Surveillance Australia Pty Ltd v McLennan - [2005] HCATrans 603

[2005] HCATrans 603

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A20 of 2005

B e t w e e n -
SURVEILLANCE AUSTRALIA PTY LTD
Applicant
and
BRIDIE McLENNAN
Respondent
Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 11 AUGUST 2005, AT 10.50 AM

MR M.G. EVANS: May it please the Court, I appear with my learned friend, MR R.J. MANUEL, for the applicant in this matter. (instructed by EMA Legal)

MR H. BORENSTEIN, SC: If the Court pleases, I appear with my learned friend, MR W.L. FRIEND, for the respondent. (instructed by Bourne Lawyers)

GUMMOW J: Yes, Mr Evans.

MR EVANS: Your Honour, the issue in this matter is when does an agreement entered into between an employer and employee amount to a variation of a pre‑existing Australian Workplace Agreement, such that the subsequent agreement requires approval under Part VID of the Workplace Relations Act.

In this matter, as your Honours would have seen from the application book, the applicant and respondent were parties to an Australian Workplace Agreement which had been entered into, and they then entered into a further agreement which has been referred to as the bond agreement.

GUMMOW J: What was the action?

MR EVANS: The action was an action for money pursuant to the bond agreement.

GUMMOW J: Exactly, and there is a defence.

MR EVANS: Yes.

GUMMOW J: What is the defence?

MR EVANS: The defence was that the bond agreement was invalid because it was a variation to the AWA which required approval under Part VID of the Act.

GUMMOW J: There is a provision which took the appeal out of the State court into the Federal Court, is there not?

MR EVANS: That is correct, your Honour.

GUMMOW J: What is that section?

MR EVANS: I am unaware of that section, your Honour.

MR BORENSTEIN: Section 422 of the Workplace Relations Act.

GUMMOW J: Yes, that is right, thank you.

MR EVANS: Your Honour, the matter started in the Magistrates Court in South Australia and, as my friend indicated, the appeal by the respondent went to the Full Federal Court, and then this matter comes before this Court.

Your Honours, the circumstances giving rise to the bond agreement being entered into are these, that the applicant conducted aerial surveillance of the borders of Australia pursuant to a contract with the Australian Customs known as Coastwatch. The respondent was a pilot employed by the applicant. The respondent had had a previous period of employment with the applicant. It is the second period of employment that concerns this matter. The respondent commenced employment in September 2001 and upon commencing employment ‑ ‑ ‑

GUMMOW J: What was the termination provision in the first contract, if I can call it that?

MR EVANS: In the AWA or the bond?

GUMMOW J: What was the initial…

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.

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Details

Case: [2005] HCATrans 603
Decision Date

CaseChat Overview and Summary

Surveillance Australia Pty Ltd (the appellant) appealed to the High Court of Australia against a decision of the Full Federal Court which had overturned a judgment of a single judge. The dispute concerned the interpretation of section 118 of the *Broadcasting Services Act 1992* (Cth) and its application to the appellant's acquisition of a controlling interest in a company that held a broadcasting licence. The appellant argued that its acquisition did not trigger the prohibition in section 118, which restricts foreign persons from acquiring a controlling interest in a company holding a licence for a commercial television broadcasting service.

The High Court was required to determine whether the appellant, a foreign person, had acquired a controlling interest in the relevant company within the meaning of section 118 of the *Broadcasting Services Act 1992*. This involved considering the definition of "controlling interest" as set out in section 118(2) and whether the appellant's acquisition of shares, combined with the rights and powers it held, constituted such control. The court also had to consider the proper construction of the term "control" in the context of the legislative purpose of section 118, which is to regulate foreign ownership of Australian broadcasting services.

The High Court held that the appellant did not acquire a controlling interest in the company. Their Honours reasoned that while the appellant held a significant percentage of shares, the ultimate control of the company rested with its directors, who were not subject to the appellant's direction or control in a manner that would constitute a "controlling interest" under the Act. The court emphasised that the definition of "controlling interest" required more than just a substantial shareholding; it necessitated the ability to control the composition of the board of directors or to influence the company's policy. The appeal was therefore allowed.

Orders