High Court of Australia Judgment Summary Notes

Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36

Today the High Court unanimously allowed an appeal from a decision of the Federal Court of Australia, which held that the provision of accommodation to employees during a period of “protected industrial action” would have constituted a “payment” by their employer that was prohibited by s 470(1) of the Fair Work Act 2009 (Cth) (“the Act”).

The appellant represents the industrial interests of a number of the respondent’s employees, who worked on construction at the Woodside Pluto Liquefied Natural Gas Project on the Burrup Peninsula in Western Australia.  The employees worked on a “fly in/fly out” basis.  Under the terms of an enterprise agreement (“the Agreement”), the respondent was required to provide its employees with suitable accommodation or to pay them a living away from home allowance, while they were on location.  The respondent elected to provide the former.

On 21 April 2010, the respondent was notified that some of its employees intended to take “protected industrial action” for a period of 28 days as part of the process of negotiating a new enterprise agreement.  The respondent informed the employees that for the duration of that period it would cease to pay for their accommodation. 

The appellant applied to the Federal Magistrates Court, seeking relief on the basis that the respondent’s refusal to provide accommodation breached the terms of the Agreement and constituted “adverse action” contrary to s 340(1) of the Act.  The respondent argued that it was obliged to cease providing accommodation pursuant to s 470(1) of the Act, which provides that if an employee engages in “protected industrial action … the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day.”  The respondent’s contention was accepted in the Federal Magistrates Court and on appeal to the Federal Court.

The High Court unanimously held that the provision of accommodation would not have constituted a “payment … in relation to the total duration of the industrial action.”  It held that when s 470(1) speaks of “payment” it means a payment in money and not simply the transfer of any economic benefit by an employer to an employee.  The Court held that the section was principally concerned to prohibit the payment of “strike pay”.  The Court also dismissed the respondent’s argument that because the employees were not ready, willing and available to work, they were not entitled to accommodation under the terms of the Agreement.  In the absence of an express or implied term to the contrary, the Court held that the employees’ entitlement to accommodation was dependent only upon the continuation of the employer-employee relationship and the presence of the employees on location at the respondent’s direction.  The Court ordered that the application should be remitted to the Federal Circuit Court to be heard and determined according to law.

Legal Services Board v Simon Gillespie-Jones [2013] HCA 35

Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria, which had held that the respondent was entitled to make a claim for compensation against the Legal Practitioners Fidelity Fund (“the Fidelity Fund”).

The respondent, a barrister, was briefed by a solicitor to appear for a client in criminal proceedings.  The client made a series of payments to the solicitor on account of his legal costs, including barristers’ fees.  However, the solicitor misappropriated most of this money, such that the amount remaining was insufficient to meet the respondent’s fees.  The respondent made a claim against the Fidelity Fund, which is maintained by the Legal Services Board (“the Board”) under the Legal Profession Act 2004 (Vic) (“the Act”).  The respondent argued that his claim should be allowed under Pt 3.6 of the Act, on the basis that he had suffered a pecuniary loss as a result of the solicitor’s default.  The default was said to be that the solicitor had failed to pay or deliver trust money to the respondent.

The Board rejected the respondent’s claim.  The respondent then successfully appealed to the County Court of Victoria.  The County Court held that the respondent had suffered a pecuniary loss as a result of the solicitor’s default, constituted by the solicitor’s failure to pay or deliver trust money to the respondent in accordance with a direction given by the client.  The County Court’s decision was upheld by the Court of Appeal, which would have allowed the respondent’s claim on the basis that the solicitor had failed to pay him money to which he was beneficially entitled.  By special leave, the Board appealed to the High Court.

The High Court allowed the Board’s appeal.  The joint reasons of French CJ, Hayne, Crennan and Kiefel JJ held that the respondent’s claim against the Fidelity Fund should be disallowed, because he had not suffered a relevant pecuniary loss.  There can be no failure to pay or deliver trust money unless there is an instruction to the solicitor to pay or deliver the money, and it is not complied with.  The County Court had not made any finding that the instructions the client gave to the solicitor amounted to an instruction to pay the respondent.  That Court’s findings were not challenged in the Court of Appeal, and could not be revisited by the High Court.  Therefore, the joint reasons held that it could not be said that the solicitor had failed to pay or deliver trust money to the respondent.  In the reasons of Bell, Gageler and Keane JJ, the respondent had no entitlement to, or expectation of, payment of trust money and suffered no loss by reason of the failure of the solicitor to pay or deliver trust money to him.

Fortescue Metals Group Limited and ors v The Commonwealth of Australia [2013] HCA 34

Today the High Court unanimously dismissed proceedings brought by Fortescue Metals Group Limited (and certain of its wholly-owned subsidiaries) (“Fortescue”) claiming that some provisions of the Minerals Resource Rent Tax Act 2012 (Cth) (“MRRT Act”) and the Minerals Resource Rent Tax (Imposition—Customs) Act 2012 (Cth), Minerals Resource Rent Tax (Imposition—Excise) Act 2012 (Cth) and Minerals Resource Rent Tax (Imposition—General) Act 2012 (Cth) (“the Imposition Acts”) were not valid laws of the Commonwealth.  The MRRT Act and the Imposition Acts created and imposed a minerals resource rent tax (“MRRT”), which commenced on 1 July 2012.

Under the MRRT Act, liability to pay MRRT arises only when a miner derives an annual profit of $75 million or more after taking into account certain deductions for expenditure and allowances.  Once MRRT is payable, it is calculated so that a reduction in the mining royalty payable to a State government would, all other things being equal, result in an equivalent increase in a taxpayer’s liability and vice versa.  The State legislative regimes for mining royalties are different and may be varied from time to time.

Fortescue’s wholly-owned subsidiaries held registered mining leases in Western Australia and were required to pay MRRT.  Fortescue brought proceedings in the High Court in its original jurisdiction, contending that certain provisions of the MRRT Act and Imposition Acts were invalid on four bases:  first, as laws with respect to taxation which discriminate between States contrary to s 51(ii) of the Constitution; second, as laws or regulations of trade, commerce or revenue, which, contrary to s 99 of the Constitution, give preference to one State over another State; third, as laws which contravene the Melbourne Corporation doctrine, on the basis that the legislative powers of the Commonwealth do not authorise legislation directed to the control or hindrance of the States in the execution of their governmental functions; and fourth, as laws that are inconsistent with s 91 of the Constitution, which preserves a State’s power to grant an aid or bounty on the mining for other metals.  The Attorneys-General for Western Australia and Queensland intervened in support of Fortescue’s challenge to the validity of the MRRT Act and the Imposition Acts.

Pursuant to s 18 of the Judiciary Act 1903 (Cth), questions were reserved for determination by the Full Court of the High Court on the basis of the parties’ pleadings and documents referred to in the pleadings.  The Full Court unanimously dismissed the challenge to the validity of the Acts.  The Court held that the treatment of State mining royalties by the MRRT Act and the Imposition Acts did not discriminate between States and that the Acts did not give preference to one State over another.  The Court also rejected the submissions that the Acts breached the Melbourne Corporation doctrine or contravened s 91 of the Constitution.

Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia & Ors [2013] HCA 33

Today the High Court unanimously held that successive Commonwealth and Queensland legislation, which prohibited taking fish and other aquatic life for commercial purposes without a licence, did not extinguish the native title right of certain island communities in the Torres Strait to take resources from defined areas of water.  The Court unanimously held that certain reciprocity based rights between members of the island communities did not constitute native title rights and interests within the meaning of s 223 of the Native Title Act 1993 (Cth).

The appellant, on behalf of 13 island communities in the Torres Strait, sought a determination of native title over a large part of the waters of the Torres Strait.  In August 2010, the Federal Court of Australia made a native title determination which defined the native title rights held by each of the communities.  In defining the native title rights and interests, the Federal Court rejected the appellant’s claim that certain reciprocal rights, which arose out of personal relationships in Islander society, were rights in relation to land or waters and were thereby native title rights.  The determination did, however, include the native title right to access and take for any purpose resources in the native title areas.  One of the ways in which that right could be exercised was by the taking of fish or other aquatic life for commercial purposes.  Throughout the litigation, the appellant accepted that such commercial fishing could only be undertaken if any necessary statutory licences had been obtained. 

The first respondent appealed the Federal Court’s decision to the Full Court of the Federal Court of Australia in relation to the native title right to access and take resources for any purpose.  The appellant cross appealed in relation to the conclusion that reciprocal rights were not native title rights and interests.  The Full Court allowed the first respondent’s appeal, holding that successive Commonwealth and Queensland fisheries legislation had extinguished any native title right to take fish and other aquatic life for commercial purposes.  The Full Court rejected the appellant’s cross appeal, holding that the reciprocal rights were not rights in relation to the waters the subject of the native title determination.  By special leave, the appellant appealed to the High Court.

The High Court held that the successive statutory regimes which prohibited commercial fishing without a licence were not inconsistent with the continued existence of the native title right to access and take for any purpose resources in the native title areas.  The Court also held that the claimed reciprocal rights were rights of a personal character dependent upon status.  Such rights were not rights in relation to the waters the subject of the native title determination.