case_outcome: distinguished

case_text: On 2 September 2004, the High Court of Australia delivered judgment in Electrolux Home Products Pty Limited v The Australian Workers' Union [2004] HCA 40 (2004) 221 CLR 309. The High Court held that certain provisions in an agreement negotiated between a corporation and a union did not pertain to the relationship between the corporation as employer and all persons employed in a single business or part of a single business of the employer, within the meaning of s 170LI of the Workplace Relations Act 1996 (Cth) ("the WR Act") (as the WR Act then stood). As a result, it was held that the agreement could not have been certified validly pursuant to what was then s 170LT of the WR Act . The two sets of claims in this proceeding both have some relationship with the judgment in Electrolux . 2 The first claim is for breach of contract. The applicant, Australian and International Pilots Association ("AIPA") claims that it entered into a binding contract with the respondent, Qantas Airways Limited ("Qantas") in the course of negotiating a new certified agreement. Certain provisions, which had been part of the certified agreement between AIPA and Qantas at the time of the judgment in Electrolux , had not been included in the new certified agreement because it was thought that their presence might jeopardise the certification of that agreement. It was contended that those provisions had been placed in a separate agreement. There is a substantial issue as to whether any concluded agreement about those provisions ever came into existence. AIPA contended that, although there was no express agreement as to the duration (in terms of starting and finishing) of the obligations under the contract, the gap was filled by an implied term. If there was a concluded agreement, there is an issue as to whether it is enforceable, or is an agreement not intended to create legal relations, but binding in honour only. If there was a binding contract, there is no real dispute that Qantas was in breach of it. There are issues, however, as to what, if any, remedies should be granted. Such issues include whether AIPA suffered any loss it can claim as damages for breach of contract, what was the quantum of its loss if it did suffer such loss, and whether some form of order by way of specific performance can, or should, be made. 3 The second claim is that, in the last days of the operation of the certified agreement that was in force at the time of Electrolux , Qantas failed to comply with its obligations under that agreement. Claims are made for penalties for contraventions of various terms of that certified agreement and for consequential orders in relation to those penalties. The terms concerned are among the provisions that were identified as possibly falling outside s 170LI of the WR Act . Not surprisingly, Qantas relies on the unenforceability of those terms of the certified agreement as a result of Electrolux . Qantas also contests the proposition that it failed to comply with its obligations as expressed in those terms. 4 It should be noted that the legislative provisions to which I refer in these reasons for judgment are those that were found in the WR Act as it stood at the times of events relevant to this proceeding. Subsequent major amendments to the WR Act have changed the numbering and wording of numerous provisions. 5 Division 2 of Pt VIB of the WR Act contained the following relevant provisions: 170LH What this Division covers This Division sets out requirements that must be satisfied for applications to be made to the Commission to certify certain agreements between employers who are constitutional corporations or the Commonwealth and: (a) organisations of employees; or (b) employees. 170LI Nature of agreement (1) For an application to be made to the Commission under this Division, there must be an agreement, in writing, about matters pertaining to the relationship between: (a) an employer who is a constitutional corporation or the Commonwealth; and (b) all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement. (2) The agreement must be made in accordance with section 170LJ, 170LK or 170LL. 170LJ Agreement with organisations of employees (1) The employer may make the agreement with one or more organisations of employees where, when the agreement is made, each organisation: (a) has at least one member employed in the single business or part whose employment will be subject to the agreement; and (b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement. (2) The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement. (3) The employer must take reasonable steps to ensure that: (a) at least 14 days before any approval is given, all the persons either have, or have ready access to, the agreement, in writing; and (b) before any approval is given, the terms of the agreement are explained to all the persons. ... 170LM Making the application for certification (1) The application for the Commission to certify the agreement must state that it is made under this Division. (2) The application must be made no later than 21 days after: (a) if it is made in accordance with section 170LJ--the day on which it is approved as mentioned in subsection 170LJ(2) 13 In September 2004, when the Electrolux judgment was delivered, AIPA and Qantas were parties to the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2003-2004. This was the sixth collective agreement between AIPA and Qantas since provisions relating to enterprise bargaining had been introduced into the Industrial Relations Act 1988 (Cth), which was renamed as the WR Act in 1996. Because the agreement was the sixth in a series, it was known colloquially as "EBA6", and it is convenient to refer to it by this title in these reasons for judgment. EBA6 was certified by the Australian Industrial Relations Commission on 4 July 2003. Its nominal expiry date, inserted pursuant to the requirement found in s 170LT(10) of the WR Act , was 30 June 2004, but it remained in force in September 2004, pursuant to s 170LX, because it had not yet been replaced by another certified agreement. Indeed, negotiations for the agreement that replaced EBA6, the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2005-2006 ("EBA7") had not yet begun. 14 Part 11 of EBA6 was headed "Association Business". It contained the following provisions: 45. RELIEF FROM FLYING FOR ASSOCIATION BUSINESS The following arrangements apply to enable Association members to be reliably available to attend to Association duties and responsibilities. 45.1 Association President The Association President ("the President") is entitled to relief from flying under clause 46.4.1 and a pre-allocation of flying under clauses 27.6.1 and 46.4.2. 45.2 President's designates Associated with the office of the President, the President's designates are entitled to relief from flying equivalent to the credited hours allocated to the President for flying or leave, and a pre-allocation of flying under clause 27.6.1. 45.3 How relief from flying is achieved using Hours Banks 45.3.1 At the request of the President (or designate) and subject to demonstrable operational requirements, the Company will do one or more of the following: (a) release members from Company duties; (b) block days on a member's bid line; or (c) pre-allocate patterns of flying onto a member's bid line to enable Association members to attend to Association duties and responsibilities. 45.3.2 A request may be refused by the Company where it would incur unreasonable cost, but any refusal will first be discussed with the President with a view to resolving the matter to both parties' satisfaction. 45.3.3 The President (or designate) will endeavour to give Aircrew Operations as much notice as possible of any requirement for displacement under this Agreement. 45.4 Hours Banks 45.4.1 Time Bank (a) The Company will provide up to 175 credited hours on day one of each bid period to a "Time Bank". (b) In any bid period, if fewer than 175 hours are utilised by Association members, the balance will be carried forward. (c) A maximum of 350 hours may accumulate in the "Time Bank". 45.4.2 Leave Bank (a) Pursuant to clause 28.28, a leave bank is established and maintained. (b) The value of a "Leave Bank" day will be the value of the applicable bid period divisor divided by 38. 45.4.3 Additional flying hours re-credited to hours banks If an Association member flies additional credited hours during the bid period in which he or she has been released from Company duties for the purpose of carrying out Association duties or obligations, those additional credited hours will first be "re-credited" to the respective bank, less any hours calculated at the rate of the applicable bid period divisor divided by 38 for each day spent on Association business, before any payment for additional credited hours is made to the member. 45.5 Using the hours banks for Association business 45.5.1 An Association member who is required by the President (or designate) to attend to Association business: (a) may access the provisions of the Time Bank; (b) may access the provisions of the Leave Bank; or (c) may be removed from a pattern or patterns, in which case the member: (i) will be pattern protected for the credited hours value of the pattern or patterns, less the credited hours value of any Time Bank of Leave Bank days spent on Association business; (ii) will be available for offsets in accordance with clause 27.16.5(i); (iii) May be awarded or assigned an offset against the pattern protected hours in accordance with clause 27.16.5(g) with any remaining pattern protected hours becoming fixed; and (iv) If not awarded or assigned an offset against the pattern protection, will have the pattern protected hours offset by an equivalent deduction from the Time Bank or Leave Bank. 45.5.2 When a member is required to attend to Association business during a period of annual or long service leave, credited hours may be debited from the Time Bank or Leave Bank so that the infringed day(s) of leave are re-credited to the member. 45.5.3 At the request of the President, days may be blocked on a member's bid line with a "nil credited hours value". 45.5.4 Where a member is a BLH or RLH in a bid period and he or she is required to carry out Association duties, the member will receive credited hours calculated at the rate of the applicable bid period divisor, divided by 38, for each day that those duties are required to be undertaken and those credited hours will be deducted from the Time Bank or Leave Bank. 45.6 Joint Company/AIPA Business When a member is required by the President to attend a meeting with the Company, or attend to joint Association/Company business, he or she: 45.6.1 will be pattern protected for any credited hours involved, less any hours calculated by dividing the pattern value by the number of calendar days of the pattern, for each day spent attending to such business; 45.6.2 may be required to offset any or all of such pattern protection during the remainder of the bid period and, in good faith, will attempt to offset such hours but will not be required to be available for offsets/assignments during the normal hours of availability for pattern protected crew members; 45.6.3 may, with the approval of the President (or designate), have the hours debited from the Time Bank or Leave Bank and not be pattern protected under clause 45.6.1. 46. ASSOCIATION PRESIDENT 46.1 General The provisions of this clause apply to a pilot during his or her tenure of office as President of the Association ("the President"). To the extent of any inconsistency between the provisions of this clause and any other provisions in this Employment Contract, the provisions in this clause will prevail. 46.2 Pay The President will be paid a salary (calculated in accordance with clause 24.2) appropriate to the aircraft type on which he or she is flying. 46.3 Method of payment The President will be paid in pay periods 1, 2, 3 and 4 of each bid period an amount calculated on the basis of one 26th of the prescribed pay and the appropriate allowance provided in clause 46.2. 46.4 Scheduling 46.4.1. The President is entitled to relief from flying equal to the bid period divisor for his or her category. 46.4.2. Notwithstanding clause 46.4.1, the President is entitled to a pre-allocation of not less than 80 credited hours of known flying for each bid period, after consultation with the Company to select flying before it is made available before bidding (under clause 27.6.1). 46.4.3. Any flying allocated to the President for which he or she is not available will be re-allocated at the Company's discretion either in accordance with the provisions of clause 17 (in which case the quota provisions of clause 17.4.3 will not apply), or in accordance with the provisions of clause 27.21. 46.4.4. Open time will be allocated in accordance with the provisions of clause 27.21 (Allocating open time flying) except that the Company may displace the President from any allocated pattern. 46.4.5. The President may trade patterns with a pattern line holder or with a supervisory crew member in accordance with clause 17.4.6 or with open time in accordance with the provisions of clauses 27.21 and 27.22. 46.4.6. The Company may require the President to fly or exceed his or her allocation of credited hours. 46.4.7. The President may consult with the Company about the scheduling of designated duty free days. For the purpose of clause 27.17 (Duty free time at a crew member's base), the President will be deemed a pattern line holder. 46.5 Annual leave The President's annual leave will be planned and taken as mutually arranged except that the Company may assign leave when his or her annual leave is in excess of the standard prescribed in clause 28.14. 46.6 Changeover of President 46.6.1. When the Association elects a new President, the provisions of this clause 46 (with the exception of scheduling) will apply to the new President on and from the date of his appointment as President and will cease to apply to the outgoing President on and from that date. 46.6.2. Any scheduling issues arising from the change-over of Presidents will be discussed among the Company, the outgoing President and the new President with a view to making arrangements that are acceptable to all three parties. 15 Some other provisions of EBA6 were relevant to the operation of the provisions in Pt 11. There are numerous references to cl 27, a very long and complex clause relating to scheduling and hours of work, the details of which it is unnecessary to set out for present purposes. Clause 28.28, to which there is a reference in cl 45.4.2(a), provides: Notwithstanding clause 28.1, for the purpose of establishing and maintaining a leave bank, the quantum of annual leave prescribed in that clause may be reduced by one (1) day in each 5 year period and will be transferred to a leave bank in accordance with rules and procedures agreed in writing between the Company and the Association. 18 In September 2004, the implications of the Electrolux judgment were obvious. In the first place, existing certified agreements might turn out to be wholly invalid because they contained provisions about matters that did not pertain to the relationship between employers and their relevant employees ("non-pertaining provisions"), and the Commission had therefore lacked power to certify them. The second implication was that, if future agreements were to be negotiated, care would have to be taken to avoid including non-pertaining provisions, which would lead to the Commission refusing to certify the agreement altogether. 19 At least the second of these implications was not lost on AIPA. It was preparing to enter into negotiations with Qantas for EBA7. On 29 September 2004, the day on which the first meeting of those negotiations was due to be held, Alana Starke, General Counsel of AIPA, wrote a letter to Sue Bussell, Group General Manager Industrial Relations of Qantas, with a copy to Captain Chris Manning, Head of Flight Operations and Chief Pilot, in the following terms: I refer to our telephone discussion on 28 September 2004. Please confirm that any provisions in Certified Agreements, Safety Net Awards or other industrial agreements between the Company and AIPA which may be affected by the recent High Court's decision in Electrolux impacting upon any decisions by the Australian Industrial Relations Commission, will be transferred, without negotiation, into side agreements between us. 20 It should be noted that, although written at the outset of negotiations in respect of EBA7, this letter did not refer only to those negotiations. It was expressed to cover three classes of documents: certified agreements; safety net awards; or other industrial agreements. At the time, in addition to EBA6, which related to long haul flying, AIPA and Qantas were parties to a certified agreement that related to short haul flying, which was due to reach its nominal expiry date in September 2005. The evidence suggests that there may have been other documents caught by the description in the letter of 29 September 2004. One was an award dealing with the integration of two separate awards relating to domestic and international flying respectively, which had been made to accompany the merger of Australian Airlines and Qantas in the mid 1990s. Another suggestion was an agreement relating to the seniority of pilots as between Qantas and its subsidiary that operated an airline called Jetstar. 21 Negotiations for EBA7 opened with a meeting on 29 September 2004. The negotiators on behalf of AIPA were Alana Starke, Captain Bryan Welch, Andrew Marshall and Ely Nejadiran (whose surname changed during the course of negotiations to Jensen). Ms Starke was employed by AIPA with the title General Counsel. Under her contract of employment, her responsibilities were such that she was effectively AIPA's Chief Executive. Captain Welch was an elected Vice-President of AIPA, who was given principal responsibility for the negotiations for EBA7. Qantas was represented by Julian Hailes (Manager, Industrial Relations), Vanessa Webber, Peter Broschofsky, Captain Peter Wilson, Darren Ziegenfusz and Mark Wagner (or Wagener). Initially, Captain Manning as Qantas's Chief Pilot, and Captain Robin Holt as President of AIPA, each addressed the meeting. These addresses were regarded as opening the negotiations formally, and setting their tone. What then happened in the meeting is the subject of varying accounts given in evidence by Captain Welch, Ms Starke and Mr Hailes, and found in notes taken at the time by Ms Nejadiran/Jensen, Mr Hailes and Ms Webber. It is clear that there was some discussion about Electrolux . Ms Starke appears to have raised the issue, although Captain Welch's recollection is that he raised it first. Ms Starke also appears to have referred to her telephone conversation with, and letter to, Ms Bussell, although Ms Starke did not recall having made any such reference. The meeting was certainly aware of a proposal to remove any non-pertaining provisions before the terms of EBA7 were finalised, and to put those provisions into a separate document. The Qantas management team did not reject this idea. In his evidence, Mr Hailes said that he had not considered the issue previously. It also appears that, at the meeting on 29 September 2004, Qantas tabled its log of claims, a document setting out the changes it sought to make to the terms of EBA6 so that EBA6, as modified, could become EBA7. 22 A further meeting occurred on the following day, 30 September 2004, at which the same persons (other than Captain Manning and Captain Holt) attended. At this meeting, the AIPA log of claims was tabled, setting out the changes AIPA sought to have reflected in the new agreement. This document consisted of a cover sheet, three pages containing proposed clauses and a page headed "ANCILLARY MATTERS TO BE RESOLVED". There were seven items listed. Number seven was in the following terms: Administrative matter: Confirmation that provisions in industrial agreements between QAL and AIPA which may be affected by Electrolux decision of the High Court (impacting upon AIRC decisions) will be transferred, without negotiation, into side documents between the parties. 23 Towards the end of the meeting, there was a brief discussion about this item. Again, the accounts of Captain Welch, Ms Starke and Mr Hailes differ about what was said, as do the records found in the notes of Ms Nejadiran/Jensen, Mr Hailes and Ms Webber. Speaking broadly, the evidence led on behalf of AIPA is to the effect that agreement was secured to the transfer of non-pertaining provisions to side agreements. Ms Nejadiran's note and Captain Welch's recollection (perhaps prompted by the note) is of Mr Hailes saying "That should be okay." Mr Hailes and Ms Webber do not support such a firm agreement. I infer that, at that time, there was at least a recognition by both parties that it was in their interests to facilitate the removal of provisions that might jeopardise the certification of EBA7, and that transferring such provisions to some other form, not involving submission for certification, would be an option. In addition, Captain Welch was keen to make the point that any provisions transferred should not be altered. He did not want either party taking advantage of the post- Electrolux environment by seeking to renegotiate what had been agreed for EBA6 but could not be transferred to EBA7. Captain Welch expressed this view. Mr Hailes understood that AIPA did not want changes made to any transferred provisions. He wrote in his notes "AIPA wouldn't see change". 24 At a minimum, after the meetings of 29 and 30 September 2004, Qantas understood that AIPA wished to have removed from EBA7 any provisions that might put at risk the certification of EBA7, by being found to be non-pertaining provisions. Qantas also understood that AIPA wished to have these provisions expressed, without change, in some other instrument. Qantas did not reject this proposition. Indeed, it is clear that Qantas was quite prepared to entertain such an idea. 25 On 15 December 2004, the Workplace Relations Amendment (Agreement Validation) Act 2004 (Cth) commenced to operate. Its effect was to validate all provisions of existing certified agreements that were not non-pertaining provisions. Its operation was retrospective. Accordingly, from the point of view of AIPA and Qantas, EBA6 continued in operation except to the extent of any non-pertaining provisions that it contained. The first of the considerations referred to in [18] above was therefore no longer a consideration. Any invalidity would only extend to non-pertaining provisions in EBA6. 26 Negotiation of the terms of EBA7 continued over some 10 months following the meeting of 30 September 2004. Little or no mention was made during that time of the Electrolux issue. Mr Hailes did give evidence that, at some time during that period, he received a phone call from Ms Starke, apparently unprompted by any specific incident, in which Ms Starke raised the question of the kind of document into which possibly non-pertaining provisions would be transferred. She mentioned the possibility of a deed, and Mr Hailes rejected that. Ms Starke was not asked about any such conversation. It is not clear whether it took place during the period of negotiation of the terms of EBA7. 27 On 4 August 2005, a document entitled " EBA7 Terms of Settlement " was signed by Mr Hailes on behalf of Qantas and Captain Holt on behalf of AIPA. The document reflects the fact that EBA6 was regarded as the basis for negotiations, and records terms that the parties had agreed on by way of changes to what was in EBA6. Clause 4 contained provisions relating to superannuation, in which AIPA acknowledged that certain specified provisions would not form part of, or be included in, the new certified agreement, but that a designated letter of agreement would be voted on as part of the new agreement. Clause 12 was headed " Other Matters " and was in the following terms: Administrative Issue: Non-pertaining matters The parties agree to review provisions in existing industrial agreements between Qantas and AIPA to identify whether, pursuant to the Electrolux decision of the High Court of Australia, there are any non-pertaining provisions in those agreements. It is agreed that any provisions identified under this review as being non-pertaining will be transferred into side agreements between the parties. 28 On 14 September 2005, the election of a new Committee of Management of AIPA was finalised. Captain Ian Woods was elected to succeed Captain Holt as President. The change of regime involved a change of attitude to some issues affecting members of AIPA. Captain Woods had been a member of the AIPA Committee of Management. On 12 July 2005, when the Committee of Management had resolved to accept the EBA7 Terms of Settlement (subsequently signed on 4 August 2005), and to recommend acceptance by the members of AIPA, Captain Woods had spoken and voted against this proposal. He and the new officers also had views that there should be changes to the way in which AIPA was administered, which would involve more of the administration work being done by elected officers, rather than by employed personnel. 84 The parties were agreeing to transfer the non-pertaining provisions into a document separate from EBA7 on the assumption that, in the light of Electrolux , they were provisions that would not be acceptable to the Commission and would therefore prevent the certification of EBA7. It is true that there was no absolute recognition that the non-pertaining provisions fell outside the description in s 170LI(1), namely matters pertaining to the relationship between an employer and the relevant employees. As appears from my examination of the implications of Electrolux in [113]-[116] below, certainty about whether a particular provision did or did not fall within s 170LI(1) would have been extremely difficult to achieve. Nevertheless, it is clear that the parties, and particularly AIPA, contemplated that cll 45 and 46 and the related provisions, as they appeared in EBA6, might very well be unenforceable as a matter of law. If this had not been the case, there would have been no suggestion from either party that those provisions should be removed from EBA7. On this basis, it is legitimate to ask (as the mythical officious bystander might have asked) whether it was obvious that the starting points of the obligations would be the commencement of the operation of EBA7. If it be accepted that the parties were transferring the non-pertaining provisions into a separate document in order to ensure their continued operation as enforceable provisions, there would be every reason why such an agreement should operate as soon as it was reached, and not await the certification of EBA7. The circumstance that Qantas had continued to apply the Association Business Provisions in EBA6 does not diminish the force of this proposition. Objectively, it appears more likely that the parties would want any agreement to have been binding forthwith, rather than from a later date. 94 As to whether the parties intended to create a legally binding agreement, or an agreement binding in honour only, there are factors pointing in both directions. The refusal of Qantas to enter into a deed, accepted by AIPA, and the choice of "memorandum of understanding" as the title of the document, again accepted by AIPA, suggests that there was no intention to create legal relations. The title is not conclusive, however. The course of negotiations, particularly the detailed attention given by both parties to the precise wording of the document, tends to suggest that they were looking towards the letter, rather than merely the spirit, of an agreement, and therefore towards enforceability. Again, this is not conclusive. Nor is the history of the provisions that were being transferred from EBA6 into the memorandum of understanding. When they were first negotiated as part of EBA5, and carried into EBA6, the non-pertaining provisions were assumed to be enforceable. Following Electrolux , the parties were of one mind that the non-pertaining provisions were, at least potentially, unenforceable at law. This potential unenforceability and its possible effect in jeopardising the certification of EBA7 constituted the motivation for placing the non-pertaining provisions in another document. In these circumstances, it is difficult to say that the history of the provisions gives a clue either way as to whether the parties were agreed that the provisions should be legally enforceable or binding in honour. What seems to me to be the decisive factor in favour of legal enforceability is the agreement about the clause relating to the sharing of legal liability. Once it was realised that Qantas's compliance with the non-pertaining provisions, in a document outside EBA7, could place Qantas in a difficult position in the event of conflict between its obligations under EBA7 and its obligations under any separate agreement, the parties had a choice. They could have chosen expressly to make the memorandum of understanding binding in honour only, and liable to give way in the event that any actual conflict appeared. Alternatively, they could have done what they did, which was to assume that such conflict would occur and to make provision for the sharing of any liability flowing from it. This agreement suggests to the objective observer that both parties regarded the obligations under the transferred non-pertaining provisions as legally binding, so that provision needed to be made for the actuality of conflict between those provisions and the provisions of EBA7. For this reason, if it had been necessary to do so, I should have had little difficulty in finding that the agreement between AIPA and Qantas, to be expressed in the memorandum of understanding, was legally binding. 95 The question of damage flowing from Qantas's non-observants of the agreement is more difficult. It is necessary to detail some further facts. The claim consists of two elements. One is the salary of Peter Somerville, who was engaged as the General Manager of AIPA from 24 April 2006. The second is a payment made by AIPA to Captain Woods, designed to compensate him for the failure of Qantas to pay his salary at the rate designated for the President by cl 46.2 of EBA6. 96 At the same time as Captain Woods became President of AIPA, on 7 November 2005, Captain McNeil became Secretary, Captain John Dowe Assistant Secretary and Captain Andrew Percival Treasurer. The new regime was determined to reform the manner in which AIPA was administered. At that time, Ms Starke was employed as Legal Counsel and Industrial Relations Manager. Attached to her written contract of employment, dated 17 May 2000, was a schedule of duties, setting out the following duties and responsibilities: • Advise the President and COM generally on industrial issues • Negotiate industrial and employment matters affecting technical aircrew employed by Qantas Airways Limited and provide relevant documentation • Assess, prioritise and coordinate all industrial relations matters as they arise and develop • Advise the President, Executive and COM on corporate governance and organisational compliance issues, including reporting and accountability issues, professional indemnity insurance • Coordinate and prepare documents and returns required under the relevant legislation for the Association and AIFEA • Generally advise the Association's members on industrial/employment law issues • Represent technical aircrew in grievances & disciplinary matters • Represent the Association and provide advocacy in relevant jurisdictions (including the AIRC, IRC (NSW) and the Federal Court of Australia) • Supervise and appraise industrial relations staff • Supervise and appraise administrative support staff • Manage all human resource issues • Assess need for outsourcing matters for professional opinions/assistance • Assess and monitor ongoing educational and professional needs of industrial relations staff and administrative support staff, including attendances at seminars/workshops/professional functions • Monitor office expenditure • Assess and monitor subscriptions to professional publications 113 The provisions that were agreed in Electrolux obliged the employer to deduct from wages to be paid to persons who might become employed by the employer in the future, and to pay to the Union, a fee, described as a "bargaining agent's fee". The provisions thus had three significant characteristics. First, they obliged the employer to deduct money from wages that would otherwise be paid to an employee, and to pay the money deducted to a party other than the employee. Second, the intended recipient of the money was the union that was party to the agreement with the employer. Third, the provisions bound the employer in relation to persons whom it might choose to employ in the future, and who chose not to belong to a relevant union. 114 In Electrolux , the High Court affirmed the line of authority consisting of R v Portus; Ex parte ANZ Banking Group Ltd [1972] HCA 57 ; (1972) 127 CLR 353 and Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34 ; (1994) 181 CLR 96. Each of those cases involved claims made by unions which, if acceded to by employers, would have obliged the employers to deduct from wages earned by their employees amounts by way of union dues, and to pay those amounts to the relevant union. In each case, it was held that such claims did not pertain to the relationship between employers and employees in their capacity as such. In Alcan , the High Court was invited to overturn Portus , but declined to do so. The claims in question in Portus and Alcan had both the first and second characteristics of the provisions in question in Electrolux . 115 In Electrolux at [9]-[11], Gleeson CJ appears to have identified the first of those characteristics as the reason for holding that the provisions in question in that case did not pertain to the relationship between an employer and its employees. The approach of McHugh J at [82] was to analyse the employer's obligation more closely, and to identify a number of factors that his Honour saw as taking the payments outside the relationship of employer and employees. His Honour said that the debt due by a future new employee to the union, about which the employer was obliged to inform the new employee, was not shown to be a debt relating to the employment relationship. In his Honour's view, the provision related to the relationship between the union and non-members to be employed at the employer's workplace. His Honour took the view that strengthening the position of unions at the workplace, "without more", did not make the provision a matter pertaining to the requisite relationship. Finally, his Honour said that, because the fee was not deducted pursuant to any agreement or authorisation from the employee, there was no nexus between the obligation imposed on the employer and the requisite relationship. At [165], Gummow, Hayne and Heydon JJ approved the statement of Merkel J at first instance, which identified a number of features of the provisions in question in Electrolux . The employer was to act as the union's agent in entering into a contract with new employees requiring the employees to employ the union as bargaining agent. The relationship between employer and employee was one of agency, requiring the employer to contract with its employees on behalf of the relevant union, as its agent. The agency was for the benefit of the union, rather than for the benefit of the employee upon whom the liability was to be imposed involuntarily. The provision could be characterised as a claim for payment for the union's services in securing the new employee's terms and conditions of employment, although the new employee would only have commenced employment after the date of the agreement. Kirby J dissented. At [239], Callinan J also preferred the approach of Merkel J to that of the Full Court. At [241], his Honour referred specifically to the first characteristic, with the added element of the involuntariness of the payment to the union on the part of an employee who was not a union member. His Honour described the relevant relationship between the employer and the non-unionist employee as an involuntary contract for the payment of an exaction sought to be made by a third party on the employee. 116 Clauses 45 and 46 and the related provisions of EBA6 are of a very different character from the provisions that were the subject of Electrolux . They involve none of the three significant characteristics of the provisions the subject of Electrolux . There is no obligation on Qantas to deduct money from wages or salary that would otherwise be paid to any of its employees, or to pay any amount so deducted to any party other than Qantas. AIPA is not the intended recipient of any money from Qantas. The provisions in question in this case bind Qantas in relation to its existing employees, particularly those who are already members of AIPA. The provisions bear no resemblance to those that were the subject of Portus or Alcan . Any debts created by cll 45 and 46 and the related provisions of EBA6 are debts due from Qantas to its own existing employees, and relate to the relationship between Qantas and its own employees. The provisions do more than simply strengthen the position of AIPA, although they are certainly intended to accomplish that. They accomplish it by regulating the hours of work of Qantas's employees and the amounts of money to be paid to those employees. No question of deduction of any money from anything that would otherwise be paid to an employee arises. No agency relationship between AIPA and Qantas could possibly be created. There is no question of payment by any non-member to AIPA. 117 Clauses 45 and 46 and the related provisions of EBA6 have substantial similarities to some of the provisions with which French J was concerned in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737 (2004) 138 IR 362. At [73] - [79] , his Honour analysed Electrolux , in an effort to distil the appropriate test for determining whether a matter pertains to the relationship of employers and employees. At [96]-[103], his Honour dealt with provisions of a log of claims setting out circumstances in which employees might be absent from their duties and yet still to be paid while they attended various kinds of union meetings, including board of management meetings, discussions between management and the union, and training and education courses organised by the union. At [96]-[97], his Honour said of those provisions: They establish for the most part an entitlement to paid leave for employees who are performing certain functions with the relevant union. The hours of an employees' [sic] availability for work and the conditions under which an employee may be absent from that work and whether or not he or she can be paid during that absence, in my opinion, lie at the heart of the employer-employee relationship. They affect employer and employee in their capacities as such. It is no answer to that proposition to say that these provisions affect employees in their capacity as union members. So much may be correct, but if the provision in question also affects the employment relationship in a direct way that is neither consequential nor remote it pertains to the employer-employee relationship. Argument by reference to the multiple capacities of employees can lead into a morass of fine distinction. So maternity leave, leave to perform jury service and leave to train in the military reserve may all be said to attach to people in their capacities as parent, citizen, military reservist respectively. In my opinion, the provisions of such clauses pertain to the employment relationship.


case_outcome: followed

case_text: AIPA's case was that, by the time of the terms of settlement (dated 4 August 2005), or at the latest by the time of the Explanatory Note (dated 28 September 2005), there existed a binding agreement between AIPA and Qantas concerning non-pertaining provisions. The agreement was said to fall within the first class referred to in Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353 at 360, or into the "fourth class", said to be identified by McLelland J in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 at 628. 73 In Masters v Cameron at 360, the High Court said: Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. At 360-361, the High Court went on to point out that, in each of the first two cases, there is a binding contract, but not in the third. 75 There must be some doubt as to whether a case described in these terms falls within a fourth class, additional to those described in Masters v Cameron . Assuming the existence of a binding agreement, it is always open to the parties to that agreement to vary it by adding additional terms. Viewed in that light, the so-called fourth class appears not to differ from the first or second classes referred to in Masters v Cameron . Although the New South Wales Court of Appeal upheld McLelland J's judgment, there is no reference in the judgment of McHugh JA, with whom Kirby P and Glass JA agreed, to Masters v Cameron , or to a "fourth class". In G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 635-636, McHugh JA said: If the parties agreed on additional terms, they would be added to the formal contract. If they did not, the formal contract would give effect only to the agreed terms and conditions of the correspondence. The case, therefore, is one where the parties were bound by the informal agreement but expected to make a further contract which by consent might contain additional terms: Sinclair, Scott & Co Ltd v Naughton. 76 In the present case, there is no indication that either AIPA or Qantas gave expression to the possibility that there would be any need for them to agree to extra terms. The question in the present case is whether the case falls within the first or third category in Masters v Cameron . The attempt to rely on a fourth class seems to have been prompted by the fact that, following the signing of the Explanatory Memorandum, AIPA and Qantas did negotiate upon and apparently agree to an additional term, relating to the sharing between them of any liability that might arise from the transfer of terms that were formally in EBA6 into a document other than EBA7. 77 The contention that the terms of settlement amounted to a final agreement between the parties is difficult to sustain. It was not until after the terms of settlement had been signed and the parties had engaged in the task of converting them into detailed documents that attention was given by either party to identifying the non-pertaining provisions that ought to be removed, to ensure the certification of EBA7. There had been a concern on the part of some people within AIPA that cll 45 and 46 of EBA6 and the other provisions relating to those clauses would probably fall into that category, but there is no evidence that any negotiation took place about the content of any alternative document until after the terms of settlement had been signed. 78 By 28 September 2005, when the Explanatory Memorandum was signed, the provisions that would be transferred into another document had been identified, and were listed in the Explanatory Memorandum itself. Indeed, cl 2.5 of that document uses the past perfect tense, so as to convey to the reader that the memorandum of understanding is already in existence. Little, if any, weight can be attached to this fact in determining whether there was a final agreement. Clause 2.5 is inconsistent with cl 2.4 of the Explanatory Memorandum, which records merely that the parties "have agreed to transfer" the non-pertaining provisions into "a" memorandum of understanding. The statement in cl 2.5 that, in relation to the additional provisions there listed, this had already been done, was incorrect as a matter of fact.


case_outcome: discussed

case_text: AIPA's case was that, by the time of the terms of settlement (dated 4 August 2005), or at the latest by the time of the Explanatory Note (dated 28 September 2005), there existed a binding agreement between AIPA and Qantas concerning non-pertaining provisions. The agreement was said to fall within the first class referred to in Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353 at 360, or into the "fourth class", said to be identified by McLelland J in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 at 628.


case_outcome: referred to

case_text: The "fourth class", identified by McLelland J in the Baulkham Hills case at 628 is there described using the words of Knox CJ, Rich and Dixon JJ in Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 317: one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms. 75 There must be some doubt as to whether a case described in these terms falls within a fourth class, additional to those described in Masters v Cameron . Assuming the existence of a binding agreement, it is always open to the parties to that agreement to vary it by adding additional terms. Viewed in that light, the so-called fourth class appears not to differ from the first or second classes referred to in Masters v Cameron . Although the New South Wales Court of Appeal upheld McLelland J's judgment, there is no reference in the judgment of McHugh JA, with whom Kirby P and Glass JA agreed, to Masters v Cameron , or to a "fourth class". In G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 635-636, McHugh JA said: If the parties agreed on additional terms, they would be added to the formal contract. If they did not, the formal contract would give effect only to the agreed terms and conditions of the correspondence. The case, therefore, is one where the parties were bound by the informal agreement but expected to make a further contract which by consent might contain additional terms: Sinclair, Scott & Co Ltd v Naughton.


case_text: There must be some doubt as to whether a case described in these terms falls within a fourth class, additional to those described in Masters v Cameron . Assuming the existence of a binding agreement, it is always open to the parties to that agreement to vary it by adding additional terms. Viewed in that light, the so-called fourth class appears not to differ from the first or second classes referred to in Masters v Cameron . Although the New South Wales Court of Appeal upheld McLelland J's judgment, there is no reference in the judgment of McHugh JA, with whom Kirby P and Glass JA agreed, to Masters v Cameron , or to a "fourth class". In G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 635-636, McHugh JA said: If the parties agreed on additional terms, they would be added to the formal contract. If they did not, the formal contract would give effect only to the agreed terms and conditions of the correspondence. The case, therefore, is one where the parties were bound by the informal agreement but expected to make a further contract which by consent might contain additional terms: Sinclair, Scott & Co Ltd v Naughton.


case_text: It is common ground between AIPA and Qantas that, as at the date of the Explanatory Memorandum, there had been no express agreement as to the starting date for the relevant side agreement, or as to its finishing date. It is also common ground that some provision fixing the duration of any agreement about those matters was an essential term, without which there could not be a binding agreement. The case for AIPA is that the absence of this essential term is cured by the implication of a term to the effect that the side agreement would be of the same duration as EBA7, ie that it would start to operate when EBA7 was certified and would continue in operation until EBA7 was replaced by a further certified agreement, or otherwise ceased to be binding. This term was said to satisfy the requirements for a term to be implied into a contract, laid down in B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 283: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract. 80 Before considering whether the suggested implied term meets these criteria, it is necessary to deal with one argument. That argument is based on the proposition found in the judgment of Kaye J, with whom Marks and Teague JJ agreed, in Australian and New Zealand Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695 at 702, that "the law does not permit a court to imply a term into a bargain between parties for the purposes of making their bargain an enforceable contract." If this proposition is to be taken at face value, it is hard to see how most of the cases in which it has been held that there are implied terms in contracts could have been so decided. There have been numerous cases in which courts have held that implied terms that the performance of agreed obligations take place within a reasonable time, or that a party may bring about the termination of agreed obligations by giving reasonable notice, are available to ensure the binding nature of those agreed obligations. In the words of the Privy Council in the B.P. case, such implied terms are "necessary to give business efficacy" to the contracts of which they are found to be part. The danger of taking the proposition expressed by Kaye J at face value is obvious. Such a proposition could lead to arguments akin to those about whether the chicken came before the egg, or the egg before the chicken. Was there already an agreement, so that it can be supplemented by an implied term to give it efficacy, or was there no binding agreement because there was no express agreement about the subject matter of the implied term? In my view, Kaye J intended to mean no more than that the parties must have agreed to be bound by the obligations they have expressed in their negotiations, before the question whether a term can be implied to give that agreement efficacy can be addressed. It is on that basis that I approach the present case. 83 Before examining the relevant communications between the parties subsequent to 28 September 2005, it is worthwhile to apply the criteria in the B.P. case to the implied term advanced by AIPA on the pleadings. In this respect, it is clear that the alleged implied term cannot survive being tested against the third criterion, that the term must be so obvious that "it goes without saying". 85 Similarly, the question of a date of termination of the obligations did not necessarily have a relationship with the duration of EBA7. In this respect, the parties could have chosen a termination date, or mechanism, from a range of possibilities. For instance, it might have been agreed that the side agreement should continue to operate until such time as one or other party terminated it by giving some agreed period of notice. A specific termination date might have been chosen, with or without the possibility of termination by notice. The existence of such a range of reasonable possibilities is fatal to the satisfaction of the third criterion in the B.P. case. It must be remembered that the criteria in the B.P. case must be satisfied by a particular term. It is not open to the Court to choose from a range of possible implied terms, for the purpose of making an agreement into a final one. The particular term advanced must be so obvious that it is unnecessary to express it, because both parties will recognise that it is present in their agreement. The implied term pleaded in the present case clearly does not satisfy that requirement. 86 The negotiations between the parties subsequent to 28 September 2005 confirm that, as at that date, the implied term pleaded was not at all obvious. In her first draft of the memorandum of understanding, Ms Starke chose a different term altogether. Her proposal was that the agreement would come into effect on certification of EBA7 and continue to operate forever, unless varied, replaced, rescinded or terminated by agreement between the parties. Qantas responded with a proposal that the side agreement expire on the nominal expiry date of EBA7. Only then did Ms Starke, on behalf of AIPA, propose something like what is now said to be the obvious term, in an attempt to ensure that the side agreement should continue in force if EBA7 endured beyond its expiry date, in accordance with s 170LX of the WR Act . In her submissions to the Commission on 16 November 2005, when she was seeking to have the application for certification of EBA7 adjourned, Ms Starke did not contend that there was a binding agreement containing an implied term that the memorandum of understanding would have the same duration as EBA7. She contended that there was no completed agreement. It may be true that her perception of the situation was not conclusive of the non-existence of a binding agreement. It is equally true that the term that AIPA now contends was so obvious as to go without saying was not obvious to Ms Starke, who had the principal responsibility for finalising the memorandum of understanding on behalf of AIPA. 87 At a very late stage in the trial of the proceeding, in submissions in reply, counsel for AIPA applied to amend the statement of claim, so as to allege in the alternative an implied term to the effect that the agreement containing the non-pertaining provisions would come into operation immediately and would continue until either party terminated it on reasonable notice. I reserved the question whether leave to amend at that stage ought to be granted. As I have said, the objective observer of the terms expressed in the Explanatory Memorandum of 28 September 2005 would have been more likely to have formed the view that the terms agreed on would come into effect immediately, and would continue until terminated by reasonable notice. Such a term is more obvious than the one originally pleaded in this case. The question remains, however, whether it is so obvious that it goes without saying. Given the existence of a range of possible provisions as to duration, it is impossible in my view to select any one as being the obvious provision, so that any expression of a term as to duration was unnecessary. 88 The subsequent negotiations of the parties about the wording of a duration clause are inconsistent with any proposition that they must be taken to have accepted that any particular term relating to duration was so obvious that its content did not require expression for the agreement to be binding. The reality is that the parties did not regard themselves as having reached a concluded agreement about the non-pertaining matters at 28 September 2005. What remained to be done was not a mere drafting exercise, but the negotiation of the terms of the agreement proposed. The correspondence between the parties about the content of the duration agreement is clear evidence of this. So also is the negotiation that took place about the sharing of any liability that might arise from the implementation of the proposed agreement. It is a reasonable inference that it was not until some time after 28 September 2005, and probably when they were exchanging drafts in November 2005, that the parties began to realise that there were potential legal difficulties confronting the proposal to transfer the non-pertaining provisions into another document. The principal difficulty was obvious. At the time when they were agreed, and were included in EBA5 and EBA6, on the assumption that the provisions were valid, there was no difficulty about the effect that they had in relation to the obligations of Qantas under EBA5 and EBA6. Once the provisions were removed, however, and the terms that they had qualified were left unqualified in EBA7, those terms would become enforceable under the WR Act in their unqualified form. It would have been possible for an inspector, or an employee whose employment was subject to EBA7, to institute a proceeding pursuant to s 178(1) of the WR Act (as it then stood), seeking to recover a penalty in respect of any breach of any term of EBA7 brought about by an attempt to modify the operation of the terms of EBA7 by applying any of the non-pertaining provisions. It seems that this realisation gave rise to Qantas's proposal in relation to the sharing of liability. Far from refusing to countenance this proposal, on the basis that there was already a concluded agreement, AIPA proposed a modification of the clause that would provide equivalent protection to AIPA in the event of any liability. The course of these negotiations is evidence that the parties were still in negotiation about what would be the terms of any memorandum of understanding that might be entered into in consequence of what was said in cll 2.4 and 2.5 of the Explanatory Memorandum.


case_text: Before considering whether the suggested implied term meets these criteria, it is necessary to deal with one argument. That argument is based on the proposition found in the judgment of Kaye J, with whom Marks and Teague JJ agreed, in Australian and New Zealand Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695 at 702, that "the law does not permit a court to imply a term into a bargain between parties for the purposes of making their bargain an enforceable contract." If this proposition is to be taken at face value, it is hard to see how most of the cases in which it has been held that there are implied terms in contracts could have been so decided. There have been numerous cases in which courts have held that implied terms that the performance of agreed obligations take place within a reasonable time, or that a party may bring about the termination of agreed obligations by giving reasonable notice, are available to ensure the binding nature of those agreed obligations. In the words of the Privy Council in the B.P. case, such implied terms are "necessary to give business efficacy" to the contracts of which they are found to be part. The danger of taking the proposition expressed by Kaye J at face value is obvious. Such a proposition could lead to arguments akin to those about whether the chicken came before the egg, or the egg before the chicken. Was there already an agreement, so that it can be supplemented by an implied term to give it efficacy, or was there no binding agreement because there was no express agreement about the subject matter of the implied term? In my view, Kaye J intended to mean no more than that the parties must have agreed to be bound by the obligations they have expressed in their negotiations, before the question whether a term can be implied to give that agreement efficacy can be addressed. It is on that basis that I approach the present case.


case_outcome: cited

case_text: Counsel for AIPA objected to evidence about negotiations between the parties after 28 September 2005, except to the extent that their content might cast light on the meaning of terms already expressed between the parties, as was suggested in Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550 per Gleeson CJ, with whom Hope JA and Mahoney JA agreed. In my view, what took place between AIPA and Qantas after 28 September 2005 is relevant in determining whether there remained matters unresolved between the parties. If one of those unresolved matters was the question of duration, then there was no concluded agreement, because an essential term was never agreed.


case_text: Counsel for AIPA relied on authorities in which it was held that agreements were subject to implied terms that their duration would match the duration of other agreements to which they were related. The specific cases are Gibson Motor Sport Merchandise Pty Ltd v Forbes [2005] FCA 749 and Caltex Properties Ltd (in liq) v Love and Ors (unreported, Supreme Court of Western Australia, Parker J, 14 May 1995). These cases turn on their own facts. They do not establish the existence of any principle that, because two agreements can be said to be related, a term must be implied into the one lacking any express term about duration that its duration will match that of the other, the duration of which has been agreed expressly.


case_title: Caltex Properties Ltd (in liq) v Love and Ors (unreported, Supreme Court of Western Australia, Parker J, 14 May 1995)


case_text: In Electrolux , the High Court affirmed the line of authority consisting of R v Portus; Ex parte ANZ Banking Group Ltd [1972] HCA 57 ; (1972) 127 CLR 353 and Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34 ; (1994) 181 CLR 96. Each of those cases involved claims made by unions which, if acceded to by employers, would have obliged the employers to deduct from wages earned by their employees amounts by way of union dues, and to pay those amounts to the relevant union. In each case, it was held that such claims did not pertain to the relationship between employers and employees in their capacity as such. In Alcan , the High Court was invited to overturn Portus , but declined to do so. The claims in question in Portus and Alcan had both the first and second characteristics of the provisions in question in Electrolux . 116 Clauses 45 and 46 and the related provisions of EBA6 are of a very different character from the provisions that were the subject of Electrolux . They involve none of the three significant characteristics of the provisions the subject of Electrolux . There is no obligation on Qantas to deduct money from wages or salary that would otherwise be paid to any of its employees, or to pay any amount so deducted to any party other than Qantas. AIPA is not the intended recipient of any money from Qantas. The provisions in question in this case bind Qantas in relation to its existing employees, particularly those who are already members of AIPA. The provisions bear no resemblance to those that were the subject of Portus or Alcan . Any debts created by cll 45 and 46 and the related provisions of EBA6 are debts due from Qantas to its own existing employees, and relate to the relationship between Qantas and its own employees. The provisions do more than simply strengthen the position of AIPA, although they are certainly intended to accomplish that. They accomplish it by regulating the hours of work of Qantas's employees and the amounts of money to be paid to those employees. No question of deduction of any money from anything that would otherwise be paid to an employee arises. No agency relationship between AIPA and Qantas could possibly be created. There is no question of payment by any non-member to AIPA.


case_title: Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34 ; (1994) 181 CLR 96


case_text: Clauses 45 and 46 and the related provisions of EBA6 have substantial similarities to some of the provisions with which French J was concerned in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737 (2004) 138 IR 362. At [73] - [79] , his Honour analysed Electrolux , in an effort to distil the appropriate test for determining whether a matter pertains to the relationship of employers and employees. At [96]-[103], his Honour dealt with provisions of a log of claims setting out circumstances in which employees might be absent from their duties and yet still to be paid while they attended various kinds of union meetings, including board of management meetings, discussions between management and the union, and training and education courses organised by the union. At [96]-[97], his Honour said of those provisions: They establish for the most part an entitlement to paid leave for employees who are performing certain functions with the relevant union. The hours of an employees' [sic] availability for work and the conditions under which an employee may be absent from that work and whether or not he or she can be paid during that absence, in my opinion, lie at the heart of the employer-employee relationship. They affect employer and employee in their capacities as such. It is no answer to that proposition to say that these provisions affect employees in their capacity as union members. So much may be correct, but if the provision in question also affects the employment relationship in a direct way that is neither consequential nor remote it pertains to the employer-employee relationship. Argument by reference to the multiple capacities of employees can lead into a morass of fine distinction. So maternity leave, leave to perform jury service and leave to train in the military reserve may all be said to attach to people in their capacities as parent, citizen, military reservist respectively. In my opinion, the provisions of such clauses pertain to the employment relationship. 119 I respectfully adopt the approach of French J. Provisions requiring an employer to permit an employee to engage in activities that are not part of the normal employment duties of that person, during times when that person would normally be expected to be engaged in duties on behalf of the employer, clearly pertain to the relationship of employer and employee. Provisions that require the employer to continue to pay the employee, even when the employee is engaged in those activities, also pertain to the relationship of employer and employee. Clause 46 of EBA6 deals with the times when the President of AIPA, an employee of Qantas, and the designates of the President of AIPA, also employees of Qantas, are to be relieved from what would otherwise be their obligations to perform duties for Qantas. Those provisions deal with a form of leave. It is true that AIPA is intended to benefit from the leave taken by those employees, because the purpose of taking that leave is for those persons to attend to the business of AIPA. The fact that this is the intended purpose of the leave detracts not at all from the fact that the provisions are provisions relating to leave, and are therefore at the heart of the employment relationship. Clause 46 of EBA6 relates partly to the calculation of the salary to be paid to one of Qantas's employees, who happens also to be the President of AIPA, and partly to the determination of the times during which that person will be required to perform duties on behalf of Qantas. Again, such provisions are at the heart of the employment relationship, and the fact that AIPA is a beneficiary of their application does not change the character of the provisions. 120 It follows that cll 45 and 46 and the related provisions of EBA6 fell within s 170LI(1) of the WR Act . EBA6 was properly certified, and AIPA and Qantas were bound by it, including by those provisions. In the event that Qantas is found to have been in breach of any of the terms of those provisions, Qantas is liable to penalties pursuant to s 178(1) of the WR Act . It is therefore necessary to turn to the question whether there were such breaches in the period leading up to 16 November 2005, when EBA7 was certified and EBA6 ceased to apply. 121 In the first place, Qantas was clearly in breach of cl 46.2, coupled with cl 46.6.1, of EBA6 in failing to pay Captain Woods at the rate of salary calculated in accordance with cl 24.2, in respect of the period from 7 November until 15 November 2005. With one exception, the evidence is to the effect that Qantas had adopted a practice of continuing to apply all provisions of EBA6 (including those that had been identified and agreed upon as possibly non-pertaining provisions) for as long as EBA6 remained in force. The exception is the evidence of what Ms Bussell said to Captain Woods on 7 November, when he complained to her that EBA6 was not being applied, after he had spoken with Captain Manning, Captain Kearns and Mr Hailes. Ms Bussell indicated that the non-pertaining provisions would not have force until the memorandum of understanding was signed. Even if there was a practice of applying EBA6 in its entirety, it is clear that it was not applied in one respect. The payment of additional salary to Captain Woods was never processed, as it would have been if Qantas had followed its usual practice of paying a newly elected President in arrears from the date of taking office. On the basis that cl 46 is an enforceable provision, Qantas offered no argument against the conclusion that it was in breach in this respect. Qantas and AIPA have agreed that the amount of the underpayment is $1,385.83. There will be an order that Qantas pay that sum to Captain Woods.


case_text: The other ground which was argued was that the Tribunal had erred by failing to consider whether the appellant had been persecuted by reason of her membership of a particular social group. This ground was not raised expressly before the Tribunal nor was material presented by the appellant which made it necessary for the Tribunal to consider and determine the issue. Even if it be assumed, in the appellant's favour, that a particular social group of the kind identified by counsel existed, the Tribunal's findings that the appellant had not been subject to conduct which amounted to persecution means that she does not satisfy the Convention definition of a "refugee". If she was not persecuted the question of the reason for any alleged persecution does not arise. It cannot, therefore, be said that the Tribunal's failure to deal with the issue meant that a claim which might have been dispositive of the application had been ignored: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [63] . In any event this was not a ground that was argued before the Federal Magistrate. I note also that, when asked by the Tribunal whether she knew of any other women who had a similar problem to her in Thailand, she answered that she did not. 22 The appeal should be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 3 March 2008 Counsel for the Appellant: Mr J A Patel Counsel for the Respondent: Ms E Latif Solicitor for the Respondent: Clayton Utz Date of Hearing: 3 March 2008 Date of Judgment: 3 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/207.html


case_text: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the majority of the High Court (McHugh, Gummow, Kirby and Hayne JJ) said at [93]: In our opinion the Court of Appeal of New South Wales was correct ... in criticising the continued use of the "elusive distinction between directory and mandatory requirements" ... and the division of directory acts into those which have substantially complied with the statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. ... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. To my mind, s 601FJ(2) offers only limited assistance in considering that question. The Shorter Oxford Dictionary (4th ed, Oxford University Press, 1993) defines the word "accordance" as: "Agreement; conformity; harmony." The word "conformity" is defined as: "Correspondence in form or manner ( to, with ); agreement in character; likeness; congruity. ... Action in accordance with some standard; compliance ( with, to ); acquiescence ... ". The BT defendants submit that the words do not generally prescribe strict compliance. In MTM Funds Management Ltd v Cavalane Holdings Pty Ltd (2000) 158 FLR 121, Austin J helpfully summarized a number of the cases. However his Honour was concerned with a slightly different question. For present purposes, it is necessary that I go to those cases. If I am wrong both in my construction of s 601FM(1) and s 601FJ(2) , so that the resolution is void, the BT defendants submit that it may be validated pursuant to s 1322. Further, as was pointed out in Project Blue Sky (1998) 194 CLR 355 at [100] invalidity may not be the only basis for restraining action in reliance upon a non-compliant resolution. Even an irregularity not leading to invalidity may be a basis for such relief.


case_outcome: considered

case_text: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the majority of the High Court (McHugh, Gummow, Kirby and Hayne JJ) said at [93]: In our opinion the Court of Appeal of New South Wales was correct ... in criticising the continued use of the "elusive distinction between directory and mandatory requirements" ... and the division of directory acts into those which have substantially complied with the statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. ... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. To my mind, s 601FJ(2) offers only limited assistance in considering that question. The Shorter Oxford Dictionary (4th ed, Oxford University Press, 1993) defines the word "accordance" as: "Agreement; conformity; harmony." The word "conformity" is defined as: "Correspondence in form or manner ( to, with ); agreement in character; likeness; congruity. ... Action in accordance with some standard; compliance ( with, to ); acquiescence ... ". The BT defendants submit that the words do not generally prescribe strict compliance. In MTM Funds Management Ltd v Cavalane Holdings Pty Ltd (2000) 158 FLR 121, Austin J helpfully summarized a number of the cases. However his Honour was concerned with a slightly different question. For present purposes, it is necessary that I go to those cases.


case_title: re Barber (1886) 17 QBD 259

case_text: re Barber (1886) 17 QBD 259 at 264 Lord Esher MR said: But, if a bill of sale is a plain and simple document which would not deceive any ordinary borrower, the Court has never said that it must be set aside because it is not in the exact form given in the schedule. In the present case, I am of opinion that the bill of sale is not so intricate, by reason either of its length or the manner in which it is expressed, as to place any real difficulty in the way of the borrower. It is in substance made in accordance with the statutory form, and I think it is not invalid on any of the grounds which have been suggested. Lopes LJ said at 265: No doubt [the bill of sale] does not servilely follow that form. But it is only necessary that it should follow the form in substance. At 270 Bowen LJ said: A bill of sale is surely in accordance with the prescribed form if it is substantially in accordance with it, if it does not depart from the prescribed form in any material respect. But a divergence only becomes substantial or material when it is calculated to give the bill of sale a legal consequence or effect, either greater or smaller, than that which would attach to it if drawn in the form which has been sanctioned, or if it departs from the form in a manner calculated to mislead those whom it is the object of the statute to protect. In estimating the effect of a divergence, one must not take into consideration for the moment the provision of s.9 , that the bill of sale if it varies from the form is to be void, for owing to this statutory penalty no material variation can in the end have any legal effect at all.


case_text: Latitude Fisheries Pty Ltd v Minister for Primary Industries & Energy (1993) 41 FCR 536 at 542-543 the Full Court (Black CJ, Burchett and Lee JJ) said: There was debate about the meaning of the expression "in accordance with", which it was suggested is the equivalent of "consistent with". We have no doubt that the expression connotes a substantial measure of consistency, but, beyond making that observation, we do not think it is particularly helpful to substitute for the statutory expression some other expression of closely similar meaning.


case_title: Walker v Wilson (1991) 172 CLR 195

case_text: Walker v Wilson (1991) 172 CLR 195, the High Court was concerned with a provision in relevant Workers' Compensation legislation which provided that a worker was deemed to have suffered personal injury by accident arising out of, or in the course of, his employment "if the journey is undertaken in accordance with the terms and conditions of employment ...". At 200, Brennan J said: The qualification will exclude cover for such a journey if the phrase "in accordance with" be construed as "not inconsistently with" the terms and conditions of the workers' employment. On the other hand, Deane, Dawson, Toohey and McHugh JJ said (at 207-8): In our view, however, the reference in sub-par. (iii) to a journey being "undertaken in accordance with the terms and conditions of [the workers] employment" should not be construed as requiring that the relevant journey was one which the worker was contractually bound to take. In the context of the particular circumstances to which sub-par. (iii) is confined, that is to say a case where a worker has been " required " by his employer or by the demands of his work to reside temporarily or in a particular place, it would be arbitrary and unfair to construe the requirement that the journey be "in accordance with the terms and conditions of his employment" in a way which would exclude a return journey which was in the contemplation of both employer and worker at the time the worker went to the temporary location, which was made with consent of the employer and which was consistent with the terms and conditions of the employment. In the context of sub-par. (iii) the words "in accordance with" should be construed as meaning "in conformity with" or "consistently with". In this case the adopted procedure complied substantially with the requirements of Division 2. The primary thrust of the Division is that replacement is to be effected by extraordinary resolution at a meeting called in accordance with the Act. The members of the scheme both must resolve to remove the existing responsible entity and choose a replacement. The requirement for an extraordinary resolution is significant for present purposes. Such a resolution requires the support of holders of 50% of the total number of possible votes. To achieve success in such an undertaking is no mean feat. The adoption of such a resolution says much about the wishes of the members. It is difficult to see why Parliament would have intended that a resolution having such wide support be invalid merely because there was one vote rather than two. As I have said, the absence of any clear purpose underlying the alleged requirement that there be two distinct votes militates against such a construction. However, if that construction be accepted, the same consideration militates against construing s 601FJ(2) as invalidating a resolution adopted in breach of such requirement.


case_text: preliminary question arises as to the application of s 1322 to a resolution which does not comply with the requirements of s 601FM. The plaintiffs submit that s 601FJ(2) manifests an intention that any such irregularity render such resolution invalid, and so implicitly excludes the operation of s 1322. They rely upon the decision of the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 275-279, and the decision of the New South Wales Court of Appeal in BP Australia Ltd v Brown (2003) 58 NSWLR 322. David Grant (1995) 184 CLR 265 concerned the operation of s 1322(4) upon an application to set aside a statutory demand made outside the period prescribed for so doing. The relevant provision provided that such an application "may only be made within 21 days after the demand is so served". The Court held that the clear wording of the section, its history, the purpose which the statutory demand fulfilled and the consequence of non-compliance militated against the intention that time for compliance could be extended pursuant to s 1322(4). In BP Australia Ltd v Brown (2003) 58 NSWLR 322 the Court of Appeal came to a similar conclusion concerning a specified time limit in another provision of the Corporations Act , also providing that an application "may only be made" within a specified time and with a specific provision limiting the capacity to extend time. Neither case bears much similarity to the present circumstances. The plaintiffs' case, at its highest, depends upon the proposition that s 601FJ(2) invalidates proceedings not taken in accordance with Division 2. However it is quite clear that s 1322(4) permits the remediation of invalidity, which term I take to include ineffectiveness, the word used in s 601FJ(2). Something more is needed in order to exclude the operation of s 1322. In both David Grant (1995) 184 CLR 265 and Brown (2003) 58 NSWLR 322 the relevant sections, in terms, prescribed the only circumstances in which the relevant applications could be made. In both cases other circumstances also suggested that it was not intended that s 1322 should apply.


case_title: BP Australia Ltd v Brown (2003) 58 NSWLR 322


case_text: their submissions concerning the applicability of s 1322 , both sides seek to rely upon s 601QA. That section authorizes ASIC to exempt a person from a provision of Ch 5C. The plaintiffs submit that it would be inconsistent with the existence of such power in ASIC for the Court to have power, pursuant to s 1322 , to remedy any non-compliance with a provision of that chapter. That submission assumes that ASIC's power may be exercised retrospectively, a proposition about which ASIC apparently has doubts. See Re Westpac Banking Corporation (2004) 53 ACSR 288 at [16]. The BT defendants submit that the existence of such a power demonstrates that compliance with the provisions of Ch 5C is not mandatory. I derive no assistance from either submission. In my view, s 1322 operates in connection with proceedings pursuant to s 601FM. I propose to deal firstly with the operation of s 1322(2) upon the basis that the alleged non-compliance is a procedural irregularity which may be validated pursuant to that section. I will then deal with the operation of s 1322(4) on the basis that s 1322(2) does not operate to validate the consequences of any irregularity. Section 1322(2)


case_title: Howard v Mechtler (1999) 30 ACSR 434

case_text: first question is whether I am here concerned with a "proceeding" as defined in s 1322(1). Counsel for the BT defendants submit that the decision in Howard v Mechtler (1999) 30 ACSR 434 is authority for the proposition that a meeting or resolution passed at a meeting is such a proceeding. In that case Austin J certainly treated a meeting as being a proceeding for the purposes s 1322. However, I doubt whether, in declaring that the relevant resolution was ineffective by virtue of failure to comply with the equivalent of what is now s 201E , his Honour was acting pursuant to s 1322. Austin J raised that ground of invalidity after argument and received written submissions concerning it. His Honour's reasons suggest that he was declaring invalidity upon the basis of his construction of the relevant section rather than exercising a discretion to invalidate an otherwise valid resolution. The BT defendants also point out that in Cordiant Communications Australia Pty Ltd v The Communications Group Holdings Pty Ltd (2005) 55 ACSR 185 at [87], Palmer J observed: There is no doubt that the passing of a special resolution of a shareholders meeting is a "proceeding" under the Corporations Act for the purposes of s 1322. Apart from the plaintiffs' own assertions (which may be taken to be also on behalf of Contra Proferentum), there is no reason to believe that anybody would have voted differently had the two matters been voted upon separately. Nobody attending at the meeting, other than City Pacific and Contra Proferentum, opposed the proposal being considered and adopted in accordance with the notice of meeting. It is common ground that City Pacific and Contra Proferentum had insufficient votes to change the outcome. The plaintiffs bear the onus of establishing injustice for the purpose of s 1322(2). See Howard v Mechtler (1999) 30 ACSR 434 at 441. The plaintiffs have not satisfied that onus. Section 1322(4) Section 1322(4) will be engaged only if the purported resolution is invalid. The section authorizes the Court to make an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken under the Act, or in relation to a corporation, is not invalid by reason of any contravention of a provision of the Act, or a provision of the constitution of a corporation. There is no reference to an act "in relation to" a scheme or a provision of the constitution of a scheme. However the purported resolution was clearly "under" the Act. It has not been suggested that any relief sought in connection with the purported resolution is beyond the power conferred by s 1322(4). In order that the Court may make an order pursuant to s 1322(4)(a) it must be satisfied as to one of the three following matters: In every case the Court must also be satisfied that no substantial injustice has been, or is likely to be, caused to any person. Presumably, the conferment of power to validate an act, matter, thing or proceeding which is "essentially of a procedural nature" supplements the power conferred by s 1322(2) to rectify a procedural irregularity, and therefore applies to a situation in which s 1322(2) would not operate. As I understand the BT defendants, they submit that it is just and equitable that an order be made validating any invalidity, and that no substantial injustice has been, or is likely to be, caused to any person.


case_text: first question is whether I am here concerned with a "proceeding" as defined in s 1322(1). Counsel for the BT defendants submit that the decision in Howard v Mechtler (1999) 30 ACSR 434 is authority for the proposition that a meeting or resolution passed at a meeting is such a proceeding. In that case Austin J certainly treated a meeting as being a proceeding for the purposes s 1322. However, I doubt whether, in declaring that the relevant resolution was ineffective by virtue of failure to comply with the equivalent of what is now s 201E , his Honour was acting pursuant to s 1322. Austin J raised that ground of invalidity after argument and received written submissions concerning it. His Honour's reasons suggest that he was declaring invalidity upon the basis of his construction of the relevant section rather than exercising a discretion to invalidate an otherwise valid resolution. The BT defendants also point out that in Cordiant Communications Australia Pty Ltd v The Communications Group Holdings Pty Ltd (2005) 55 ACSR 185 at [87], Palmer J observed: There is no doubt that the passing of a special resolution of a shareholders meeting is a "proceeding" under the Corporations Act for the purposes of s 1322. I hold that the adoption of a resolution at a meeting is a proceeding for the purposes of s 1322(1) and (2). If so, and assuming that the irregularity is procedural, the BT defendants may rely upon the operation of s 1322(2) to avoid invalidity of the resolution. The fact that one is considering the validity of a proceeding does not necessarily mean that any possible cause of invalidity is procedural. In Cordiant (2005) 55 ACSR 185, after considering the authorities, Palmer J concluded at [97]: A wrongful denial of a shareholder's statutory right to vote at a meeting is a denial of substantive right and is not a "procedural irregularity" within the scope of s 1322(2) at all. There is much to be said for the proposition that denial of a right to vote is more than a procedural irregularity. The plaintiffs submit that the taking of only one vote deprived them of their entitlement to vote on the question of replacement. However the form of the proposal did not, itself, have this effect. Their disenfranchisement was the consequence of the operation of s 253E. The section suggests that a responsible entity has an interest in both its removal from that position and the choice of any replacement. The final sentence of s 253E would otherwise be unnecessary. It is not difficult to identify reason for treating the outgoing responsible entity as being interested in the choice of a replacement. Firstly, the removal and replacement are closely associated. The enthusiasm of the members for removal will almost certainly depend upon the availability of a suitable replacement, unless they were willing to wind up the scheme. In that case, one might expect them to proceed pursuant to s 601NB rather than by way of application pursuant to s 601FM(1). A responsible entity who did not wish to be removed might make it known that it was hostile to any proposed replacement. If it held sufficient votes to influence the outcome, such a disclosure might dissuade other members from voting for its removal. In those circumstances, and given that both matters must be resolved at the same meeting, one would be inclined to think that the responsible entity was sufficiently interested in the replacement to be disqualified from voting on that issue. Further, if the responsible entity were removed, but no replacement was chosen, the outgoing responsible entity would be obliged to apply for the winding up of the scheme. As I have previously pointed out, it would normally be responsible for supervising that winding up. Thus it would, in effect, continue as responsible entity and would, presumably, derive a benefit from so doing. In that way, too, it would have an interest in the choice of a replacement. In the circumstances I am not satisfied that either City Pacific or Contra Proferentum would have been permitted to vote on a separate motion to choose a replacement responsible entity. There has been no suggestion that the proposal was drawn in order to cause disenfranchisement. It must be taken at face value. Section 601FM prescribes the procedure for removing and replacing a responsible entity. In that sense it is procedural. Given the requirement that such steps be effected by extraordinary resolutions, the form in which it is cast is significantly less important than absence of a quorum, a matter expressly defined to be a procedural irregularity. Absence of a quorum will mean that a resolution may be adopted by the vote of a smaller number of persons than is contemplated by law or by the relevant constitutional document. That is not a risk in the case of an extraordinary resolution, given the requirement for a 50% vote in favour of the relevant proposal.


case_text: plaintiffs submit that the decision in Wagner v International Health Promotions (1994) 15 ACSR 419 is authority for the proposition that failure to comply with a mandatory requirement such as that in s 601FM cannot be characterized as a procedural irregularity. However that was a quite different case. Section 436A(1) of the Corporations Law required that an administrator might be appointed if the board had resolved to the effect that: (a) in the opinion of the directors voting for the resolution, the company is insolvent, or is likely to become insolvent at some future time; and (b) an administrator of the company should be appointed. The board resolved only that an administrator be appointed. There was simply no resolution as to insolvency. In the present case, the members resolved both that City Pacific be removed and that Trilogy be appointed.


case_outcome: approved

case_title: Mamouney v Soliman (1992) 9 ACSR 63

case_text: am of the view that the alleged non-compliance, that is failure to conduct two separate votes, would have been a procedural irregularity. To the extent that the purported resolution might be invalid, such invalidity would have been cured by s 1322(2). I do not understand the plaintiffs to seek a declaration of invalidity pursuant to s 1322(2). In any event, in Mamouney v Soliman (1992) 9 ACSR 63 at 71, Hodgson J (after referring to the authorities) said: Furthermore, in my view, it is necessary that the possible injustice be linked to the particular irregularities themselves. It is insufficient for the plaintiff to say that the resolutions were irregularly passed, and those resolutions have caused injustice. In my view, the plaintiff must show that there may have been a different result, if the proper notice had been given.


case_text: argument appears to owe something to perceptions which led to the assertion (now abandoned) that the explanatory memorandum was misleading or deceptive and that this was a basis for invalidating the resolution. In Peters' American Delicacy Co Ltd v Heath (1938-1939) 61 CLR 457, similar arguments were considered and discarded. At 489-491, Latham CJ said: It is next objected that the statements made by the chairman and the solicitor for the company in the speeches which they made at the meeting were misleading. The objections to the speeches cover much of the same ground as objections to the circular. ... but in my opinion the answer to these objections (as also to the objections against the circular) is that the whole matter was fully discussed and debated at the meeting. The directors put their views through the chairman and the company's solicitor. A solicitor and another speaker for the objectors contested the statements of the chairman and of the company's solicitor, contended that the proposed alteration would be unfair to the partly paid shareholders ... Thus it appears to me that the whole matter was put before the shareholders. They were given quite full information. Any further information which they desired was available to them, including the opinions of counsel. No charge of fraud or of bad faith is made, or, if made, could on the evidence be supported. There is no evidence that the alteration was made with the object of oppressing a minority or to deprive a minority of its rights. ... Even if it should be held that some of the statements made in speeches at the meeting were inaccurate, it would, in my opinion, be a dangerous thing for a court to declare that such a circumstance invalidated a resolution passed at a meeting of the shareholders of the company. Whenever a controversy arises as to what is the wisest course to pursue, and particularly when the matter in issue involves the alteration of existing rights (real or supposed), statements will probably be made on each side which the other side regards as unfair or inaccurate and which may in fact be unfair or inaccurate. There is, in my opinion, no authority to support the proposition that the fact that statements which are not true in fact were made at a shareholders' meeting has the effect of invalidating a decision reached at the meeting. If this were the law, then, as two inconsistent statements can never both be true, it would only be necessary for any dissentient shareholder to make a statement or series of statements which were plainly inconsistent with other statements made at the meeting in order to procure the invalidation of any resolution passed. Similarly, at 514, Dixon J said: But the fact that a description honestly made of the exact legal result arising from the existing articles is thought by the Court to be capable of conveying an incorrect impression is no sufficient ground for treating as void special resolutions duly notified, proposed and passed. The plaintiffs submit that had the votes been taken separately the outcome might have been different. This is pure speculation. The evidence clearly indicates to the contrary. In particular, no member other than City Pacific and Contra Proferentum expressed any opposition to the motion being put in the form appearing in the notice of motion. There was no suggestion that any entity other than Trilogy should be considered for appointment as the replacement responsible entity. The notice of meeting was given well in advance of the meeting. Had any member wished to propose different resolutions he or she could have done so. Had members felt that they would prefer to consider the two questions separately, and to vote on them separately, they could have asked for the opportunity. Whether or not it was granted may have depended upon the views of the members. It may have been necessary that there be another meeting. These were all questions for the members to consider at the meeting. It was open to persons who had cast proxy votes prior to the meeting to withdraw their proxies by attending at the meeting and voting on the basis of the additional information provided by the BT defendants and the information provided by the plaintiffs.