Law Institute Journal (Victoria)
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by THOMAS HURLEY
Re Sharpe; ex parte Powell (unreported, NB 2700/96, 17 October 1996, Lindgren J).
A husband was made bankrupt on his own petition. The petition revealed his indebtedness to the wife pursuant to Family Court orders as the largest debt. Lindgren J allowed an application by the wife for her request that the bankruptcy be annulled be transfer-red under s35A Bankruptcy Act to be heard by the Family Court. He concluded the transfer was in the interests of justice.
Re Boscolo v Botany Council (unreported, NG 570/96, 16 October 1996, FC).
A debtor contended that she was unable to comply with a bankruptcy notice based on an order for costs made by the Land and Environment Court of NSW against her because of the existence of a Family Court order restraining the debtor from dealing with a parcel of land she owned. A Full Court concluded that the effect of the Family Court order was not to stay execution under the order for costs within s41(3)(b) Bankruptcy Act 1966 (Cth). The Court further concluded that no "equity" arose against the judgment creditor, nor was the debtor disabled in a business sense from paying the costs ordered. Appeal against sequestration order dismissed.
Comcare v Chang (unreported, ACTG 75/95, 25 October 1996, Finn J).
By s36(1) the Safety Rehabilitation and Compensation Act 1988 (Cth) requires a re-habilitation authority to arrange for the assessment of an injured employee's capability to undertake a rehabilitation pro-gram. Finn J concluded this provision did not have a retrospective effect and the provision did not authorise the AAT ordering in 1996 that Comcare assess a worker's ability to undertake tertiary studies by way of rehabilitation as at the time the studies were commenced in 1992.
Repatriation - whether aged veteran prevented from remunerative work by war-caused injury.
Repatriation Commission v Wilson (unreported, NG 979/95, 16 October 1996, Lindgren J).
Lindgren J concluded the reasoning of the AAT did not support its finding that a 71-year-old veteran was prevented by his war-caused disabilities from undertaking clerical work. Lindgren J concluded the MT had given genuine consideration to the age of the veteran, but that the age of the veteran did not require the conclusion that the veteran was unable to engage in remunerative work solely by reason of age.
McManus v Scott-Charlton (unreported, ACTG 80/95, 15 October 1996, Finn J).
Finn J dismissed an application by a public servant for review under the AD(JR) Act of disciplinary proceedings taken against the officer for failing to comply with the direction that he desist from harassing a co-worker at, and outside, the workplace.
Administrative law - natural justice - bias.
Gaisford v Hunt (unreported, ACTG 59/96, 11 October 1996, Mansfield J).
The first respondent was appointed by the Minister of Foreign Affairs under the Public Service Act 1922 (Cth) to inquire into allegations of paedophile activity in the Department of Foreign Affairs and Trade. Mansfield J dismissed an application to restrain the further hearing of the inquiry on the grounds of bias said to arise by reason of comments made by the first respondent to the media describing the nature of the inquiry.
Robinson v South East Queensland Indigenous Regional Council of ATSIC (unreported, QG 97/96, 2 October 1996, Drummond J).
The applicant was an individual commissioner of ATSIC with special responsibility for law and justice issues. He sought judicial review of the decision of a delegate of ATSIC to provide ATSIC funds to a particular Aboriginal legal service. Drummond J concluded the applicant was not "a person aggrieved" within s5(1) AD(JR) Act. He concluded the fact that the applicant was a representative on ATSIC did not mean that a special interest of the applicant's was affected by the decision. Consideration of Foss v Harbottle [1843] EngR 478; (1843) 2 Hare 461 as applicable to public law bodies.
Marrickville Council v Minister for the Environment (Cth) (unreported, NG 675/95, 25 September 1996, Kiefel J). Kiefel J dismissed an application to review a decision of the respondent that no environmental impact statement was required by the Environment Protection (Impact of Proposals) Act 1974 (Cth) in relation to a draft planning strategy for Sydney airport. Consideration of whether the preparation of a planning strategy was a proposed action that required an environmental impact statement.
Defence Coalition Against RCD Inc v Minister for Primary Industries and Energy (Cth) (unreported, WG 154/96, 23 October 1996, Nicholson J).
The applicant sought an interlocutory injunction to prevent the National Registration Authority for Agricultural and Veterinary Chemicals
(under the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth)) registering the rabbit calicivirus injection under the Agricultural and Veterinary Chemicals Code Act 1994 (Cth). The application for an injunction was refused by RD Nichol-son J on the basis that there was no serious question to be tried under the AD(JR) Act. He concluded the contention that the decision was unreasonable was not open on the evidence.
Civil Aviation Safety Authority v Coburn (unreported, NG 928/95, 18 October 1996, Branson J).
By s31 of the Civil Aviation Act 1988 (Cth) the AAT is able to review "reviewable decisions" as defined. Branson J concluded a decision of CASA to require under reg 33 of the Civil Aviation Regulations a licensed aircraft maintenance engineer to undergo an examination to test the skills of the engineer was not a reviewable decision.
Corporations - deed of company arrangement - nature of claims bound.
Lam Soon Australia P/L v Molit (No. 55) P/L (unreported, SG 32/96, 18 October 1996, FC).
A Full Court agreed with the conclusion of the primary judge that a claim by a landlord for future rent in existence on the day specified in the deed of company arrangement within s444D(1) Corporations Law was a claim which arose before the date specified in the deed. The Full Court disagreed with the primary judge's conclusion that the effect of the deed of company arrangement was to discriminate between creditors. The Full Court remitted the question of whether the deed should have been determined to the primary judge.
Toomelah Boggabilla Local Aboriginal Land Council v Minister forATSlAffairs (unreported, NG 828/96, 17 October 1996, Foster J).
By s9 the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) authorised the Minister to make an urgent declaration to prohibit the desecration of a significant Aboriginal area. Foster J concluded the Court did not have power, whether interlocutory or final, to require the Minister to make such a declaration. He observed the power was facultative and not imperative.
Mahfoud v Minister for Immigration (unreported, NG 888/95, 31 October 1996, Sackville J).
Sackville J considered the limited role of review given to the Federal Court by Part 8 of the Migration Act. He concluded the IRT had not erred in considering whether the subject marital relationship was "genuine and continuing" within reg 135 Migration (1989) Regulations and concluding this regulation was not limited to "sham" marriages.
Queensland v JL Holdings P/L (unreported, SG 1/94, 29 October 1996, FC).
A Full Court dismissed an appeal against interlocutory orders of a primary judge who had dismissed an application for an amendment to pleadings. The majority concluded a Full Court should not interfere with the exercise of discretion by the primary judge. In dissent, Carr J observed the interest of justice lay in allowing the amendment at an early stage so the true issues in dispute could be identified.
Mowie Fisheries P/L v Switzerland Insurance Australia Ltd (unreported, NG 750/94, 11 October 1996, Tamberlin J).
A vessel was lost in transit between Eden in New South Wales and Portland in Victoria. Tamberlin J concluded that the owner of the vessel had not breached warranties under the insurance contract that relevant legislation would be complied with. Tamberlin J concluded the vessel was not being operated in breach of the Uniform Shipping Laws Code or Marine Act 1988 (Vic) and the respondent in-surer was obliged to indemnify the owner.
Watt v Intercultural Management Services (unreported, VI 3682/95, 1 November 1996, Marshall J).
An employee did not accept the offer of employment in accordance with the mode of acceptance agreed. Marshall J concluded that the term of probation included in the pro-posed written employment agreement was to be implied into the actual contract of employment which was created. He concluded the applicant was an excluded employee by the operation of s17000 IR Act and reg 30B(1)(c) IR Regulations.
Industrial bargaining - lock-out.
Lennie v Hawkes (unreported, DI 1044/96, 4 October 1996, Marshall J).
Amounts were deducted from the wages of teachers in the Northern Territory representing periods when the teachers engaged in stopwork action. In response to notice by the union under s17OPH IR Act of its intention to take industrial action, the employer purported to give notice under s17OPH(3) that it intended to "lock out" each worker for the period that the teacher joined the stopwork action. Marshall J concluded it was doubtful that the teachers were in fact "locked out" and their claim for payment of wages deducted during the period of the "lockout" should succeed as it was "protected action" within s17OPG IR Act.
Cliffe v Hoechst Australia Ltd (unreported, VI 1036/94, 21 October 1996, Marshall J).
The applicant contended that provisions of the Metal Industry Award prohibiting unfair dismissals were implied into the terms of his contract of employment by reference to the terms in the employer's staff hand-book. Marshall J rejected this. He concluded the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 131 ALR 422 could not be distinguished.
Thomas Hurley is a member of the Victorian Bar.
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URL: http://www.austlii.edu.au/au/journals/LawIJV/1997/18.html