. Even by the standards of patent litigation in this country, which sometimes are the subject of criticism, this case has been very drawn out. It has been on foot since 2003. Any insertion of a totally new claim or defence needs to have some sound basis, which in my opinion has not been shown in this case. 7 The motion on notice dated 9 March 2007 will be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 21 March 2007 Counsel for the Applicant: A Ryan Solicitor for the Applicant: Davies Collison Cave Counsel for the Respondent: S Burley Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: 15 March 2007 Date of Judgment: 15 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/411.html


case_text: Both parties were in agreement that cl 38 incorporated by reference the provisions of the LSL Act, and did not merely preserve their operation as part of the law of Victoria. The fact that the provisions to which cl 38 refers are only those applying at the time of certification of the Certified Agreement suggests strongly that the intention of cl 38 was to give those provisions operation as part of the Certified Agreement, rather than to recognise their continued operation as part of the law of Victoria, in the absence of a federal instrument covering the relevant field. Compare Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241 at 261-265 per Gray J.


case_text: The arguments resting on the exhaustive nature of the definition in cl 28 of the Certified Agreement, and the presumption of consistency in the use of terms are weakened substantially in the present case. It is true that the definition in cl 28 is unqualified by words such as 'unless a contrary intention appears' or 'unless the context otherwise requires'. It is a 'means', and not an 'includes' definition, and is therefore taken to be exhaustive. See the Queen in Right of the State of Victoria v Australian Teachers Union (1993) 47 IR 328 at 332. The difficulty is that cl 38 does not itself use the defined term; rather, it imports provisions that use the same expression, but which also include a definition of that term as used. It is easy to construe cl 38 as involving the importation of provisions relating to long service leave as a code on that subject, the content of which does not have to fit within the framework of the rest of the Certified Agreement. It is as if the imported provisions contained a term other than 'ordinary pay', with a different meaning.


case_text: There is no doubt that consistency in the use of terminology, particularly defined terms, is to be valued highly in any document. Inconsistency in the use of the same or similar words produces confusion in the interpretation of documents. This is why there is a presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute. In statutory construction, consistency of use is no more than a presumption, and a fragile one at that. In Clyne v Deputy Commissioner of Taxation [1981] HCA 40 ; (1981) 150 CLR 1 at 10, Gibbs CJ described it as 'not a presumption of very much weight'. His Honour said, 'there is no rigid rule; it all depends on the context'. In the same case at 15, Mason J (with whom Aickin and Wilson JJ concurred) said that the presumption 'readily yields to the context'. If the presumption of consistent use of terminology is so weak in legislative drafting, it must be even weaker in the context of a Certified Agreement. Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings. 27 As well as providing examples of inconsistent use of style in numbering and lettering clauses, the Certified Agreement itself provides examples of inconsistency of terminology when it is likely that the same meaning is intended. For instance, it is not easy to see that the references to 'weekly ordinary time wage rate' and 'base ordinary time rate of pay' in cl 8.C.2 and 8.C.3 respectively are intended to mean anything different from 'ordinary time rate of pay' in cl 8.B.4 and in the definition of 'Ordinary Pay' in cl 28. A similar observation might be made about 'regular ordinary time rate of pay' in cl 33.c) and 'total ordinary weekly rate' in cl 24. Nor is there consistency in the approach to the rate of pay for the various types of leave for which the Certified Agreement provides. Clause 19 does not use the term 'ordinary pay', and does not have any other provision as to how the rate of pay for compassionate leave is to be calculated. 28 The choice of incorporation by reference, as the means of providing for long service leave entitlements, itself provides a sufficient reason for ousting the presumption that terminology is used consistently. As I have said, the term 'ordinary pay' comes complete with its own definition in the provisions incorporated by reference. It is as if the provisions incorporated by reference contained different terminology.


case_outcome: considered

case_text: Counsel for the applicant relied on Modern Buildings Wales Ltd v Limmer and Trinidad Co Ltd [1975] 2 All ER 549. In that case, there was a question whether a standard form contract, known as the 'green form', which contained an arbitration clause, had been incorporated by reference into a building contract, although misdescribed in the terms of the building contract itself. The Court of Appeal, consisting of Buckley and Ormrod LJJ, held that the green form had been incorporated by reference, and that a proceeding brought to enforce the building contract ought to be stayed pending arbitration, in accordance with the arbitration clause. Buckley LJ dealt with one of the arguments supporting the proposition that the green form had not been incorporated by reference at 555-556 as follows: 'Counsel for the plaintiffs has suggested that the written contract contains insufficient indication how various matters that are left in blank in the green form contract, and in particular in the appendix to the contract, which relates to such matters as the completion period, the retention money and so forth, should be filled in. Where parties by an agreement import the terms of some other document as part of their agreement those terms must be imported in their entirety, in my judgment, but subject to this: that if any of the imported terms in any way conflicts with the expressly agreed terms, the latter must prevail over what would otherwise be imported. Here it is not disputed that the written contract between the parties, consisting of the quotation and the order, contains all the essential terms of the contract, and, in my judgment, the green form of contract must be treated as forming part of the written contract, subject to any modifications that may be necessary to make the clauses in the green form accord in all respects with the express terms agreed between the parties.' [Emphasis added] Ormrod LJ agreed with Buckley LJ and did not comment specifically on the issue of the gaps in the green form. 30 Counsel for the applicant contended that the principle to be derived from Modern Buildings , as stated by Buckley LJ, was that, when the terms of a document are incorporated by reference into an agreement, the terms are only imported into the agreement to the extent to which they are not inconsistent with the express terms of the agreement. Plainly, the principle cannot be this broad. Buckley LJ was speaking of a term that 'conflicts with the expressly agreed terms', not a term that would be inconsistent only in the sense that its application would produce a different result from that produced by the application of the express terms of the agreement. In the absence of conflict between terms, there is no reason why full effect should not be given to the choice of the parties to incorporate provisions by reference. In the present case, there is no conflict between the definition in cl 28 of the Certified Agreement and the definition of 'ordinary pay' in the LSL Act. It is only that the application of the two definitions to the expression 'ordinary pay', which happens to be common to both the provisions incorporated by reference and the express terms of the Certified Agreement, might produce different results. Such different results would not involve derogation from the express terms of the Certified Agreement. There is, therefore, no possibility of conflict. There is no reason why the choice of the parties to have entitlements to long service leave determined by the application of the provisions of the LSL Act should not be given full effect.


case_text: Counsel for the applicant contended that the past conduct of the parties could be relied upon as an aid in the construction of the Certified Agreement. There is authority that, if a provision has appeared in a series of agreements between the same parties, and if they can be shown to have conducted themselves according to a common understanding of the meaning of that provision, then it can be taken that they have agreed that the term should continue to have the commonly understood meaning in the current agreement. See Merchant Service Guild of Australia v Sydney Steam Collier Owners & Coal Stevedores Association (1958) 1 FLR 248 at 251 per Spicer CJ, 254 per Dunphy J and 257 per Morgan J, and Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 452-453. It is necessary to take great care in the application of this limited principle, to avoid infringing the general principle that the conduct of parties to an agreement cannot be taken into account in construing the agreement. For the limited principle to operate, there must be clear evidence that the parties have acted upon a common understanding as to the meaning of the relevant provision and not for other reasons, such as common inadvertence as to its true meaning. See Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11 at [44] .


case_title: Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444


case_title: Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd [2006] FCA 11


case_text: This argument recognised that the phrase 'ordinary time rate of pay', which is used in both of the definitions relevant to the present case, and similar phrases have acquired a technical meaning in Australian law. See Catlow v Accident Compensation Commission [1989] HCA 43 ; (1989) 167 CLR 543 at 555-556 per Dawson J and 560-561 per McHugh J, with whom Deane J concurred; Scott v Sun Alliance Australia Ltd [1993] HCA 46 ; (1993) 178 CLR 1 at 7-8; Kucks v CSR Ltd (1996) 66 IR 182 at 185-186; Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 213-215; and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 (2003) 201 ALR 271 at [27] , [35] and [45] per McHugh, Gummow, Callinan and Heydon JJ. In Scott , in the passage to which I have referred, the High Court made it clear that, where the expression 'ordinary time rate of pay' is used in relation to conditions of work fixed by an industrial award or collective agreement, it is a reference to the rate of pay for 'the fixed standard hours as opposed to overtime or usual or customary time.'


case_title: Scott v Sun Alliance Australia Ltd [1993] HCA 46 ; (1993) 178 CLR 1


case_title: Kucks v CSR Ltd (1996) 66 IR 182


case_title: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208


case_title: Australian Communication Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55 (2003) 201 ALR 271


case_title: Bond v Barry [2008] FCAFC 115

case_text: Despite the fact that there is some difference of opinion in the Court as to the precise test to be applied and as to whether a decision under s 31A is final or interlocutory, it is clear from the discussion in Boston Commercial and Jefferson Ford that it is for the judge to decide whether there are reasonable prospects of success. In doing so, the judge conducts an inquiry into the merits of the question in order to decide whether it is sufficiently strong to warrant a trial ( Jefferson Ford at [23] per Finkelstein J, at [74] per Rares J; Bond v Barry [2008] FCAFC 115 at [72] per curiam). That test and the matters to be considered in coming to a conclusion are not mandated by the legislature. That is the case whether or not it is mandatory ( Jefferson Ford at [128] [129] per Gordon J) or discretionary ( J F Keir v Sparks [2008] FCA 611 at [12] per Graham J) to give summary judgment once that assessment is made or whether the discretion is a general one ( Boston Commercial at [45] per Rares J) or limited by the circumstances of "no reasonable prospect of success" ( Jefferson Ford at [129] per Gordon J). The Court is still in the position of determining the facts and inferences to be drawn in deciding whether or not the test in s 31A has been satisfied in any given case. It is for the Court to decide whether the basis for summary judgment has been established ( Gypsy Jokers at [7] per Gleeson CJ).


case_text: While the determination of an application under s 31A does not involve a judge conducting a full trial or fact finding exercise, an application under s 31A requires the judge to exercise his or her discretion, following an assessment of the case, including the evidence. As Rares J said in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 at [48] , ' the assessment of whether there is a reasonable prospect of successfully prosecuting the proceeding must depend upon the evidence and pleading the subject of the application '. 36 It cannot be said that s 31A is invalid as a law that directs the outcome or manner of the exercise of judicial power by precluding the admission of evidence. 37 The applicant relies upon the terms of the Federal Court Rules and amendments to those Rules in support of his argument. The applicant maintains that O 20 r 5 constitutes judicial legislation determinative of the substantive rights of the parties, which is impermissible. This is said to be because of the reference to s 31A in a note to that rule, which refers only to a prosecuting party and not to a defending party. 41 In Jefferson Ford at [45], Rares J commented that, when the Court gives judgment for a party under s 31A(1) or s 31A(2) ' it is exercising a jurisdiction similar to the implied or inherent power of the Court to protect its own processes from proceedings which are an abuse of those processes '. His Honour expressed the view that, by enacting s 31A, Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised and (at [57]) that it was not intended to create final, rather than interlocutory, judgments. Rather, it was intended to ' lower the bar ' (per Rares J at [63]) or, to put it another way, to ' impose a different and less stringent test ' (per Gordon J at [124]) for obtaining summary judgment, below the level set by the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 per Lindgren J). It was introduced ' to strengthen "... the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases"' ( Jefferson Ford at [124] per Gordon J; Boston Commercial at [45] per Rares J; citing the Second Reading Speech to the Migration Litigation Reform Bill 2005 (Cth)). 45 Despite the fact that there is some difference of opinion in the Court as to the precise test to be applied and as to whether a decision under s 31A is final or interlocutory, it is clear from the discussion in Boston Commercial and Jefferson Ford that it is for the judge to decide whether there are reasonable prospects of success. In doing so, the judge conducts an inquiry into the merits of the question in order to decide whether it is sufficiently strong to warrant a trial ( Jefferson Ford at [23] per Finkelstein J, at [74] per Rares J; Bond v Barry [2008] FCAFC 115 at [72] per curiam). That test and the matters to be considered in coming to a conclusion are not mandated by the legislature. That is the case whether or not it is mandatory ( Jefferson Ford at [128] [129] per Gordon J) or discretionary ( J F Keir v Sparks [2008] FCA 611 at [12] per Graham J) to give summary judgment once that assessment is made or whether the discretion is a general one ( Boston Commercial at [45] per Rares J) or limited by the circumstances of "no reasonable prospect of success" ( Jefferson Ford at [129] per Gordon J). The Court is still in the position of determining the facts and inferences to be drawn in deciding whether or not the test in s 31A has been satisfied in any given case. It is for the Court to decide whether the basis for summary judgment has been established ( Gypsy Jokers at [7] per Gleeson CJ).


case_text: The heart of the applicant's argument is the allegation that s 31A impermissibly interferes with the exercise of the judicial power of the Commonwealth and directs the Court as to the outcome of a proceeding. A Commonwealth law that ' direct [s] the courts as to the manner and outcome of the exercise of their jurisdiction ' will be invalid on the basis that it usurps the judicial power of the Commonwealth ( Chu Kheng Lim v Minister for Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ at 37). 47 Section 31A does not ' purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction ' ( Chu Kheng Lim at 37 per Brennan, Deane and Dawson JJ; Gypsy Jokers at [39] per Gummow, Hayne, Heydon and Kiefel JJ). It does not require or authorise the Court ' to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power ' ( Chu Kheng Lim at 27). It does not ' direct the exercise of judicial power in finding facts, applying law or exercising an available discretion ' ( Nicholas at [20] per Brennan CJ). Indeed, as the applicant points out, the giving of summary judgment is an inherent power of courts under the common law ( Nicholas at [14] per Brennan CJ). Section 31A does not impair the curial function of finding facts and applying the law any more than statutory prescription of the rules of evidence, which ' have traditionally been recognised as being an appropriate subject of statutory prescription ' ( Nicholas at [23] per Brennan CJ).


case_text: In Commonwealth Trading Bank v Inglis [1974] HCA 17 ; (1974) 131 CLR 311 the High Court considered the effect of court rules on a court's inherent powers. The Court said (at 318): It is unacceptable, in our opinion, to say...that the enactment of such a provision as that contained in O. 63, r. 6 leaves unaffected an inherent power which the court is said to have to make an order of the kind for which that rule provides. Those authorities which refer to the continued existence of an inherent power, notwithstanding that a like power is conferred by rules of court, have no application, in our opinion, to a provision of the kind now being considered. The High Court did not suggest that rules of court that affect the inherent power of the Court are thereby invalid.


case_text: The purpose of the section is described in the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth) in the following terms: Subsection 31A(3) provides that for the purposes of giving summary judgment, a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the courts in construing the conditions for summary judgment by reference to the 'no reasonable cause of action' test, in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable. Section 31A will allow the Court greater flexibility in giving summary judgment and will therefore be a useful addition to the Court's powers in dealing with unmeritorious proceedings. Subsection 31A(4) provides that s 31A does not limit any other powers that the court possesses. 43 Prior to the enactment of s 31A, the test for summary dismissal was as set out by Barwick CJ in General Steel . Applying Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 , Barwick CJ described (at 130) the balancing between competing interests that underlies summary judgment: [G]reat care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. Accordingly, (at 129) Barwick CJ articulated the following test: ...the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action... is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".


case_text: The purpose of the section is described in the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth) in the following terms: Subsection 31A(3) provides that for the purposes of giving summary judgment, a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the courts in construing the conditions for summary judgment by reference to the 'no reasonable cause of action' test, in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable. Section 31A will allow the Court greater flexibility in giving summary judgment and will therefore be a useful addition to the Court's powers in dealing with unmeritorious proceedings. Subsection 31A(4) provides that s 31A does not limit any other powers that the court possesses. 41 In Jefferson Ford at [45], Rares J commented that, when the Court gives judgment for a party under s 31A(1) or s 31A(2) ' it is exercising a jurisdiction similar to the implied or inherent power of the Court to protect its own processes from proceedings which are an abuse of those processes '. His Honour expressed the view that, by enacting s 31A, Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised and (at [57]) that it was not intended to create final, rather than interlocutory, judgments. Rather, it was intended to ' lower the bar ' (per Rares J at [63]) or, to put it another way, to ' impose a different and less stringent test ' (per Gordon J at [124]) for obtaining summary judgment, below the level set by the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 per Lindgren J). It was introduced ' to strengthen "... the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases"' ( Jefferson Ford at [124] per Gordon J; Boston Commercial at [45] per Rares J; citing the Second Reading Speech to the Migration Litigation Reform Bill 2005 (Cth)). 43 Prior to the enactment of s 31A, the test for summary dismissal was as set out by Barwick CJ in General Steel . Applying Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 , Barwick CJ described (at 130) the balancing between competing interests that underlies summary judgment: [G]reat care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. Accordingly, (at 129) Barwick CJ articulated the following test: ...the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action... is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".


case_text: In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4 ; (2008) 82 ALJR 454 at [39] , Gummow, Hayne, Heydon and Kiefel JJ said: As a general proposition, it may be accepted that legislation which purported to direct the courts as to the manner and outcome of the exercise of their jurisdiction would be apt impermissibly to impair the character of the courts as independent and impartial tribunals. (Footnote omitted.) 26 To the extent that the applicant's argument is based upon an assumption that s 31A directs the manner and outcome of the exercise of judicial power, it is misconceived. Parliament has legislated with respect to the procedure for summary dismissal of proceedings and expanded the basis on which proceedings can be dismissed. Section 31A lays down a general test. It is for the Court to apply the test to specific cases. The Court is not expressly directed as to the outcome of any application. Even if s 31A does "tilt the balance" in favour of a particular result, that does not fundamentally alter the Court's task. 29 Special leave to appeal to the High Court was refused. Gummow ACJ observed that the attack on the legislation must fail, on the basis of the proper construction adopted by the Court of Criminal Appeal. As the Full Court stated in Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at [126] : The authorities make it clear that the first step in determining the constitutional validity of any law is to construe the statute under challenge. Where an interpretation can be taken that avoids rather than leads to a conclusion of invalidity, such an approach should be preferred (Gypsy Jokers [2008] HCA 4 ; 82 ALJR 454 , per Gummow, Hayne, Heydon and Kiefel JJ at [11]). 33 Section 31A confers a power on the Court to make a decision summarily that there is no reasonable prospect that, if a trial were to take place, the claim or defence would succeed. It is not an adjudication of the merits ( Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [45] per Rares J). If s 31A were to limit or restrict admissible evidence in such a way as to influence or control the manner in which the Court decided a summary dismissal application, then the provision would be incompatible with the exercise of judicial power and thus invalid ( Gypsy Jokers at [108] per Kirby J; K-Generation Pty Ltd v Liquor Licensing Court (2007) 99 SASR 58 at [69] [73] per Duggan J). However, that is simply not the case. 45 Despite the fact that there is some difference of opinion in the Court as to the precise test to be applied and as to whether a decision under s 31A is final or interlocutory, it is clear from the discussion in Boston Commercial and Jefferson Ford that it is for the judge to decide whether there are reasonable prospects of success. In doing so, the judge conducts an inquiry into the merits of the question in order to decide whether it is sufficiently strong to warrant a trial ( Jefferson Ford at [23] per Finkelstein J, at [74] per Rares J; Bond v Barry [2008] FCAFC 115 at [72] per curiam). That test and the matters to be considered in coming to a conclusion are not mandated by the legislature. That is the case whether or not it is mandatory ( Jefferson Ford at [128] [129] per Gordon J) or discretionary ( J F Keir v Sparks [2008] FCA 611 at [12] per Graham J) to give summary judgment once that assessment is made or whether the discretion is a general one ( Boston Commercial at [45] per Rares J) or limited by the circumstances of "no reasonable prospect of success" ( Jefferson Ford at [129] per Gordon J). The Court is still in the position of determining the facts and inferences to be drawn in deciding whether or not the test in s 31A has been satisfied in any given case. It is for the Court to decide whether the basis for summary judgment has been established ( Gypsy Jokers at [7] per Gleeson CJ). 46 If it were the case that a mandatory construction of the section led to constitutional invalidity, the construction would be preferred that gave the Court a discretion to give judgment and thus avoid invalidity ( Gypsy Jokers at [11] per Gummow, Hayne, Heydon and Kiefel JJ). 47 Section 31A does not ' purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction ' ( Chu Kheng Lim at 37 per Brennan, Deane and Dawson JJ; Gypsy Jokers at [39] per Gummow, Hayne, Heydon and Kiefel JJ). It does not require or authorise the Court ' to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power ' ( Chu Kheng Lim at 27). It does not ' direct the exercise of judicial power in finding facts, applying law or exercising an available discretion ' ( Nicholas at [20] per Brennan CJ). Indeed, as the applicant points out, the giving of summary judgment is an inherent power of courts under the common law ( Nicholas at [14] per Brennan CJ). Section 31A does not impair the curial function of finding facts and applying the law any more than statutory prescription of the rules of evidence, which ' have traditionally been recognised as being an appropriate subject of statutory prescription ' ( Nicholas at [23] per Brennan CJ).


case_text: Special leave to appeal to the High Court was refused. Gummow ACJ observed that the attack on the legislation must fail, on the basis of the proper construction adopted by the Court of Criminal Appeal. As the Full Court stated in Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at [126] : The authorities make it clear that the first step in determining the constitutional validity of any law is to construe the statute under challenge. Where an interpretation can be taken that avoids rather than leads to a conclusion of invalidity, such an approach should be preferred (Gypsy Jokers [2008] HCA 4 ; 82 ALJR 454 , per Gummow, Hayne, Heydon and Kiefel JJ at [11]).


case_title: J F Keir v Sparks [2008] FCA 611


case_text: Section 31A confers a power on the Court to make a decision summarily that there is no reasonable prospect that, if a trial were to take place, the claim or defence would succeed. It is not an adjudication of the merits ( Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [45] per Rares J). If s 31A were to limit or restrict admissible evidence in such a way as to influence or control the manner in which the Court decided a summary dismissal application, then the provision would be incompatible with the exercise of judicial power and thus invalid ( Gypsy Jokers at [108] per Kirby J; K-Generation Pty Ltd v Liquor Licensing Court (2007) 99 SASR 58 at [69] [73] per Duggan J). However, that is simply not the case. 41 In Jefferson Ford at [45], Rares J commented that, when the Court gives judgment for a party under s 31A(1) or s 31A(2) ' it is exercising a jurisdiction similar to the implied or inherent power of the Court to protect its own processes from proceedings which are an abuse of those processes '. His Honour expressed the view that, by enacting s 31A, Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised and (at [57]) that it was not intended to create final, rather than interlocutory, judgments. Rather, it was intended to ' lower the bar ' (per Rares J at [63]) or, to put it another way, to ' impose a different and less stringent test ' (per Gordon J at [124]) for obtaining summary judgment, below the level set by the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 per Lindgren J). It was introduced ' to strengthen "... the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases"' ( Jefferson Ford at [124] per Gordon J; Boston Commercial at [45] per Rares J; citing the Second Reading Speech to the Migration Litigation Reform Bill 2005 (Cth)). 45 Despite the fact that there is some difference of opinion in the Court as to the precise test to be applied and as to whether a decision under s 31A is final or interlocutory, it is clear from the discussion in Boston Commercial and Jefferson Ford that it is for the judge to decide whether there are reasonable prospects of success. In doing so, the judge conducts an inquiry into the merits of the question in order to decide whether it is sufficiently strong to warrant a trial ( Jefferson Ford at [23] per Finkelstein J, at [74] per Rares J; Bond v Barry [2008] FCAFC 115 at [72] per curiam). That test and the matters to be considered in coming to a conclusion are not mandated by the legislature. That is the case whether or not it is mandatory ( Jefferson Ford at [128] [129] per Gordon J) or discretionary ( J F Keir v Sparks [2008] FCA 611 at [12] per Graham J) to give summary judgment once that assessment is made or whether the discretion is a general one ( Boston Commercial at [45] per Rares J) or limited by the circumstances of "no reasonable prospect of success" ( Jefferson Ford at [129] per Gordon J). The Court is still in the position of determining the facts and inferences to be drawn in deciding whether or not the test in s 31A has been satisfied in any given case. It is for the Court to decide whether the basis for summary judgment has been established ( Gypsy Jokers at [7] per Gleeson CJ). 57 In any event, his underlying premise is that s 31A ' infringes the inalienable guarantees asserted in ' Magna Carta and those other Acts which provided statutory protection to procedural safeguards and the rule of law. In particular, he states that s 31A denies the right to appeal and legal process. That is simply not the case: Jefferson Ford at [71] per Rares J, [191] per Gordon J; ss 24(1) & (1A) Federal Court Act.


case_title: K-Generation v Liquor Licensing Court (2007) 99 SASR 58

case_text: Section 31A confers a power on the Court to make a decision summarily that there is no reasonable prospect that, if a trial were to take place, the claim or defence would succeed. It is not an adjudication of the merits ( Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [45] per Rares J). If s 31A were to limit or restrict admissible evidence in such a way as to influence or control the manner in which the Court decided a summary dismissal application, then the provision would be incompatible with the exercise of judicial power and thus invalid ( Gypsy Jokers at [108] per Kirby J; K-Generation Pty Ltd v Liquor Licensing Court (2007) 99 SASR 58 at [69] [73] per Duggan J). However, that is simply not the case. 40 In K-Generation at [159], Gray J summarised the general principle in the following terms: The general principle, in its most basic form, has been variously stated as the notion that Ch III of the Constitution will operate to invalidate legislation that requires a federal court to exercise a function that is repugnant to the nature of a federal court, incompatible with federal judicial power, or inconsistent with the tradition of judicial power.


case_title: Lodhi v Regina [2007] NSWCCA 360

case_text: In Lodhi v Regina [2007] NSWCCA 360 the NSW Court of Criminal Appeal considered the validity of certain statutory provisions under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ('the NSI Act'). Under s 26(2)(b) of the NSI Act, the Attorney General issued certificates that prohibited disclosure, in criminal proceedings, of information in documents to which the defendant had sought access. Section 31 of the NSI Act empowered the Court to make orders, including orders granting access to a defendant. In making those orders, s 31(7) of the NSI Act required the Court to balance the risk of prejudice to national security against the defendant's right to a fair trial, and any other relevant matter. Critically, s 31(8) of the NSI Act specified that the Court was to give "greatest" weight to national security. At [41], Spigelman CJ discussed the power of Parliament to change a test for the exercise of judicial power: Although the ultimate task to be performed is one of balancing, s 31(8) does tilt the balance or put a thumb on the scales. However, this is only one of many possible ways in which common law principles or legislative provisions can guide the task of balancing conflicting interests. The existence of such guidance, even if it can be said to tilt the balance in favour of a particular decision, does not fundamentally alter the task. For purposes of assessing the constitutional propositions upon which the appellant relied, it is important to recognise that tilting the balance by some form of guidance is perfectly consistent with the traditional judicial decision making process. 28 His Honour observed at [42] that the common law may also "tilt the scales" for the Court in undertaking a balancing exercise and concluded at [45] that '[a] lthough the provision of guidance, or an indication of weight, will affect the balancing exercise, it does not change the nature of the exercise '. The Chief Justice continued to say, at [46]: It may be that the interposition of a rule or standard applicable before the process of balancing is undertaken will lead to the conclusion that the process does not involve a balancing exercise at all. However, that is not the case where the common law principle or statute identifies one interest as more important than another in a particular context.


case_text: The applicant relies on the use that may be made of international treaties that have been ratified in the construction of legislation that is ambiguous ( Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J). However, there is no demonstrated ambiguity in s 31A and nothing in that section to which Art 14.1 of the ICCPR applies. To the extent that the applicant raises the reference in Art 14.1 to an independent and impartial tribunal, if that is in the constitutional sense, it is dealt with elsewhere in these reasons and in Priestley .


case_text: In Nicholas v The Queen [1998] HCA 9 ; (1998) 193 CLR 173 , Brennan CJ considered the validity of legislation governing practice or procedure. His Honour said (at [23]): The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it. The conferral of jurisdiction prima facie carries the power to do whatever is necessary or convenient to effect its exercise. The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction but subject to overriding legislative provision governing that practice or procedure. The rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription. A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power. (Footnote omitted.) 24 The applicant accepts that a law prescribing court practice or procedure does not direct the exercise of a judicial power and Parliament has the power to legislate to change the laws of evidence and procedure. However, the applicant argues that s 31A of the Federal Court Act represents the passing by Parliament of a law that directs the exercise of judicial power. 47 Section 31A does not ' purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction ' ( Chu Kheng Lim at 37 per Brennan, Deane and Dawson JJ; Gypsy Jokers at [39] per Gummow, Hayne, Heydon and Kiefel JJ). It does not require or authorise the Court ' to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power ' ( Chu Kheng Lim at 27). It does not ' direct the exercise of judicial power in finding facts, applying law or exercising an available discretion ' ( Nicholas at [20] per Brennan CJ). Indeed, as the applicant points out, the giving of summary judgment is an inherent power of courts under the common law ( Nicholas at [14] per Brennan CJ). Section 31A does not impair the curial function of finding facts and applying the law any more than statutory prescription of the rules of evidence, which ' have traditionally been recognised as being an appropriate subject of statutory prescription ' ( Nicholas at [23] per Brennan CJ). 58 The applicant refers to various Imperial Acts. As Brennan CJ observed in Nicholas at [23] by reference to the Evidence Act 1843 (Imp) 6 &7 Vict c 85, ' it would not have occurred to the Imperial Parliament that a legislative power to prescribe rules of evidence might be regarded as a usurpation of judicial power '. The same applies to setting a test for summary disposal. 59 The applicant submits that '[t] he Bill of Rights is a law of the Australian Capital Territory ' and grants the right to petition ' without suffering or enduring "commitments and prosecutions" ' (Art 5 of the Bill of Rights 1688 ). The applicant submits that s 31A of the Federal Court Act is in breach of Art 5, as the power to grant summary judgment constitutes a commitment or prosecution against petitioners (plaintiffs) against the Crown. 60 The Bill of Rights 1688 is not relevant. Section 31A is not a "commitment" or "prosecution".


case_text: The Human Rights Act has no application ( Priestley v Godwin (No 2) [2008] FCA 1453 at [17] - [18] ). 56 The applicant has not shown why, if he says that laws of the ACT are inconsistent with s 31A of the Federal Court Act, those laws apply and why they have been "picked up" by s 79 of the Judiciary Act 1903 (Cth). 62 Section 21(1) of the Human Rights Act has no application to these proceedings ( Priestley at [17]-[18]). 63 The applicant relies on the use that may be made of international treaties that have been ratified in the construction of legislation that is ambiguous ( Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J). However, there is no demonstrated ambiguity in s 31A and nothing in that section to which Art 14.1 of the ICCPR applies. To the extent that the applicant raises the reference in Art 14.1 to an independent and impartial tribunal, if that is in the constitutional sense, it is dealt with elsewhere in these reasons and in Priestley .


case_text: In Jefferson Ford at [45], Rares J commented that, when the Court gives judgment for a party under s 31A(1) or s 31A(2) ' it is exercising a jurisdiction similar to the implied or inherent power of the Court to protect its own processes from proceedings which are an abuse of those processes '. His Honour expressed the view that, by enacting s 31A, Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised and (at [57]) that it was not intended to create final, rather than interlocutory, judgments. Rather, it was intended to ' lower the bar ' (per Rares J at [63]) or, to put it another way, to ' impose a different and less stringent test ' (per Gordon J at [124]) for obtaining summary judgment, below the level set by the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 per Lindgren J). It was introduced ' to strengthen "... the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases"' ( Jefferson Ford at [124] per Gordon J; Boston Commercial at [45] per Rares J; citing the Second Reading Speech to the Migration Litigation Reform Bill 2005 (Cth)).


case_text: There were three arguments advanced by Comcare on the appeal. They were: (1) The AAT had not applied the principles discussed by Stone J in Comcare v Rope [2004] FCA 540 ; (2004) 135 FCR 443 at 448, at [17], and in particular that it did not consider the prospective benefits of the proposed treatment against its prospective costs, that is that it did not weigh the benefit of the retreat against the cost of obtaining it. It was said that the AAT erred by proceeding on the basis that in the absence of a cheaper alternative, the treatment was reasonable, because it failed to consider whether the cost of the proposed treatment was reasonable in the circumstances. That was said to be a failure to take material facts into account and to examine them in relation to a matter the Tribunal had to determine so as to amount to an error of law. (2) The AAT took into account irrelevant considerations, namely that Comcare had previously funded such medical treatment, and secondly that Comcare had an obligation upon it to demonstrate an alternative medical treatment that has equivalent therapeutic benefit but at a lower cost. (3) The AAT failed to comply with the obligation imposed by s 43(2) of the AAT Act and failed to deal with a submission seriously advanced by Comcare, relevant to the issue before the Tribunal and worthy of consideration, namely that any benefit Mr Holt obtained from the medical treatment was outweighed by the cost of treatment. As to the third argument, Comcare's statement of facts and contentions before the AAT included the proposition that any benefit to Mr Holt from attending the retreat was outweighed by the cost of obtaining the treatment (as the AAT noted about $1650). It was contended that Comcare's contention in that regard was not addressed in the AAT's reasons at all. 21 Counsel for the parties were agreed on the principles to be applied in determining whether the proposed treatment was reasonable for Mr Holt to obtain in the circumstances. In Rope 135 FCR at 448, at [17], Stone J said: I accept, however, that the reference in s 16(1) to treatment being 'reasonable to obtain in the circumstances' is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis in relation to PNI treatment. The Tribunal needed, among other things, to weigh the benefit of PNI treatment against the cost of obtaining it (given that the treatment was available only in Townsville), taking into account any other treatment available to Mrs Rope. 22 In that case, the employee had suffered a compensatable injury and had received psychoneuroimmunology (PNI) treatment from a psychotherapist in Canberra. The psychotherapist had subsequently moved her practice to Townsville and the issue was whether the employee was entitled to recover from Comcare the costs of her travel to Townsville to continue her PNI treatment. There was no equivalent treatment available in Canberra. The AAT determined that it was reasonable for that employee to obtain PNI treatment and be reimbursed for the cost of travelling to Townsville to obtain it. Justice Stone found no error of law on the part of the AAT in making that decision. 23 Coincidentally, in that case, the argument of Comcare significantly resembles its argument in this matter. It was argued that the AAT had failed to engage in a costs/benefit analysis in determining that it was reasonable for that employee to obtain PNI treatment in Townsville. Justice Stone concluded that the findings of the Tribunal were open to it on the evidence and provided no basis for the Court to interfere with those findings. Her Honour said, after accepting that there was predominant medical opinion that the proposed PNI treatment had therapeutic value for that employee because it assisted her in managing the pain of her injury and improved her quality of life, at 448, at [19]: the only additional factor to be considered was whether there was any equivalent treatment available in Canberra. The Tribunal stated that Comcare had 'failed to substantiate its assertion that equivalent treatment to that provided to [the employee] is available in Canberra'. I am satisfied that the Tribunal did consider all the circumstances that, under s 16(1), it was required to consider in determining if it was reasonable for [the employee] to obtain PNI treatment. The findings that the Tribunal made were open to it on the evidence. It is not for this Court to interfere with those findings. 24 The first contention is based upon the observations of the AAT set out in [19] above. 25 I agree that it would have been erroneous for the AAT generally to declare that the therapeutic treatment is unreasonable only if Comcare establishes that there is alternative treatment with equivalent therapeutic benefit available at a lower cost. There may be circumstances where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances. Section 16(1) of the SRC Act does not indicate that a proposed treatment is reasonable unless alternative treatment of more or less equivalent therapeutic benefit and at a lesser cost is shown by Comcare to be available. That is consistent with the approach of Stone J in Rope [2004] FCA 540 ; 135 FCR 443. Of course, it will be common for the reasonableness of proposed medical treatment to be assessed in the light of alternative treatment options, but that is not necessarily so. There might be cases where the cost of the proposed treatment, even if no other treatment options were available, would lead to the view that the proposed treatment is unreasonable having regard to its anticipated benefit. Such a circumstance is, of course, likely to be uncommon if only because treating medical practitioners generally act responsibly and with sound medical judgment.


case_title: Bashar v Comcare (2002) 69 ALD 784

case_text: It is plain enough that sometimes proposed therapeutic treatment will be unreasonable because there is some alternative treatment available with potentially similar benefits at a lesser cost. There may be a balancing involved where the potential therapeutic benefits are less, but the cost is significantly less. The extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant. There may be cases, as Comcare points out, where proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar treatment had previously been undertaken. There may be cases, also as Comcare points out, where treatment like the proposed treatment which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience: see e.g. Bashar v Comcare (2002) 69 ALD 784. There may be other illustrations of facts relevant to the determination of reasonableness of proposed medical treatment. 27 However, in my view, the remarks of the AAT complained of must be seen in the context of the particular case. The context of the case, as explained above in [12] is that Comcare claimed that the treatment was not reasonable in the circumstances for two specific reasons, namely the availability of alternative treatment with potentially similar therapeutic benefits and at a much lesser cost either at home, or otherwise in Alice Springs. That was the primary case which the AAT was called upon to address and it did so. In my view its comments in the passage of concern to Comcare must be read in that context. If they were to be read as supporting the general proposition set out at the concluding part of its reasons. I would agree that the AAT had fallen into error.


case_text: In my judgment, the AAT also did not fall into error in the manner asserted in the second ground of appeal. The AAT referred to the fact that Comcare had previously funded the retreat or a similar retreat. It did not suggest that, for that reason, any further retreats are necessarily to be regarded as reasonable. It would have been erroneous to have taken that step. It referred to those facts simply to record that, in the past, there had been therapeutic benefit experienced from such retreats. If there had not been, the case for the retreat being reasonable would have been much weaker. In my view, where proposed treatment is the same or similar to that previously performed, the extent to which the previous treatment had generated therapeutic benefit is relevant to determining the reasonableness of the proposed further treatment. I think that is all that the Tribunal did when it referred to Comcare having previously funded similar retreats, namely to take account of the fact of previous similar retreats and the extent to which in the past such retreats had produced therapeutic benefit: see generally Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. 29 The observation that Comcare had not demonstrated an alternative medical treatment with equivalent therapeutic benefit but at a lower cost was one to be seen in the context of the case. In this case, the Tribunal rejected the first of Comcare's two propositions (set out at [12] above) because it was not satisfied that the alternative of "home retreat" would produce therapeutic benefits similar to those of the retreat. It did so in addressing Comcare's assertion that, in the circumstances and on the evidence, there was such alternative treatment available. The AAT was obliged to make a finding upon it. It rejected the contention because there was no cogent evidence to support it. The Tribunal did not err in concluding that, on the evidence, the alternative of a retreat conducted by the Northern Territory Buddhist Society in Alice Springs was not an available reasonable alternative treatment. It was true to its role as a substitute arbiter of the facts for the primary decision-maker upon the material before it.


case_text: As a matter of commonsense, if Comcare wished the AAT to find that the Northern Territory Buddhist Society would probably offer a retreat with similar benefits in Alice Springs, more evidence in support of that assertion was desirable. In a practical sense, in the particular circumstances, such evidence would have been adduced by Comcare. That is not to impose any onus of proof upon Comcare: cf McDonald v Director-General of Social Security (1984) 1 FCR 354; Comcare v Nichols [1999] FCA 209 at [18] . Mr Holt sought to have a proposed medical treatment paid by Comcare. He was entitled to payment if the treatment was reasonable in all the circumstances. He had the support of his general practitioner. In the normal course, that would be sufficient. Merely because Comcare referred to the Northern Territory Buddhist Society website, Mr Holt did not have to prove that the Society provided an alternative treatment option available to him of probable equivalent therapeutic benefit and at a lower cost. A moment's pause fortifies that conclusion. Were it otherwise, every time an injured person sought medical treatment, that person would otherwise have to positively adduce evidence that the treatment could not be provided at a cheaper price by some other medical practitioner, or that no other treatment of equivalent therapeutic value would be available at a lesser price through another medical practitioner. The AAT, in my view, correctly decided the reasonableness of the retreat on the evidence and in all the circumstances.


case_title: Comcare v Nichols [1999] FCA 209


case_text: The Tribunal is conducting a review of the Delegate's decision but that review is conducted on the basis of the claims advanced and materials before the Tribunal ( SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1798 at [34] ). While the Tribunal is obliged, in certain circumstances, to review claims not expressly advanced at the hearing ( NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] and [68]), if a claim raised before the Delegate is abandoned before the Tribunal, it is entitled to take the view that the applicant does not make that claim or a case based on that claim ( SZEIV at [34]).


case_title: SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1798


case_text: overriding principle in assessing penalty is that the amount of the penalty should reflect the Court's view of the seriousness of the offending conduct in all the relevant circumstances: Madgwick J in Comcare v Commonwealth of Australia [2007] FCA 662 ; [2007] 163 FCR 207 at [120] . While penalties imposed pursuant to s 16(1) in other cases may provide some guidance, the Court in each case is required to focus on the circumstances before it and not be improperly distracted by the circumstances in other cases which are inevitably different from the circumstances before the Court. As Gray J said in Australian Ophthalmic Supplies Pty Ltd v McAlary -Smith [2008] FCAFC 8 ; [2008] 165 FCR 560 at [12] - [13] : [12] Much of the argument put by counsel for the appellant involved a detailed comparison between the facts of this case and the facts of two other cases in which lower penalties had been imposed in respect of award breaches. The two cases, both judgments of the same Federal Magistrate, are Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 and Flattery v The Italian Eatery T/as Zeffirelli's Pizza Restaurant [2007] FMCA 9. This was a fundamentally wrong approach. Penalties are not a matter of precedent . The choice of penalty must be dictated by the individual circumstances of a case, not by a line by line comparison with another case. See the passage from the judgment of Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 295, set out in the reasons for judgment of Buchanan J at [87]. [13] Penalty decisions in other cases can be of value in demonstrating that there is a range of penalties generally considered appropriate to a particular type of case. The individual circumstances of the case at hand must then be examined, in order to determine at what point in the appropriate range the penalty should be set. This does not involve a comparison with the facts of other cases. (emphasis added)


case_text: overriding principle in assessing penalty is that the amount of the penalty should reflect the Court's view of the seriousness of the offending conduct in all the relevant circumstances: Madgwick J in Comcare v Commonwealth of Australia [2007] FCA 662 ; [2007] 163 FCR 207 at [120] . While penalties imposed pursuant to s 16(1) in other cases may provide some guidance, the Court in each case is required to focus on the circumstances before it and not be improperly distracted by the circumstances in other cases which are inevitably different from the circumstances before the Court. As Gray J said in Australian Ophthalmic Supplies Pty Ltd v McAlary -Smith [2008] FCAFC 8 ; [2008] 165 FCR 560 at [12] - [13] : [12] Much of the argument put by counsel for the appellant involved a detailed comparison between the facts of this case and the facts of two other cases in which lower penalties had been imposed in respect of award breaches. The two cases, both judgments of the same Federal Magistrate, are Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 and Flattery v The Italian Eatery T/as Zeffirelli's Pizza Restaurant [2007] FMCA 9. This was a fundamentally wrong approach. Penalties are not a matter of precedent . The choice of penalty must be dictated by the individual circumstances of a case, not by a line by line comparison with another case. See the passage from the judgment of Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 295, set out in the reasons for judgment of Buchanan J at [87]. [13] Penalty decisions in other cases can be of value in demonstrating that there is a range of penalties generally considered appropriate to a particular type of case. The individual circumstances of the case at hand must then be examined, in order to determine at what point in the appropriate range the penalty should be set. This does not involve a comparison with the facts of other cases. (emphasis added) Some assistance in considering the appropriate level of penalty in circumstances involving breach of occupational health and safety standards can be found in comments of Madgwick J in Comcare v Commonwealth of Australia [2007] FCA 662 ; [2007] 163 FCR 207. In that decision his Honour took the view that the following considerations provided useful, analogical, general guidance in considering penalties under the Act: (i) the penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety; (ii) it is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable; (iii) the offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer; (iv) the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety; (v) a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision; (vi) general deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act; (vii) employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety; (viii) regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration; (ix) the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category; (x) the objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties. (at [120]) Submissions of the parties as to quantum of pecuniary penalty Comcare submits that an appropriate range for a penalty in this matter is $180,000-$210,000. It is for Comcare to demonstrate to the Court why the penalty sought is justified. The respondent has not proposed a dollar value or range of penalty to the Court. However the respondent submitted that, after taking into account the objective considerations which reflect upon the nature and qualify of the offence, and subjective factors favourable to the respondent, a discount of up to 25% be allowed on account of the early admission by the respondent. Pecuniary penalty seriousness of the offending conduct in all the relevant circumstances The respondent has made extensive submissions in relation to mitigation. As the respondent submits, and I also note, Madgwick J in Comcare v Commonwealth of Australia [2007] FCA 662 ; [2007] 163 FCR 207 listed no considerations favourable to a respondent in respect of assessment of penalty. However in determining a pecuniary penalty for breach of the Trade Practices Act 1974 (Cth), French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,153 considered issues subjectively relevant to the conduct of the respondent, including:


case_outcome: related

case_text: the reasons provided in a previous judgment in respect of this matter Comcare v John Holland Pty Ltd [2009] FCA 1196 I allowed members of Mr McCallum's family to file impact evidence statements with the Court, which I have read. While, as I indicated in my interlocutory judgment, their statements were accepted on the basis that they would not be taken into account for the purposes of determining the appropriate penalty in this case, the Court extends its sympathy to the family of Mr McCallum, and acknowledges the extreme pain and anguish caused them by the loss of Mr McCallum. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 16 December 2009 Counsel for the Applicant: Mr A Herbert Solicitor for the Applicant: DibbsBarker Lawyers Counsel for the Respondent: Mr J Fernon SC with Ms W Thompson Solicitor for the Respondent: Australian Business Lawyers Date of Hearing: 27 October 2009 Date of Judgment: 17 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1515.html


case_text: the absence of mitigating circumstances, I consider that the appropriate penalty in this case would be $200,000. This is reflective of the fact that the objective seriousness of the respondent's conduct is at the higher end of the scale but does not exhibit characteristics of the worst kind of conduct. However I agree with, and adopt, observations of Barker J in Comcare v John Holland Rail Pty Ltd [2009] FCA 771 at [143] where his Honour observed: Where, for example, a respondent in a proceeding such as these early on acknowledges fault and willingness to accept a declaration of contravention, then the respondent will ordinarily be entitled to additional consideration in the assessment of the penalty. In some contexts this process is termed giving credit or "discount" on penalty. There is no statutory entitlements to such credit or a discount but it serves public policy in that it encourages a respondent to act responsibly, and may achieve a reduction in the public resources that would otherwise be required to prosecute the proceedings against the respondent. (at [143]) I consider that the penalty should be reduced by 10% in light of the early plea by the respondent, its contrition as demonstrated by its early admission of liability and the assistance provided to both the family of Mr McCallum, other employees, and Comcare in its investigations, and the extensive changes to the work system introduced since the incident which indicate a genuine attempt by the respondent to prevent the recurrence of a similar tragedy. Accordingly, in my view the appropriate penalty is $180,000. Family Impact Evidence


case_text: respondent has made extensive submissions in relation to mitigation. As the respondent submits, and I also note, Madgwick J in Comcare v Commonwealth of Australia [2007] FCA 662 ; [2007] 163 FCR 207 listed no considerations favourable to a respondent in respect of assessment of penalty. However in determining a pecuniary penalty for breach of the Trade Practices Act 1974 (Cth), French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,153 considered issues subjectively relevant to the conduct of the respondent, including:


case_text: this case the respondent admits that the result of its conduct was the death of Mr McCallum. While there is no question here that Mr McCallum's death was actually foreseen by the respondent, in my view implementing a work method incorporating an appropriate radio protocol would not have been unreasonable, and to so find now is not, in my view, "substituting reasonable hindsight for reasonable foresight" ( WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381). The size of the plant involved, the vulnerability of workers in front of it, and the very real risk of serious injury or death in the absence of a fail-safe means of immediate emergency communication does suggest a systemic failure by the respondent rather than "a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision" as contended by the respondent. Indeed, it is not conclusive that there was either inadvertence on the part of Mr McCallum or a momentary lapse in his supervision by Mr Grech and the incident still occurred. It is clear that, despite the efforts taken by the respondent to implement a safe working environment, the operation involving the transportation unit was flawed in its original conception. The dangers were obvious from the start, relatively simple to avoid, but unrecognised and unaddressed in a manner which raises the objective gravity of the offence in these proceedings towards the higher end of the scale. The respondent submits that the improvements made to its work systems and the immediate action it took following the incident indicate that specific deterrence is not a factor of significance in this matter. I disagree. While the initiatives of the respondent are to be applauded, a relevant consideration in respect of the quantum of a penalty is that it be a deterrence to the specific employer in question as well as the community at large (including other employers). The respondent in this case has admitted that the result of its conduct was the death of an employee. It is necessary that the penalty reflect that fact. Further, while the work systems in place at the time of the incident support a finding that the respondent had adopted an approach to safety which was proactive rather than reactive, it is clear from both the obviousness of the risk to which Mr McCallum was fatally exposed and the simple but effective measures put in place since the incident including the adoption of a radio protocol that there were serious deficiencies in the quality of the proactive work undertaken.


case_text: The term "reproduction" is not otherwise defined. However, as Diplock LJ observed in Francis Day & Hunter Ltd v Bron [1963] 1 Ch 587 at 623, it plainly involves two elements. First, there must be sufficient objective similarity between the infringing work and the copyright work, or a substantial part thereof, for the former to be properly described, not necessarily as identical with, but as a reproduction or adaptation of the latter. Second, the copyright work must be the source from which the infringing work is derived. 60 In SW Hart & Co Pty Ltd v Edwards Hot Water Systems [1985] HCA 59 ; (1985) 159 CLR 466 , Gibbs CJ said (at 472): "The notion of reproduction, for the purposes of copyright law, involves two elements - resemblance to, and actual use of, the copyright work, or, to adopt the words which appear in the judgment of Willmer LJ in Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 614, "a sufficient degree of objective similarity between the two works" and "some causal connection between the plaintiffs' and the defendants' work". Lord Reid said in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 at 276 ...: 'Broadly, reproduction means copying, and does not include cases where an author or compiler produces a substantially similar result by independent work without copying. And, if he does copy, the question whether he has copied a substantial part depends much more on the quality than on the quantity of what he has taken'." 62 Copying can be conscious or subconscious: Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 at [24]. In Francis Day & Hunter Ltd v Bron, Willmer LJ explored the idea of "subconscious" copying. His Lordship said (at 612-614): "I confess that I have found the notion of subconscious copying one of some difficulty, for at first sight it would seem to amount to a contradiction in terms, the word 'copying' in its ordinary usage connoting what is essentially a conscious process ... The conclusion at which I arrive on this part of the case is that subconscious copying is a possibility which, if it occurs, may amount to an infringement of copyright. But in order to establish liability on this ground, it must be shown that the composer of the offending work was in fact familiar with the work alleged to have been copied."