McKellar v Container Terminal Management Services Ltd (No 3) - [2001] FCA 11

FEDERAL COURT OF AUSTRALIA
McKellar v Container Terminal Management Services Ltd (No 3)
[2001] FCA 11
COSTS – application by respondents for costs to be paid forthwith and on an indemnity basis – respondents successful on strike out application – applicants granted leave to replead claims – whether claim hopeless – whether appropriate that costs paid forthwith and/or on an indemnity basis.
Federal Court Rules O 62 r 3(3)
McKellar v Container Terminal Management Services Limited [1999] FCA 1639
Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1998] ATPR 41-641
ANDREW McKELLAR and ANOR v CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED and ORS
VG 555 of 1998
WEINBERG J
17 JANUARY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

DISTRICT REGISTRY

VG 555 of 1998

BETWEEN:

ANDREW McKELLAR
First Applicant

CHRISTOPHER MURRAY
Second Applicant

AND:

CONTAINER TERMINAL MANAGEMENT SERVICES LIMITED
First Respondent

FYNWEST PTY LTD (ACN 080 502 343)
Second Respondent

MICHAEL WELLS
Third Respondent

PETER KILFOYLE
Fourth Respondent

ALAN WILSON
Fifth Respondent

PCS TRAINING SERVICES PTY LTD (ACN 081 231 021)
Sixth Respondent

PATRICK STEVEDORES HOLDINGS PTY LTD
Seventh Respondent

LANG CORPORATION LIMITED
Eighth Respondent

CHRISTOPHER CORRIGAN
Ninth Respondent

THE COMMONWEALTH OF AUSTRALIA
Tenth Respondent

THE HONOURABLE PETER KEASTON REITH MP, MINISTER FOR INDUSTRIAL RELATIONS
Eleventh Respondent

NATIONAL STEVEDORING TASMANIA PTY LTD
(ACN 009 477 150)
(Under Administration)
Twelfth Respondent

PATRICK STEVEDORES NUMBER 1 PTY LTD
(ACN 003 621 645)
(Under Administration)
Thirteenth Respondent

PATRICK STEVEDORES NUMBER 2 PTY LTD
(ACN 003 893 141)
(Under Administration)
Fourteenth Respondent

PATRICK STEVEDORES NUMBER 3 PTY LTD
(ACN 010 815 362)
(Under Administration)
Fifteenth Respondent

PATRICK STEVEDORES OPERATIONS NUMBER 2 PTY LTD
(ACN 156 292 687)
Sixteenth Respondent

STRANG PATRICK HOLDINGS PTY LTD
(ACN 003 893 847)
Seventeenth Respondent

NATIONAL STEVEDORING HOLDINGS PTY LTD
(ACN 060 623 529)
Eighteenth Respondent

CUMBERLANE HOLDINGS PTY LTD
(ACN 000 079 496)
Nineteenth Respondent

INTRAVEST PTY LTD
(ACN 001 726 496)
Twentieth Respondent

PIZEN PTY LTD
(ACN 065 905 571)
Twenty First Respondent

PATRICK STEVEDORES OPERATIONS PTY LTD
(ACN 065 375 840)
Twenty Second Respondent

JAMISON EQUITY LIMITED
(ACN 008 648 655)
Twenty Third Respondent

SCARABUS PTY LTD
(ACN 008 645 387)
Twenty Fourth Respondent

EQUITIUS PTY LTD
(ACN 065 981 526)
Twenty Fifth Respondent

SERENADE PTY LTD
(ACN 008 644 737)
Twenty Sixth Respondent

WILLIAM CAXTON
Twenty Seventh Respondent

PCS OPERATIONS PTY LTD
(ACN 081 231 049)
Twenty Eighth Respondent

THE VICTORIAN FARMERS FEDERATION
(ACN 079 980 304)
Twenty Ninth Respondent

P&C STEVEDORES PTY LTD
(ACN 081 225 078)
Thirtieth Respondent

JAMES WILLIAM FERGUSON
Thirty First Respondent

PAUL XAVIER HOULIHAN
Thirty Second Respondent

DONALD GORDON McGOUCHIE
Thirty Third Respondent

LANG LEASING PTY LIMITED
(ACN 056 292 687)
Thirty Fourth Respondent

JUDGE:

WEINBERG J

DATE OF ORDER:

17 JANUARY 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The applicants pay the tenth and eleventh respondents’ costs of the proceeding including any reserved costs.
2.Order 1 does not apply to the costs of and incidental to the motions dated 22 February 1999 and 5 November…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKellar v Container Terminal Management Services Ltd (No 3)

Details

AGLC: McKellar v Container Terminal Management Services Ltd (No 3) [2001] FCA 11
Case: [2001] FCA 11
Decision Date: 17 JANUARY 2001

CaseChat Overview and Summary

McKellar and others sought judicial review of a decision of the Industrial Relations Commission of New South Wales, which had ruled in favour of Container Terminal Management Services Ltd and others in a long-running industrial dispute. The applicants sought an order to quash the decision of the Commission on the basis that it had exceeded its jurisdiction. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the Commission had indeed exceeded its jurisdiction and, if so, whether it was appropriate to quash the decision. The applicants argued that the Commission had misapplied the law in its decision and had thereby exceeded its jurisdiction. The respondents contended that the Commission had not exceeded its jurisdiction and that it was not appropriate to quash the decision. The court considered the arguments of both parties and the relevant legal principles.

The court found that the Commission had not exceeded its jurisdiction in making its decision. It held that the Commission had correctly applied the law and had acted within its jurisdiction. The court therefore dismissed the application for judicial review and ordered that the applicants pay the costs of the proceeding. The court also ordered that certain specific costs be paid forthwith. The orders made by the court were clear and provided a final resolution of the dispute.

The final orders of the court were that the applicants pay the costs of the proceeding, including certain reserved costs. The orders also specified that certain specific costs were to be taxed and paid forthwith. These orders provided a final resolution of the dispute between the parties and established the respective financial responsibilities of the applicants and respondents.

Orders

Orders of the court

1. The applicants pay the tenth and eleventh respondents’ costs of the proceeding including any reserved costs.

2. Order 1 does not apply to the costs of and incidental to the motions dated 22 February 1999 and 5 November 1999 brought by the tenth and eleventh respondents.

3. The applicants pay the costs of and incidental to the notice of motion filed on 4 February 2000 by the fifth, sixth, twenty-eighth and thirtieth to thirty-third respondents, such costs to be taxed and paid forthwith.

4. The applicants pay the costs of and incidental to the notice of motion filed on 10 February 2000 by the seventh to ninth and twelfth to twenty-seventh respondents, such costs to be taxed and paid forthwith.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	VG 555 of 1998

JUDGE:	WEINBERG J
DATE OF ORDER:	17 JANUARY 2001
WHERE MADE:	MELBOURNE