case_text: The Minister considered that the second referral had been withdrawn on 28 March 2007, presumably as a consequence of Mr Gay's letter of that date referred to at [56]. On my analysis, the withdrawal occurred late on 30 March 2007 in the making of the third referral. This means that the notice under reg 6B.01 was premature and referred to an incorrect date of withdrawal. However, this does not affect the validity of the withdrawal, it means that the obligation to publish notice of the withdrawal in accordance with s 170C(3) and the EPBC Regulations remains unfulfilled. The notice itself has been given and the failure to publish that notice is not intended to affect the validity of the withdrawal of the second referral (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [91] [97] (especially at [92]) per McHugh, Gummow, Kirby and Hayne JJ). There is no indication in s 170C that failure to publish notice of the withdrawal in strict compliance with the EPBC Regulations results in the invalidity of the withdrawal. 78 Counsel for TWS contend that on withdrawal of the second referral, the provisions of Ch 4 of the EPBC Act, including ss 68, 75 and 87 ceased to apply to the action. Counsel submit that, as a consequence, the third referral was invalid and not capable of supporting the impugned decisions. 79 Reliance is placed on s 170C(4) which provides : If the referral is withdrawn, the provisions of this Chapter [ss 66 to 170C] that would, apart from this subsection, have applied to the action cease to apply to the action.


case_outcome: referred to

case_text: Any obligation to the public or persons interested in an action in the context of those decisions is found in the EPBC Act. There is no general obligation to accord procedural fairness. The words "in relation to" in s 131AA(7) are broad. Compare the similar expression "in connection with" which Gibbs CJ held in the context of an eligibility rule of a registered industrial organisation "very considerably widens the scope of the rule" ( R v Isaac; Ex parte Transport Workers' Union of Australia [1985] HCA 80 ; (1985) 159 CLR 323 at 335). 140 Even if I am wrong in considering that there is no obligation to accord procedural fairness, otherwise than as is set out in the EPBC Act, it would be difficult to establish a denial of procedural fairness in the circumstances. As counsel for the Minister submit, in their written submissions: ...the scope of the inquiry under the EPBC Act is limited to issues relevant to the "controlling provisions"...the inquiry will not consider any and all environmental issues that may arise out of the proposal. For example, issues of general air quality are not relevant. The relatively confined scope of the inquiry bears on the reasonableness of the opportunity to be heard. 141 It is also significant, as counsel for the Minister submit at [36] of their written submissions, that there is no requirement in the EPBC Act to invite the public to comment on what assessment approach should be adopted for the decision on approval. That tells against a requirement for the Minister to accord procedural fairness in making an assessment approach decision.


case_text: In any event, I am not satisfied that, even if Gunns' commercial imperatives influenced the Minister's 2007 assessment approach decision, that this was a dominant or substantial purpose in the Minister's choice of assessment process (see Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 397 per Merkel J citing Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87 at 106). Nor am I satisfied that it was the "operative subjective purpose of the decision maker" (see Re MacTiernan, Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264 at [51] per McLure J).


case_text: The 2007 assessment approach decision cannot be said to be "irrational, illogical and not based upon findings or inferences of fact supported by logical grounds" (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34], per McHugh and Gummow JJ). The 2007 assessment approach decision was made after the Minister considered an alternative approach, such as an EIS. In all the circumstances, having regard to the advice given to the Minister by Mr Early, and taking into account the demise of the RPDC process, it cannot be said that the 2007 assessment approach decision was manifestly unreasonable.


case_outcome: cited

case_title: Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87


case_text: Counsel for TWS submit that the Minister's 2007 assessment approach decision was affected by apprehended bias. They contend that the facts and circumstances of this matter are such as would give rise in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the Minister's part, and to an apprehension that the Minister prejudged the outcome of the decision he was required to make (see Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 47 per Mason CJ and McHugh J and Brooks v The Upjohn Company (1998) 85 FCR 469 at 477).


case_title: Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386


case_text: ASP emphasised the evidence before the Tribunal, to which it referred in its reasons, that, although seafarers could move between industries in their work, the blue water and offshore industries are quite distinct. ASP pointed to the different regime under which seafarers are employed in the offshore segment compared with the regime that operated in the blue water segment at the time of to the Seafarer's incapacity. The latter was regulated by the Award. Since at latest 2001, employment in the offshore segment has been regulated by enterprise agreements negotiated against the background of the different conditions that apply to employment in that segment as compared with employment in the blue water segment. Employment under such enterprise agreements involves a different factual matrix to employment under the Award (see Comcare v Thompson [2000] FCA 790 ; (2000) 175 ALR 163 at [45] ). 24 ASP contended that the Tribunal made no error of law in its approach to the task of identifying a class to which the Seafarer belonged at the time of his incapacity. The Tribunal sought to find a category of employees whose basis of remuneration was sufficiently similar to that of the Seafarer for a conclusion to be reached that the Seafarer belonged to that class of employees. That, ASP said, involved no error of law and the Tribunal's conclusion that there are no longer employees in that class is a finding of fact. 25 The essential question is whether the Tribunal adopted an erroneous approach to its task of identifying a class of employees to which the Seafarer belonged. It is a question of law as to what the phrase " class to which [the Seafarer] belonged " means when it is used in s 13(6). However, whether or not there is a continuing class, as the term is properly understood, to which the Seafarer belonged, is a question of fact which is within the province of the Tribunal alone. If the approach adopted by the Tribunal discloses a misapprehension of its task so as to indicate a misconception as to the meaning of " class of employees to which [the Seafarer] belonged " it made an error of law.


case_text: For example, there may be instances in which persons with such a common interest may be identified by the type of work that they perform, the qualifications that they hold, the category or level of position that they hold or any combination of these or other features. It is imperative, however, that regard is had to the features that identified those who had " a common interest " in remuneration at the date of the Seafarer's incapacity. Particular reference was made by ASP to a decision of the Tribunal relied upon by a Tribunal in this case: Re Thompson and Comcare [2002] AATA 733 ; (2002) 69 ALD 762 at [28] .


case_text: 68(1), 69 and 70(1) of the Entitlements Act have the effect that the Commonwealth is liable to pay in accordance with the Entitlements Act a pension by way of compensation to the dependants of a member of the Forces who has served continuous full-time service after 6 December 1972 and before 7 April 1994 for a period of three continuous years, where the death of the member was defence-caused. Section 70(5)(a) of the Entitlements Act provides that the death of a member shall be taken to have been defence-caused if the death arose out of or was attributable to any defence service of the member. The use of the disjunction in the phrase manifests a legislative intention to give the term defence-caused a broad meaning and s 70(5)(a) does not import any notion of sole or dominant or direct or proximate attribution: Roncevich v Repatriation Commission (2005) 222 CLR 115 at [27] per McHugh, Gummow, Callinan and Heydon JJ.


case_text: 120(4) of the Entitlements Act provides that in making any determination or decision in respect of a matter arising under the Entitlements Act or Regulations (other than a determination to which s 120(1) or (2) applies, and those subsections do not apply here), the statutory standard to be applied by the decision-maker is a standard of "reasonable satisfaction" which adopts the civil standard: Repatriation Commission v Smith (1987) 15 FCR 327 per Northrop, Beaumont and Spender JJ. Therefore, if the decision-maker is satisfied on the balance of probabilities that Mr Heathcote's death was attributable to any defence service on his part, the death is taken to be defence-caused. However, s 120B(1)(b) has the effect of applying s 120B to Mrs Heathcote's claim made under s 70(1) of the Entitlements Act. That being so, s 120B(3) thus applies and provides that in applying s 120(4) to determine a claim, the Commission is to be reasonably satisfied that the death of a person was defence-caused only if: (a) the material before the Commission raises a connection between the ... death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B(3) or (12); or (ii) a determination of the Commission under subsection 180A(3); that upholds the contention that the ... death of the person is, on the balance of probabilities, connected with that service. [emphasis added] Section 196A of the Entitlements Act establishes the Repatriation Medical Authority and s 196B provides that the main function of the Authority is to determine Statements of Principles for the purposes of the Entitlements Act and the Military Rehabilitation and Compensation Act 2004 (Cth). Section 196B(3) is in these terms: If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to: (a) ... (b) defence service ... rendered by members of the Forces; or ... the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (c) the factors that must exist; and (d) which of those factors must be related to service rendered by a person; before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.


case_text: Dr Levy was directing his mind to the controversy on the facts, based on the medical evidence, as to whether and if so when, M G U S was present in Mr Heathcote. At [23], Dr Levy referred to the careful analysis of Dr Grant and the expert assessments of Dr Choo. Dr Levy noted the "uncertainty" on this question and the evidence of Dr Davison as the treating cardiologist and the opinion of Dr Catalano. At [24], Dr Levy referred to other information that had assisted the Tribunal in understanding the "differentiation between MGUS and myeloma" consisting of an extract from Harrison's Principles of Internal Medicine (13 th Ed., 2) Part II , Section 1 , "Disorders of the Immune System, Plasma Cell Disorders of the Immune System, Plasma Cell Disorders", cited in Judge v Repatriation Commission [2002] AATA 420, and said: The evidence of Associate Professor Marion Woods was also of considerable assistance in understanding the complexities of the condition and the difficulty in determining the likely path of the disease in any particular case. At [25], Dr Levy noted that the view of Dr Woods was essentially supportive of the opinions of Dr Davison and Dr Catalano and at [26], Dr Levy found: While the evidence of Professor Woods cumulatively with that of Dr Davison and Dr Catalano is more persuasive than Dr [Choo's] conclusion, I accept Professor Woods' opinion as it is also supported by empirical evidence which is more likely to explain the comparatively earlier death of Mr Heathcote compared to others with this condition. That empirical evidence shows that progression to AL Amyloidosis is 8.4 times more likely where MGUS is present and the pattern of the debilitating illness of Mr Heathcote tends to indicate some abnormal factor was present to explain the acceleration of the disease and particularly in someone who died at 42 years of age whereas the expected median age is closer to 60 years of age. Accordingly, Dr Levy found in reliance upon the persuasive evidence of Dr Woods, Dr Davison and Dr Catalano, and particularly the evidence of Dr Woods, that Mr Heathcote was suffering from a monoclonal gammopathy of uncertain significance which had accelerated the progression of AL amyloidosis explaining the comparatively early death of Mr Heathcote at 42.


case_text: resolution of the final question involved a finding of fact or findings of facts from which inferences might be drawn as to the ultimate question in issue. If there is no evidence to support the finding or no proper basis for drawing any inference upon which the Tribunal has relied, an error of law arises. As to findings "unsupported by any evidence", see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ. Want of logic or faulty logic on the part of the Tribunal is not synonymous with error of law. As to inferences that might be drawn, so long as the particular inference is reasonably open even if the inference appears to have been drawn as a result of illogical reasoning, there is no error of law: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141. As to the "no evidence" ground see SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32].


case_title: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141


case_title: SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824


case_text: Commission accepts that Mr Heathcote died from cardiomyopathy and therefore the Statement of Principles concerning cardiomyopathy applies. The Commission also accepts that factor (p) is made out as Mr Heathcote's myocardium had been infiltrated by amyloid material by reason of a specified disorder, namely, amyloidosis. Since factor (p) exists, it is open to the decision-maker to conclude, on the balance of probabilities, that Mr Heathcote's death from cardiomyopathy is connected with the circumstances of his defence service provided that the final question is answered in the affirmative. That question is whether Mr Heathcote's death from amyloid cardiomyopathy, being the specified disorder contemplated by the Statement of Principles, was, on the balance of probabilities, related to the defence service rendered by Mr Heathcote in the sense that it arose out of or was attributable to that service (s 196B(14); Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280 at [46]; Hill v Repatriation Commission [2009] FCAFC 91; (2009) 177 FCR 434 at [24]). That might be so if Mr Heathcote's M G U S was attributable to his defence service and M G U S gave rise to the development of amyloidosis causing amyloid cardiomyopathy and death.


case_title: Hill v Repatriation Commission [2009] FCAFC 91; (2009) 177 FCR 434


case_text: Significantly, in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [8] Gleeson CJ, McHugh, Gummow and Hayne JJ observed: 'The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits ....'


case_text: An appeal to this Court from a judgment of the Federal Magistrates Court is authorised by s 24 of the Federal Court of Australia Act 1976 (Cth). It is an appeal by way of rehearing on the evidence adduced before the Federal Magistrate ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507). In the circumstances it is appropriate for me to review that evidence which includes both the audio tapes of the Tribunal hearing and the transcript of that hearing. Having done so, I should set aside the judgment of the Federal Magistrates Court only if persuaded that his Honour's conclusion is wrong ( Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [46]). However, it is not necessary for me to be satisfied that his Honour failed to apply the proper test. If, after giving appropriate weight to the view of the Federal Magistrate, I were persuaded that the conduct of the Tribunal member gave rise to a reasonable apprehension of bias, the appeal would succeed; I would have identified error in the judgment of the Federal Magistrates Court.


case_outcome: considered

case_text: The reasons for judgment of the learned Federal Magistrate record that his Honour read a transcript of the hearing before the Tribunal and also listened to an audio tape of the entire hearing. His Honour, as the appellants accept, correctly identified the test for apprehended bias by reference to the reasons for judgment of Allsop J, with whom Moore and Tamberlin JJ agreed, in NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 264. The critical passages from the reasons for judgment of Allsop J are set out in [9] below. As those passages make clear, the test for present purposes is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not have brought an impartial mind to bear on the decision. 5 At various points in his reasons for judgment the Federal Magistrate asked himself questions in terms that, as the appellants submit, suggest that he departed from the proper test. For example, at one point his Honour asked: 'At the end of the hearing with [sc. would] the fair-minded observer think that the applicant was before a Tribunal whose mind was open to persuasion?' At another he observed: 'I am not left with a sense that the fair-minded lay observer would take from these passages a view that the Tribunal's mind was not open to persuasion.' 6 After carefully reviewing the manner in which the Tribunal member conducted the hearing, the Federal Magistrate, while critical of the Tribunal member, concluded that her conduct did not give rise 'to the possibility of apprehended bias'. 9 The critical passages from the reasons for judgment of Allsop J in NADH v MIMIA referred to above are the following: 'The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision ... To identify the obligation of the tribunal, and the content of the necessary apprehension in the circumstances here, a number of matters need be recognised. First, while it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof ... Secondly, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias ... Third, the place of a decision-maker such as the tribunal here should be recognised as different from a judge in open court ... The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality. At least in the absence of the identification of some prejudice or interest in the tribunal, for a complaint of apprehended bias based on the conduct of the tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power.' (citations omitted)


case_title: Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211


case_text: Sedley LJ, with whom the other members of the Court of Appeal agreed, recently said in Steadman-Byrne v Amjad [2007] EWCA Civ 625 at [10] in the context of an allegation of appearance of bias in a judge: 'Bias in the present context has to mean the premature formation of a concluded view adverse to one party. We put it in this way because it is well recognised not only that a judge may and commonly will begin forming views about the evidence as it goes along, but that he or she may legitimately give assistance to the parties by telling them what is presently in the judge's mind. This may properly include ... letting the parties know before reaching the defence case that the judge did not think much of the claimant's evidence.' As Allsop J observed in NADH v MIMIA (see [9] above) a Tribunal member may have an even greater need than a judge to test and probe the evidence of a witness. 12 Consistently with what I told counsel during the hearing of this appeal, I have read the entire transcript of the Tribunal hearing but, generally speaking, I have only listened to those portions of the audio recording upon which the appellants placed reliance. As counsel for the appellants accepted, these portions provide the best illustrations of the appellants' case. 13 In doing so I have borne in mind the critical importance to most applicants for review of a decision to refuse to grant them a protection visa of any hearing by the Tribunal. I have also borne in mind the importance of Tribunal members dealing sensitively and patiently with applicants who come before them, particularly when they are giving evidence of distressing events of a personal nature. On the other hand I have also had regard to the need for a Tribunal member to test evidence and, as appropriate, probe for weaknesses in an applicant's case. Additionally it is necessary to acknowledge that Tribunal members are not only subject to ordinary human frailties, but are also under pressure to conduct hearings expeditiously.


case_outcome: followed

case_text: An order striking proceedings out or dismissing proceedings on the basis that the proceedings are frivolous or vexatious or an abuse of the process of the court or do not disclose a reasonable cause of action is an interlocutory order: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 3-4 [6] - [10] per McHugh ACJ, Gummow and Heydon JJ. Accordingly, having regard to his Honour's decision and his invoking of power under O 20 r 5, the proceedings were interlocutory. 17 The power of the Court to make a rule, such as O 20 r 5, is incontestable in any event. The court has an implied or inherent power to protect its own processes from abuse and his Honour's order could be equally supported by use of those powers, as Re Luck [2003] HCA 70 ; 203 ALR 1 shows. Rules such as O 20 r 5 have been a part of the armoury of courts to protect themselves from vexatious and abusive claims for well over a century. There is no basis on which it could be suggested that O 20 r 5 is not a valid rule of the Court. 26 For these reasons, I am of opinion that Mr Croker has failed to make out any reason upon which an extension of time ought to be granted. I am satisfied that even if an extension of time were granted, leave to appeal would never have been granted because Cowdroy J's decision is not attended with sufficient doubt to want the grant of leave, being in my opinion, undoubtedly correct. Also, no injustice, let alone substantial injustice, would result from a refusal of a leave to appeal: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. For these reasons the application for leave to appeal must be refused.


case_outcome: applied

case_text: In such a case the principles upon which the Court proceeds are well settled. An application for an extension of time in which to lodge an appeal is governed by considerations discussed in Jackamarra v Krakouer [1998] HCA 27 ; (1988) 195 CLR 516 ; Jess v Scott (1986) 12 FCR 187: see also SZAPG v Minister of Immigration and Citizenship [2007] FCA 372 at [7] - [8] per myself. In essence the court seeks an outline of the merits of the case sought to be brought out of time. If it appears to be a case that is strong on the merits and which ought to be heard in fairness to the parties and the court thinks it proper that it ought to be allowed to proceed, time is usually extended. However, if it appears to be a flimsy case, weak on the merits, the Court will not extend time. The Court does not go into detail on the merits but likes to know something about it. That was the approach taken by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091 which was approved in Jackamarra 195 CLR at 519-520 [3]-[4] by Brennan CJ and McHugh J and similarly at 540-541 [66] par 4 by Kirby J. 23 As Brennan CJ and McHugh J said in Jackamarra 195 CLR at 520 [4]: "To grant the application for an extension of time is to put at risk a vested right of the respondent." Here the Commonwealth had a vested right, after the seven days had expired, protecting it from further vexatious litigation of the present kind being brought by Mr Croker. These proceedings, as the history set out by Cowdroy J and in part recited above shows, have no legitimate forensic purpose. They are simply an attempt to re-litigate a case which was properly before the Federal Magistrates Court with whose directions Mr Croker, without explanation, failed to comply and was unsuccessful in his application to appeal from those orders. 26 For these reasons, I am of opinion that Mr Croker has failed to make out any reason upon which an extension of time ought to be granted. I am satisfied that even if an extension of time were granted, leave to appeal would never have been granted because Cowdroy J's decision is not attended with sufficient doubt to want the grant of leave, being in my opinion, undoubtedly correct. Also, no injustice, let alone substantial injustice, would result from a refusal of a leave to appeal: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. For these reasons the application for leave to appeal must be refused. 27 The Commonwealth seeks an order that its costs be paid by Mr Croker on an indemnity basis. I am satisfied for the reasons that I have given that these proceedings had no legitimate forensic purpose and were the plainest abuse of the process of the court. Mr Croker failed to identify any error in Cowdroy J's judgment which could have warranted a grant of leave being made. As Cowdroy J found, the proceedings before him had been instituted solely for the purpose of circumventing the orders made in the Federal Magistrates Court. 28 The application for leave to appeal was without foundation and unsupported by any evidence of any injustice. I am satisfied that the vexatiousness of the proceedings and their abusive nature warrants an order that Mr Croker pay the Commonwealth's costs taxed on an indemnity basis. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 27 June 2008 The Applicant: Appeared in person Solicitor for the Respondent: D Dinnen, Australian Government Solicitor Date of Hearing: 20 May 2008 Date of Judgment: 20 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/972.html


case_title: Jess v Scott (1986) 12 FCR 187

case_text: In such a case the principles upon which the Court proceeds are well settled. An application for an extension of time in which to lodge an appeal is governed by considerations discussed in Jackamarra v Krakouer [1998] HCA 27 ; (1988) 195 CLR 516 ; Jess v Scott (1986) 12 FCR 187: see also SZAPG v Minister of Immigration and Citizenship [2007] FCA 372 at [7] - [8] per myself. In essence the court seeks an outline of the merits of the case sought to be brought out of time. If it appears to be a case that is strong on the merits and which ought to be heard in fairness to the parties and the court thinks it proper that it ought to be allowed to proceed, time is usually extended. However, if it appears to be a flimsy case, weak on the merits, the Court will not extend time. The Court does not go into detail on the merits but likes to know something about it. That was the approach taken by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091 which was approved in Jackamarra 195 CLR at 519-520 [3]-[4] by Brennan CJ and McHugh J and similarly at 540-541 [66] par 4 by Kirby J.


case_title: R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087


case_text: An order striking proceedings out or dismissing proceedings on the basis that the proceedings are frivolous or vexatious or an abuse of the process of the court or do not disclose a reasonable cause of action is an interlocutory order: Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 3-4 [6] - [10] per McHugh ACJ, Gummow and Heydon JJ. Accordingly, having regard to his Honour's decision and his invoking of power under O 20 r 5, the proceedings were interlocutory. 17 The power of the Court to make a rule, such as O 20 r 5, is incontestable in any event. The court has an implied or inherent power to protect its own processes from abuse and his Honour's order could be equally supported by use of those powers, as Re Luck [2003] HCA 70 ; 203 ALR 1 shows. Rules such as O 20 r 5 have been a part of the armoury of courts to protect themselves from vexatious and abusive claims for well over a century. There is no basis on which it could be suggested that O 20 r 5 is not a valid rule of the Court.


case_text: They cited Lord Diplock's famous remarks in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536; see also Rivera v Minister Administering the Extradition Act 1988 (Cth) [2007] FCAFC 191 ; (2007) 164 FCR 116 at 119-120 [16] - [18] per myself and [23] per Flick J who agreed with my reasons on this point.


case_title: SZAPG v Minister of Immigration and Citizenship [2007] FCA 372


case_text: Instead he sought to use the processes of this Court to circumvent Lloyd-Jones FM's orders in a way which would only bring the administration of justice into disrepute among right-thinking people were it allowed to succeed. In Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 392-393 Mason CJ, Deane and Dawson JJ said: "[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court at such a case was correctly described ... as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.'" (footnotes omitted)


case_text: In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008. Subsequent to this date and in light of the Full Court's decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application. 5 In deciding whether the application should be dismissed I have considered s 190F(6) of the Native Title Act , which provides as follows: The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made ... if: (a) the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and (b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed. 6 There is no evidence, and it was not submitted by any party, that this application is likely to be amended at all, never mind in a way that would lead to a different outcome once considered by the Registrar of the National Native Title Tribunal.


case_text: The serious consequences that may attend a wrongful refusal of a protection visa may be taken into account in determining whether it is expedient in the interests of justice for leave to be granted in a case of this kind. However, the authorities reveal that leave is less likely to be granted where the appellant has been legally represented at all times ( Wimalaratne v Minister for Immigration & Multicultural Affairs [2000] FCA 1737 (FC); Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929 (FC)).


case_text: The reasons for decision of the Tribunal should not be scrutinised over-zealously ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 272). It is not entirely clear what the Tribunal meant by the expression 'Serbian forces' . However, when the reasons for decision of the Tribunal are read as a whole, I do not consider that they suggest that the Tribunal misunderstood the independent evidence to which it referred. The Tribunal rightly looked to that evidence to see what light, if any, it threw on the question of whether the appellant had a real chance of being harmed by Serbian authorities should he return to his country of nationality. I think it likely that the Tribunal intended to convey that the exclusively Serbian military forces which the appellant feared were no longer responsible for maintaining order in Preshevo; for that reason the appellant would be able to look to the multi-ethnic police force for protection. This view of the situation in Preshevo finds support in the independent evidence to which the Tribunal referred. 24 The independent evidence to which the Tribunal referred was fairly characterised by it as revealing that the situation in Preshevo has changed and that ethnic Albanians are no longer oppressed by Serbians. For example, the primary decision-maker noted that the Department of Foreign Affairs and Trade had advised: '... the FRY Government has endeavoured to redress Albanian grievances in Presevo. Albanians are included in administrative and political structures including in a new multi-ethnic police force. Municipal elections in July 2002 returned Albanian mayors in two out of three municipalities. There is considerable international presence in Presevo, which keeps the actions of the authorities under scrutiny. In short, there is no reason for Albanians from Presevo to fear returning unless, of course, they have committed some genuine criminal offence.' 25 I conclude that this proposed ground of appeal has limited prospects of success.


case_text: An appellant requires the appellate court's leave to rely on arguments not advanced before the court below. That leave will only be granted where it is expedient in the interests of justice for the leave to be granted ( NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 esp at [163]-[166]). In NAJT at [166] Madgwick J identified the relevant questions as including the following: '1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie?'


case_title: Wimalaratne v Minister for Immigration & Multicultural Affairs [2000] FCA 1737 (FC)


case_text: There is no reason why the penalty should not be paid to the Union; see Finance Section Union v Commonwealth Bank of Australia [2005] FCA 1847 at [71] , per Merkel J and s 356(b) of the Act. 17 The Union does not currently press for an order for the payment of compensation to Mr Williams. Counsel for the Union informed the Court that ACI has, since 18 November 2005, agreed to make adjustments necessary to ensure Mr Williams' financial position is restored. However, counsel noted that the agreement between the parties had not been fully implemented and submitted that the Court should defer consideration of compensation to allow the agreement to be implemented. 18 It is preferable to allow sufficient time to elapse to permit the parties' agreement to take effect. I will place the onus on the Union to re-agitate this issue within 28 days of these reasons for judgment, failing which there will be no order made under s 298U(c) concerning compensation and the file will be closed. Should the Union wish to re-agitate this issue the Court will convene a directions hearing at 10.15 am on 14 March 2005 to deal with that aspect of this proceeding. Orders 1. Pursuant to s 298U(a)(i) of the Workplace Relations Act 1996 (Cth) a penalty of $16,500 be imposed on the respondent for its contravention of s 298K(1)(a) of the Act for the prohibited reason referred to in s 298L(1)(a) of the Act. 2. Pursuant to s 356(b) of the Act the penalty be paid to the applicant. 3. The applicant have liberty to apply to the Court within 28 days of the date of this order, for an order requiring the respondent to pay to Mr Colin Williams an amount by way of compensation as the Court thinks appropriate. 4. In the event of liberty to apply under Order 3 not being availed of in the time permitted, the Court will make no order for compensation. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 16 January 2006 Counsel for the Applicant: Dr C Jessup QC with Mr S Moore Solicitor for the Applicant: CEPU Counsel for the Respondent: Mr F Parry SC with Mr C O'Grady Solicitor for the Respondent: Clayton Utz Completion of written submissions: 9 December 2005 Date of Judgment: 16 January 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/7.html


case_text: I now turn to the other factors relevant to the question of penalty as discussed by Branson J in Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231, as foreshadowed at [79] in the previous judgment. 11 There is no evidence that ACI has previously contravened Pt XA of the Act, or any predecessor provision. That is a mitigating factor. 12 Given that Mr Williams has been reinstated and that ACI has been admonished for its conduct in the 18 November 2005 judgment, there are no continuing consequences in respect of ACI's conduct.


case_title: Abebe v Commonwealth [1999] HCA 14 , 197 CLR 510

case_text: The findings of fact made by the Tribunal were findings open to it given the account of the evidence and claims previously set forth in its reasons. Parliament has determined that ordinarily the Tribunal is to be the final arbiter of the merits of an application, and not the Federal Magistrates Court or this Court: Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 558. No jurisdictional error is exposed in the reasons for decision of the Tribunal. Even a wrong finding of fact alone does not constitute an error of law: Abebe v Commonwealth [1999] HCA 14 at [137] , [2004] HCA 32 ; 197 CLR 510 at 560 per Gummow and Hayne JJ.


case_title: Amankwah v Minister for Immigration & Multicultural Affairs [1999] FCA 1162 ; (1999) 91 FCR 248

case_text: In those circumstances, it is not possible to conclude that the now Appellant husband, when he attended the Tribunal hearing, was deprived of the opportunity to make submissions as set forth in s 425(1) of the Migration Act 1958 (Cth). That section provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. ... This right to a hearing is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration & Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5. The obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J.


case_title: Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547


case_title: Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541


case_title: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 ; (2000) 183 ALR 188


case_text: The Appellants' complaint is properly characterised as dissatisfaction with the findings made by the Tribunal. Nowhere is this more apparent than in the " particulars " provided, which asserted in part: (4) [The Tribunal failed] to accept the fact that the Applicant tried to relocate to another part of India but failed to lead a life without the fear of persecution. (5) ... the Tribunal failed to accept the fact that the Applicant would face serious harm if he returns back to India even after he was ordered to leave the country by the above criminal elements. The task of accepting or rejecting evidence, and weighing such evidence that is available, is a task entrusted by the legislature to the Tribunal alone -- it is not a task that can be undertaken by either the Federal Magistrates Court or this Court on appeal: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41 per Mason J. 14 Nor is there any substance in the contention that the Tribunal erred by not offering another date for hearing. Before the Federal Magistrates Court, and before this Court, there was a copy of the transcript of the Tribunal hearing. At the outset of that hearing the Tribunal member said: "Thank you. I have lost my voice. We will begin by having the interpreter promise not to divulge any information he hears during the hearing. Thank you." Two questions thereafter, the Member again stated: "I have lost my voice unclear interpret You wife hasn't attended today" The hearing started at 1:46pm and concluded at 2:11pm. Nothing in the transcript reveals anything further being said in respect of the Tribunal member being unwell. Furthermore, nothing in the transcript gives any support to a submission found in the " particulars " that the Tribunal proceeded " in haste ", had any " pre-conceived notion ", or had not given " the Applicant the opportunity to reply to the Tribunal ". Rather than proceeding " in haste " and not extending such an " opportunity to reply ", the transcript records the following exchange at the conclusion of the hearing: [SZJXP]: I don't want to go back. [Tribunal member]: I understand that. I will have to think about what you have said. Ok. Anything else you want to say? [SZJXP]: I am just asking my life back. Rather than being dismissed " in haste " and not giving the First Appellant an " opportunity to reply ", the Tribunal member quite properly invited him to add to the matters which had been covered if he so wished.


case_title: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 , 209 CLR 597

case_text: The present contention that the Tribunal member should have adjourned due to his being unwell is both curious and factually unsupportable. It is curious to the extent that a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 at [40] , 209 CLR 597 at 611 per Gaudron and Gummow JJ. Further, proceedings of the Refugee Review Tribunal have been held to have denied procedural fairness where an adjournment should have been granted: Xiang Sheng Li v Refugee Review Tribunal [1994] FCA 1550 ; (1994) 36 ALD 273.


case_title: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 , 215 ALR 162

case_text: Section 424A(1)(a) of the Migration Act 1958 (Cth) provides as follows: Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review... ... Compliance with s 424A is mandatory: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 , 228 CLR 294 ; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.


case_title: SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592 , 164 FCR 14

case_text: In those circumstances, it is not possible to conclude that the now Appellant husband, when he attended the Tribunal hearing, was deprived of the opportunity to make submissions as set forth in s 425(1) of the Migration Act 1958 (Cth). That section provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. ... This right to a hearing is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration & Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5. The obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J. 20 Albeit not raised by any of the Grounds of Appeal , Counsel for the Respondent Minister quite properly did not oppose exploring the question as to whether there had been a breach of s 425 by reason of the Appellant not having the opportunity to place further documents or further information before the Tribunal. However, it was contended by the Minister that, in the absence of any basis upon which it could be concluded that the Tribunal was on notice that potentially there may have been further information or documents relevant to its consideration (but not then available to the now First Appellant at that hearing), it is difficult to conclude that the obligation in s 425 to afford an opportunity has been breached. The Tribunal in discharging its function is engaged in an " inquisitorial process " -- but there must nevertheless remains a reason or a basis upon which it can be said that it should inquire beyond that factual material placed before it. In SZJBA Allsop J thus observed: [53] ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. ... ... [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process ... [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. Where there is material which on its face suggests that the Tribunal is not in receipt of all materials, the Tribunal should normally " take simple administrative steps to address the issue ": SZHVM v Minister for Immigration & Citizenship [2008] FCA 600 at [63] per Middleton J.


case_title: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 , 235 ALR 609


case_text: Albeit not raised by any of the Grounds of Appeal , Counsel for the Respondent Minister quite properly did not oppose exploring the question as to whether there had been a breach of s 425 by reason of the Appellant not having the opportunity to place further documents or further information before the Tribunal. However, it was contended by the Minister that, in the absence of any basis upon which it could be concluded that the Tribunal was on notice that potentially there may have been further information or documents relevant to its consideration (but not then available to the now First Appellant at that hearing), it is difficult to conclude that the obligation in s 425 to afford an opportunity has been breached. The Tribunal in discharging its function is engaged in an " inquisitorial process " -- but there must nevertheless remains a reason or a basis upon which it can be said that it should inquire beyond that factual material placed before it. In SZJBA Allsop J thus observed: [53] ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. ... ... [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process ... [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. Where there is material which on its face suggests that the Tribunal is not in receipt of all materials, the Tribunal should normally " take simple administrative steps to address the issue ": SZHVM v Minister for Immigration & Citizenship [2008] FCA 600 at [63] per Middleton J.


case_text: The Federal Magistrates Court on 12 September 2007 dismissed an application to review the decision of the Tribunal: SZJXP v Minister for Immigration & Citizenship [2007] FMCA 1603. The Appellants now appeal to this Court. 5 A Notice of Appeal was filed on 24 September 2007 and an Amended Notice of Appeal was filed on 1 May 2008. It is understood that the Grounds of Appeal upon which the Appellants wish to proceed may be summarised as being: (i) jurisdictional error; (ii) bias on the part of the Tribunal; and (iii) a failure to comply with s 424A(1) of the Migration Act 1958 (Cth). None of these grounds has been made out and the appeal is dismissed. 6 The Appellants appeared before this Court unrepresented, although they had the assistance of an interpreter.


case_title: Xiang Sheng Li v Refugee Review Tribunal [1994] FCA 1550 ; (1994) 36 ALD 273


case_text: considering the formulation of categories of documents for the purposes of discovery, two matters are important. First, it is trite to say that the categories will be formulated having regard to the issues between the parties as revealed in the pleadings. Secondly, the criteria in O 15 r 2(3) generally provide an appropriate guide to the formulation of appropriate categories. The categories can be formulated by reference to O 15 r 2(3) without specific reference to that rule, or O 15 r 2(3) can be incorporated into the categories as a limiting factor: Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [17] - [23] per Lindgren J; Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 at [9] - [11] per Lindgren J; Egglishaw v Australian Crime Commission (No 2) (2009) 253 ALR 354 at 360 [21]-[22]. It seems to me, however, that the Court retains a general power to fashion an order for discovery which is appropriate to the circumstances of the case. Although it is perhaps most unlikely, it is within the Court's power to make an order for discovery in accordance with the "train of inquiry" test (see The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 at 63; see also O 15 r 8, which uses the expression, "any document relating to any matter in question in the proceeding"). The issues on the notice of motion


case_title: Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415


case_title: Egglishaw v Australian Crime Commission (No 2) (2009) 253 ALR 354


case_title: The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55


case_text: para 31(ii) it is submitted that, "An explicit denial from the relevant decision-makers that a prohibited reason formed part of their decision-making will not generally discharge the onus of showing the conduct was not for a prohibited reason". Reliance is placed upon the decision of Buchanan J in Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 at [128] - [129] and to that of Merkel J in Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd [2000] FCA 441 ; (2000) 175 ALR 173 at [76] . However neither citation supports the proposition. Both references contain observations concerning the evidence of particular witnesses. It would be curious if witnesses appearing on behalf of an employer were to be put into a special category in which their evidence was to be treated as generally not discharging the onus of proving a matter which was peculiarly within their knowledge. It is one thing to say that denials which are self-serving should be closely scrutinized in the light of all other evidence. It is quite another to say, as the applicants have in the present case, that a particular class of evidence will not generally discharge an onus to which it relates. In General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 233, at 239, Gibbs J expressly disapproved of such an approach. His Honour said: ... However, it would in my opinion be wrong to think that there is any special difficulty in the way of an employer who seeks to prove that in dismissing an employee he was not actuated by the fact that the employee was a shop steward or other delegate of an organization. The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the later circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged. It is then submitted that by analogy to the position addressed by the High Court in Bowling , the evidence indicated that Mr Harrison was treated as a troublemaker, and that such categorization of him must have had something to do with his position in the union. I will deal with the decision in Bowling at a later stage. For present purposes it is sufficient to say that even if Mr Harrison could be accurately described as a troublemaker, he was not a troublemaker in the sense in which that expression is generally used in the context of industrial relations. Whatever else he might have done, there is no suggestion that his conduct provoked industrial unrest directed against One Steel. One Steel's concern was, at all times, that he was causing conflict amongst employees. It is then submitted that Mr Harrison's dismissal was "so disproportionate to [his] conduct ... as to confirm that factors other than the sticker incident were operative". For reasons which I have touched upon, I do not accept that proposition. I similarly do not accept that the acceleration of the disciplinary process was inexplicable. I do not accept that in the circumstances of this case Mr Harrison's conduct in wearing the sticker was "a relatively trivial matter". Nor do I accept that it was arguable that One Steel had no lawful right to direct Mr Harrison to remove the sticker, or that such direction was unreasonable. I do not accept the characterization of the final warning given in connection with the incident on 27 October 2007 as being inexplicable other than by reference to Mr Harrison's union activity. It is said that Mr Harrison was not given an opportunity to respond or comment before he was given the final written warning. However he was absent on sick leave from shortly after the incident and was called in specifically to be given the warning. He had been interviewed by Mr Hasemann on 27 October 2007, in the presence of Mr Croxford, Mr McGuire and Mr Antal. He subsequently filed a written complaint with Ms Rankin. It is difficult to see that any useful purpose would have been served by a further interview. There were clear differences between his and Mr Tavita's versions. There was some, apparently independent, support for both versions. Mr Lawson supported Mr Tavita's version. Mr Wally supported Mr Harrison's version. However he said that he had not heard what was said, and that it was "something along the lines of, 'What if we take it outside?' ". He heard Mr Tavita say, "Shut up!" Mr Frahm's evidence supported aspects of both versions. In any event, it was open to Mr Harrison to raise any further concerns at the meeting on 28 November 2007 when he was given his warning. It may have been prudent for management to have asked Mr Harrison if he had any further comments, but I do not accept that the failure to do so could, in the circumstances, be taken as indicative of some prejudice against him, attributable to his union position or otherwise. Concerning the warning, it is submitted (at para 54) that, "Mr Allard stated that other matters (which were never mentioned to Mr Harrison even at the time of issue of the Final Warning but were raised for the first time in subsequent AIRC proceedings) were taken into account". This is said to be supported by Mr Allard's evidence at TS 20 ll 25-43. The page reference is incorrect. It should be TS 80. Mr Allard said that in issuing the final written warning he took into account the matters which were subsequently raised in the AIRC. I have demonstrated that those matters, or most of them, had been previously raised with Mr Harrison. I do not accept that Mr Harrison was treated unfairly in connection with the final warning. The thrust of Mr Allard's evidence was that the decision was based upon the ongoing friction between him and Mr Tavita and a desire to stop it. As I have previously said, much of the applicants' criticism of One Steel's conduct in connection with the final written warning was based upon the misconception that the incident on 27 October 2007 was provoked by Mr Tavita when it was, at least in part, provoked by Mr Harrison. Mr Tavita's response may have been extreme (if Mr Harrison's version be accepted), but he did not initiate the confrontation. For reasons which I have given, I also do not accept that Mr Harrison was singled out for special treatment when he was directed not to discuss union matters on the shop floor. I decline to draw any adverse inference from his allegation that he was docked half-an-hour's pay for being two minutes late for work. At para 59 reference is made to Ms Rankin's note of a meeting concerning the incident on 1 June 2007. The note said: Shane Harrison is a Union member and has talked to the Union on the phone after this incident saying that 'they are trying to fuck me over'. Graham H said that Shane is a ring leader to push union involvement and membership and he has his followers. The applicants submit that analogues of s 793(1)(a) in earlier legislation have been construed as protecting conduct, and that there is no justification for giving it a narrower operation. It is therefore necessary to examine the cases. A convenient starting point is the decision of the High Court in Bowling . That was an appeal from a decision of the Australian Industrial Court convicting the appellant of an offence against s 5(1) of the Conciliation and Arbitration Act 1904 (Cth) (the "1904 Act") which provided relevantly: An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee (a) is or has been, or proposes, or has at any time proposed, to become, an officer, delegate or member of an organization, or of an association that has applied to be registered as an organization; or ... (f) being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial ... interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization. The 1904 Act contained an evidentiary section similar in effect to s 809(1) of the Act. The appellant had dismissed the respondent who was a shop steward. The putative reason for the dismissal was that he was a "bad operator", meaning that he was not competent in his work. There was also some suggestion that he was considered to be a troublemaker, deliberately disrupting production and thereby setting a bad example to others. Although the plant superintendent was called to give evidence as to the reason for his dismissal, it appeared that the decision had actually been made at head office in Melbourne. At first instance the Industrial Court concluded that the dismissal was not for the stipulated reason, namely the respondent's poor work record and attitude to his job, this conclusion being based upon an assessment of the credibility of the witnesses. One member of the Industrial Court (Woodward J) concluded that the superintendent had been influenced in his decision by a belief that the respondent had deliberately disrupted production on several occasions and was setting a bad example to others. On appeal the appellant asserted that this was the real reason for the dismissal. The majority (Gibbs, Stephen, Mason and Jacobs JJ) appear to have accepted such assertion. However, as Mason J observed at 241: It is to my mind a very considerable leap forward to say that this finding in itself is a comprehensive expression of the reasons for dismissal and that they were disassociated from the circumstance that the respondent was a shop steward. No doubt this is an advance which could be made if officers of the appellant had said in evidence "We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward" and that evidence had been accepted. Yet this evidence was not given and, even if it had been given, there may have been a question as to its reliability. Once it is said that the appellant dismissed him because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the workforce and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere summise or speculation, unsupported by evidence, to suppose that the appellant's management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward. Of more general importance is the following extract which appears at 242: It was suggested that even if the appellant's management had regard to the respondent's position as a shop steward in dismissing him, that was not enough to bring the case within s 5(1)(a). The short answer to this suggestion is that s 5(1)(a) does not proscribe the circumstances which it lists as the sole or predominant reasons for dismissal. It is sufficient if the circumstance is a substantial and operative factor. And it does not cease to be such a factor because it is coupled with other circumstances or because regard is had to it in association with other circumstances not mentioned in the section. The appellant sought to give emphasis to the distinction to be drawn between section 5(1)(a) and s 5(1)(f) and argued that the activities of a shop steward fall under par (f) and not par (a). So much may be conceded, but this does not avail the appellant in the present case because we are concerned not with activities undertaken by the respondent in his capacity as a shop steward but with activities otherwise undertaken and the example that he set to others in which his position as a shop steward was of particular significance. The submission appears to be inconsistent with the observations made in Bowling as explained in Ansett . The applicants also rely upon the decision of the Full Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463 at [107] , that of Merkel J in Ansett at [63] and that of Wilcox J in Greater Dandenong City Council v Australian Municipal and Clerical Services Union [2001] FCA 349 ; (2001) 184 ALR 641 at [72] - [73] , citing his Honour's earlier remarks in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008. I suspect that the applicants have misunderstood these cases. The proposition identified at [107] in Davids related to the purpose of the former Act as a whole and, in particular, Part XA. It was not concerned with the distinction between status as a member, office holder or delegate, on the one hand, and actions in advancing the industrial interests of the union, on the other. Further, I note that the quotation of the relevant extract in the applicants' opening outline is inaccurate in one respect. In the report the relevant extract is as follows: In the context of the Act, Part XA does not stand alone. It is aimed at ensuring that employees may band together, if they wish, for collective bargaining of the type provided for in the Act to achieve the broader objectives of the Act as contained in s 3. ... That which is protected by such legislation is more than the right to be a member. It is the right to participate in protected union activities, including the taking of collective industrial action against an employer to seek to obtain better industrial conditions ... . This proposition, too, was concerned with the overall effect of the sections and not with the areas of operation of the individual paragraphs of s 298K, the predecessor of s 793(1). Similar comments apply to the extract from the judgment of Wilcox J in BHP Steel to which his Honour referred in Greater Dandenong . In Finance Sector Union of Australia v Australian & New Zealand Banking Group Limited (2002) 114 IR 352 , Wilcox J applied the decision in Bowling as I have explained it. See that decision at [173] and [187]. See also the decision of Branson J in The Community and Public Sector Union v The Commonwealth of Australia [2007] FCA 1397 at [114] . The applicants also refer to the decision of Marshall J in Elliott v Kodak Australasia Pty Ltd [2001] FCA 807 ; (2001) 108 IR 23 and to that of North J in Australasian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 ; (2003) 126 IR 165 at [150] . Each case involved an examination of the history of the relevant industrial legislation. Both North and Marshall JJ concluded that s 298L(1)(a) of the Act, itself an analogue of s 793(1)(a), had an analogue in s 9(1) of the 1904 Act. Their Honours concluded that s 298L(1)(a) should be given the same breadth of operation as had been attributed to s 9(1), notwithstanding the fact that in s 298L(1) (as in s 793(1)) subsequent provisions might suggest that s 298L(1) should be given a narrower meaning. In Kodak , this view led Marshall J to conclude that the word "delegate" in s 298L(1)(a) should have a wider meaning than might be suggested by other parts of s 298L(1). In Belandra North J concluded that s 298L(1)(a) was intended to cover "conduct taken against employees because they had taken action as members of a union, and because a union had taken action as an incident of that employee's membership of a union." To the extent that this implies that s 793(1)(a) addresses conduct as well as union membership or standing as an officer or delegate, it is inconsistent with the observations made by Mason J in Bowling . Unfortunately, it seems that neither his Honour nor Marshall J was referred to that decision or to the decision of Merkel J in Ansett . I proceed upon the basis that ss 792(1)(a) and 793(1)(a) proscribe dismissal because of union membership or status as an officer or delegate, but not because of conduct. However conduct is relevant to the question in the way explained by Mason J in Bowling .


case_text: extent of an employee's obligation to comply with directions given by an employer appears from the reasons of Dixon J (as his Honour then was) in The King v Darling Island Stevedoring and Lighterage Company Limited; ex parte Halliday and Sullivan [1938] HCA 44 ; (1938) 60 CLR 601 at 621-622. His Honour said: If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. ... But what is reasonable is not to be determined, so to speak, in vacuo . The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.


case_text: present purposes a useful example of the application of the general rule is to be found in the decision of the Full Court in Australian Telecommunications Commission v Hart (1982) 43 ALR 165. In that case an employee of Telecom was charged with disciplinary offences for refusing to obey a direction that he refrain from wearing a caftan and thongs to work. The majority (Fox and Sheppard JJ) concluded that the employee was obliged to comply with the direction. At 170, Fox J (Sheppard J concurring) cited Harvey: Industrial Relations and Employment Law 1982 and the decision in Boychuk v K.J. Symons Holdings Ltd [1977] IRLR 396 as authority for the proposition that: ... a reasonable employer ... can be allowed to decide what, upon reflection and mature consideration, could be offensive to the customers and the fellow employees ... .


case_title: Boychuk v KJ Symonds Holdings Ltd [1977] IRLR 396


case_text: submission appears to be inconsistent with the observations made in Bowling as explained in Ansett . The applicants also rely upon the decision of the Full Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463 at [107] , that of Merkel J in Ansett at [63] and that of Wilcox J in Greater Dandenong City Council v Australian Municipal and Clerical Services Union [2001] FCA 349 ; (2001) 184 ALR 641 at [72] - [73] , citing his Honour's earlier remarks in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008. I suspect that the applicants have misunderstood these cases. The proposition identified at [107] in Davids related to the purpose of the former Act as a whole and, in particular, Part XA. It was not concerned with the distinction between status as a member, office holder or delegate, on the one hand, and actions in advancing the industrial interests of the union, on the other. Further, I note that the quotation of the relevant extract in the applicants' opening outline is inaccurate in one respect. In the report the relevant extract is as follows: In the context of the Act, Part XA does not stand alone. It is aimed at ensuring that employees may band together, if they wish, for collective bargaining of the type provided for in the Act to achieve the broader objectives of the Act as contained in s 3. ... That which is protected by such legislation is more than the right to be a member. It is the right to participate in protected union activities, including the taking of collective industrial action against an employer to seek to obtain better industrial conditions ... . This proposition, too, was concerned with the overall effect of the sections and not with the areas of operation of the individual paragraphs of s 298K, the predecessor of s 793(1). Similar comments apply to the extract from the judgment of Wilcox J in BHP Steel to which his Honour referred in Greater Dandenong . In Finance Sector Union of Australia v Australian & New Zealand Banking Group Limited (2002) 114 IR 352 , Wilcox J applied the decision in Bowling as I have explained it. See that decision at [173] and [187]. See also the decision of Branson J in The Community and Public Sector Union v The Commonwealth of Australia [2007] FCA 1397 at [114] .


case_title: Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008


case_text: proposition, too, was concerned with the overall effect of the sections and not with the areas of operation of the individual paragraphs of s 298K, the predecessor of s 793(1). Similar comments apply to the extract from the judgment of Wilcox J in BHP Steel to which his Honour referred in Greater Dandenong . In Finance Sector Union of Australia v Australian & New Zealand Banking Group Limited (2002) 114 IR 352 , Wilcox J applied the decision in Bowling as I have explained it. See that decision at [173] and [187]. See also the decision of Branson J in The Community and Public Sector Union v The Commonwealth of Australia [2007] FCA 1397 at [114] .


case_title: The Community and Public Sector Union v The Commonwealth of Australia [2007] FCA 1397


case_text: applicants also refer to the decision of Marshall J in Elliott v Kodak Australasia Pty Ltd [2001] FCA 807 ; (2001) 108 IR 23 and to that of North J in Australasian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 ; (2003) 126 IR 165 at [150] . Each case involved an examination of the history of the relevant industrial legislation. Both North and Marshall JJ concluded that s 298L(1)(a) of the Act, itself an analogue of s 793(1)(a), had an analogue in s 9(1) of the 1904 Act. Their Honours concluded that s 298L(1)(a) should be given the same breadth of operation as had been attributed to s 9(1), notwithstanding the fact that in s 298L(1) (as in s 793(1)) subsequent provisions might suggest that s 298L(1) should be given a narrower meaning. In Kodak , this view led Marshall J to conclude that the word "delegate" in s 298L(1)(a) should have a wider meaning than might be suggested by other parts of s 298L(1). In Belandra North J concluded that s 298L(1)(a) was intended to cover "conduct taken against employees because they had taken action as members of a union, and because a union had taken action as an incident of that employee's membership of a union." To the extent that this implies that s 793(1)(a) addresses conduct as well as union membership or standing as an officer or delegate, it is inconsistent with the observations made by Mason J in Bowling . Unfortunately, it seems that neither his Honour nor Marshall J was referred to that decision or to the decision of Merkel J in Ansett . I proceed upon the basis that ss 792(1)(a) and 793(1)(a) proscribe dismissal because of union membership or status as an officer or delegate, but not because of conduct. However conduct is relevant to the question in the way explained by Mason J in Bowling .


case_outcome: discussed

case_title: Australasian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 ; (2003) 126 IR 165


case_text: have already concluded that Mr Allard's direction was both lawful and reasonable, that Mr Harrison was obliged to comply with it and that he did not do so. The only remaining question is whether or not his conduct entitled One Steel to terminate his employment summarily. The applicants submit that Mr Harrison could only be dismissed summarily for serious misconduct, relying upon the following passage from the reasons for judgment of Dixon and McTiernan JJ in Blyth Chemicals Ltd v Bushnell [1933] HCA 8 ; (1933) 49 CLR 66 at 81-82: Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... . But the conduct of the employee must itself involve the incompatibility, conflict or impediment or be destructive of confidence. An actual repugnance between his act and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.


case_text: number of other cases are of interest. The first is the decision of Wootten J in Scharmann v APIA Club Ltd (1983) 6 IR 157. At 164 his Honour said, concerning summary dismissal: Some of the older cases virtually treated it as a rule of law that disobedience to a lawful order gave the employer a right to dismiss, but the modern is that: "One act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions. ..." The disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions.


case_text: J then referred to the decision of Isaacs ACJ in Adami v Maison De Luxe Limited [1924] HCA 45 ; (1924) 35 CLR 143 at 148-9. In that case the Acting Chief Justice rejected the proposition that, "wilful disobedience of a lawful order", meant, "simply conscious disobedience of an order, obedience to which is found after litigation to be in fact and in law within the range of duty", and continued: The proposition asserts that, provided ultimately the order is found to be within the scope of the contract, it matters not how isolated and trivial the occasion may have been, how unimportant the disobedience in relation to the employer's affairs, how doubtful in fact or law the legality of the order may have been, how bona fide and reasonable may have been the contention of the employee or how clearly his action was intended and explained at the time as defence only and not in any way as defiance. That is a proposition I find it impossible to accept. The other members of the Court (Gavan, Duffy and Starke JJ) did not address this question. At 151-152 Isaacs ACJ continued: But the effect of the word "wilful" varies, and, as I have said, the only universal guide is to ascertain from its surroundings what the word is intended to connote. One commanding circumstance is to ascertain the subject matter as a totality of which it is predicated that it must be wilful. Here the subject matter is not "disobedience", but "disobedience of a lawful order." It is the whole compound expression that must be "wilful," and not the one word "disobedience" adding a provision "if the order be lawful." It is no doubt a correct principle that, once the relation of employer and employee is established, obedience to lawful orders is, if not expressly, then impliedly, contemplated by the contract creating the relation, and mere disobedience of such orders is a breach of the bargain. But whether disobedience in a given case is of such a character as to justify a complete dissolution of the contract by one of the parties and, as here, a forfeiture by the other of the valuable accruing rights, together with some degradation altogether a severe penalty is, in my opinion, quite a different matter. Such a justification requires the disobedience to be as phrased "wilful disobedience of a lawful order." That is, it must be not merely a breach but a radical breach of the relation, and inconsistent with its continuance. Once the element of "wilfulness" is introduced for the purpose of the summary rescission by one party of the whole contractual relation, with penal results on the other, then, as the "wilfulness" is the attitude of the employee, so far as it is conveyed by words or acts to the employer, the subject must be looked at from a new standpoint. "Wilfully" does not necessarily connote in that connection anything criminal or immoral, but it does connote some deliberate design or purpose to derogate from duty.


case_title: Bruce v A W B Ltd (2000) 100 IR 129

case_text: Bruce v A W B Ltd (2000) 100 IR 129 , an employee had been employed upon certain conditions, including that he report directly to the managing director and be a member of the executive committee. He was subsequently told that the organization was to be changed so that he would no longer be a member of the executive committee or report directly to the managing director. The employee asserted that the changes were in breach of his contract of employment, and that he was not willing to perform his duties on that basis. He remained willing to perform them in accordance with his understanding of the contract. He was dismissed upon the basis that he had repudiated his contract of employment. The contract provided that: "The duties of the above position are set out under establishment No 7100 or as directed by the Managing Director". The employer argued that the managing director was therefore empowered to dispense with the employee's "duties" of reporting to him and sitting on the executive committee, and to impose the duty of reporting to the general manager. Sundberg J concluded that the managing director was authorized to make the proposed changes. His Honour then had to consider the validity of the dismissal. At [15] his Honour said: Two conditions must be satisfied at common law in order to justify a summary dismissal. First, there must be a breach by the employee of the terms of the contract or a demonstrated intention not to be bound by those terms. Secondly, the conduct must be sufficiently serious to allow summary termination. Freedland observes: "The right to rescind a contract for breach of condition arises by reason of a failure of performance which has occurred in the past, provided the failure is of sufficient gravity or relates to a sufficiently major term of the contract. The right to rescind a contract in response to repudiation arises, not so much by reason of a failure of performance in the past as by reason of the manifestation of an intention not to perform contractual obligations in the future." See The Contract of Employment (1976) at p 217. The passage from Freedland which was cited in Bruce recognizes a distinction between breach and repudiation. In Bruce , as far as the report goes, there had been no actual failure by the employee to perform his duties in accordance with the proposed changes in arrangements, or any exercise of a purported right to do that which he was no longer required to do. Similarly, in Mona Homes , time not being of the essence of the contract, either the vendor had not yet breached the contract, or any breach did not provide a basis for determining it. In the present case, however, Mr Harrison not only indicated that he would not comply with the direction, but did not do so. This conduct continued from the time at which Mr Allard first raised the matter with him until he left the meeting on 2 May 2008. He has not demonstrated any basis for believing the direction to be unlawful. On his own version he wanted it reduced to writing for reasons that were extraneous to his employment. Whilst it is true that on 6 May 2008 Mr Bradley suggested that there was some question of discrimination or, perhaps, illegality about the direction, he also made no attempt to demonstrate any basis for that view. I see no basis upon which such a submission could be made. I do not accept that either man genuinely believed the direction to be unlawful. There is no basis for asserting that on 2 May 2008 Mr Harrison refused to comply with the direction because he considered it to be unlawful, or that he asserted a construction of his contract of employment which was inconsistent with that impliedly advanced by Mr Allard in giving the direction.


case_text: applicants also rely upon the decision of the High Court in D.T.R. Nominees Proprietary Limited v Mona Homes Proprietary Limited and Another [1978] HCA 12 ; (1976-1977) 138 CLR 423. That case concerned a contract for the sale of land, completion being conditional upon registration of a plan of subdivision, a copy of which was attached to the contract. At the date of the contract the vendor had not lodged the plan but had lodged a plan for a larger subdivision of which the subject land was part, seeking approval of so much of the subdivision as related to that land. That plan was approved and registered. The vendor then required completion within 14 days. The purchasers purported to rescind the contract on the basis that the plan attached to the contract had not been registered, and that the vendor had thereby repudiated the contract. The vendor asserted that the purchasers had wrongfully repudiated the contract and purported to rescind, forfeiting the deposit. The purchasers commenced proceedings seeking a declaration that the contract had been validly rescinded upon the basis that in lodging the plan of subdivision the vendor had repudiated the contract, or that subsequent correspondence, asserting compliance with the term as to registration and calling for completion, had constituted repudiation. In the High Court the first question was whether or not an intention to repudiate the contract could be inferred from the vendor's conduct. At 432 Stephen, Mason and Jacobs JJ said (Aickin J concurring): No doubt there are cases in which a party, by insisting on an incorrect interpretation of a contract, evinces an intention that he will not perform the contract according to its terms. But there are other cases in which a party, though asserting a wrong view of a contract because he believes it to be correct, is willing to perform the contract according to its tenor. He may be willing to recognize his heresy once the true doctrine is enunciated or he may be willing to accept an authoritative exposition of the correct interpretation. In either event an intention to repudiate the contract could not be attributed to him. As Pearson LJ observed in Sweet & Maxwell Ltd v Universal News Services Ltd: "In the last resort, if the parties cannot agree, the true construction will have to be determined by the court. A party should not too readily be found to have refused to perform the agreement by contentious observations in a course of discussions or arguments ... ." In this case the appellant acted on its view of the contract without realizing that the respondents were insisting upon a different view until such time as they purported to rescind. It was not a case in which any attempt was made to persuade the [vendor] of the error of its ways or indeed to give it any opportunity to reconsider its position in the light of an assertion of the correct interpretation. There is therefore no basis on which one can infer that the [vendor] was persisting in its interpretation willy nilly in the face of a clear enunciation of the true agreement. The passage from Freedland which was cited in Bruce recognizes a distinction between breach and repudiation. In Bruce , as far as the report goes, there had been no actual failure by the employee to perform his duties in accordance with the proposed changes in arrangements, or any exercise of a purported right to do that which he was no longer required to do. Similarly, in Mona Homes , time not being of the essence of the contract, either the vendor had not yet breached the contract, or any breach did not provide a basis for determining it. In the present case, however, Mr Harrison not only indicated that he would not comply with the direction, but did not do so. This conduct continued from the time at which Mr Allard first raised the matter with him until he left the meeting on 2 May 2008. He has not demonstrated any basis for believing the direction to be unlawful. On his own version he wanted it reduced to writing for reasons that were extraneous to his employment. Whilst it is true that on 6 May 2008 Mr Bradley suggested that there was some question of discrimination or, perhaps, illegality about the direction, he also made no attempt to demonstrate any basis for that view. I see no basis upon which such a submission could be made. I do not accept that either man genuinely believed the direction to be unlawful. There is no basis for asserting that on 2 May 2008 Mr Harrison refused to comply with the direction because he considered it to be unlawful, or that he asserted a construction of his contract of employment which was inconsistent with that impliedly advanced by Mr Allard in giving the direction.