case_text: In the present case, for the reasons indicated at the hearing, I determined that I would not rule on whether the respondents should be required to make their election until after the parties had addressed argument on the no-case submission, and as to whether the respondents should be required to make an election. It seemed to me that it was appropriate to take this course in order to understand the nature of the argument the respondents sought to make in saying that they had no case to answer. This was the approach adopted by Fullagar J in Union Bank of Australia Ltd v Puddy [1949] VLR 242 (" Puddy "); by Finkelstein J in Compaq Computer ; by Branson J at first instance in Rasomen (see Rasomen Pty Ltd v Shell Co of Australia Ltd (1996) 71 FCR 540 at 543); by Sundberg J in Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 (" Tru Floor ") at 537; and approved by the Full Court of the Supreme Court of Victoria in Protean . 21 The remainder of the respondents' no-case submission attracts different considerations as to the application of the general rule: compare Residues Treatment at 68-9; William H Muller & Co's Algemeene etc v EBBW Vale Steel, Iron & Coal Co Ltd [1936] 2 All ER 1363 at 1365-6 per Branson J; and Tru Floor at 538-9 (and the cases there cited). 22 In support of their submission that they should not have to make an election as a condition of my ruling, the respondents relied heavily on the fact that the alleged contraventions of the BCII Act attract civil penalties; and they submitted that it would be unjust to expose Mr Mates to cross-examination if a case had not been established against them. They referred to Tru Floor , Compaq Computer and Amcor . 23 In Tru Floor, Sundberg J determined that the defendants (who were directors of a building contractor company) should not be put to their election before his Honour ruled on their no-case submission against the plaintiffs (who were building subcontractors). The plaintiffs alleged that the defendants had contravened the Corporations Law or the Corporations Act 2001 (Cth), by trading while insolvent. A contravention such as this attracted a civil penalty. His Honour noted (at 540-1) considerations in favour of this course included the fact that "part of what is alleged against the defendants is an offence involving dishonesty", his impression that the plaintiffs' case on insolvency was not strong, and that there were likely significant savings involved in entertaining the no-case submission. His Honour said (at 541) that "it would be wrong for the defendants to be subjected to cross-examination on the dishonesty component of the offence before it is seen that there is some evidence of the insolvency component". As Sundberg J noted, similar factors affected Finkelstein J's decision in Compaq Computer not to require the respondents to elect, including the nature of the allegations made against them, which were allegations of dishonesty, as well as his impression about the weakness of the case, and that well over a week's hearing time remained to complete the trial: see Compaq Computer at 9. In Compaq Computer Finkelstein J commented, at 7, that: Another instance where a departure from the rule would be justified is in a case where fraud is alleged. It was accepted by the Full Court in Protean that in such a case normally it would be wrong to require a party to subject himself to cross-examination if there really was no evidence of fraud against him: see [1985] VR at 236 where Puddy's case is cited as authority. And there will be other circumstances where the justice of the case will permit the court to determine a case at an early stage ... His Honour held (at 9) that "[t]he respondents should not be required to call evidence or submit themselves to cross-examination if a sufficient case of wrongdoing has not been established against them". 27 I doubt, however, that these considerations provide an answer in this case. First, whilst I appreciate the force of the respondents' no-case submission, I doubt that the respondents' no-case submission in this case is as strong as that considered by Sundberg J in Tru Floor or Sackville J in Amcor . To my mind, the position now reached in this case is more akin to that described by Davies J in Trade Practices Commission v George Weston Foods Ltd (No 2) (1980) 43 FLR 55 (" George Weston ") at 60-2.


case_outcome: considered

case_text: Having heard the parties' arguments, I would not put the respondents to their election in respect of that part of their no-case submission that concerned the scope of the definition of "building industrial action". Had the respondents been successful on this aspect of their no-case submission, they would have defeated the applicant's s 38 case against them, without needing to answer this part of the applicant's case further. The respondents' argument was to the effect that there was an evidentiary hiatus in the applicant's case because the applicant had not adduced any evidence that any "ban, limitation or restriction" had been imposed by employees in respect of the work to which the ban, limitation or restriction related. In order to succeed on this limb of their no-case submission, the respondents had to persuade the Court that their construction of the definition of "building industrial action" was the preferable one, and that the applicant had adduced no evidence on an important element of it. For the following reasons, the respondents have failed to persuade me that their construction of the definition should be adopted, but, equally, it seems to me just and convenient that I rule on this question now without putting them to their election. I have heard the argument. The consideration of this part of their no-case submission involved no consideration of disputed evidence, and, as stated above, if accepted, it would have completely answered the applicant's allegations that they had contravened s 38 of the BCII Act : compare Compaq Computer at 7; Residues Treatment & Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 (" Residues Treatment ") at 68 per Perry J; and Puddy at 245. 21 The remainder of the respondents' no-case submission attracts different considerations as to the application of the general rule: compare Residues Treatment at 68-9; William H Muller & Co's Algemeene etc v EBBW Vale Steel, Iron & Coal Co Ltd [1936] 2 All ER 1363 at 1365-6 per Branson J; and Tru Floor at 538-9 (and the cases there cited). 24 In Amcor , the applicant alleged that the respondents had contravened s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth), a provision which attracted substantial penalties. The applicant's evidence in chief concluded on the first day of the trial, when counsel for the respondents submitted that they should be permitted to make a no-case submission without being put to their election. Sackville J held that the circumstances justified a departure from the general rule that a decision will not be given on a no-case submission unless the submitting party elects to call no evidence. His Honour accepted that the case fell within the third category mentioned by Perry J in Residues Treatment at 68 (on consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff's point of view, the evidence could not support the cause of action pleaded) and that, in such a case, "there must be unusual circumstances to warrant the respondents being permitted to make their no case submission without being required not to adduce any evidence": see Amcor at 358. Sackville J held, however, that the circumstances were sufficiently unusual and that it was in the interests of justice for the respondents to be permitted to make their no-case submission without making an election. His Honour said (at 358): First and most important, I took the view that this is a case in which serious allegations of contraventions of the TP Act had been made against each of the respondents. If the allegations were to be established, the corporate respondents would be exposed to pecuniary penalties of up to $10,000,000 and the individual respondents to pecuniary penalties of up to $500,000. Adverse findings might well have serious consequences in terms of loss of business reputation. The authorities recognise that a departure from the general rule is often justified where fraud is alleged against the moving party. In Union Bank of Australia v Puddy [1949] VLR 242 , Fullagar J said (at 246) that where fraud is alleged: it may often be wrong to suggest that a party should submit himself to cross-examination before it is seen that there is really some evidence against him. See also Protean at 215 per Young CJ; at 236 per Fullagar J; [Compaq Computer] at 7. The present case is not one in which fraud has been alleged, but in my opinion it is analogous to a fraud case by reason of the very serious allegations that have been made against each of the respondents: see [Trade Practices Commission v George Weston Foods Ltd (1980) 43 FLR 55] at 61; Trade Practices Commission v Nicholas Enterprises Pty Ltd [1978] ATPR 40-097 (Fisher J), at 17,958. The analogy is in my view strengthened by the fact that the definition of 'exclusionary provision' in s 4D of the TP Act incorporates the concept of 'purpose' in a subjective sense: ASX Operations Pty Ltd v Pont Data Australia Pty (No 1) (1990) 27 FCR 460 at 474-7 ... The respondents in this case relied on these passages. 26 In the second part of the respondents' no-case submissions, the respondents have argued that, the evidence adduced by the applicant taken at its highest from the applicant's point of view, does not make out certain of the contraventions alleged against them. This part of their no-case submission therefore falls within the third category mentioned by Perry J in Residues Treatment at 68. Generally speaking (and allowing that the court retains a discretion in the matter) there must be some unusual circumstance to justify the respondents making a no-case submission without being required to elect to call no evidence. As already noted, the respondents rely on the fact that the applicant alleged contraventions of the BCII Act , which, if established, would expose the CFMEU to pecuniary penalties of up to $110,000 and Mr Mates to pecuniary penalties of up to $22,000. I accept that this factor militates against adherence to the general rule; and that, in considering the applicant's evidence, I should take account of the gravity of the matters alleged against the respondents: see Evidence Act 1995 (Cth), s 140 and Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361-2. I also accept that, ordinarily, it is not in the interests of justice for a party against whom civil penalties are sought for statutory breaches of this kind to be subject to cross-examination where there is no evidence to support the case against him or her. 28 Secondly, the respondents' no-case submission is a limited one. They advanced this submission only in respect of the events of 21 and 22 February 2006 and following (which are said to give rise to the breaches of ss 38 and 43 of the BCII Act referred to above). Whatever the outcome of this submission, the events of 15 and 17 February 2006 (which are said to give rise to breaches of s 43) would go forward to the end of the trial and the evidence as to them would fall for consideration. It must be borne in mind that Mr Mates is as much a central actor in the events of 15 and 17 February as 21 February and, on the applicant's case, 22 February 2006 and following. Furthermore, the applicant's case against the respondents does not readily permit the dissection the respondents seek. The applicant's case depends, at least in part, upon a consideration of the whole factual matrix, commencing with the alleged conversations on 15 February and, subsequently, 17 February 2006 and culminating with the picket on 22 February 2006 and following. On the applicant's case, Mr Mates' stopping of the crane on 21 February 2006 (which the respondents concede) was within the relevant time-frame. On the applicant's case, this event on 21 February 2006 not only amounts to breach of ss 38 and 43 , but also formed part of the factual matrix upon which other parts of his case against the respondents must be assessed. The temporal link is, on the applicant's case, "extremely important". The applicant's counsel submitted that, whether or not the respondents were put to their election, the evidence regarding the picket and stopping of the crane would remain relevant to the case against the respondents on the other alleged contraventions that were not covered by the no-case submission. Hence, even if the no-case submission were successful, the Court would be obliged to reconsider the evidence that it had already considered as part of the no-case submission, although from another perspective. The applicant also foreshadowed that there might be related difficulties for the conduct of the trial, especially if the Court were to accept part (e.g., regarding the picket), but not all (e.g, regarding the crane stoppage) of the respondents' no-case submission. I agree that there is a risk of embarrassment arising from dealing now with part only of the applicant's case against the respondents, especially having regard to the way the applicant would put its case: compare Residues Treatment at 71-3, Popovic v Tanasijevic (No 4) [1999] SASC 351 (" Popovic ") at [124] per Olsson J and Leahy at 210-12. Of course, in the absence of an election, if the no-case submission were to fail, then the Court would be required to reconsider the evidence considered on the no-case submission in any event. As Sackville J noted in Amcor at 357, this problem may be particularly acute if a no-case submission requires some evaluation of the credit of witnesses. Whilst I accept that, strictly speaking, the respondents' no-case submission may not involve an evaluation of credit, their submission at this point calls for assessments of evidentiary reliability that in some instances give rise to similar concerns: compare Residues Treatment at 69 and George Weston at 58-9. 30 As regards the second part of the respondents' no-case submission, I am not persuaded that justice and convenience justify departure from the general rule. Accordingly, I would not rule on this part of the respondents' no-case submission unless the respondents elect to call no further evidence. The respondents are put to their election, and in respect of all causes of action. This is notwithstanding that their no-case to answer submission did not relate to all that the applicant pleaded against them. Any other approach would undermine the basis upon which I have ruled that they should be put to their election: compare Residues Treatment at 74, Popovic at [124] per Olsson J and Prentice v Cummins (No 4) [2002] FCA 1215 at [25] per Sackville J. As already noted, the applicant's case is that the events on 15, 17, 21 and 22 February 2006 and following are related to one another and not susceptible to the dissection the respondents would make.


case_outcome: cited

case_text: The remainder of the respondents' no-case submission attracts different considerations as to the application of the general rule: compare Residues Treatment at 68-9; William H Muller & Co's Algemeene etc v EBBW Vale Steel, Iron & Coal Co Ltd [1936] 2 All ER 1363 at 1365-6 per Branson J; and Tru Floor at 538-9 (and the cases there cited).


case_outcome: referred to

case_text: In the second part of the respondents' no-case submissions, the respondents have argued that, the evidence adduced by the applicant taken at its highest from the applicant's point of view, does not make out certain of the contraventions alleged against them. This part of their no-case submission therefore falls within the third category mentioned by Perry J in Residues Treatment at 68. Generally speaking (and allowing that the court retains a discretion in the matter) there must be some unusual circumstance to justify the respondents making a no-case submission without being required to elect to call no evidence. As already noted, the respondents rely on the fact that the applicant alleged contraventions of the BCII Act , which, if established, would expose the CFMEU to pecuniary penalties of up to $110,000 and Mr Mates to pecuniary penalties of up to $22,000. I accept that this factor militates against adherence to the general rule; and that, in considering the applicant's evidence, I should take account of the gravity of the matters alleged against the respondents: see Evidence Act 1995 (Cth), s 140 and Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361-2. I also accept that, ordinarily, it is not in the interests of justice for a party against whom civil penalties are sought for statutory breaches of this kind to be subject to cross-examination where there is no evidence to support the case against him or her.


case_text: In Amcor , the applicant alleged that the respondents had contravened s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth), a provision which attracted substantial penalties. The applicant's evidence in chief concluded on the first day of the trial, when counsel for the respondents submitted that they should be permitted to make a no-case submission without being put to their election. Sackville J held that the circumstances justified a departure from the general rule that a decision will not be given on a no-case submission unless the submitting party elects to call no evidence. His Honour accepted that the case fell within the third category mentioned by Perry J in Residues Treatment at 68 (on consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff's point of view, the evidence could not support the cause of action pleaded) and that, in such a case, "there must be unusual circumstances to warrant the respondents being permitted to make their no case submission without being required not to adduce any evidence": see Amcor at 358. Sackville J held, however, that the circumstances were sufficiently unusual and that it was in the interests of justice for the respondents to be permitted to make their no-case submission without making an election. His Honour said (at 358): First and most important, I took the view that this is a case in which serious allegations of contraventions of the TP Act had been made against each of the respondents. If the allegations were to be established, the corporate respondents would be exposed to pecuniary penalties of up to $10,000,000 and the individual respondents to pecuniary penalties of up to $500,000. Adverse findings might well have serious consequences in terms of loss of business reputation. The authorities recognise that a departure from the general rule is often justified where fraud is alleged against the moving party. In Union Bank of Australia v Puddy [1949] VLR 242 , Fullagar J said (at 246) that where fraud is alleged: it may often be wrong to suggest that a party should submit himself to cross-examination before it is seen that there is really some evidence against him. See also Protean at 215 per Young CJ; at 236 per Fullagar J; [Compaq Computer] at 7. The present case is not one in which fraud has been alleged, but in my opinion it is analogous to a fraud case by reason of the very serious allegations that have been made against each of the respondents: see [Trade Practices Commission v George Weston Foods Ltd (1980) 43 FLR 55] at 61; Trade Practices Commission v Nicholas Enterprises Pty Ltd [1978] ATPR 40-097 (Fisher J), at 17,958. The analogy is in my view strengthened by the fact that the definition of 'exclusionary provision' in s 4D of the TP Act incorporates the concept of 'purpose' in a subjective sense: ASX Operations Pty Ltd v Pont Data Australia Pty (No 1) (1990) 27 FCR 460 at 474-7 ... The respondents in this case relied on these passages. 27 I doubt, however, that these considerations provide an answer in this case. First, whilst I appreciate the force of the respondents' no-case submission, I doubt that the respondents' no-case submission in this case is as strong as that considered by Sundberg J in Tru Floor or Sackville J in Amcor . To my mind, the position now reached in this case is more akin to that described by Davies J in Trade Practices Commission v George Weston Foods Ltd (No 2) (1980) 43 FLR 55 (" George Weston ") at 60-2. 28 Secondly, the respondents' no-case submission is a limited one. They advanced this submission only in respect of the events of 21 and 22 February 2006 and following (which are said to give rise to the breaches of ss 38 and 43 of the BCII Act referred to above). Whatever the outcome of this submission, the events of 15 and 17 February 2006 (which are said to give rise to breaches of s 43) would go forward to the end of the trial and the evidence as to them would fall for consideration. It must be borne in mind that Mr Mates is as much a central actor in the events of 15 and 17 February as 21 February and, on the applicant's case, 22 February 2006 and following. Furthermore, the applicant's case against the respondents does not readily permit the dissection the respondents seek. The applicant's case depends, at least in part, upon a consideration of the whole factual matrix, commencing with the alleged conversations on 15 February and, subsequently, 17 February 2006 and culminating with the picket on 22 February 2006 and following. On the applicant's case, Mr Mates' stopping of the crane on 21 February 2006 (which the respondents concede) was within the relevant time-frame. On the applicant's case, this event on 21 February 2006 not only amounts to breach of ss 38 and 43 , but also formed part of the factual matrix upon which other parts of his case against the respondents must be assessed. The temporal link is, on the applicant's case, "extremely important". The applicant's counsel submitted that, whether or not the respondents were put to their election, the evidence regarding the picket and stopping of the crane would remain relevant to the case against the respondents on the other alleged contraventions that were not covered by the no-case submission. Hence, even if the no-case submission were successful, the Court would be obliged to reconsider the evidence that it had already considered as part of the no-case submission, although from another perspective. The applicant also foreshadowed that there might be related difficulties for the conduct of the trial, especially if the Court were to accept part (e.g., regarding the picket), but not all (e.g, regarding the crane stoppage) of the respondents' no-case submission. I agree that there is a risk of embarrassment arising from dealing now with part only of the applicant's case against the respondents, especially having regard to the way the applicant would put its case: compare Residues Treatment at 71-3, Popovic v Tanasijevic (No 4) [1999] SASC 351 (" Popovic ") at [124] per Olsson J and Leahy at 210-12. Of course, in the absence of an election, if the no-case submission were to fail, then the Court would be required to reconsider the evidence considered on the no-case submission in any event. As Sackville J noted in Amcor at 357, this problem may be particularly acute if a no-case submission requires some evaluation of the credit of witnesses. Whilst I accept that, strictly speaking, the respondents' no-case submission may not involve an evaluation of credit, their submission at this point calls for assessments of evidentiary reliability that in some instances give rise to similar concerns: compare Residues Treatment at 69 and George Weston at 58-9.


case_text: Secondly, the respondents' no-case submission is a limited one. They advanced this submission only in respect of the events of 21 and 22 February 2006 and following (which are said to give rise to the breaches of ss 38 and 43 of the BCII Act referred to above). Whatever the outcome of this submission, the events of 15 and 17 February 2006 (which are said to give rise to breaches of s 43) would go forward to the end of the trial and the evidence as to them would fall for consideration. It must be borne in mind that Mr Mates is as much a central actor in the events of 15 and 17 February as 21 February and, on the applicant's case, 22 February 2006 and following. Furthermore, the applicant's case against the respondents does not readily permit the dissection the respondents seek. The applicant's case depends, at least in part, upon a consideration of the whole factual matrix, commencing with the alleged conversations on 15 February and, subsequently, 17 February 2006 and culminating with the picket on 22 February 2006 and following. On the applicant's case, Mr Mates' stopping of the crane on 21 February 2006 (which the respondents concede) was within the relevant time-frame. On the applicant's case, this event on 21 February 2006 not only amounts to breach of ss 38 and 43 , but also formed part of the factual matrix upon which other parts of his case against the respondents must be assessed. The temporal link is, on the applicant's case, "extremely important". The applicant's counsel submitted that, whether or not the respondents were put to their election, the evidence regarding the picket and stopping of the crane would remain relevant to the case against the respondents on the other alleged contraventions that were not covered by the no-case submission. Hence, even if the no-case submission were successful, the Court would be obliged to reconsider the evidence that it had already considered as part of the no-case submission, although from another perspective. The applicant also foreshadowed that there might be related difficulties for the conduct of the trial, especially if the Court were to accept part (e.g., regarding the picket), but not all (e.g, regarding the crane stoppage) of the respondents' no-case submission. I agree that there is a risk of embarrassment arising from dealing now with part only of the applicant's case against the respondents, especially having regard to the way the applicant would put its case: compare Residues Treatment at 71-3, Popovic v Tanasijevic (No 4) [1999] SASC 351 (" Popovic ") at [124] per Olsson J and Leahy at 210-12. Of course, in the absence of an election, if the no-case submission were to fail, then the Court would be required to reconsider the evidence considered on the no-case submission in any event. As Sackville J noted in Amcor at 357, this problem may be particularly acute if a no-case submission requires some evaluation of the credit of witnesses. Whilst I accept that, strictly speaking, the respondents' no-case submission may not involve an evaluation of credit, their submission at this point calls for assessments of evidentiary reliability that in some instances give rise to similar concerns: compare Residues Treatment at 69 and George Weston at 58-9. 30 As regards the second part of the respondents' no-case submission, I am not persuaded that justice and convenience justify departure from the general rule. Accordingly, I would not rule on this part of the respondents' no-case submission unless the respondents elect to call no further evidence. The respondents are put to their election, and in respect of all causes of action. This is notwithstanding that their no-case to answer submission did not relate to all that the applicant pleaded against them. Any other approach would undermine the basis upon which I have ruled that they should be put to their election: compare Residues Treatment at 74, Popovic at [124] per Olsson J and Prentice v Cummins (No 4) [2002] FCA 1215 at [25] per Sackville J. As already noted, the applicant's case is that the events on 15, 17, 21 and 22 February 2006 and following are related to one another and not susceptible to the dissection the respondents would make.


case_text: As regards the second part of the respondents' no-case submission, I am not persuaded that justice and convenience justify departure from the general rule. Accordingly, I would not rule on this part of the respondents' no-case submission unless the respondents elect to call no further evidence. The respondents are put to their election, and in respect of all causes of action. This is notwithstanding that their no-case to answer submission did not relate to all that the applicant pleaded against them. Any other approach would undermine the basis upon which I have ruled that they should be put to their election: compare Residues Treatment at 74, Popovic at [124] per Olsson J and Prentice v Cummins (No 4) [2002] FCA 1215 at [25] per Sackville J. As already noted, the applicant's case is that the events on 15, 17, 21 and 22 February 2006 and following are related to one another and not susceptible to the dissection the respondents would make.


case_outcome: discussed

case_text: It is clear that an important consideration in Davids was the relationship between s 127 of the WR Act , as it then was, and the definition of "industrial action". This was because, by virtue of s 127 , the Commission had no power to deal with picketing if it was not "industrial action". As their Honours noted, French J had previously discussed this relationship in Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Laing (1998) 159 ALR 73 (" Laing "), where his Honour had relied on Lockhart and Gummow JJ's discussion of picketing in Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd [1993] FCA 266 ; (1993) 114 ALR 551 (" J-Corp ") at 555-7. At 569-70, Wilcox and Cooper JJ said: One question [in Laing] was whether the picketing activity at Muja was 'industrial action', as defined in s 4 of the Act. At 88 French J noted that the Muja picket line did not prevent entry and exit of staff of the power station who wanted to cross it, but 'fuel supplies to the power station were disrupted because fuel tankers did not want to cross the picket line'. He went on: The general concept of picketing was discussed by Lockhart and Gummow JJ in Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd [1993] FCA 266 ; (1993) 114 ALR 551 at 555-7. It is apparent that it is a wider class of conduct than industrial action under s 127. At common law it is not necessarily unlawful but may become so if it involves obstruction and 'besetting': Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767 (Mason JA). To constitute 'industrial action' under s 127 picketing must fall within the statutory definition of that term. It is not the performance of work. It can only qualify as industrial action if it amounts to a 'ban, limitation or restriction on the performance of work'. So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer's premises and from carrying out their work could constitute a ban for the purpose of s 127. There are therefore circumstances in which picketing may be the subject of an order as industrial action under s 127. In this case the Commission's order literally applied only to such participation in picket lines as was industrial action. The term 'industrial action' provided the umbrella class within which all classes of conduct specifically proscribed by the order had to fall. This was reinforced by the reference in para (4) of the order to the application of the statutory definition of industrial action 'for the purposes of this order'. The particular picket line did not prevent entry to the power station premises nor was there evidence to suggest that it deterred or discouraged entry. Fuel truck drivers, however, did not want to cross it. It is arguable that the order did not apply to such picketing activity as had been undertaken. Whether it did or not would no doubt require a close investigation of the facts concerning the establishment and conduct of the picket. Australian Builders' Labourers' v J-Corp, referred to by French J, was a case under s 45D of the Trade Practices Act 1974 (Cth). That section did not use the words 'picket' or 'picketing'. The value of the passage cited by French J is that it demonstrates that activities falling within the general description of 'picketing' may range from a protest in which the picketers do no more than communicate their views to persons entering or leaving particular premises, through various degrees of hindrance to total prevention of ingress and/or egress. Activity that merely involves communication of information to persons entering or leaving a site is not 'industrial action', within the meaning of the definition in the Workplace Relations Act . Such activity clearly cannot constitute a 'ban, limitation or restriction on the performance of work' by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within para (c) of the definition of 'industrial action'. However, consistently with the tentative view of the Full Court in [Giudice], we think the paragraph ought to be read as applying only to limitations on the work of those imposing ban. The history of the legislation and policy considerations persuade us it is likely parliament intended to confine the paragraph in this way. (Emphasis added.) 44 The discussion of French J in Laing cannot support the contrary conclusion, since it was not specifically concerned with the question whether para (c) of the definition of "industrial action" referred to bans, limitations or restrictions imposed by those performing the work. Rather, it was concerned with the nature of picketing as industrial action. In any event, Laing was the subject of the Full Court's consideration in Davids. 45 I accept that, in relying on Laing , Dowsett J in Temple v Powell [2008] FCA 714 at [50] - [52] apparently adopted a broad view of the scope of paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act , which would extend the paragraph to unions. This case, however, proceeded by way of an agreed statement of facts, the parties agreeing that the union had contravened s 38 of the BCII Act , and his Honour's attention was not drawn to the relevant passages in Davids or Giudice . The same may be said of the earlier judgment of Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317 (" Leighton "), at [28]-[31] where once again reliance was placed on Laing without reference to Davids or Giudice .


case_text: It is clear that an important consideration in Davids was the relationship between s 127 of the WR Act , as it then was, and the definition of "industrial action". This was because, by virtue of s 127 , the Commission had no power to deal with picketing if it was not "industrial action". As their Honours noted, French J had previously discussed this relationship in Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Laing (1998) 159 ALR 73 (" Laing "), where his Honour had relied on Lockhart and Gummow JJ's discussion of picketing in Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd [1993] FCA 266 ; (1993) 114 ALR 551 (" J-Corp ") at 555-7. At 569-70, Wilcox and Cooper JJ said: One question [in Laing] was whether the picketing activity at Muja was 'industrial action', as defined in s 4 of the Act. At 88 French J noted that the Muja picket line did not prevent entry and exit of staff of the power station who wanted to cross it, but 'fuel supplies to the power station were disrupted because fuel tankers did not want to cross the picket line'. He went on: The general concept of picketing was discussed by Lockhart and Gummow JJ in Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd [1993] FCA 266 ; (1993) 114 ALR 551 at 555-7. It is apparent that it is a wider class of conduct than industrial action under s 127. At common law it is not necessarily unlawful but may become so if it involves obstruction and 'besetting': Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767 (Mason JA). To constitute 'industrial action' under s 127 picketing must fall within the statutory definition of that term. It is not the performance of work. It can only qualify as industrial action if it amounts to a 'ban, limitation or restriction on the performance of work'. So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer's premises and from carrying out their work could constitute a ban for the purpose of s 127. There are therefore circumstances in which picketing may be the subject of an order as industrial action under s 127. In this case the Commission's order literally applied only to such participation in picket lines as was industrial action. The term 'industrial action' provided the umbrella class within which all classes of conduct specifically proscribed by the order had to fall. This was reinforced by the reference in para (4) of the order to the application of the statutory definition of industrial action 'for the purposes of this order'. The particular picket line did not prevent entry to the power station premises nor was there evidence to suggest that it deterred or discouraged entry. Fuel truck drivers, however, did not want to cross it. It is arguable that the order did not apply to such picketing activity as had been undertaken. Whether it did or not would no doubt require a close investigation of the facts concerning the establishment and conduct of the picket. Australian Builders' Labourers' v J-Corp, referred to by French J, was a case under s 45D of the Trade Practices Act 1974 (Cth). That section did not use the words 'picket' or 'picketing'. The value of the passage cited by French J is that it demonstrates that activities falling within the general description of 'picketing' may range from a protest in which the picketers do no more than communicate their views to persons entering or leaving particular premises, through various degrees of hindrance to total prevention of ingress and/or egress. Activity that merely involves communication of information to persons entering or leaving a site is not 'industrial action', within the meaning of the definition in the Workplace Relations Act . Such activity clearly cannot constitute a 'ban, limitation or restriction on the performance of work' by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within para (c) of the definition of 'industrial action'. However, consistently with the tentative view of the Full Court in [Giudice], we think the paragraph ought to be read as applying only to limitations on the work of those imposing ban. The history of the legislation and policy considerations persuade us it is likely parliament intended to confine the paragraph in this way. (Emphasis added.)


case_title: Temple v Powell [2008] FCA 714

case_text: I accept that, in relying on Laing , Dowsett J in Temple v Powell [2008] FCA 714 at [50] - [52] apparently adopted a broad view of the scope of paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act , which would extend the paragraph to unions. This case, however, proceeded by way of an agreed statement of facts, the parties agreeing that the union had contravened s 38 of the BCII Act , and his Honour's attention was not drawn to the relevant passages in Davids or Giudice . The same may be said of the earlier judgment of Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317 (" Leighton "), at [28]-[31] where once again reliance was placed on Laing without reference to Davids or Giudice .


case_title: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317


case_text: Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 (" Transfield ") cannot be explained in the same way. In this case, Merkel J referred to Davids and said (at [46]): In my view nothing said by Wilcox and Cooper JJ in [Davids] detracts from the observations of French J in Laing to the effect that a picket line, established by unions or their organisers for the purpose of preventing or deterring or discouraging employees from attending at their employer's premises and from carrying out their work, could constitute industrial action for the purpose of s 127. At first blush, his Honour's analysis is apparently inconsistent with the view expressed in Davids that para (c) of the definition of "industrial action" in s 4(1) of the WR Act referred to bans, limitations or restrictions imposed by those performing the work. It is to be borne in mind, however, that the picket line in Transfield was made up of the applicant's and its subcontractors' employees. This fact may serve to avoid the apparent inconsistency.


case_text: In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Langley (unreported, 26 February 2004, Federal Court of Australia, BC200404666), where Finkelstein J was concerned with an application for an interlocutory injunction, it was sufficient for his Honour to note that whether or not picketing can be "industrial action", for the purposes of para (c) of the definition in s 4(1) of the WR Act was far from clear. As his Honour said (at [12]), a possible interpretation of the cases is that "picketers only engage in industrial action when they are limiting or restricting the performance of their own work". His Honour added: This is a reasonable approach which requires picketers to be manning the picket lines on a work day. It also seems to be the view of Goldberg J in Original Juice Co Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 675 [at para 32]. Whilst this approach was broadly supportive of the respondents' position, it also emphasised that the effect of Davids and Giudice was far from clear, a proposition reinforced by the intervening decisions referred to by Finkelstein J and in paragraphs [45] and [46] above.


case_text: After argument, the applicant referred the Court, with leave, to the Commission's decision in NMHG Distribution Pty Ltd t/as Yale Asia Pacific v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158 (" NMHG "). This was an appeal to the Full Bench of the Commission, which raised the question "whether a ban imposed by the AMWU through its delegates employed by CUB at the Abbotsford plant on the performance of work by Yale employees at that plant [was] capable of coming within the meaning of the definition of industrial action in s 4(1) of the WR Act ". As to this the Commission said (at 160): [I]t is necessary to examine whether the ban is capable of constituting 'a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work' within the meaning of those words in pars (b) and (c) of the definition ... [I]n the Commissioner's view the action alleged could not constitute industrial action because it did not relate to the work of the delegates themselves, but to the work of the Yale employees. After referring to Davids and Giudice , the Commission said (at 161-2): Whilst these decisions provide some support for the construction of the definition advanced by the AMWU, in each of the cases referred to the Court was considering whether picketing was industrial action for the purposes of the definition. It follows that neither case constitutes binding authority on the question which arises in this case. Furthermore in [Giudice] the relevant passage was clearly not an integral part of the court's reasons for its decision, while in Davids the court based its decision for the most part on indications to be found in various sections of the Act that the legislature did not intend to include picketing in the statutory concept of industrial action ... This case is not concerned with picketing. In this case employees of one employer and their union ... placed bans on the performance of work by employees of another employer at the first employer's premises in circumstances where the employees of the second employer normally perform such work at those premises. ... As a matter of ordinary language, a prohibition by employees of CUB (and their union) on Yale employees carrying out work on the CUB premises when the Yale employees normally perform work on those premises can be described as a 'ban ... on the performance of work, or on acceptance for or offering for work' within the terms of pars (b) and (c) of the definition. There is no indication in the objects of the Act, in the objects of Pt VI or anywhere else in the Act that the legislature intended to exclude such conduct from the definition. We can see no basis for limiting the ordinary meaning of 'ban' where it appears in pars (b) and (c) of the definition to a ban imposed by employees in relation to their own work. 49 Of course, as the respondents noted, NMHG is not binding on this Court. It seems probable, however, that neither in Davids nor in Giudice was the Full Court considering the kind of situation that arose in NMHG . This supports the proposition for which the applicants contend that the effect of these two decisions must be assessed having regard to the context with which each was concerned. Further, it is plainly correct to say, as NMHG does, that the observation of the Full Court in Giudice was obiter dictum. The status of the observations in Davids is less clear, but, plainly enough, as already noted, the focus of Davids was on picketing. Accordingly, the observations in Davids on the scope of the definition of "industrial action" in s 4(1) of the WR Act are to be considered in this light. Furthermore, it is to be borne in mind that the Full Court in each case was not concerned with the BCII Act but with the WR Act , being different though related legislation. Whilst I must take such guidance from Davids and Giudice as I can, they provide no clear and definitive answer to the question whether or not the words "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act refer to a ban, limitation, or restriction imposed only by employees, or can extend to union action. 51 Reference to s 3(1) of the BCII Act discloses that its main object is "to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants". The BCII Act provides, in s 3(2) , that this object is to be achieved in numerous ways, including by "ensuring that building industry participants are accountable for their unlawful conduct". In the context of this Act, the CFMEU is undoubtedly a building industry participant. Further, s 38 of the BCII Act is, plainly enough, concerned with preventing unlawful industrial action. Paragraphs (b) and (c) of the definition of "building industrial action" in terms contain no limitation of the kind for which the respondents contend. The expression "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) may as naturally comprehend that which is imposed by a union as by employees. On its face, the expression is apt to cover the imposition of bans, limitations or restrictions by unions, employees to whose work the prohibitions and restrictions relate and, depending on the particular circumstances, to other persons (see, e.g., NMHG ). There is little, if anything, in para (b) or (c) of the definition to indicate that the Parliament intended that the expression should apply only to employees in respect of their work and not extend to other building industry participants, such as unions. Moreover, the main object of the BCII Act is apparently better promoted by a wide interpretation as opposed to the narrower one for which the respondents contend. Absent any countervailing consideration, I would therefore adopt it: see Acts Interpretation Act 1901 (Cth), s 15AA. 52 There is nothing else in the BCII Act that would indicate that these paragraphs were intended to be limited in the way the respondents contend. Indeed, other provisions in the BCII Act support the more natural construction for which the applicant contends. The definition of "constitutionally-connected action" in s 36(1) of the BCII Act (set out in [9] above) contemplates that unions (being "organisations" within the meaning of para (a) of the definition of "constitutionally-connected action") may take "building industrial action". If the expression "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) of the definition of "building industrial action" refer only to that which is imposed by employees in respect of their work, and cannot refer to a prohibition or restriction on the performance of work imposed by a union, then it is unlikely that union action could ever amount to "building industrial action" (for which the union could be held responsible under s 38). This would be the case notwithstanding that the action was "constitutionally-connected action", being "action taken by an organisation", and otherwise satisfied s 37 of the BCII Act . This is because paras (a) and (d), being the other paragraphs of the definition of "building industrial action" in s 36(1) , in terms most naturally apply to action by employees, rather than other persons or entities. As noted previously, such a construction would not apparently best promote the main object of the BCII Act . 53 The respondents sought to answer this by reference to s 48(2) of the BCII Act , which provides that a person who is involved in a contravention of a civil penalty provision such as s 38 is to be treated as having contravened the provision. The applicant submitted, however, that the drafting of ss 36 to 38 "contemplate[d] that a trade union may contravene s 38 of the BCII Act without the need to call in aid" s 48. The effect of s 48(2) is that, once a person has contravened s 38 , another person, "who is involved in [the] contravention" (within s 48(2)) is treated as having also contravened s 38 , without there being a need to satisfy the requirements of s 37 of the BCII Act . Before this liability can arise, however, there must be a principal contravention of s 38 , which satisfies the requirements of s 37 (including the existence of "constitutionally-connected action"). I accept the applicant's submission that the legislative drafting of ss 37 and 38 , as amplified by the definitions in s 36 , show that the Parliament contemplated that a trade union might contravene s 38 of the BCII Act , independently of s 48(2) of the BCII Act .


case_outcome: applied

case_text: unparticularised bias claim was not put to the Magistrate. There is no substance in the complaint. There is nothing external to the Tribunal's reasons bearing on the claim. There is nothing in the reasons suggestive of bias. The Tribunal accepted parts of the applicant's claims, but rejected others, and gave its reasons for so doing. A bias case is not made out because parts of an applicant's claims are not accepted or are disbelieved. That does not show prejudgment or a closed mind. See SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [38] and Sun v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 ; (2002) 194 ALR 749 at [43] - [48] .


case_title: Sun v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 ; (2002) 194 ALR 749


case_text: The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '... the entire document of which it is a part or to other documents with which there is an association'. It may also include '... ideas that gave rise to an expression in a document from which it has been taken' Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).


case_title: Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345


case_text: As Lindgren J observed in NAQF v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456, s 15AB assumes that the ordinary meaning of a provision '"taking into account its context in the Act and the purpose or object underlying the Act" has been identified before any occasion arises for the consideration of extrinsic materials' [70]. Ambiguity or obscurity is not necessary to the application of s 15AB as extrinsic materials may be relied upon to 'confirm' that the ordinary meaning conveyed by the text is the true meaning of the provision [69].


case_text: The attribution of purpose by reference to context in the wide sense does not await the discovery of an ambiguity in the text. The purpose or object underlying an Act is often determined by consideration of the statutory context CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). Nor does discovery of an ambiguity precede resort to extrinsic material under s 15AB. For as Dawson J said in Mills v Meeking [1990] HCA 6 ; (1990) 169 CLR 214 at 235 (speaking of s 35 of the Interpretation of Legislation Act 1984 (Vic) in almost identical terms to s 15AA): 'The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done.'


case_text: It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): 'Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.' 58 The award definition of Community Services Officer (Welfare and ancillary services) makes reference to the 'role', 'aim' and 'concerns' of such Officers. Their role involves the following elements, ie: '(i) encourage, promote or conduct community pursuits.' Their aim is: '(ii) maintenance or improvement of general social and living standards with regard to family support services, income, welfare, employment, education, health, housing, children's, youth, aged and domiciliary services.' Their 'primary concern' is expressed in the alternative to the 'aim' and is said to be: (iii) the social and living standards in the community.' The definition of Community Services Officer, examined by reference to its language alone, is a kind of verbal Rorschach blot into which almost anything can be read. The first two limbs bring together a role and a stated aim that seem mutually inapposite. The ordinary meaning of the word 'pursuit' in the context in which it appears in the Award is 'the action of following or engaging in something, as a profession, business or recreation' Shorter Oxford English Dictionary. By reference to the words ' community pursuits', a Community Services Officer's role is one which encourages, promotes or conducts business, professional and recreational activities. The word 'community' suggests a limitation by reference to the community served by the local authority which employs the officer. Community pursuits are those which are carried on within the particular community of the municipality. They may encompass activities engaged in by groups and perhaps even individuals within that community. The range of activities covered by the definition is limited in part by the definitions of Community Services Officer (recreation) and Community Services Officer (Arts, Theatre and Museum). They evidence an intention in the Award to carve out of the generality of the term Community Services Officer (Welfare and ancillary services) officers concerned with the encouragement, promotion and conduct of recreational activities and the promotion of artistic, theatrical and museum related activities. 59 The definition of the Community Services Officer's 'aim' begins with words of immense generality which could extend to all levels of government. That is the maintenance or improvement of general social and living standards. The limitation on its generality is itself broadly expressed but again is no doubt to be read within the framework of services provided or supported by the municipality.


case_text: The class of local authority employees known as 'Community Services Officers' has existed for over 25 years in various contexts. Deputy President Isaac of the Australian Conciliation and Arbitration Commission said, in 1981: 'Community service officers are employed by many local councils in a variety of functions and under a variety of titles. The functions embrace recreation, sports and arts activities, care of the aged, child care, youth work, general welfare work and other such activities. Various titles are used in respect of community service officers involved in these activities Community Art Officer, Recreation Officer, Youth Officer, Project Officer, Community Aged Care Officer, Community Development Officer and so on.' - In the matter of applications to vary the Municipal Officers' (South Australia) Award 1973 (1981) 253 CAR 3.


case_text: In another decision in the same matter relating to hours of duty and definition, Isaac DP was concerned with a proposal to include in the Municipal Officers' (South Australia) Award 1973 a flexible statement of the hours of duty of community service officers. The Local Government Association in that case proposed that, in the area of community service, the ordinary hours of duty would not exceed 38 hours per week to be worked as required by the employing authority except that by mutual agreement such ordinary hours could be worked at any time on any day to a maximum of 76 hours in any two week period or 152 hours in any four week period. Isaac DP observed that the proposal was new and designed to cover community service officers. The submissions put by the Local Government Association, were to the effect that flexibility of hours is a necessary feature of community service work: 'Rigid application of the standard spread of hours would restrict the provision of community service while the imposition of penalty rates for work outside such hours would place a financial burden on councils, result in a reduction of such service and possible retrenchment of community service officers. There should be a provision under the award, it was submitted, for a council to come to an agreement with the individual employee for the standard 38 hours per week, or some multiple of it for longer periods, to be worked outside the spread of hours on any day of the week without incurring penalty rates.' Isaac DP did not include the provision proposed by the Local Government Association but observed that the requirement of flexibility and hours of work had been well established by the evidence and he would expect the Municipal Officers Association to allow such flexibility to operate within reasonable bounds to meet the needs of the community In the matter of an application to vary the Municipal Officers' (South Australia) Award 1973 (1981) 255 CAR 431 at 439 and 440. This history supports the welfare centred reading of the term which was adopted by the learned Industrial Magistrate. 63 The City submitted that the purpose of having a separate classification for Community Services Officers was to enable councils to employ them in positions which required working outside normal business hours without the application of penalty provisions such as overtime. The wish to achieve that degree of flexibility could apply to a number of positions other than Community Services Officers. To attach such flexible hours of work provisions to the position of Community Services Officer does not mean that flexible hours of work attaching to a position supports its characterisation as that of Community Services Officer. The question whether an employee is a Community Services Officer depends upon the duties contained in that person's contract of employment and not upon his or her hours of work. 64 It may be accepted that even allowing for the limitations already canvassed the definition of 'Community Services Officer (Welfare and ancillary services)' is of considerable width. For present purposes it is unnecessary to exhaustively define its limits. It is sufficient to determine whether the position of Patrol Officer as described in Mr Van Der Waarden's Contract falls within it.


case_outcome: followed

case_text: I accept the first respondent's submissions. In S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 (" S58 ") a Full Court of this Court considered a similar claim. In S58 , as in the present case, the Tribunal had informed the visa applicant that it could not make a favourable decision solely on the basis of material then before it. The visa applicant's representative had then informed the Tribunal that the applicant would not appear at the hearing and the Tribunal should proceed "on the papers". The Tribunal proceeded with the hearing in the applicant's absence. In its reasons, the Tribunal had noted that, had the applicant appeared, it would have questioned him in some detail regarding certain documents and their contents. The applicant claimed that the Tribunal had breached procedural fairness by not informing him of its concerns about these documents. The Full Court, constituted by Ryan, Merkel and Conti JJ, held that there was no breach of procedural fairness. The Court said (at [25]): "In the present case, the appellant was fully aware that the success of his application depended on an affirmative finding that he had a well-founded fear of persecution for a Convention reason if he were returned to Bangladesh. He was given an invitation to attend a hearing before the Tribunal which, apparently on advice, he deliberately declined. Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them." The Court concluded (at [26]) that "the appellant was offered the opportunity to appear before the Tribunal and ... [h]e cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity".


case_text: Much the same principles apply in this case. Rather than request an adjournment, the appellant advised the Tribunal that he was not going to appear at the hearing. He cannot now complain that he was denied an opportunity to appear. The appellant says that he would have requested an adjournment if the Tribunal had informed him that it would have granted one. Nevertheless, the fact remains that the appellant did not request an adjournment. Moreover, the appellant implored the Tribunal to continue in his absence. There is no breach of procedural fairness in these circumstances: see further SZEYH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 93 per Jacobson J.


case_text: The first respondent submitted that there was no breach of s 426A or of natural justice. The first respondent noted that s 426A of the Migration Act 1958 (Cth) provides that, if the applicant is invited to appear before the Tribunal and does not appear, then the Tribunal "may make a decision without taking any further action to allow or enable the applicant to appear before it". The first respondent claimed that the Tribunal invited the appellant to appear before it and that the record showed that the appellant had received this invitation and was aware of the date of the hearing. Further, the appellant had informed the Tribunal that he would not appear and had "implored" the Tribunal to continue in his absence. The first respondent argued that there is no breach of natural justice where the Tribunal proceeds in such circumstances. The first respondent also referred to Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [66] and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7] - [8] .


case_title: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62


case_text: Further, I note that where the Tribunal decides to reschedule a contemplated hearing at the request of an applicant, s 425A does not apparently apply to the notice of the rescheduled hearing: see SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 and SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 494. 15 For these reasons, I would dismiss the appeal with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 28 June 2006 Counsel for the Applicant: No appearance by the Appellant Counsel for the Respondent: Mr R Knowles Solicitor for the Respondent: Clayton Utz Date of Hearing: 28 June 2006 Date of Judgment: 28 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/807.html


case_title: Van Der Velde v Ng [2009] FCA 529

case_text: the matter came before the Court on the last occasion on 15 April 2009 an order was made unopposed that the Further Amended Statement of Claim delivered at that point of the proceeding be struck out. The Court further ordered, unopposed, that the applicants file and serve any notice of motion for leave to re-plead the causes of action, by 11 May 2009. A number of orders were also made in relation to the disposition of costs arising out of various earlier notices of motion filed and agitated by particular parties. I will not repeat the content of those orders in these reasons. The orders are set out together with the reasons in support of those orders in Van Der Velde v Ng [2009] FCA 529. That judgment was delivered ex tempore on 15 April 2009. In the course of those reasons I made these observations: In relation to the first matter concerning the general conduct of the proceedings, there is an area for some, I have to say, considerable degree of criticism. Without going to the total detailed chronology of the matter, it is fair to say that Dowsett J some considerable time ago, expressed very clear concerns about the formulation of the statement of claim as originally filed, in the sense that it contained very many allegations of mixed questions of fact and law and the pleading failed to set out in a coherent and clear sequence the precise formulation of the facts relied upon by the applicants, leading to the relief that ought to be ordered by the court arising out of those facts. That is to say, the causes of action, both statutory and otherwise, were not plainly and clearly formulated. It is not uncommon, of course, in litigation for pleadings to be amended and the court recognises that as instructions are more clearly formulated and fresh matters arise it may be necessary to make amendments to a pleading. However, in this particular case the difficulty seems to me to be that there was no real focus on the imperative of reducing the statement of claim to a concise and plainly coherent document in the way Dowsett J had described. I should add that orders were made on 19 December 2008 and on 16 February 2009 in relation to this very question of the need to amend the statement of claim and, of course, those orders provide for a timeframe within which those amendments were to be made. Those orders were made with the support of the applicants. Unfortunately, those orders were not satisfied and a document was ultimately filed which was an amended statement of claim followed by a further amended statement of claim. On one of the occasions when the matter was before the court previously, I think on 16 February 2009, I made some observations in reasonably precise terms, I thought, that the statement of claim lacked the rigour and discipline and coherence that is required of a pleading according to the rules of this Court and I suggested to the applicants' advisers that it would be useful to formulate the pleading in a way which addressed the chronology of events dispersed throughout the existing amended pleading and reduced the material facts to the truly material facts properly particularised in a sequence which makes it plain that those facts, if proved, would give rise to the relief sought. Against the background of the history of the failure to formulate a coherent pleading, the Court made the orders striking out the Further Amended Statement of Claim and imposing a discipline upon the applicants' legal adviser to file any notice of motion for leave to re-plead by 11 May 2009. The notice of motion for leave to re-plead was filed on 11 May 2009 but not served on the parties to the proceeding until 20 May 2009. The application for leave is not supported by any affidavit from the solicitor for the applicants annexing a proposed further amended statement of claim. I will not describe each new proposed pleading by iterations of the word "further" in each case. On the hearing of the motion, the applicants were represented by Mr Whitten of counsel. Mr Whitten sought and obtained leave to read and file an affidavit from the solicitor for the applicants, Mr Peter Vincent Mills, sworn 20 May 2009. In that affidavit, Mr Mills explains that he is a partner in the firm representing the applicants. He says that the reasons for the failure by the applicants to file and serve a proper application supported by an affidavit exhibiting a proposed draft further amended statement of claim is the burden of his work obligations rather than any default on the part of the applicant parties to the proceeding. He says that due to those obligations, he has not been able to attend to prosecuting the proceeding since 15 April 2009. That circumstance also explains the late service of the Notice of Motion by which leave is sought. Mr Mills says by his affidavit that he provides an undertaking to the Court and the parties that the proceeding will be prosecuted "as far as it is within my power to do so, with due diligence". Mr Mills says that he has engaged Mr Whitten and has briefed counsel with certain material. Counsel has been requested to draw an amended, that is, a new statement of claim as a matter of urgency. Mr Whitten advises the Court that he was retained yesterday and having regard to his Court commitments it will not be possible for him to turn his mind, consider the issues and formulate a proposed amended statement of claim, immediately. Not unreasonably in that sense, Mr Whitten seeks a period until 22 June 2009 as a date by which these things might be done. In real effect, the proceeding will start again from 22 June 2009.


case_text: principles which govern the question of whether the Court ought to dismiss a proceeding under Order 35A, rule 3(1) are well understood ( Lenijamar Pty Ltd v AGC (Advances) Limited [1990] FCA 520 ; (1990) 27 FCR 388 at 394 to 397 per Wilcox and Gummow JJ, with Pincus J electing, in separate reasons at pp 402 and 403, to put the circumstances influencing the exercise of the discretion on a broader footing; Welsh v Digilin Pty Ltd (2008) FCAFC 149: (2008) 250 ALR 13 at [11] [14] per Tamberlin, Greenwood and Collier JJ). The history of non-compliance on the part of an applicant party in a way that indicates an inability or unwillingness to cooperate with the Court or discharge obligations to the Court, provides a basis for dismissing the proceeding.


case_title: Welsh v Digilin Pty Ltd (2008) FCAFC 149 ; (2008) 250 ALR 13


case_text: counsel for the third respondent, supported by the first respondent, accepts that he is not able to put a proposition to the Court that having regard to the versions of the statement of claim which he has seen, a reader is not able to discern within the matrix of fact and law assembled in the document, a real question to be tried. As to that consideration see Spotwire Pty Ltd v Visa International Service Association Inc. [2003] FCA 762 at [10] ; SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674 ; Douglas v Tickner (1994) 49 FCR 507 ; Orchard v Comrie (1998) 80 IR 76 and Global Brand Marketing Inc. v Cube Footwear Pty Ltd [2005] FCA 479).


case_title: SmithKline Beecham (Australia) Pty Ltd v Chipman [2002] FCA 674


case_title: Douglas v Tickner (1994) 49 FCR 507


case_title: Orchard v Comrie (1998) 80 IR 76


case_title: Global Brand Marketing Inc. v Cube Footwear Pty Ltd [2005] FCA 479)


case_text: Keddies characterises Mr Woodgate's contentions as to the costs agreement as a submission that a term should be implied into the costs agreement that the moneys would be refunded if the verdict were set aside on appeal. Mr Woodgate rejected the assertion that his case relies on any implied term and the Court did not have the benefit of substantive submissions on this point. While an implied term requiring moneys to be repaid if a verdict were set aside is capable of clear expression and would arguably be reasonable and equitable in circumstances where a verdict in the District Court might later be overturned, it has not been established by Mr Woodgate that the remaining criteria for an implied term are satisfied ( Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 at 347).


case_text: Reversal on appeal generally annuls a judgment ab initio . However, a person may act under the authority of a judgment until reversed and such action is not avoided or invalid or unlawful ( Antoniadis ; Commissioner for Railways (NSW) v Cavanough [1935] HCA 45 ; (1935) 53 CLR 220 at 227; Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590 at 603). Whether ' what has been done can be undone will depend upon the availability of appropriate remedies, to bring about the appropriate relief' ( Wilde at 603). A change of position, made in good faith, is available as a defence against a claim for restitution ( Lipkin Gorman v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548).


case_text: If, contrary to my findings above, it were to be concluded that there was ambiguity in the construction of the costs agreement, Keddies points to the subsequent conduct of the parties to resolve any such ambiguity. As a general rule, the subsequent conduct of parties to a contract is not relevant to the construction of its terms (Carter JW and Harland DJ, Contract Law in Australia (4 th ed, Butterworths, 2002) at [712]; Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103 at 114 116; Cox v Goldcrest Developments (NSW) Pty Ltd [2000] NSWSC 763 ; (2000) 50 NSWLR 76 at [12] ). Evidence of such conduct may, however, establish that the parties varied the terms of the contract by reaching further agreement ( Winstonu Pty Ltd v Pitson [2001] FCA 541 at [24] per Stone J, with whom Beaumont and Gyles JJ agreed). It may also assist in identifying the subject matter with which the contract deals ( Sportsvision at 114; Independent Timber Importers (Aust) Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd (2002) 12 ANZ Ins Cases 61-543 at [17]).


case_text: Even if there were a mistake, if Keddies had adversely changed their position in reliance on the payment and honestly believed that they were entitled to receive and retain the moneys, they submit they have a defence to the claim ( David Securities Pty Limited v Commonwealth Bank of Australia [1992] HCA 48 ; (1992) 175 CLR 353). In the present case, it is not suggested that Keddies had other than an honest belief in their entitlement to payment. Keddies submit that, following David Securities , restitution at the hands of Mrs McGuiness, or her trustee, is unavailable. 34 Keddies rely on the payment made pursuant to the authority as follows: (1) They have changed their position between the verdict in the District Court and the allowance of the appeal. (2) That change in position was in reliance on the authority. (3) They acted in reliance on the authority and acted to their detriment in satisfying third party expenses without a right of recovery. They also acted in reliance on the authority in disbursing their own profit costs. (4) It would be inequitable in all the circumstances to require restitution. Those circumstances include the absence of any demand or assertion of obligation to repay by Mrs McGuiness or the estate prior to the demand by the trustee and the absence of any allegation of want of good faith on the part of Keddies. 35 In David Securities the High Court said that the fact that a payment has been caused by a mistake is sufficient to give rise to a prima facie obligation on the part of the recipient to make restitution (at 379). The recipient has a defence if he or she can show that an order for restitution is unjust. One example is a change of position by acting to the recipient's detriment on the faith of the receipt of the moneys (at 385). 39 It is conceded that Mrs McGuiness had a legal obligation to pay and Keddies a right to receive the moneys after the District Court verdict and before the appeal was filed. There is no direct evidence of her belief at the relevant time and the onus is on her trustee to establish the nature of her intent if he wishes to claim restitution. The mere fact that Keddies required payment to be made does not, of itself, warrant the drawing of the required inference ( David Securities at 368). Accordingly, category (1) does not apply. In light of the acknowledgment by Mrs McGuiness that an appeal was possible and that she might be ordered to repay the monies, absent further evidence, category (2) or (3) applies. For the reasons discussed in David Securities and as discussed by Mason and Carter at [415], the payment was voluntary and Mr Woodgate can not recover the moneys on behalf of the estate. 40 As I have noted, clause 5 of the costs agreement drew a distinction between certain types of disbursements. The effect of the clause was to provide that: • Mrs McGuiness was obliged in any event to pay expenses listed in clause 3(b). Those expenses were set out in clause 3(i) and (ii), the letter "(b)" having been omitted due to an apparent typographical error, and were medical report fees and court filing fees. • apart from the expenses in 3(b), ' all other charges and expenses which are payable only on the successful outcome of the Work will be given to you after completion of the Work '. 41 Mr Woodgate submits that despite clause 5, Keddies are liable to reimburse moneys paid out for clause 3(i) and 3(ii). It is fair to say, however, that this is not the mainstay of his submissions. 47 Even if that money was paid by Mrs McGuiness under a misapprehension as to her obligation to pay at that time or under the mistaken belief that the moneys would be returned if an appeal were successful and even though the verdict was set aside, Keddies are not obliged to refund the moneys to Mrs McGuiness' estate. They paid out the moneys in accordance with their client's direction and, accordingly, changed their position ( David Securities at 385). 48 Medical report and court filing fees were not subject to any contingency. Mrs McGuiness was liable to pay those costs in any event. 49 Mr Woodgate has not established any legal basis for the estate's entitlement to repayment. The application should be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 13 December 2006 Counsel for the Applicant: M R Aldridge SC Solicitor for the Applicant: Crown Solicitor Counsel for the Respondent: P R Garling SC and J T Johnson Solicitor for the Respondent: Eakin McCaffery Cox Date of Hearing: 14 September 2006 Date of Judgment: 13 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1728.html


case_text: In my view, Mrs McGuiness was not labouring under a mistake when she authorised the payment to Keddies. She acknowledged that there may be an appeal and that she may be unsuccessful and may be required to repay the moneys (cf Hookway v Racing Victoria Limited [2005] VSCA 310 at [45] ). Her payment was a voluntary payment. The consequence of that payment was that the costs agreement was brought to an end. The condition precedent under the contract did exist at that time. 38 Mason K and Carter JW ( Restitution Law in Australia (Butterworths, 1995) at [415]) discuss the situation where a person pays to another moneys apparently due under a contract where the person: '(1) has a conscious but mistaken understanding of the payer's legal obligation to pay or the payee's legal right to receive the money; (2) intends to settle a claim honestly made by the payee; or (3) knows the money is not due or has no belief one way or the other on the matter, but is willing to pay because of the relationship with the payee or some anticipated benefit.'


case_title: Independent Timber Importers (Aust) Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd (2002) 12 ANZ Ins Cases 61-543


case_title: Lipkin Gorman v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548


case_text: Mr Woodgate submits that this is not a "mistake of fact or law" case. He says it is a simple case of moneys had and received because the condition precedent under the contract did not exist once the verdict was set aside. This ignores the fact that a person may, as noted, act under the authority of a judgment until reversed. By the time the appeal was lodged, let alone determined, the moneys held in trust had been disbursed by Keddies pursuant to the authority (cf Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516).


case_title: Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103


case_text: The parties agree that a recipient of moneys under a judgment is entitled to receive moneys and retain them while the judgment is in force and not stayed. The successful appellant, here the RTA, is entitled in principle to recover from Mrs McGuiness all moneys paid under a judgment that has been set aside ( TCN Channel Nine Pty Ltd v Antoniadis (No 2) [1999] NSWCA 104 ; (1999) 48 NSWLR 381 at [4] ). 16 Payment was authorised by Mrs McGuiness in accordance with the costs agreement. Mr Woodgate accepts that, at the time of payment to Keddies, Mrs McGuiness was contractually bound to pay the costs and disbursements. Keddies were obliged to make the payments to the third parties. The RTA could not have obtained a refund from Keddies after it succeeded on appeal whether the costs agreement was conditional or unconditional. 17 Mr Woodgate contends, however, that Mrs McGuiness' obligations were avoided after the successful appeal by the RTA. He emphasises that, had there been a verdict for the RTA in the District Court, Mrs McGuiness would not have been liable to pay either the costs or disbursements and that Mrs McGuiness had no contractual relationship with third parties and no obligation to pay them. That obligation, it is said, was held by Keddies. 31 Reversal on appeal generally annuls a judgment ab initio . However, a person may act under the authority of a judgment until reversed and such action is not avoided or invalid or unlawful ( Antoniadis ; Commissioner for Railways (NSW) v Cavanough [1935] HCA 45 ; (1935) 53 CLR 220 at 227; Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590 at 603). Whether ' what has been done can be undone will depend upon the availability of appropriate remedies, to bring about the appropriate relief' ( Wilde at 603). A change of position, made in good faith, is available as a defence against a claim for restitution ( Lipkin Gorman v Karpnale Ltd [1988] UKHL 12 ; [1991] 2 AC 548).


case_title: Wilde v Australian Trade Equipment Co Pty Ltd [1981] HCA 13 ; (1981) 145 CLR 590


case_title: Winstonu Pty Ltd v Pitson [2001] FCA 541


case_text: second ground of appeal is that the appellant was denied natural justice in that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 in relation to country information, especially DFAT information. However that provision is not available to the appellant because of sub-s (3), which excludes from the ambit of sub-s (1) information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member." The country information in question fits that description. See WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] - [46] ; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [128] ; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [64] - [71] and [126]-[128].


case_title: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264


case_text: The case of the applicant was to the effect that before the power to cancel a visa may be exercised by the Minister, notice of intention to cancel the visa must be given to the visa holder, such service being rendered a jurisdictional fact by virtue of s 134(9) of the Act ( ante ). An initial issue immediately arising is that the subsection does not explicitly so provide, and that accordingly the applicant needs the support of implications arising from the operation of the Act according to its true construction. In any event, it was said by the applicant to follow from the said proposition that a finding of fact necessary to found jurisdiction by reason of the service of notice of intention to cancel may be reviewed by appropriate curial process. I was referred by the applicant in that context generally to the following dicta of the joint judgment of all members of the High Court presiding in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 177: 'If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain.' I was also referred to Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (1999) 199 CLR 135 at 148, where the following restatement of principle in the circumstantial setting there arising appears in the joint reasons for judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ: 'The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome... The determination of the question whether Collex proposed a "non-complying" development , which turned upon the application of the criterion of "special industry", was a condition upon the existence of which there operated the obligation that the Commission not grant consent... the answer depended, not upon the combined operation of fact and law, but upon the opinion on the matter of the Commission; an opinion based on the evidentiary material before the Commission.'


case_title: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 ; (1999) 199 CLR 135


case_text: On the footing essentially of those submissions in summary of the applicant, the applicant contended that neither the Minister, nor the Tribunal standing in the Minister's shoes, had jurisdiction to cancel 'a business visa' under s 134 of the Act, unless the requirements of s 134(9) have been complied with. Reference was made for comparison to Saleem v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 234 (Allsop J), which involved the exercise of the power given by s 109 of the Act to cancel a visa by reason of ' non-compliance by the holder of [the] visa ' with the obligation pursuant to s 101 of the Act to '... fill in his or her application form in such a way that: (a) all answers on it are answered; and (b) no incorrect answers are given' , and where the Minister had decided that '... there was non-compliance by the visa holder in the way described in the notice' within s 108 of the Act. 26 Reference was thereupon made by the applicant to the provisions of s 494D ( infra ) relating to the appointment of an authorised recipient. By reason of the legislative scheme, the applicant submitted that it was Ms Tang who was the authorised recipient and who was the person to whom the notice of intention to cancel her visa was required to be given, and further that the notice was required to be given to her at 'RM 703, No. 9, Nan-King E. Rd. SEC. 3 Taipei City Taiwan R.O.C', being of course the original address appearing on the initial Form 956 dated 15 October 2001, but at no stage had appropriate notice of intention to cancel been given to her by the Minister at that address. It was further asserted by the applicant in that context that Ms Tang 'was authorised under the 2001 notice to receive on behalf of the applicant any documents or notifications relating to the business visa application made in October 2001'. It was emphasised in that regard that '[i]f a visa holder has notified the Minister that... all documents [are] to be given to an authorised recipient... then the authorised recipient is the person who must be given them', and that 'actual service on the visa holder, without service on the authorised recipient, is not effective service because of the operation of s 494D '. 27 The applicant contended that '... the critical question is whether as at 13 April 2005 (being the date of the Department's notice of intention to cancel her visa), [Ms Lo had] withdrawn the authority to Ms Tang', being withdrawn in the sense that Ms Tang was no longer the applicant's authorised recipient. The Tribunal was said to have relied upon what the applicant wrote on her Departmental Form 1010 sent to the Department in July 2004, which it will be recalled made reference to the address No. 3 Allenby Crescent Strathfield NSW 2135. The applicant pointed out, in any event, that what was written on the Form 1010 signed by her on 7 July 2004 was improperly obtained by the Minister's Department, and 'should not be relied upon as evidence of the applicant's intentions', because that Form 1010 was sent to her at Number 9 Rodd Road Five Dock NSW, yet at that time the applicant was in Taiwan, and that therefore the form should have been sent to Ms Tang as the applicant's authorised recipient. I should interpolate to further mention in that context that on 19 July 2004, what appears to have been the Australian company Saint Island (Australia) Pty Ltd was caused to be incorporated by the applicant and Hui-Sheng Lee, each having the address in the State of New South Wales of Australia of No. 3 Allenby Crescent Strathfield, NSW, as recorded by the Australian Securities and Investments Commission. It was thus the case of the applicant that the service of that Form 1010 'plainly did not comply with the requirements of s 494D(1) ', and that therefore the Minister 'should not be permitted to rely upon information it obtained from the applicant in a manner not permitted by the statute to support the legality of actions subsequently taken by it against the applicant'. Moreover the situation was said by the applicant to be 'analogous to the [Minister] being permitted to take advantage of material obtained by it in breach of the requirements of procedural fairness'.


case_text: The applicant further submitted that the question of whether an authorisation has been withdrawn or varied must be considered subjectively and where there is no direct evidence of intention 'this is assessed having regard to the circumstances', reference being made to Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685 at [35] and Qiu v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FLR 120 at [24] in support of that proposition. The applicant observed in any event that even if the issue of withdrawal needs to be assessed objectively, and the contents of Form 1010 are available for such an inquiry, 'at its highest the...form does no more than vary the authorisation to Ms Tang by providing that "written communications about business skills monitoring" were to be sent to the applicant'. Aside from any debate as to the materiality of '[a]ll written communications about Business Skills monitoring...' the subject of par 71 of Form 1010, the fact is that some two and half years or so after the signing by the applicant on 15 October 2001 of the original or initial Form 956, the applicant left blank and hence inapplicable in the context of Form 1010 the fourth box in Part H bearing the description or subject 'Authorised recipient'. To the extent that the hypothetically reasonable person may be taken to have assigned significance to filling out and signing that Form 1010, the evident intention of that person objectively speaking would have been to provide updated information to the Department, upon which the Department would be objectively presumed to place reliance.


case_title: Qiu v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FLR 120