Question:
<citphrase id="cp0.0">cited from="[2006] FCA 1376">corporations</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 1376">insolvency</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 1376">winding up application</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 1376">failure to comply with statutory demand</citphrase>
<citphrase id="cp0.4">cited from="[2006] FCA 1376">application for review of order of registrar of federal court that company be wound up</citphrase>
<citphrase id="cp0.5">cited from="[2006] FCA 1376">where no application made to set aside statutory demand within prescribed period</citphrase>
<citphrase id="cp0.6">cited from="[2006] FCA 1376">where company presumed to be insolvent</citphrase>
<citphrase id="cp0.7">cited from="[2006] FCA 1376">whether approval to cause company to bring application for review should be granted pursuant to s 471a of the corporations act 2001 (cth)</citphrase>
<citphrase id="cp0.8">cited from="[2006] FCA 1376">whether sufficient evidence to rebut presumption of insolvency</citphrase>
<citphrase id="cp0.9">cited from="[2006] FCA 1376">whether leave should be granted pursuant to s 459s of the corporations act 2001 (cth) to raise ground opposing winding up which could have been relied on in application to set aside statutory demand</citphrase>
<citphrase id="cp0.10">cited from="[2006] FCA 1376">relevant considerations for granting of leave under s 459s.  held</citphrase>
<citphrase id="cp0.11">cited from="[2006] FCA 1376">approval to cause company to bring application pursuant to s 471a not granted</citphrase>
<citphrase id="cp0.12">cited from="[2006] FCA 1376">insufficient evidence to rebut presumption of insolvency</citphrase>
<citphrase id="cp0.13">cited from="[2006] FCA 1376">explanation of failure to apply to set aside statutory demand unsatisfactory</citphrase>
<citphrase id="cp0.14">cited from="[2006] FCA 1376">ground material to proving solvency not established pursuant to s 459s</citphrase>
<citphrase id="cp0.15">cited from="[2006] FCA 1376">leave to raise ground pursuant to s 459s refused</citphrase>
<citphrase id="cp0.16">cited from="[2006] FCA 1376">application for review of registrar's decision dismissed.</citphrase>
<citphrase id="cp1.0">cited from="[2005] HCA 45">theodore v mistford pty ltd  mortgages</citphrase>
<citphrase id="cp1.1">cited from="[2005] HCA 45">equitable mortgage by deposit of a certificate of title</citphrase>
<citphrase id="cp1.2">cited from="[2005] HCA 45">third party security</citphrase>
<citphrase id="cp1.3">cited from="[2005] HCA 45">contract provided for sale of business by respondents to third party guaranteed by appellant's son</citphrase>
<citphrase id="cp1.4">cited from="[2005] HCA 45">sale contract provided for deposit by guarantor with vendors' solicitors of instrument of mortgage of certain land owned by appellant together with duplicate certificate of title</citphrase>
<citphrase id="cp1.5">cited from="[2005] HCA 45">guarantor obtained appellant's authority to release duplicate certificate of title as security for purchase</citphrase>
<citphrase id="cp1.6">cited from="[2005] HCA 45">guarantor deposited duplicate certificate of title with vendors' solicitors four days prior to settlement</citphrase>
<citphrase id="cp1.7">cited from="[2005] HCA 45">no insistence by vendors upon provision of instrument of mortgage</citphrase>
<citphrase id="cp1.8">cited from="[2005] HCA 45">whether equitable mortgage created by deposit of duplicate certificate of title</citphrase>
<citphrase id="cp1.9">cited from="[2005] HCA 45">whether duplicate certificate of title held by vendors' solicitors on account of purchaser or on account of vendor</citphrase>
<citphrase id="cp1.10">cited from="[2005] HCA 45">whether land title act 1994 (q), s 75 precludes creation of third party securities by way of deposit of a certificate of title</citphrase>
<citphrase id="cp1.11">cited from="[2005] HCA 45">whether deposit of a certificate of title must be made contemporaneously with the advance to be secured.</citphrase>
</citphrases>
<citances>
<sentence from="[2010] SADC 125" id="cs0">This question arises from two findings with respect to payments received by Web Wealth, the first shortly after January 2005 and the second as a consequence of the judgment of the Federal Court in favour of Helimount's liquidator. In his reasons for judgment, Mansfield J ordered the liquidator to pay Web Wealth Pty Ltd such sum as represents the proceeds of the sale of two properties, the titles thereto being given to Web Wealth by Mr Callipari as security for the January loan. [8] His Honour found two mortgages handed over by Mr Callipari effectively to Web Wealth in support of the subject loans, were equitable mortgages which Web Wealth was entitled to enforce.  The question then becomes whether these sums should be deducted from the $1.1 m for which Mr Callipari is now liable? The findings of Mansfield J were based fairly and squarely on the January 2005 loan agreement. [12] The primary liability thereunder was the principal of $630,000, plus interest at the rate of $63,000 per month, so that as of the date of winding up, 26 July 2006, this had become $1,701 m or thereabouts, and in any event well beyond $1.1 m. The simple fact of the matter is that on any reckoning, the combined total of the subject payments - $360,299.83 --- could not bring that debt below the level of $1.1 m due on the agreement of May 2006, so that in that circumstance it is not appropriate to set them off or deduct them therefrom. Furthermore, as to the $25,000 paid by Mr Callipari, it is difficult to accept this was not brought into account in the negotiations arriving at that figure of $1.1 m, when that agreement was reached.  It is not to the point that the plaintiff did not proceed in default of the payment by Mr Callipari to proceed any further to enforce in the winding up proceedings. It is clear from the Federal Court judgment there were no other remaining funds to be realised, other than what was paid over to Web Wealth. [11] In any case clause 3.2 of the May 2006 agreement allowed it to enforce in an "appropriate court", which it has done in these very proceedings. </sentence>
<sentence from="[2010] SADC 60" id="cs1">As it transpires, Mr Pappas arranged for funds to be sourced from various "outside investors", as he described them. [8] These turned out to be exclusively friends or relatives. Soon after $25,000 cash was received from Mr Callipari. It was allocated to interest accrued over the first month. Later $335,299.83 was recovered by the liquidator of Helimount Pty Ltd. [9] This payment followed an order of a Registrar of the Federal Court of Australia made on 26 July 2006, that Helimount be wound-up in insolvency under the provisions of the Corporations Act 2001 . Still later on 6 December 2007, Mansfield J delivered a judgment declaring Web Wealth was entitled to an interest by way of equitable mortgages comprising the proceeds of sale of two Mildura properties owned by Helimount, the titles to which were handed over by Mr Callipari to Mr Pappas, and held as security for the loan of $630,000. [10] The titles to both properties are recorded in Recital B to all versions of the January 2005 loan documentation, as security for the loan.  The plaintiff claims an issue estoppel arises from the decision of Mansfield J in the Federal Court, to the extent that findings were made with respect to the 24 January 2005 agreement, with Web Wealth as lender. In those proceedings Mansfield J made orders in the following terms: [79]

 [32] The parties were agreed upon the appropriate form of orders if I were to reach the conclusion I have reached. I think they are appropriate. I accordingly declare that Web Wealth Pty Ltd has an interest in the fund comprising the proceeds of sale of the land described in Certificates of Title Register Book Volume 9983 Folio 505 and Volume 9593 Folio 463 ("the properties") corresponding to the equitable mortgage in its favour created by the deposit of duplicate certificates of title by Helimount Pty Ltd in January 2005. I also order that the liquidator pay to Web Wealth Pty Ltd such sum as represents the proceeds of sale of the properties less the costs and disbursements of the liquidator in realising the properties.

 </sentence>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT RULES </title>
<title id="l1">FEDERAL COURT (CORPORATIONS) RULES 2000 </title>
<title id="l2">REAL PROPERTY ACT 1886 </title>
<title id="l3">REAL PROPERTY ACT 1886 - SECT 149 </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2008] FCAFC 22">industrial law</citphrase>
<citphrase id="cp0.1">cited from="[2008] FCAFC 22">"false or misleading representation"</citphrase>
<citphrase id="cp0.2">cited from="[2008] FCAFC 22">whether pleaded allegation sufficiently established by the evidence</citphrase>
<citphrase id="cp0.3">cited from="[2008] FCAFC 22">whether representation a statement of future intention or objective</citphrase>
<citphrase id="cp0.4">cited from="[2008] FCAFC 22">allegation sufficiently within contraventions pleaded</citphrase>
<citphrase id="cp0.5">cited from="[2008] FCAFC 22">"eligible person"</citphrase>
<citphrase id="cp0.6">cited from="[2008] FCAFC 22">whether a member of a partnership may be an eligible person</citphrase>
<citphrase id="cp0.7">cited from="[2008] FCAFC 22">whether reverse onus in s 298v applied by primary judge</citphrase>
<citphrase id="cp0.8">cited from="[2008] FCAFC 22">appeal allowed in part</citphrase>
<citphrase id="cp0.9">cited from="[2008] FCAFC 22">case remitted to primary judge for further consideration</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCA 2015">workplace relations</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCA 2015">penalty for contraventions of ss 187aa and 187ab of the workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCA 2015">acceptance by employees of payment for period of industrial action</citphrase>
<citphrase id="cp1.3">cited from="[2007] FCA 2015">claim by union for employees to be paid for period of industrial action</citphrase>
<citphrase id="cp1.4">cited from="[2007] FCA 2015">contraventions admitted</citphrase>
<citphrase id="cp1.5">cited from="[2007] FCA 2015">penalty to be imposed.</citphrase>
<citphrase id="cp2.0">cited from="[2007] FMCA 1873">industrial law</citphrase>
<citphrase id="cp2.1">cited from="[2007] FMCA 1873">alleged contravention of building and construction industry improvement act 2005</citphrase>
<citphrase id="cp2.2">cited from="[2007] FMCA 1873">agreed statement of facts</citphrase>
<citphrase id="cp2.3">cited from="[2007] FMCA 1873">consideration of matters relevant to imposition of penalty.</citphrase>
<citphrase id="cp3.0">cited from="[2007] FCA 1080">workplace relations</citphrase>
<citphrase id="cp3.1">cited from="[2007] FCA 1080">penalty hearing</citphrase>
<citphrase id="cp3.2">cited from="[2007] FCA 1080">admitted contraventions of transport workers award 1998</citphrase>
<citphrase id="cp3.3">cited from="[2007] FCA 1080">underpayment of wages to employee</citphrase>
<citphrase id="cp3.4">cited from="[2007] FCA 1080">where multiple breaches of award arose out of single course of conduct</citphrase>
<citphrase id="cp3.5">cited from="[2007] FCA 1080">relevant considerations in determining level of penalty</citphrase>
<citphrase id="cp3.6">cited from="[2007] FCA 1080">penalty determined</citphrase>
<citphrase id="cp4.0">cited from="[2007] FCA 1047">industrial law</citphrase>
<citphrase id="cp4.1">cited from="[2007] FCA 1047">union officials seeking to enter enterprise bargaining agreement under div 2 of pt vib of the workplace relations act with developer-contractor</citphrase>
<citphrase id="cp4.2">cited from="[2007] FCA 1047">threat of disruption to work and disruptive conduct with intent to coerce developer-contractor</citphrase>
<citphrase id="cp4.3">cited from="[2007] FCA 1047">whether unlawful, illegitimate or unconscionable pressure</citphrase>
<citphrase id="cp4.4">cited from="[2007] FCA 1047">liability of unions for conduct of officials  industrial law</citphrase>
<citphrase id="cp4.5">cited from="[2007] FCA 1047">freedom of association</citphrase>
<citphrase id="cp4.6">cited from="[2007] FCA 1047">whether false and misleading representation made about a person's obligation to join an industrial association  trade practices</citphrase>
<citphrase id="cp4.7">cited from="[2007] FCA 1047">restrictive trade practices</citphrase>
<citphrase id="cp4.8">cited from="[2007] FCA 1047">secondary boycotts</citphrase>
<citphrase id="cp4.9">cited from="[2007] FCA 1047">conduct of union officials which hindered or prevented services being acquired by contractor from subcontractor</citphrase>
<citphrase id="cp4.10">cited from="[2007] FCA 1047">subcontract terminated</citphrase>
<citphrase id="cp4.11">cited from="[2007] FCA 1047">whether with purpose or likely effect of injuring subcontractor</citphrase>
<citphrase id="cp4.12">cited from="[2007] FCA 1047">liability of unions for conduct of officials tort</citphrase>
<citphrase id="cp4.13">cited from="[2007] FCA 1047">inducing breach of contract</citphrase>
<citphrase id="cp4.14">cited from="[2007] FCA 1047">union officials inducing breach of contract for services made between contractor and subcontractor</citphrase>
<citphrase id="cp4.15">cited from="[2007] FCA 1047">union officials' knowledge of existence of contract</citphrase>
<citphrase id="cp4.16">cited from="[2007] FCA 1047">vicarious liability of unions for actions of its officials</citphrase>
<citphrase id="cp4.17">cited from="[2007] FCA 1047">nature of contract</citphrase>
<citphrase id="cp5.0">cited from="[2007] FCA 1001">workplace relations</citphrase>
<citphrase id="cp5.1">cited from="[2007] FCA 1001">breach of part xa of the workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp5.2">cited from="[2007] FCA 1001">union membership</citphrase>
<citphrase id="cp5.3">cited from="[2007] FCA 1001">union advised, encouraged or incited discriminatory conduct  penalty</citphrase>
<citphrase id="cp5.4">cited from="[2007] FCA 1001">agreement between parties as to proposed penalty</citphrase>
<citphrase id="cp5.5">cited from="[2007] FCA 1001">penalty should be within the range of penalties the court would impose itself</citphrase>
<citphrase id="cp5.6">cited from="[2007] FCA 1001">when the proposed penalty is within the appropriate range the court may give effect to agreement between the parties and need not exercise an independent discretion or decide whether it would have found the same penalty</citphrase>
<citphrase id="cp6.0">cited from="[2007] FCAFC 65">workplace relations</citphrase>
<citphrase id="cp6.1">cited from="[2007] FCAFC 65">stoppage of work because of death of employee on unrelated site</citphrase>
<citphrase id="cp6.2">cited from="[2007] FCAFC 65">claim by union for employees to be paid for period of stoppage</citphrase>
<citphrase id="cp6.3">cited from="[2007] FCAFC 65">industrial action in support of claim</citphrase>
<citphrase id="cp6.4">cited from="[2007] FCAFC 65">whether claim reasonable</citphrase>
<citphrase id="cp6.5">cited from="[2007] FCAFC 65">admitted breaches of statutory prohibition on payment for period of industrial action and on claiming payment</citphrase>
<citphrase id="cp6.6">cited from="[2007] FCAFC 65">penalty agreed to by employer</citphrase>
<citphrase id="cp6.7">cited from="[2007] FCAFC 65">whether within permissible range</citphrase>
<citphrase id="cp6.8">cited from="[2007] FCAFC 65">appropriate penalty for breach by union. workplace relations</citphrase>
<citphrase id="cp6.9">cited from="[2007] FCAFC 65">statutory prohibition on making payment to employee for period of industrial action and on claiming such payment</citphrase>
<citphrase id="cp6.10">cited from="[2007] FCAFC 65">union claim that numerous employees should be paid for single period of industrial action</citphrase>
<citphrase id="cp6.11">cited from="[2007] FCAFC 65">employees paid</citphrase>
<citphrase id="cp6.12">cited from="[2007] FCAFC 65">whether one breach or multiple breaches of statute. penalties</citphrase>
<citphrase id="cp6.13">cited from="[2007] FCAFC 65">contravention of statutory prohibition on making payment to employee for period of industrial action and on claiming such payment</citphrase>
<citphrase id="cp6.14">cited from="[2007] FCAFC 65">agreement between applicant and employer on amount of penalty</citphrase>
<citphrase id="cp6.15">cited from="[2007] FCAFC 65">whether within permissible range</citphrase>
<citphrase id="cp6.16">cited from="[2007] FCAFC 65">seriousness of breach</citphrase>
<citphrase id="cp6.17">cited from="[2007] FCAFC 65">factors to be considered</citphrase>
<citphrase id="cp6.18">cited from="[2007] FCAFC 65">objects of statute</citphrase>
<citphrase id="cp6.19">cited from="[2007] FCAFC 65">individual and general deterrence</citphrase>
<citphrase id="cp6.20">cited from="[2007] FCAFC 65">totality principle.</citphrase>
<citphrase id="cp8.0">cited from="[2007] FCA 425">workplace relations</citphrase>
<citphrase id="cp8.1">cited from="[2007] FCA 425">breadth of relief available for conduct in contravention of part xa of the act</citphrase>
<citphrase id="cp8.2">cited from="[2007] FCA 425">circumstances in which declaratory relief should be granted</citphrase>
<citphrase id="cp8.3">cited from="[2007] FCA 425">principles governing the imposition of penalties</citphrase>
<citphrase id="cp8.4">cited from="[2007] FCA 425">when orders are appropriate and necessary to stop the contravening conduct and/or remedy its effects</citphrase>
<citphrase id="cp9.0">cited from="[2007] FCA 87">industrial relations</citphrase>
<citphrase id="cp9.1">cited from="[2007] FCA 87">whether false or misleading representations made about a person's obligation to join an industrial association</citphrase>
<citphrase id="cp9.2">cited from="[2007] FCA 87">whether advice, encouragement or incitement given or provided to take discriminatory action against a person who was eligible to join an industrial association</citphrase>
<citphrase id="cp9.3">cited from="[2007] FCA 87">whether industrial action threatened with intent to coerce a person to agree to make an enterprise bargaining agreement</citphrase>
<citphrase id="cp10.0">cited from="[2006] FCA 1730">procedure</citphrase>
<citphrase id="cp10.1">cited from="[2006] FCA 1730">consent orders</citphrase>
<citphrase id="cp10.2">cited from="[2006] FCA 1730">whether within power of court to make</citphrase>
<citphrase id="cp10.3">cited from="[2006] FCA 1730">whether appropriate</citphrase>
<citphrase id="cp11.0">cited from="[2005] FCA 497">industrial law</citphrase>
<citphrase id="cp11.1">cited from="[2005] FCA 497">workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp11.2">cited from="[2005] FCA 497">part vib certified agreements</citphrase>
<citphrase id="cp11.3">cited from="[2005] FCA 497">where respondent admitted contravention at commencement of hearing</citphrase>
<citphrase id="cp11.4">cited from="[2005] FCA 497">making of a declaration</citphrase>
<citphrase id="cp11.5">cited from="[2005] FCA 497">fixing of penalty</citphrase>
<citphrase id="cp11.6">cited from="[2005] FCA 497">matters to be considered</citphrase>
<citphrase id="cp11.7">cited from="[2005] FCA 497">totality principle</citphrase>
<citphrase id="cp11.8">cited from="[2005] FCA 497">mitigating factors</citphrase>
<citphrase id="cp12.0">cited from="[2004] FCA 697">industrial law</citphrase>
<citphrase id="cp12.1">cited from="[2004] FCA 697">employment of non-trade union member in building industry</citphrase>
<citphrase id="cp12.2">cited from="[2004] FCA 697">requirement by trade union officer of employer that employee become a member of the trade union for that industry</citphrase>
<citphrase id="cp12.3">cited from="[2004] FCA 697">threat of 'trouble' if employee did not do so</citphrase>
<citphrase id="cp12.4">cited from="[2004] FCA 697">conduct constituting advice encouragement or incitement of employer or threat to organise industrial action with intent to coerce employer to dismiss or injure employee</citphrase>
<citphrase id="cp12.5">cited from="[2004] FCA 697">employee absent from work in reaction to threat</citphrase>
<citphrase id="cp12.6">cited from="[2004] FCA 697">thereafter employee returned to work and simultaneously joined the union</citphrase>
<citphrase id="cp12.7">cited from="[2004] FCA 697">finding of statutory breach</citphrase>
<citphrase id="cp12.8">cited from="[2004] FCA 697">penalty to be assessed</citphrase>
<citphrase id="cp12.9">cited from="[2004] FCA 697">compensation to dissenting employee to be assessed</citphrase>
<citphrase id="cp16.0">citing from="[2011] FMCA 349">industrial law</citphrase>
<citphrase id="cp16.1">citing from="[2011] FMCA 349">contravention of industrial agreement</citphrase>
<citphrase id="cp16.2">citing from="[2011] FMCA 349">whether the agreed penalties to be paid by the respondents pursuant to s.719 of the workplace relations act 1996 (cth) and the agreed pecuniary penalties to be paid by the respondents pursuant to s.546 of the fair work act 2009 (cth) are appropriate</citphrase>
<citphrase id="cp16.3">citing from="[2011] FMCA 349">whether the pecuniary penalties should be paid to the applicant.</citphrase>
<citphrase id="cp17.0">citing from="[2011] FMCA 263">industrial law</citphrase>
<citphrase id="cp17.1">citing from="[2011] FMCA 263">judgment in respect of quantum of penalties to be imposed on respondents for contraventions.  workplace relations act 1996 , ss.189(1) , 235 , 719 , 719 (2), 728  hospitality industry</citphrase>
<citphrase id="cp17.2">citing from="[2011] FMCA 263">accommodation, hotels, resorts and gaming award 1998</citphrase>
<citphrase id="cp18.0">citing from="[2011] FMCA 284">industrial law</citphrase>
<citphrase id="cp18.1">citing from="[2011] FMCA 284">penalty hearing</citphrase>
<citphrase id="cp18.2">citing from="[2011] FMCA 284">contraventions of s.38 of the building and construction industry improvement act 2005 (cth) by respondents</citphrase>
<citphrase id="cp18.3">citing from="[2011] FMCA 284">contraventions admitted</citphrase>
<citphrase id="cp18.4">citing from="[2011] FMCA 284">agreed penalties</citphrase>
<citphrase id="cp18.5">citing from="[2011] FMCA 284">whether agreed penalties within permissible range.  building and construction industry improvement act 2005 , ss.36 , 38 , 49 , 57  a  l silvestri pty ltd v construction, forestry, mining and energy union [2008] fca 466  australian ophthalmic supplies pty ltd v mcalary-smith [2008] fcafc 8 ; (2008) 165 fcr 560</citphrase>
<citphrase id="cp19.0">citing from="[2011] FMCA 145">industrial law</citphrase>
<citphrase id="cp19.1">citing from="[2011] FMCA 145">penalty hearing</citphrase>
<citphrase id="cp19.2">citing from="[2011] FMCA 145">unlawful building industrial action</citphrase>
<citphrase id="cp19.3">citing from="[2011] FMCA 145">admitted contraventions</citphrase>
<citphrase id="cp19.4">citing from="[2011] FMCA 145">considerations on penalty</citphrase>
<citphrase id="cp19.5">citing from="[2011] FMCA 145">agreed penalty.  building and construction industry improvement act 2005 (cth) ss.37 , 38 , 69  stuart-mahoney v construction, forestry, mining and energy union [2008] fca 1426  ponzio v b  p caelli constructions pty ltd (2007) 158 fcr 543  construction forestry mining  energy union v coal  allied operations pty ltd (no.2) [1999] fca 1714 ; (1999) 94 ir 231  australian ophthalmic supplies pty limited v mcalary-smith [2008] fcafc 8 ; (2008) 165 fcr 560</citphrase>
<citphrase id="cp20.0">citing from="[2011] FCA 56">industrial law</citphrase>
<citphrase id="cp20.1">citing from="[2011] FCA 56">appeal from federal magistrates court</citphrase>
<citphrase id="cp20.2">citing from="[2011] FCA 56">civil penalty proceedings</citphrase>
<citphrase id="cp20.3">citing from="[2011] FCA 56">whether there was action or threat of action having prejudicial effect on employment</citphrase>
<citphrase id="cp20.4">citing from="[2011] FCA 56">whether onus of negativing proscribed reason reversed by s 809 of the workplace relations act 1996 (cth)  evidence</citphrase>
<citphrase id="cp20.5">citing from="[2011] FCA 56">application of s 140 of the evidence act 1995 (cth)</citphrase>
<citphrase id="cp20.6">citing from="[2011] FCA 56">whether pleaded allegation sufficiently established by the evidence</citphrase>
<citphrase id="cp20.7">citing from="[2011] FCA 56">whether inference of contravening conduct more probable than other available inferences  pecuniary penalties</citphrase>
<citphrase id="cp20.8">citing from="[2011] FCA 56">appeal from federal magistrates court</citphrase>
<citphrase id="cp20.9">citing from="[2011] FCA 56">whether pecuniary penalties imposed for contravention of ss 789 and 790 of the workplace relations act 1996 (cth) were excessive</citphrase>
<citphrase id="cp21.0">citing from="[2010] FMCA 973">industrial law</citphrase>
<citphrase id="cp21.1">citing from="[2010] FMCA 973">contravention of s.767 of the workplace relations act</citphrase>
<citphrase id="cp21.2">citing from="[2010] FMCA 973">consideration of matters relevant to penalty</citphrase>
<citphrase id="cp21.3">citing from="[2010] FMCA 973">consideration of whether declarations appropriate.  workplace relations act 1966 , ss.767, 767(1)  stuart-mahoney v construction, forestry, mining and energy union [2008] fca 1426 ; (2008) 177 ir 61  australian ophthalmic supplies pty ltd v mcalary-smith [2008] fcafc 8</citphrase>
<citphrase id="cp22.0">citing from="[2010] FCA 1382">industrial law</citphrase>
<citphrase id="cp22.1">citing from="[2010] FCA 1382">penalties</citphrase>
<citphrase id="cp22.2">citing from="[2010] FCA 1382">a single course of conduct</citphrase>
<citphrase id="cp22.3">citing from="[2010] FCA 1382">the totality principle</citphrase>
<citphrase id="cp22.4">citing from="[2010] FCA 1382">relevance of previous contraventions</citphrase>
<citphrase id="cp22.5">citing from="[2010] FCA 1382">punishment and deterrence</citphrase>
<citphrase id="cp22.6">citing from="[2010] FCA 1382">declaratory relief</citphrase>
<citphrase id="cp22.7">citing from="[2010] FCA 1382">pecuniary penalties</citphrase>
<citphrase id="cp23.0">citing from="[2010] FMCA 907">industrial law</citphrase>
<citphrase id="cp23.1">citing from="[2010] FMCA 907">notional agreements preserving state awards ("napsas")</citphrase>
<citphrase id="cp23.2">citing from="[2010] FMCA 907">australian pay and classification scales ("apcss")</citphrase>
<citphrase id="cp23.3">citing from="[2010] FMCA 907">breaches of napsas and apcss</citphrase>
<citphrase id="cp23.4">citing from="[2010] FMCA 907">accessorial liability</citphrase>
<citphrase id="cp23.5">citing from="[2010] FMCA 907">civil penalties</citphrase>
<citphrase id="cp23.6">citing from="[2010] FMCA 907">consideration of matters relevant to penalty.</citphrase>
<citphrase id="cp24.0">citing from="[2010] FMCA 805">industrial law</citphrase>
<citphrase id="cp24.1">citing from="[2010] FMCA 805">penalty hearing</citphrase>
<citphrase id="cp24.2">citing from="[2010] FMCA 805">unlawful building industrial action</citphrase>
<citphrase id="cp24.3">citing from="[2010] FMCA 805">admitted contraventions</citphrase>
<citphrase id="cp24.4">citing from="[2010] FMCA 805">considerations on penalty</citphrase>
<citphrase id="cp24.5">citing from="[2010] FMCA 805">agreed penalty.  building and construction industry improvement act 2005 (cth), s.38  minister for industry, tourism  resources v mobil oil [2004] fca fc 72  stuart-mahoney v construction, forestry, mining and energy union [2008] fca 1426</citphrase>
<citphrase id="cp25.0">citing from="[2010] FMCA 693">industrial law</citphrase>
<citphrase id="cp25.1">citing from="[2010] FMCA 693">fair work</citphrase>
<citphrase id="cp25.2">citing from="[2010] FMCA 693">admitted contraventions of building and construction industry improvement act</citphrase>
<citphrase id="cp25.3">citing from="[2010] FMCA 693">agreed statement of facts</citphrase>
<citphrase id="cp25.4">citing from="[2010] FMCA 693">application by respondents to give evidence through counsel from bar table</citphrase>
<citphrase id="cp25.5">citing from="[2010] FMCA 693">consideration of admissibility of such evidence</citphrase>
<citphrase id="cp25.6">citing from="[2010] FMCA 693">consideration of penalties to be imposed.</citphrase>
<citphrase id="cp26.0">citing from="[2010] FMCA 252">industrial law</citphrase>
<citphrase id="cp26.1">citing from="[2010] FMCA 252">workplace relations</citphrase>
<citphrase id="cp26.2">citing from="[2010] FMCA 252">contraventions of award and collective agreement</citphrase>
<citphrase id="cp26.3">citing from="[2010] FMCA 252">previous history of contraventions</citphrase>
<citphrase id="cp26.4">citing from="[2010] FMCA 252">need for specific deterrence.  penalties</citphrase>
<citphrase id="cp26.5">citing from="[2010] FMCA 252">principles for fixing</citphrase>
<citphrase id="cp26.6">citing from="[2010] FMCA 252">totality principle.</citphrase>
<citphrase id="cp27.0">citing from="[2009] FMCA 1187">industrial law</citphrase>
<citphrase id="cp27.1">citing from="[2009] FMCA 1187">admitted breaches of award</citphrase>
<citphrase id="cp27.2">citing from="[2009] FMCA 1187">agreed statement of facts</citphrase>
<citphrase id="cp27.3">citing from="[2009] FMCA 1187">matters relevant to penalty.  workplace relations act 1996 , ss.719 , 728  kelly v fitzpatrick [2007] fca 1080 ; (2007) 166 ir 14  australian ophthalmic supplies pty ltd v mcalary-smith [2008] 165 fcr 560</citphrase>
<citphrase id="cp28.0">citing from="[2009] FMCA 974">industrial law</citphrase>
<citphrase id="cp28.1">citing from="[2009] FMCA 974">pre-reform awas</citphrase>
<citphrase id="cp28.2">citing from="[2009] FMCA 974">breach</citphrase>
<citphrase id="cp28.3">citing from="[2009] FMCA 974">civil penalty</citphrase>
<citphrase id="cp28.4">citing from="[2009] FMCA 974">consideration of matters relevant to penalty.</citphrase>
<citphrase id="cp29.0">citing from="[2009] FCA 1040">industrial law</citphrase>
<citphrase id="cp29.1">citing from="[2009] FCA 1040">contraventions of s 43 of the building and construction industry improvement act 2005 (cth)</citphrase>
<citphrase id="cp29.2">citing from="[2009] FCA 1040">amount of penalties to be imposed</citphrase>
<citphrase id="cp29.3">citing from="[2009] FCA 1040">relevant considerations</citphrase>
<citphrase id="cp29.4">citing from="[2009] FCA 1040">nature and extent of unlawful conduct</citphrase>
<citphrase id="cp29.5">citing from="[2009] FCA 1040">consequences of contravening conduct</citphrase>
<citphrase id="cp29.6">citing from="[2009] FCA 1040">previous similar unlawful conduct, including prior contraventions</citphrase>
<citphrase id="cp29.7">citing from="[2009] FCA 1040">relevance of previous contravention by another autonomous division of the union</citphrase>
<citphrase id="cp29.8">citing from="[2009] FCA 1040">contraventions had common purpose but distinct in time, place and coercion exerted</citphrase>
<citphrase id="cp29.9">citing from="[2009] FCA 1040">relevance of, and weight to be given to, size and financial position and non-profit-making objective of union</citphrase>
<citphrase id="cp29.10">citing from="[2009] FCA 1040">general and specific deterrence</citphrase>
<citphrase id="cp29.11">citing from="[2009] FCA 1040">totality principle   costs</citphrase>
<citphrase id="cp29.12">citing from="[2009] FCA 1040">applicant partially successful in his pleaded case</citphrase>
<citphrase id="cp29.13">citing from="[2009] FCA 1040">respondents filed further amended defence on first day of trial</citphrase>
<citphrase id="cp29.14">citing from="[2009] FCA 1040">appropriate costs order</citphrase>
<citphrase id="cp29.15">citing from="[2009] FCA 1040">applicant entitled to part of his costs to reflect measure of success</citphrase>
<citphrase id="cp29.16">citing from="[2009] FCA 1040">respondents to pay applicant's costs thrown away by reason of amendment on party-party basis</citphrase>
<citphrase id="cp30.0">citing from="[2009] FMCA 824">industrial law</citphrase>
<citphrase id="cp30.1">citing from="[2009] FMCA 824">union collective agreement</citphrase>
<citphrase id="cp30.2">citing from="[2009] FMCA 824">lodgment without employees' prior approval</citphrase>
<citphrase id="cp30.3">citing from="[2009] FMCA 824">contravention of workplace relations act</citphrase>
<citphrase id="cp30.4">citing from="[2009] FMCA 824">civil remedy proceedings for pecuniary penalty</citphrase>
<citphrase id="cp30.5">citing from="[2009] FMCA 824">continued operation of provisions of workplace relations act following repeal by fair work (transitional provisions  consequential amendments) act.</citphrase>
<citphrase id="cp31.0">citing from="[2009] FCA 865">industrial law</citphrase>
<citphrase id="cp31.1">citing from="[2009] FCA 865">consideration of a pecuniary penalty to be imposed on three respondent unions in respect of contraventions of s 767(1) and s 768(1) of the workplace relations act 1996 (cth) arising out of entry by officials of the unions to premises at the abbot point coal terminal on 13 february 2009 and entry to those premises by officials of two respondent unions on 5 march 2009</citphrase>
<citphrase id="cp31.2">citing from="[2009] FCA 865">consideration of the criteria to be applied in determining the amount of penalty</citphrase>
<citphrase id="cp31.3">citing from="[2009] FCA 865">consideration of previous contraventions</citphrase>
<citphrase id="cp31.4">citing from="[2009] FCA 865">consideration of the objects of the legislation, the counter-factual, context and circumstances</citphrase>
<citphrase id="cp31.5">citing from="[2009] FCA 865">consideration of whether a pecuniary penalty ought to be paid to the applicant or to the commonwealth</citphrase>
<citphrase id="cp31.6">citing from="[2009] FCA 865">consideration of whether an order for costs ought to be made in favour of the applicant under s 824 of the workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp31.7">citing from="[2009] FCA 865">consideration of the continuing application of that act by operation of the fair work (transitional provisions and consequential amendments) act 2009 (cth)</citphrase>
<citphrase id="cp32.0">citing from="[2009] FCA 548">industrial law</citphrase>
<citphrase id="cp32.1">citing from="[2009] FCA 548">contraventions of anti-coercion provisions of legislation</citphrase>
<citphrase id="cp32.2">citing from="[2009] FCA 548">penalties to be imposed</citphrase>
<citphrase id="cp32.3">citing from="[2009] FCA 548">inherent seriousness of conduct</citphrase>
<citphrase id="cp32.4">citing from="[2009] FCA 548">whether aggravating or mitigatory circumstances existed</citphrase>
<citphrase id="cp32.5">citing from="[2009] FCA 548">relevance of prior contraventions</citphrase>
<citphrase id="cp32.6">citing from="[2009] FCA 548">whether prior contraventions of another statute, or by officials of another branch or division of corporate respondent, or in relation to which no finding of contravention had been made before the conduct relevant to the instant case, should be taken into account.</citphrase>
<citphrase id="cp33.0">citing from="[2009] FMCA 272">industrial law</citphrase>
<citphrase id="cp33.1">citing from="[2009] FMCA 272">contraventions of bcii act and workplace relations act</citphrase>
<citphrase id="cp33.2">citing from="[2009] FMCA 272">consideration of matters relevant to penalty.</citphrase>
<citphrase id="cp34.0">citing from="[2009] FMCA 265">industrial law</citphrase>
<citphrase id="cp34.1">citing from="[2009] FMCA 265">application for civil penalty</citphrase>
<citphrase id="cp34.2">citing from="[2009] FMCA 265">breach of applicable provisions</citphrase>
<citphrase id="cp34.3">citing from="[2009] FMCA 265">breaches admitted</citphrase>
<citphrase id="cp34.4">citing from="[2009] FMCA 265">agreed penalty</citphrase>
<citphrase id="cp34.5">citing from="[2009] FMCA 265">considerations as to penalty.</citphrase>
<citphrase id="cp35.0">citing from="[2009] FMCA 158">industrial law</citphrase>
<citphrase id="cp35.1">citing from="[2009] FMCA 158">workplace relations act 1996</citphrase>
<citphrase id="cp35.2">citing from="[2009] FMCA 158">breaches</citphrase>
<citphrase id="cp35.3">citing from="[2009] FMCA 158">civil penalty</citphrase>
<citphrase id="cp35.4">citing from="[2009] FMCA 158">consideration of matters relevant to penalty</citphrase>
<citphrase id="cp35.5">citing from="[2009] FMCA 158">two breaches arising out of one course of conduct</citphrase>
<citphrase id="cp35.6">citing from="[2009] FMCA 158">only one penalty imposed on each respondent</citphrase>
<citphrase id="cp35.7">citing from="[2009] FMCA 158">totality principle distinguished.</citphrase>
<citphrase id="cp36.0">citing from="[2008] FMCA 1435">industrial law</citphrase>
<citphrase id="cp36.1">citing from="[2008] FMCA 1435">contravention of freedom of association provisions of workplace relations act</citphrase>
<citphrase id="cp36.2">citing from="[2008] FMCA 1435">allegations of prior contraventions</citphrase>
<citphrase id="cp36.3">citing from="[2008] FMCA 1435">admissibility of cole royal commission report</citphrase>
<citphrase id="cp36.4">citing from="[2008] FMCA 1435">penalties imposed.  workplace relations act 1996 , ss.719 , 779 (2), 807  building and construction industry improvement act 2005  stuart-mahoney v construction, forestry, mining and energy union [2008] fca 1426  australian ophthalmic supplies pty ltd v mcalary-smith [2008] fcafc 8 ; (2008) 165 fcr 560</citphrase>
<citphrase id="cp37.0">citing from="[2008] FCA 812">costs</citphrase>
<citphrase id="cp37.1">citing from="[2008] FCA 812">where workplace relations claim and discrete federal claim</citphrase>
<citphrase id="cp37.2">citing from="[2008] FCA 812">where joinder of two applicants with separate claims</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FMCA 349" id="cs0">(k) Whether the party committing the breach had cooperated with the enforcement authorities; (l) The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and (m) The need for specific and general deterrence. 8. Whilst checklists of this kind can be useful, there are no mandatory statutory criteria and a checklist should not be used as a rigid catalogue of matters for attention: A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 at [91] . The task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions occurred and the need to sustain public confidence in the statutory regime: Australian Ophthalmic Supplies at [91]. 9.</sentence>
<sentence from="[2011] FMCA 263" id="cs1">All of the parties have pointed to a number of relevant factors of the sort identified by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080. As I said in Ikin v Crown Trading Group Pty Ltd [2009] FMCA 1187 at [3] : "Subject only to the caution expressed by Buchanan J in Australian Ophthalmic Supplies Proprietary Limited v McAlary-Smith (2008) FCAFC 8 ; (2008) 165 FCR 560 at 91 to the effect that the matters identified by Tracey J should not be treated as a rigid catalogue of matters for attention, it is now accepted that Tracey Js approach is correct in the sense that it indicates a number of relevant considerations. I also note the observations of Gyles J in A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2008) FCA 466 at [6] where his Honour said: "There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning. "" </sentence>
<sentence from="[2011] FMCA 284" id="cs2">Of course, adopting an approach that simply applies a checklist can be confusing in some cases or overtake the primary task, which is to look at the whole of the circumstances in the context of the legislative instrument and strike an appropriate penalty for the particular conduct in this particular case involving these particular parties. To some extent, this was discussed in A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 and Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560.  However, it is the one union and I have regard to the comments made by Jessup J in Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union  Ors [2010] FCA 75 and Gyles J in A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466. Whilst the fact that many of the previous decisions may have involved other branches within the union might have been given more weight in early days, at this point (given the number of previous cases), it seems to be of no significant moment that many of the cases involve other branches of one overall union. Clearly, the union must be aware that there is a significant problem with compliance with the Act throughout its branches. </sentence>
<sentence from="[2011] FMCA 145" id="cs3">In doing so I bear in mind the observations of Giles J in A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6] : "... the discretion is at large. There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning. " </sentence>
<sentence from="[2011] FCA 56" id="cs4">In addressing the circumstances bearing on his discretion in imposing penalties, the learned Federal Magistrate acknowledged in the Penalty Judgment the various considerations which the authorities indicate as potentially relevant or applicable and specifically noted Tracey J's summary in Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 ; (2008) 177 IR 61 , at [40], of the discretionary factors to be taken into account in relation to conduct like that found to have occurred in the present case. Although he acknowledged that such a list of relevant considerations may be helpful, his Honour correctly observed, at [4] of the Penalty Judgment, that they;
... are not to be followed in any slavish way ( Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 , per Buchanan J at [91]). As was pointed out by Giles J in A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 (" Silvestri ") at [6]:

"The discretion is at large. There are no mandatory statutory criteria, and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning. "

  The appellants suggested that [29] and [37] of the Penalty Judgment reflect some error on the learned Federal Magistrate's part in regarding the CFMEU's support of Deans as relevant to the assessment of penalties. Mr Borenstein SC contended that there is no principle of sentencing which allows a penalty to be increased because the accused or respondent has contested the case and put the prosecutor to proof. In response to this contention I was referred to A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 (" Silvestri "), per Gyles J, on which Counsel for the respondent said that the learned Federal Magistrate had specifically relied. In Silvestri , Gyles J observed, at [12];
...the CFMEU chose to actively defend the conduct of Lane to the end, notwithstanding the overwhelming evidence marshalled against his version of events. Furthermore, it is hardly sensible to view this incident as the wildcat actions of an aberrant official.</sentence>
<sentence from="[2010] FMCA 973" id="cs5">It should be noted that this list is not in any sense a checklist or a formula to be followed (see Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8). I also bear in mind the observations of Giles J in A  L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6], where his Honour said: "A number of authorities discuss the factors to be taken into account in fixing a penalty, many of them borrowing from related fields, including the criminal law. It is sufficient to refer to the recent case of Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14 as an example. However, the discretion is at large. There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning. " </sentence>
<sentence from="[2010] FCA 1382" id="cs6">No exposition, however, remains an exhaustive list of considerations. And no statement should itself be mechanically applied in substitution for a proper exercise of the discretion conferred by reference to the facts and circumstances of each particular case and by reference to the objects and purposes of the particular statute being applied. The caution expressed as follows by Gyles J in A  L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union (" A  L Silvestri Pty Limited ") [2008] FCA 466, 60 AILR 100-853 is well heeded, namely:

 [6] A number of authorities discuss the factors to be taken into account in fixing a penalty, many of them borrowing from related fields, including the criminal law. It is sufficient to refer to the recent case of Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14 as an example. However, the discretion is at large.</sentence>
<sentence from="[2010] FMCA 907" id="cs7">Whether the party committing the breach had cooperated with the enforcement authorities. The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and The need for specific and general deterrence.
However, as Gyles J said in A  L Silvestri Pty Ltd v Construction, Forestry, Mining  Energy Union [2008] FCA 466 at [6] , there are no mandatory statutory criteria. </sentence>
<sentence from="[2010] FMCA 805" id="cs8"/>
<sentence from="[2010] FMCA 693" id="cs9">In detailing the above matters I have had regard to a number of the matters indicated in such cases as Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14 , per Tracey J, subject to the reservations expressed by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [90] . I bear steadfastly in mind the observations of Giles J in A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6] : "... the discretion is at large. There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning. " </sentence>
<sentence from="[2010] FMCA 252" id="cs10">The cases were considered by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14. Subject only to the caution expressed by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] 165 FCR 560 at [91] to the effect that the matters identified by Tracey J should not be treated as a rigid catalogue of matters for attention, it is now accepted that Tracey J's approach is correct in the sense that it indicates a number of relevant considerations. I also note the observations of Gyles J in A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6] where his Honour said: "There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning. " The nature and extent of the conduct is relevant .</sentence>
<sentence from="[2009] FMCA 1187" id="cs11">The authorities in relation to the approach the Court should take in matters such as these are now, in my respectful view, well established. The cases were considered by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14. Subject only to the caution expressed by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; [2008] 165 FCR 560 at [91] to the effect that the matters identified by Tracey J should not be treated as a rigid catalogue of matters for attention, it is now accepted that Tracey J's approach is correct in the sense that it indicates a number of relevant considerations. I also note the observations of Gyles J in A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6] where his Honour said: "There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning. " Agreed Facts
 </sentence>
<sentence from="[2009] FMCA 974" id="cs12">Whether the party committing the breach had cooperated with the enforcement authorities. The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and The need for specific and general deterrence.
However, as Gyles J said in AL Silvestri Pty Limited v Construction, Forestry, Mining  Energy Union [2008] FCA 466 at [6] , there are no mandatory statutory criteria. </sentence>
<sentence from="[2009] AIRC 868" id="cs13"/>
<sentence from="[2009] FCA 1040" id="cs14">Various other judicial statements have been made concerning the significance of a prior contravention in a different state or territory: see A  L Silvestri v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [13] and Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 at [18] - [19] per Jessup J. Nothing to which I have been referred dissuades me from the view that, whilst prior contraventions in any state and territories may be relevant to fixing the penalty to be imposed on the Union, it will be for the Court in each case to consider the question of weight, having regard to all the relevant circumstances. </sentence>
<sentence from="[2009] FMCA 824" id="cs15">Whether the party committing the breach had cooperated with the enforcement authorities. The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and The need for specific and general deterrence.
However, as Gyles J said in AL Silvestri Pty Limited v Construction, Forestry, Mining  Energy Union [2008] FCA 466 at [6] , there are no mandatory statutory criteria. </sentence>
<sentence from="[2009] FCA 865" id="cs16">The Act confers on the Court the exercise of a statutory discretion as to whether the conduct warrants the imposition of a pecuniary penalty and if so the amount of the penalty up to a statutory maximum. The discretion is said to be "at large" ( A  L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6] per Gyles J) unaided by any mandatory statutory criteria. </sentence>
<sentence from="[2009] FCA 548" id="cs17">In some cases a pattern of conduct across the country may suggest a nationwide plan of action or a national culture of misconduct. In other cases it may appear that a particular branch or geographical region has acted alone in adopting a plan of action or has developed a particular culture.

On the other hand, counsel for the applicant drew my attention to the following passage in the judgment of Gyles J in A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 , [13]:

 Ultimately, union officials will act in accordance with the policies of the union. An official of one geographic or industry branch will observe the manner in which policies are applied by the federal body in relation to other branches. These various cases illustrate that the federal body has not been effective in ensuring that officials act in accordance with the law.</sentence>
<sentence from="[2009] FMCA 272" id="cs18">There is a growing body of authority as to the approach that should be taken in cases such as these. Kelly v Fitzpatrick [2007] FCA 1080 is often referred to, subject to the qualifications set out in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 ("Ophthalmic Supplies") per Buchanan J at [91]. I have had regard to those authorities but would add reference to the following observation of Gyles J in A.  L. Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 (" Silvestri "), at [6]: "A number of authorities discuss the factors to be taken into account in fixing a penalty, many of them borrowing from related fields, including the criminal law. It is sufficient to refer to the recent case of Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14 as an example. However, the discretion is at large. There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning. " </sentence>
<sentence from="[2009] FMCA 265" id="cs19">The principles that should be applied in the approach to penalty proceedings such as the matter before the Court were not in dispute. Exhibit "A2" essayed those provisions at paragraphs [18]-[20] as follows: "18. The factors relevant to the imposition of a pecuniary penalty in an industrial context, will usually include the following: (a) The nature and extent of the conduct which led to the breaches; (b) The circumstances in which that conduct took place; (c) The nature and extent of any loss or damage sustained as a result of the breaches; (d) Whether there had been similar previous conduct by the respondent; (e) Whether or not the breaches were deliberate; (f) Whether the party committing the breach had exhibited contrition; (g) Whether the party committing the breach had taken corrective action; (h) Whether the party committing the breach had cooperated with the enforcement authorities; (i) The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; (j) The need for specific and general deterrence; and (k) The application of the "totality principle": see Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 at [18] - [68] inclusive, Kelly v Fitzpatrick [2007] FCA 1080 per Tracey J at [14], Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 246 ALR 35 at [59] - [60] per Graham J and [89] per Buchanan J. 19. Those factors are, however, merely a guide, rather than a "rigid catalogue of matters for attention": Australian Ophthalmic Supplies at [91] per Buchanan J, A  L Silvestri Pty Ltd v CFMEU [2008] FCA 466 at [6] per Gyles J. The Court is ultimately required "... to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations": Australian Ophthalmic Supplies at [91] per Buchanan J. 20. In CFMEU v Coal and Allied Operations Pty Ltd (No.2) [1999] FCA 1714 ; (1999) 94 IR 231 at [7] - [8], Branson J identified an additional consideration as relevant to the assessment of penalty in freedom of association proceedings, namely, the need in the circumstances, for the protection of industrial freedom of association (albeit in the context of a contravention of Part XA of the WR Act as it existed prior to the amendments made by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth)) (" the Pre-Reform Act "). " </sentence>
<sentence from="[2009] FMCA 158" id="cs20">Considerations relevant to the determination of whether particular conduct should attract a penalty and, if so, how much that penalty should be, have been referred to in a number of cases such as Construction, Forestry, Mining  Energy Union v Coal  Allied Operations Pty Ltd (No.2) (1999) 94 IR 231 , Kelly v Fitzpatrick [2007] FCA 1080 , Hadgkiss v Sunland Constructions (Qld) Pty Ltd [2006] FCA 1566 and Hadgkiss v Construction, Forestry, Mining  Energy Union [2007] FCA 524. However, as Gyles J said in AL Silvestri Pty Limited v Construction, Forestry, Mining  Energy Union [2008] FCA 466 , there are no mandatory statutory criteria. Considerations relevant to this case are: the nature and extent of the conduct which led to the breaches; whether the breaches were properly distinct or arose out of the one course of conduct; the nature and extent of any loss or damage sustained as a result of the breaches; whether there had been similar previous conduct by the respondents; whether the CFMEU and the CFMEU(NSW) had cultures of compliance; whether the party committing the breach exhibited contrition and cooperated with the enforcement authorities; the need for specific and general deterrence; and the capacity of the relevant persons to pay. The nature and extent of the conduct
 </sentence>
<sentence from="[2008] FMCA 1435" id="cs21">It is also well established that such lists, while possibly helpful, are not a checklist and are not to be followed in any slavish way ( Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 , per Buchanan J at [91]). As was pointed out by Giles J in
 A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 (" Silvestri ") at [6]: "The discretion is at large. There are no mandatory statutory criteria, and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning. " </sentence>
<sentence from="[2008] FCA 812" id="cs22">

 1 On 16 April last, declarations and orders were made in this proceeding following delivery of reasons for judgment on 11 April 2008 ( A  L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466).</sentence>
</citances>
<legistitles>
<title id="l0">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp2.0">citing from="[2008] FCA 1953">costs</citphrase>
<citphrase id="cp2.1">citing from="[2008] FCA 1953">the court appointed a barrister to act as tutor to the applicant on the grounds of the applicant's mental incapacity</citphrase>
<citphrase id="cp2.2">citing from="[2008] FCA 1953">the barrister agreed to accept appointment as tutor on a pro bono basis</citphrase>
<citphrase id="cp2.3">citing from="[2008] FCA 1953">the court dismissed the application</citphrase>
<citphrase id="cp2.4">citing from="[2008] FCA 1953">whether the court should depart from the usual rule as to costs</citphrase>
</citphrases>
<citances>
<sentence from="[2008] FCA 1953" id="cs0">4 After the appointment of Mr Ley as tutor for Mr Fernando, the originating application was amended. On 13 August 2008, I dismissed the application on the basis that the Federal Court did not have jurisdiction to hear and determine the application ( Fernando v Minister for Immigration and Citizenship (No 2) [2008] FCA 1216). I said that I would hear the parties on costs.</sentence>
</citances>
<legistitles>
<title id="l0">ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 </title>
<title id="l1">ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 5 Applications for review of decisions</title>
<title id="l2">ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 - SECT 8 Jurisdiction of Federal Court of Australia and Federal Magistrates Court</title>
<title id="l3">JUDICIARY ACT 1903 </title>
<title id="l4">JUDICIARY ACT 1903 - SECT 39B Original jurisdiction of Federal Court of Australia</title>
<title id="l5">MIGRATION ACT 1958 </title>
<title id="l6">MIGRATION ACT 1958 - SECT 5 Interpretation</title>
<title id="l7">MIGRATION ACT 1958 - SECT 474 Decisions under Act are final</title>
<title id="l8">MIGRATION ACT 1958 - SECT 476A Limited jurisdiction of the Federal Court</title>
<title id="l9">MIGRATION ACT 1958 - SECT 501 Refusal or cancellation of visa on character grounds</title>
<title id="l10">FEDERAL COURT RULES </title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[2008] FCAFC 123">evidence</citphrase>
<citphrase id="cp0.1">cited from="[2008] FCAFC 123">public interest immunity</citphrase>
<citphrase id="cp0.2">cited from="[2008] FCAFC 123">application for leave to appeal from dismissal of claim to resist production of documents tending to identify informer(s) to the australian securities and investments commission</citphrase>
<citphrase id="cp1.0">cited from="[2007] FCA 1659">privilege</citphrase>
<citphrase id="cp1.1">cited from="[2007] FCA 1659">representative proceeding claiming breach of continuous disclosure obligations</citphrase>
<citphrase id="cp1.2">cited from="[2007] FCA 1659">investigation by australian securities and investments commission</citphrase>
<citphrase id="cp1.3">cited from="[2007] FCA 1659">where applicant served subpoena duces tecum on asic to produce certain documents and transcripts in its possession following investigation</citphrase>
<citphrase id="cp1.4">cited from="[2007] FCA 1659">objection to production by asic on grounds of public interest immunity privilege</citphrase>
<citphrase id="cp1.5">cited from="[2007] FCA 1659">where application heard ex parte to preserve subject-matter of asic claim for public interest immunity privilege</citphrase>
<citphrase id="cp1.6">cited from="[2007] FCA 1659">public interest immunity privilege claim rejected</citphrase>
<citphrase id="cp1.7">cited from="[2007] FCA 1659">confidential reasons.</citphrase>
<citphrase id="cp2.0">cited from="[2007] FCA 396">legal professional privilege</citphrase>
<citphrase id="cp2.1">cited from="[2007] FCA 396">common interest privilege</citphrase>
<citphrase id="cp2.2">cited from="[2007] FCA 396">correspondence between solicitors for party and solicitors for non-party</citphrase>
<citphrase id="cp2.3">cited from="[2007] FCA 396">non-party commencing separate proceedings against parties being sued by applicant in current proceedings</citphrase>
<citphrase id="cp2.4">cited from="[2007] FCA 396">non-party's action adverse to interests of applicant</citphrase>
<citphrase id="cp2.5">cited from="[2007] FCA 396">common interest privilege claim</citphrase>
<citphrase id="cp2.6">cited from="[2007] FCA 396">insufficient common interest to support privilege claim</citphrase>
<citphrase id="cp2.7">cited from="[2007] FCA 396">full copies of documents to be produced</citphrase>
<citphrase id="cp3.0">cited from="[2005] VSC 474">corporations</citphrase>
<citphrase id="cp3.1">cited from="[2005] VSC 474">application for interlocutory injunction to restrain completion of contract for the sale of assets of company in liquidation pending application to set aside creditors' resolution for winding up</citphrase>
<citphrase id="cp3.2">cited from="[2005] VSC 474">whether serious question to be tried</citphrase>
<citphrase id="cp3.3">cited from="[2005] VSC 474">balance of convenience</citphrase>
<citphrase id="cp3.4">cited from="[2005] VSC 474">other discretionary considerations.</citphrase>
<citphrase id="cp7.0">cited from="[2000] NSWCA 80">interlocutory orders</citphrase>
<citphrase id="cp7.1">cited from="[2000] NSWCA 80">commencing action out of time</citphrase>
<citphrase id="cp7.2">cited from="[2000] NSWCA 80">s52(4) motor accidents act</citphrase>
<citphrase id="cp7.3">cited from="[2000] NSWCA 80">discretion to admit and consider evidence on second interlocutory application</citphrase>
<citphrase id="cp7.4">cited from="[2000] NSWCA 80">no general rule precluding an unsuccessful applicant for interlocutory orders from repeating the application without fresh evidence</citphrase>
<citphrase id="cp7.5">cited from="[2000] NSWCA 80">abuse of process</citphrase>
<citphrase id="cp7.6">cited from="[2000] NSWCA 80">whether it is fair and just that time for bringing an action be extended</citphrase>
<citphrase id="cp7.7">cited from="[2000] NSWCA 80">after delay significant prejudice not accruing to appellant in respect of liability and damages</citphrase>
<citphrase id="cp7.8">cited from="[2000] NSWCA 80">whether solicitor's mistakes act as bar to client obtaining extension of time</citphrase>
<citphrase id="cp7.9">cited from="[2000] NSWCA 80">hearing on the merits</citphrase>
<citphrase id="cp7.10">cited from="[2000] NSWCA 80">s75a(8) supreme court act</citphrase>
<citphrase id="cp7.11">cited from="[2000] NSWCA 80">d</citphrase>
<citphrase id="cp8.0">cited from="[1994] FCA 1279">practice and procedure  privilege</citphrase>
<citphrase id="cp8.1">cited from="[1994] FCA 1279">notice to produce documents in action by trade practices commission in which pecuniary penalties are sought to be recovered</citphrase>
<citphrase id="cp8.2">cited from="[1994] FCA 1279">privilege against self-exposure to a penalty</citphrase>
<citphrase id="cp8.3">cited from="[1994] FCA 1279">whether privilege applies to a corporation</citphrase>
<citphrase id="cp8.4">cited from="[1994] FCA 1279">discussion of the relationship between the privilege against self-incrimination and the privilege against self-exposure to a penalty.   stare decisis</citphrase>
<citphrase id="cp8.5">cited from="[1994] FCA 1279">effect of a high court ruling where no ratio decidendi commanded the assent of a majority of the high court.</citphrase>
<citphrase id="cp10.0">citing from="[2011] NSWSC 363">equity-principles concerning whether interlocutory orders should be varied</citphrase>
<citphrase id="cp10.1">citing from="[2011] NSWSC 363">application by city of sydney to be released from undertakings that city would not enter into any agreement for the sale of the intellectual property in the "s1" and "s2" series of "smartpole" poles</citphrase>
<citphrase id="cp10.2">citing from="[2011] NSWSC 363">specific performance</citphrase>
<citphrase id="cp10.3">citing from="[2011] NSWSC 363">consequence of defendants determining not to press relief seeking specific performance</citphrase>
<citphrase id="cp10.4">citing from="[2011] NSWSC 363">litigation before the court concerns what came to be known as the smartpole project said to have been developed by the city of sydney in around 1996/1997 in preparation for the 2000 sydney olympic games</citphrase>
<citphrase id="cp11.0">citing from="[2011] FCA 100">practice and procedure</citphrase>
<citphrase id="cp11.1">citing from="[2011] FCA 100">notice of motion</citphrase>
<citphrase id="cp11.2">citing from="[2011] FCA 100">o 29 r 2</citphrase>
<citphrase id="cp11.3">citing from="[2011] FCA 100">determination of separate questions</citphrase>
<citphrase id="cp11.4">citing from="[2011] FCA 100">misleading and deceptive conduct claim</citphrase>
<citphrase id="cp11.5">citing from="[2011] FCA 100">efficient resolution of dispute</citphrase>
<citphrase id="cp11.6">citing from="[2011] FCA 100">whether second application constitutes an abuse of process</citphrase>
<citphrase id="cp11.7">citing from="[2011] FCA 100">whether litigation will be stifled.   legislation: civil procedure act 2005 (nsw) ss 57</citphrase>
<citphrase id="cp11.8">citing from="[2011] FCA 100">59</citphrase>
<citphrase id="cp12.0">citing from="[2010] FCA 1093">insurance</citphrase>
<citphrase id="cp12.1">citing from="[2010] FCA 1093">business interruption policy</citphrase>
<citphrase id="cp12.2">citing from="[2010] FCA 1093">indemnity for loss of weekly turnover</citphrase>
<citphrase id="cp12.3">citing from="[2010] FCA 1093">how calculated</citphrase>
<citphrase id="cp12.4">citing from="[2010] FCA 1093">meaning of "paid or payable"  procedure</citphrase>
<citphrase id="cp12.5">citing from="[2010] FCA 1093">summary judgment</citphrase>
<citphrase id="cp12.6">citing from="[2010] FCA 1093">possibility of repleading</citphrase>
<citphrase id="cp12.7">citing from="[2010] FCA 1093">summary judgment denied  procedure</citphrase>
<citphrase id="cp12.8">citing from="[2010] FCA 1093">interlocutory application</citphrase>
<citphrase id="cp12.9">citing from="[2010] FCA 1093">when an interlocutory decision can be reconsidered  contract</citphrase>
<citphrase id="cp12.10">citing from="[2010] FCA 1093">construction</citphrase>
<citphrase id="cp12.11">citing from="[2010] FCA 1093">post-contract facts not to be considered</citphrase>
<citphrase id="cp13.0">citing from="[2010] VCAT 1126">civil claims list vcat reference: c40/2009 summary dismissal</citphrase>
<citphrase id="cp13.1">citing from="[2010] VCAT 1126">vcat act s78</citphrase>
<citphrase id="cp13.2">citing from="[2010] VCAT 1126">conduct of proceeding unnecessarily disadvantaging respondent</citphrase>
<citphrase id="cp13.3">citing from="[2010] VCAT 1126">exercise of discretion against dismissing proceeding. summary dismissal</citphrase>
<citphrase id="cp13.4">citing from="[2010] VCAT 1126">vcat act s75(1)</citphrase>
<citphrase id="cp13.5">citing from="[2010] VCAT 1126">"lacking in substance" because allegedly statute-barred</citphrase>
<citphrase id="cp13.6">citing from="[2010] VCAT 1126">second application after failure of first application made on the same ground</citphrase>
<citphrase id="cp13.7">citing from="[2010] VCAT 1126">discretion to grant a second application</citphrase>
<citphrase id="cp13.8">citing from="[2010] VCAT 1126">how discretion should be exercised</citphrase>
<citphrase id="cp13.9">citing from="[2010] VCAT 1126">second application dismissed. extension of time</citphrase>
<citphrase id="cp13.10">citing from="[2010] VCAT 1126">whether vcat act s126(1) is applicable to permit extension of time prescribed by fair trading act 1999 s159(3) for commencement of a proceeding.</citphrase>
<citphrase id="cp14.0">citing from="[2010] FCA 372">practice and procedure</citphrase>
<citphrase id="cp14.1">citing from="[2010] FCA 372">second interlocutory application</citphrase>
<citphrase id="cp14.2">citing from="[2010] FCA 372">abuse of process</citphrase>
<citphrase id="cp15.0">citing from="[2010] FCA 290">practice and procedure</citphrase>
<citphrase id="cp15.1">citing from="[2010] FCA 290">injunctions</citphrase>
<citphrase id="cp15.2">citing from="[2010] FCA 290">whether second application for interlocutory relief can be made following unsuccessful application for identical relief</citphrase>
<citphrase id="cp15.3">citing from="[2010] FCA 290">further evidence relied upon</citphrase>
<citphrase id="cp15.4">citing from="[2010] FCA 290">whether such evidence available at the time of first application</citphrase>
<citphrase id="cp15.5">citing from="[2010] FCA 290">discretion of the court</citphrase>
<citphrase id="cp15.6">citing from="[2010] FCA 290">discretion requires matter to be heard.  practice and procedure</citphrase>
<citphrase id="cp15.7">citing from="[2010] FCA 290">application for interlocutory relief</citphrase>
<citphrase id="cp15.8">citing from="[2010] FCA 290">mandatory injunction</citphrase>
<citphrase id="cp15.9">citing from="[2010] FCA 290">contracts</citphrase>
<citphrase id="cp15.10">citing from="[2010] FCA 290">implied duty of good faith</citphrase>
<citphrase id="cp15.11">citing from="[2010] FCA 290">unconscionable conduct</citphrase>
<citphrase id="cp15.12">citing from="[2010] FCA 290">whether laches prevents grant of relief</citphrase>
<citphrase id="cp15.13">citing from="[2010] FCA 290">whether damages would provide adequate remedy</citphrase>
<citphrase id="cp15.14">citing from="[2010] FCA 290">relief granted.</citphrase>
<citphrase id="cp16.0">citing from="[2010] FCA 232">practice and procedure</citphrase>
<citphrase id="cp16.1">citing from="[2010] FCA 232">subpoena to produce</citphrase>
<citphrase id="cp16.2">citing from="[2010] FCA 232">public interest immunity</citphrase>
<citphrase id="cp16.3">citing from="[2010] FCA 232">disclosure of informer or informers</citphrase>
<citphrase id="cp16.4">citing from="[2010] FCA 232">redaction</citphrase>
<citphrase id="cp16.5">citing from="[2010] FCA 232">balancing exercise</citphrase>
<citphrase id="cp17.0">citing from="[2010] FCA 121">practice and procedure</citphrase>
<citphrase id="cp17.1">citing from="[2010] FCA 121">application to vary interlocutory injunction</citphrase>
<citphrase id="cp17.2">citing from="[2010] FCA 121">whether there has been a material change in circumstances since order made</citphrase>
<citphrase id="cp17.3">citing from="[2010] FCA 121">whether there is new material or evidence available which was not available at the time of the original order</citphrase>
<citphrase id="cp17.4">citing from="[2010] FCA 121">whether there are exceptional circumstances which warrant reconsideration of the matter</citphrase>
<citphrase id="cp17.5">citing from="[2010] FCA 121">whether as a matter of discretion, the matter should be reconsidered.</citphrase>
<citphrase id="cp19.0">citing from="[2009] FCA 779">practice and procedure</citphrase>
<citphrase id="cp19.1">citing from="[2009] FCA 779">subpoena to produce</citphrase>
<citphrase id="cp19.2">citing from="[2009] FCA 779">public interest immunity</citphrase>
<citphrase id="cp19.3">citing from="[2009] FCA 779">disclosure of informer or informers</citphrase>
<citphrase id="cp19.4">citing from="[2009] FCA 779">redaction</citphrase>
<citphrase id="cp19.5">citing from="[2009] FCA 779">balancing exercise</citphrase>
<citphrase id="cp20.0">citing from="[2009] FCA 704">practice  procedure</citphrase>
<citphrase id="cp20.1">citing from="[2009] FCA 704">various applications in consequence of the filing of an amended statement of claim after strike-out of original statement of claim</citphrase>
<citphrase id="cp20.2">citing from="[2009] FCA 704">whether proceeding should be dismissed under o 20 r 5 of the federal court rules as an abuse of process</citphrase>
<citphrase id="cp20.3">citing from="[2009] FCA 704">an order striking out a statement of claim is interlocutory</citphrase>
<citphrase id="cp20.4">citing from="[2009] FCA 704">interlocutory orders do not found an 'issue estoppel'</citphrase>
<citphrase id="cp20.5">citing from="[2009] FCA 704">attempts to re-litigate issues that have been finally determined may be considered an abuse of process</citphrase>
<citphrase id="cp20.6">citing from="[2009] FCA 704">the filing of the amended statement of claim cannot be considered an abuse of process</citphrase>
<citphrase id="cp20.7">citing from="[2009] FCA 704">application for summary judgment pursuant to s 31a of the federal court of australia act 1976 (cth)</citphrase>
<citphrase id="cp20.8">citing from="[2009] FCA 704">onus rests on party seeking summary judgment</citphrase>
<citphrase id="cp20.9">citing from="[2009] FCA 704">where there is a real issue of fact or law to be decided it is appropriate the matter proceed to trial</citphrase>
<citphrase id="cp20.10">citing from="[2009] FCA 704">whether statement of claim should be struck out under o 11 r 16 of the rules</citphrase>
<citphrase id="cp20.11">citing from="[2009] FCA 704">a strike-out motion is concerned with the adequacy of pleadings as a matter of law not with facts or evidence outside the pleading</citphrase>
<citphrase id="cp20.12">citing from="[2009] FCA 704">amended statement of claim disclosed a reasonable cause of action for breach of contract.</citphrase>
<citphrase id="cp21.0">citing from="[2009] WASC 147">practice and procedure</citphrase>
<citphrase id="cp21.1">citing from="[2009] WASC 147">whether application should be heard ex parte</citphrase>
<citphrase id="cp21.2">citing from="[2009] WASC 147">whether application should be heard in closed court</citphrase>
<citphrase id="cp21.3">citing from="[2009] WASC 147">whether applicants and respondent should be able to attend hearing</citphrase>
<citphrase id="cp21.4">citing from="[2009] WASC 147">turns on own facts</citphrase>
</citphrases>
<citances>
<sentence from="[2011] NSWSC 363" id="cs0">In the latter case the general rule is that there must be a material change in circumstances or the discovery of new material which could not reasonably have been put before the Court on the earlier application ( Brimaud at 46). (2) There is a debate in the authorities between approaches that are more and less permissive. Nevertheless the approach generally adopted at first instance accords with that of Goldberg J in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466 ; [2009] FCA 413 at [49, namely, that an applicant seeking to vary a substantive interlocutory order made after a contested hearing must persuade the Court that:

...one or more of the following factors has occurred or is satisfied:

 (a) there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made ...;
 (b) there has been a material change in the circumstances since those orders were made;
 (c) there are exceptional circumstances which warrant re-consideration of the matter...; and
 (d) as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter....

 </sentence>
<sentence from="[2011] FCA 100" id="cs1">Colliers also claims that Arizona's motion is tantamount to an abuse of process in that it effectively seeks a second hearing of its unsuccessful motion for determination of separate questions of law and that the overarching purpose of s 37M of the Federal Court of Australia Act 1976 (Cth) ('the Court Act') would be defeated if the Court entertained Arizona's motion. Colliers rely upon the majority judgment in DA Christie Pty Ltd v Baker [1996] 2 VR 582 ; Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 at [71] - [72]; Fletcher v Besser [2010] NSWCA 30 at [17] per Sackville AJA, and AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 in support of the submission that, consistent with s 37M of the Court Act, the Court should dismiss Arizona's application. Reliance is also placed on P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413 ; (2009) 255 ALR 466 at [49] per Goldberg J. </sentence>
<sentence from="[2010] FCA 1093" id="cs2">But, as the cases show, a judge cannot simply reconsider what he/she has found on an interlocutory application whenever he/she wishes. The circumstances in which a judge can (or should) reopen an issue (apart from applications dealing with matters of simple procedure) are relatively limited. While the circumstances are not closed, ordinarily what is required is either (1) new material or new evidence not reasonably available when the order was made; (2) a material change in circumstances; or (3) some other exceptional circumstance: P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413 ; 255 ALR 466 , [49]. </sentence>
<sentence from="[2010] VCAT 1126" id="cs3">In the Federal Court, Goldberg J. in P. Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No. 2) [2009] FCA 413 ; (2009) 255 ALR 466 interpreted (at para. [49]) the authorities, including Christie and Manning as identifying four circumstances, one or more of which must have occurred or be satisfied before such a second application should be countenanced:

(a) there is new material or new evidence which was not available to the applicant at the time that the orders in the first application were made;

(b) there has been a material change in the circumstances since those orders were made;

(c) there are exceptional circumstances which warrant the reconsideration of the matter;

(d) as a matter of discretion, the justice of the matter required that the applicant be allowed to revisit it. </sentence>
<sentence from="[2010] FCA 372" id="cs4">This application is an application for precisely the same order, that is a stay of the costs order made by Collier J, which the applicant already agitated before Reeves J and which Reeves J dismissed. The circumstances engage the principles of abuse of process which are critical to the administration of justice. As set out in the respondent's outline of written submissions filed on 12 April 2010, there are important considerations of justice which inform the approach of a court to a second interlocutory application for the same relief when an earlier interlocutory application has been dismissed. Consistent with those submissions, I adopt the principles as summarised by Goldberg J in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466 ; [2009] FCA 413 at [49] . His Honour concluded that a second interlocutory application for the same relief might not be an abuse of process where: - (i) there is new material or new evidence which was not available to the moving party at the time the orders were made, (ii) there has been a material change in the circumstances since those orders were made, (iii) there are exceptional circumstances which warrant the reconsideration of the matter or, (iv) as a matter of discretion, the justice of the matter requires that the applicant be allowed to revisit the matter. </sentence>
<sentence from="[2010] FCA 290" id="cs5">In P Dawson Nominees Pty Ltd and Another v Australian Securities and Investments Commission and Others (No 2) [2009] FCA 413 ; [2009] FCA 413 ; (2009) 255 ALR 466 Goldberg J at [38] considered the question of allowing a moving party to seek to vary or change an interlocutory order which has previously been made and said:

 [A]t the end of the day, it is a matter for the discretion of the Court.

 </sentence>
<sentence from="[2010] FCA 232" id="cs6">This letter is written from an abundance of caution in the unusual circumstances that the Applicants will not be aware of "the material and relevant facts and circumstances" bearing on the determination of XX's application that the document produced under subpoena should not be inspected by the Applicants.

 It is the Applicants' view that if:

 (a) XX is an employee of Brookfield Multiplex Ltd or any of its subsidiaries or other related entities; and/or

 (b) XX's legal costs are being paid for or contributed to by Brookfield Multiplex Ltd or any related entity and/or its insurer;

 that either such circumstance would be a matter which XX was obliged to disclose to the Court as part of his duty of full disclosure and candour arising from the ex parte and in camera nature of the hearing: see P Dawson Nominees Pty Ltd  Anor v ASIC  Ors (No. 2) [2009] FCA 413 ; (2009) 255 ALR 466 at 502 to 505.

 We anticipate that as XX's solicitor you will be either unwilling or unable to provide confirmation one way or another whether either of the circumstances referred to in paragraphs (a) and (b) above exist. In these circumstances, we propose to draw this correspondence to the attention of the Court and leave it to you and the Court to determine whether and to what extent any such matter ought properly be disclosed.</sentence>
<sentence from="[2010] FCA 121" id="cs7">The question whether the interlocutory orders should now be varied in light of the true factual position has to be determined by reference to the relevant principles. Those principles were not in dispute. A court has jurisdiction to vary or set aside any interlocutory order but the re-litigation of issues already decided, even on an interlocutory basis, is undesirable having regard to the need for finality ( Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46). The "overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case" ( Brimaud at 46). The interests of justice should be assessed having regard to the nature of the interlocutory order in question. Interlocutory orders that are merely procedural or made by consent without any contest are different from substantive orders made after a contested hearing and intended to operate until the final hearing. In the latter case the general rule is that there must be a material change in circumstances or the discovery of new material which could not reasonably have been put before the court on the earlier application ( Brimaud at 46). There is a debate in the authorities between approaches that are more and less permissive. Nevertheless the approach generally adopted at first instance accords with that of Goldberg J in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466 ; [2009] FCA 413 at [49] , namely, that an applicant seeking to vary a substantive interlocutory order made after a contested hearing must persuade the Court that:

 ...one or more of the following factors has occurred or is satisfied:

 (a) there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made ...;
 (b) there has been a material change in the circumstances since those orders were made;
 (c) there are exceptional circumstances which warrant re-consideration of the matter...; and
 (d) as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter....

 Pivotel's submissions
 </sentence>
<sentence from="[2009] FCA 855" id="cs8">The Prasads also submit that the vacation of the hearing date will severely undermine the orderly allocation of business in the Court. They rely upon the fact that on 30 July 2009 RHG sought aN adjournment of the hearing date and that such application was refused. The Prasads submit that in accordance with the principles referred to by the High Court of Australia in Aon Services Australia Limited v Australia National University [2009] HCA 27 and P Dawson Nominees Pty Ltd (ACN 004 743 408) and Another v Australian Securities and Investments Commission and Others (No 2) [2009] FCA 413 ; (2009) 255 ALR 466 the Court should not exercise its discretion in granting any adjournment which will delay the ultimate disposition of the proceedings and that RHG must show that there has been a material change in circumstances since the last request for an adjournment was rejected. </sentence>
<sentence from="[2009] FCA 779" id="cs9">There is a considerable background to the applicants' motion and this proceeding which is set out in my earlier ruling on 28 April 2009: P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413 ; (2009) 255 ALR 466. I do not propose to rehearse it in detail and I incorporate that ruling in these reasons. </sentence>
<sentence from="[2009] FCA 704" id="cs10">It was nevertheless submitted on behalf of SMS that the amended statement of claim was a transparent attempt to re-litigate issues which have already been determined against Dr Windsor: '...proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances of the case 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' ( Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393). Reference was also made to Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 per Heydon JA at 155 --- 157 [70] --- [73] and per Foster A-JA at 167 [122] --- [123] and P. Dawson Nominees v ASIC (No. 2) [2009] FCA 413 ; (2009) 255 ALR 466 at [36] --- [49]. </sentence>
<sentence from="[2009] WASC 147" id="cs11">29 ASIC applied for, and was granted, a stay on production of the subpoenaed documents pending a possible appeal. ASIC then filed a motion seeking leave to appeal and seeking the imposition of certain confidentiality orders. The parties, in preparation for the appeal, agreed to the imposition of a Special Counsel Regime. In essence, the regime allowed Special Counsel appointed by the first applicant and Multiplex to have access to confidential material filed by ASIC on the leave application that included the disputed documents and the confidential appendix to the reasons of the judge at first instance. Special Counsel signed confidentiality undertakings that they would not disclose any of the confidential material to any person - including their instructing solicitors and clients. The regime also provided that Special Counsel would take no further part in the proceeding should ASIC's claim for public interest immunity be upheld on appeal: P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413 , [26].</sentence>
</citances>
<legistitles>
<title id="l0">AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 </title>
<title id="l1">FEDERAL COURT RULES </title>
<title id="l2">MOTOR ACCIDENTS ACT 1988 </title>
<title id="l3">MOTOR ACCIDENTS ACT 1988 - SECT 52 Time limitations on commencement of court proceedings</title>
<title id="l4">SUPREME COURT RULES </title>
</legistitles>
</case>