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[2014] NSWIC 4
respondent. The Court confirms the orders made on 12 November 2014 dismissing all twelve applications (cross-claims) by Wyanga Holdings Pty Limited and ordering that Wyanga pay the cross-respondents' costs in...
The Transport Workers Union sued Wyanga for paying truck drivers and carriers less than the rates required by an industry contract determination. Wyanga responded by filing cross-claims accusing the drivers of tricking it into lower-rate contracts and claiming they were estopped from insisting on the proper rates. The Industrial Court ruled that it simply has no power to hear Trade Practices Act misleading-conduct claims or to award damages for them. It also ruled that industrial minimum rates cannot be bypassed by private agreements or estoppel because s 406 of the Industrial Relations Act makes those rates non-negotiable. Because Wyanga stopped turning up to court, ignored directions and its company went into liquidation, the Court dismissed all twelve cross-claims without a full hearing. Wyanga must pay the legal costs of the union and the carriers.
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Wyanga Holdings Pty Ltd faced an application (Matter No IRC 812 of 2012) brought by the Transport Workers' Union of New South Wales under s 365 of the Industrial Relations Act 1996 seeking recovery of wages said to be payable under the Transport Industry - Excavated Materials, Contract Determination. The Union alleged that twelve contract carriers had been paid hourly rates below those prescribed by the Determination. On 28 February 2014 Wyanga filed twelve separate applications styled as cross-claims (Matter Nos IRC 145 and 147-157 of 2014). Each named the TWU secretary Wayne Forno as first cross-respondent, Jason Graham Arnold as second cross-respondent, and listed twenty-five additional cross-respondents (mainly the contract carriers and associated corporate entities) in a schedule. The cross-claims were materially identical. They pleaded that the carriers had agreed to work at sub-award rates, had represented that they were not covered by the Determination, had thereby engaged in conduct in trade and commerce that was misleading or deceptive within s 52 of the Trade Practices Act 1974 (Cth), and that in any event the carriers were estopped from relying on the Determination. Damages were sought.
A long period of procedural inactivity followed the original directions made on 5 September 2012. Wyanga's solicitors ceased to act on 20 June 2014. Despite repeated service of directions and correspondence at Wyanga's registered office, the addresses of its directors and known email addresses, Wyanga entered no appearance at hearings on 4 July 2014, 30 July 2014 or 27 October 2014. An ASIC search revealed that a winding-up application had been filed and that a liquidator had been appointed by the Supreme Court. Consequently IRC 812 of 2012 was stayed under s 471B of the Corporations Act 2001 (Cth) because the Union had not obtained leave to proceed against the company in liquidation. No such leave was required in respect of Wyanga's own cross-claims. The Union therefore moved ex parte for their summary dismissal. Boland AJ listed the dismissal application for hearing on 12 November 2014, gave further notice to Wyanga and its directors, and, in the continued absence of any appearance, proceeded ex parte. On 12 November 2014 orders were made dismissing all twelve cross-claims and awarding costs to the cross-respondents. Written reasons confirming those orders were delivered on 20 November 2014.
Boland AJ identified three independent and sufficient bases for dismissal, each grounded in statute, rule and authority. First, the Court lacked jurisdiction to entertain a claim under s 52 of the Trade Practices Act. Section 86(2) of that Act invested State courts with federal jurisdiction only within the limits of their several jurisdictions. The Industrial Court of New South Wales is a superior court created by statute; nothing in the Industrial Relations Act 1996 (express or implied) confers power to determine claims of misleading or deceptive conduct or to award damages for breach of s 52. The nearest analogous power, s 106 (unfair contracts), was unavailable because of the operation of s 26(2)(e) of the Fair Work Act 2009 (Cth). Accordingly the cross-claims were incompetent.
Second, the estoppel claim was precluded by s 406 of the Industrial Relations Act 1996. That section declares that the conditions set by an industrial instrument are minimum entitlements. Sub-section (2) provides that any contract term less favourable has no effect. Sub-section (3) extends the concept to contract determinations and to drivers or carriers. Boland AJ held that, in the light of s 406, "no estoppel can arise in the manner asserted by Wyanga". The Court adopted the reasoning of French J in Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784 at [19]-[22] that the statutory character of awards and determinations is inimical to contracting out and that principles of estoppel or waiver cannot defeat the public policy embodied in minimum-standards legislation. The judgment quotes at length from earlier authorities (Josephson v Walker, Duncan v Ellis, Walsh v Commercial Travellers Association) illustrating that the protective purpose of industrial legislation would be undermined if employers could raise estoppel based on representations made at the time of engagement.
Third, the cross-claims were amenable to summary dismissal under the Uniform Civil Procedure Rules 2005. Rule 12.7(1) permitted dismissal where a plaintiff (here the cross-claimant) does not prosecute proceedings with due despatch. Wyanga had failed to file an outline of contentions despite direction, had not appeared on four occasions despite service, and its solicitors had ceased to act with no substitute appearance. Rule 13.4(1)(a) and (b) permitted dismissal where proceedings are frivolous or vexatious or no reasonable cause of action is disclosed. Drawing on Attorney-General v Wentworth (1988) 14 NSWLR 481 at 487 (adopted by the Full Bench in Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85), the Court held that proceedings are vexatious if "so obviously untenable or manifestly groundless as to be utterly hopeless". The Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66 formulation of "frivolous" was also applied. The High Court authorities in Cox v Journeaux (No 2) (1935) 52 CLR 713, General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Spencer v Commonwealth (2010) 241 CLR 118 supplied the governing test: summary dismissal is reserved for the clearest cases where the claim is "so manifestly faulty that it does not admit of argument" and the Court has reached a "certain and concluded determination" that the proceeding would necessarily fail. Because the claims were jurisdictionally incompetent and statutorily barred by s 406, they met that high threshold. Any one of the three bases was sufficient; together they compelled dismissal with costs.
Prior to this judgment the law on summary dismissal in the Industrial Court was settled by the Full Bench in Peden and Re Operational Ambulance Officers (State) Award (No 2), which applied the Wentworth definition of vexatious proceedings and the "manifestly groundless" test from General Steel Industries. The non-derogable character of award conditions had been established since at least Josephson v Walker (1914) 18 CLR 691 and Duncan v Ellis (1916) 21 CLR 379, with French J's 2000 analysis in Metropolitan Health Service Board providing a modern federal-court synthesis of why estoppel cannot override statutory minimums. Jurisdiction over federal trade-practices matters was governed by the express terms of s 86(2) of the Trade Practices Act, which had been construed as respecting the statutory limits of State specialist courts.
This judgment did not change the law. It applied existing doctrine to a new factual setting: ex parte dismissal of cross-claims filed in an industrial-recovery proceeding after the cross-claimant had gone into liquidation and repeatedly failed to appear. It confirmed that the Industrial Court will treat TPA claims as wholly outside its jurisdiction even when pleaded as a defence or cross-claim to a wages-recovery action. It reinforced that s 406 operates as a complete bar to estoppel arguments seeking to prevent reliance on a contract determination. The decision also illustrated the practical operation of UCPR rr 12.7 and 13.4 in the industrial jurisdiction, emphasising that a litigant's disappearance after filing a hopeless claim is itself a powerful discretionary factor favouring dismissal. Post-judgment, practitioners understand that any attempt to litigate TPA-based defences or cross-claims in the Industrial Court will be struck out at an early stage, and that liquidators or directors of companies in external administration must obtain Supreme Court leave before seeking to agitate such claims.
Paragraph [22]: "The Industrial Court of New South Wales is a superior court limited by statute. There is nothing in the statute governing the Court's jurisdiction, express or implied, that even faintly resembles a power to deal with allegations of misleading and deceptive conduct under s 52 of the Trade Practices Act."
Plain English: The Court only has the powers Parliament gave it in the Industrial Relations Act. That Act says nothing about trade-practices lawsuits, so the Court cannot hear them no matter how they are dressed up.
Paragraph [23]: "In the light of s 406, no estoppel can arise in the manner asserted by Wyanga."
Plain English: The law says the rates in the contract determination are the legal minimum. You cannot sign a side deal or make a representation that lets an employer pay less. Estoppel arguments simply do not work against that statutory floor.
Paragraph [24] (quoting French J): "The inability to contract out of an award by virtue of its statutory operation militates against the proposition that parties may be estopped from enforcing its provisions or may waive its benefits in a way that is legally enforceable."
Plain English: Because awards have the force of statute, the ordinary equitable rules that might otherwise bind people to their representations or waivers do not apply. The protective purpose of the legislation would be destroyed if employers could raise an estoppel every time a worker had earlier agreed to accept less.
Paragraph [25]: "Wyanga's applications disclosed no reasonable cause of action. Indeed, the applications could not possibly succeed; they were manifestly groundless."
Plain English: Not only were the claims in the wrong court; even if they had been in the right court they were legally hopeless. There was therefore no point letting them continue.
Paragraph [19]: "The power to exercise summary judgment must be exercised with 'great care' and 'exceptional caution'." (citing Spencer)
Plain English: Judges must be very careful before stopping a case without a full hearing, but once they are certain the case can never succeed they must dismiss it to avoid wasting everyone's time and money.
This precedent is triggered whenever a respondent to an industrial-recovery application under s 365 of the Industrial Relations Act 1996 files a cross-claim or defence that (a) pleads a contravention of former s 52 of the Trade Practices Act (or its Australian Consumer Law successor) arising out of the making or performance of a contract for carriage or driving services, or (b) asserts that the applicant is estopped from relying on the rates or conditions of a contract determination because of representations made at the time of engagement. It is especially applicable where the cross-claimant has failed to appear at multiple directions hearings, has not complied with orders to file submissions, or is in external administration. The precedent will also apply to any attempt to seek damages for alleged misleading conduct in trade or commerce within the transport industry when the claim is brought in the Industrial Court rather than a court invested with general federal jurisdiction. Fact patterns in which a carrier has "agreed" to below-award rates and the employer later claims detriment are squarely caught by the s 406 bar. The decision confirms that service at the registered office and directors' addresses is sufficient to ground an ex parte dismissal in such circumstances.
The judgment itself carefully applies and does not depart from the authorities it cites. It treats Attorney-General v Wentworth as supplying the authoritative definition of "vexatious" (applied at [17]), adopts the Full Bench's use of that definition in Re Operational Ambulance Officers (State) Award (No 2), follows the High Court's caution in Spencer v Commonwealth that summary dismissal requires a "certain and concluded determination" ([19]), and deploys the General Steel Industries test that a claim must be "so obviously untenable that it cannot possibly succeed" ([18]). The lengthy extraction from French J's reasoning in Metropolitan Health Service Board is treated as persuasive and consistent with the long line of Australian industrial-law authority going back to Duncan v Ellis. Because the present judgment is a single-judge ex tempore (confirmed) decision on an ex parte application, its treatment by later courts is not discussed within the text itself; however, the manner in which Boland AJ synthesises the authorities demonstrates that the decision sits squarely within the established stream of authority on both jurisdictional limits and the non-waivable character of industrial minimum standards. No subsequent appellate consideration or overruling appears from the materials.
The judgment leaves open whether the same cross-claim, if brought in a court of general federal jurisdiction (for example the Federal Circuit and Family Court of Australia), could succeed on its merits once the jurisdictional hurdle is removed. It does not decide whether a liquidator armed with leave under s 471B Corporations Act could resuscitate a TPA claim in another forum. The precise boundaries of "trade or commerce" in the context of contract-carriage arrangements under an industrial determination are not explored. The interaction between the Australian Consumer Law (which replaced the Trade Practices Act) and s 406 of the Industrial Relations Act 1996 is not analysed, although the statutory policy appears identical. Whether an estoppel argument could ever succeed in an industrial context if the representation concerned a matter outside the scope of the industrial instrument (for example a collateral promise unrelated to rates) remains undecided. Finally, the judgment does not address the quantum or taxation of costs where multiple cross-respondents with overlapping interests are represented by the same counsel and union. These matters will require future litigation or legislative clarification.
oss-Respondent) Helen Jean Hennessy (Twenty-Fourth Cross-Respondent) Diaz Enterprises Pty Limited (Twenty-Fifth Cross-Respondent) Leonardo Diaz (Twenty-Sixth Cross-Respondent) Virginia Beatriz Diaz (Twenty-Seventh Cross-Respondent) Representation: M Gibian of counsel (Cross-Respondent in all matters) Transport Workers' Union of New South Wales (Cross-Respondent in all matters) File Number(s): IRC 145 and 147-157 of 2014
Judgment 1The Transport Workers' Union of New South Wales ("TWU"), in ex parte proceedings, had sought the dismissal of 12 applications by Wyanga Holdings Pty Ltd ("Wyanga" or "respondent"). On 12 November 2014, the Court made orders granting the TWU's application and awarded costs to the TWU. What follows are the Court's reasons.
Background 2It is necessary, first, to provide some background. Matter No IRC 812 of 2012 is an extant application to the Court by the TWU for recovery of money payable under s 365 of the Industrial Relations Act 1996 ("IR Act"). The respondent to the application is Wyanga. The application was made on behalf of 12 contract carriers whom it was alleged performed work for the respondent, such work being subject to the provisions of the Transport Industry - Excavated Materials, Contract Determination ("the Determination"). It was alleged in the application (which was twice amended, the latest being 21 July 2014) that the carriers were paid an hourly rate less than that prescribed by the Determination for the work performed. 3In response to the TWU's application, Wyanga filed 12 applications on 28 February 2014 that were referred to as "cross-claims" (Matter Nos IRC 145 and 147-157 of 2014). The secretary of the TWU, Mr Wayne Forno, was named in each application as "first cross-respondent", a Mr Jason Graham Arnold was named as "second cross-respondent" and in an attached schedule, 25 other "cross-respondents" were named. On the cover sheet of each application was named a particular contract carrier for whom the TWU acted. It is these applications that are the subject of this judgment. 4The cross-claims were materially in the same terms. It was broadly alleged in respect of each of the contract carriers that:
Consideration 15The TWU relied on a number of bases to submit the cross-claims should be dismissed. First, that despite directions being made on 1 May 2014 for Wyanga to file an outline of contentions, no such outline had been filed. Second, the solicitors for Wyanga had ceased to act and Wyanga had made no contact with the TWU since 5 July 2014. Thirdly, there had been no appearance by Wyanga on four occasions before the Court despite being advised of the time and place for hearing. In those circumstances it was submitted the Court should dismiss the cross-claims for want of due despatch pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 ("UCPR"), which provides (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. 16Next, the TWU relied on rr 13.4(1)(a) and (b) of the UCPR which provide: (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or ... the court may order that the proceedings be dismissed generally or in relation to that claim. 17Proceedings may properly be regarded as vexatious if, irrespective of a motive of a litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless: Attorney-General v Wentworth (1988) 14 NSWLR 481 per Roden J at 487, approved and applied by the Full Bench in Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85 at [32]. In Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66; (2004) 134 IR 149, the Full Bench considered the word "frivolous" as it is used in s 181(2)(c) of the IR Act, stating at [20]: [20] In light of the well established line of authority, and the ordinary meaning of the word "frivolous", we are satisfied that an application under s 84 will be frivolous if, on its face, it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter. 18Dismissal under r 13.4(1)(b) would only be appropriate if Wyanga's claims were so clearly deficient that it would be inappropriate to allow the proceedings to continue: Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 at 720. See also General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 where Barwick CJ stated: It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". 19The power to exercise summary judgment must be exercised with "great care" and "exceptional caution": Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [24] and [55]. In Spencer, Hayne, Crennan, Kiefel and Bell JJ referred to the test as "requiring formation of a certain and concluded determination that a proceeding would necessarily fail": at [53]. 20Wyanga's primary allegation was that the cross-respondents had contravened s 52 of the Trade Practices Act (which relevantly applied at the time the alleged representations were made). Section 52, which appeared in Div 1 of Pt V, was in the following terms: 52. (1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive. (2) Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of sub-section (1). 21Section 86, which appeared in Pt VI, dealt with the jurisdiction of courts. Section 86(2) provided: (2) The several courts of the States are invested with federal jurisdiction within the limits of their several jurisdictions, whether those limits are as to locality, subject-matter or otherwise, and, subject to the Constitution, jurisdiction is conferred on the several courts of the Territories, with respect to any matter arising under Part IVA or IVB or Division 1, 1A or 1AA of Part V in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission. 22It may be seen that courts of the States were invested with federal jurisdiction, within the limits of their jurisdictions in respect of matters, inter alia, under Pt V. The Industrial Court of New South Wales is a superior court limited by statute. There is nothing in the statute governing the Court's jurisdiction, express or implied, that even faintly resembles a power to deal with allegations of misleading and deceptive conduct under s 52 of the Trade Practices Act. The nearest source of power for dealing with misrepresentation is s 106 of the IR Act relating to unfair contracts, but that is not a power available to Wyanga: see Fair Work Act 2009 (Cth), s 26(2)(e). 23In relation to estoppel, it was asserted the contract carriers were estopped from relying, inter alia, on the terms and rates set out in the Determination. Section 406 of the IR Act provides: 406 Awards and other industrial instruments provide minimum entitlements (1) The conditions of employment set by an industrial instrument are the minimum entitlements of employees. (2) The provisions of a contract of employment or other contract do not have effect to the extent that they provide an employee with a benefit that is less favourable to the employee than the benefit to which the employee is entitled under an industrial instrument. (3) In the case of a contract determination or contract agreement, a reference in this section to an employee is a reference to a driver or carrier and a reference to employment is a reference to engagement as a driver or carrier. 24In the light of s 406, no estoppel can arise in the manner asserted by Wyanga. To emphasise the point, in Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; (2000) 99 FCR 95 at [19]-[20] and [22] French J stated: [19] Up until the enactment of the Workplace Relations Act, an honest and common but erroneous assumption of parties to an award as to the nature of the rights it confers and obligations it imposes has been seen to have little effect against its statutory force. Griffiths CJ in Josephson v Walker at 696 put it thus: "The obligation created by [the award] does not depend upon any agreement of the parties express or implied and may arise without their knowledge. If by the award it is determined that journeymen plumbers shall receive not less than a certain rate of wages, each journeyman plumber is entitled to those wages, and although the employer and the employee have gone on for a long time the one paying and the other receiving what each honestly believes to be the proper rate of wages, nevertheless if it is afterward found that the wages paid are less than those fixed by the award, the right of the employee to receive the wages so fixed has accrued." It is possible to perceive in that passage some of the matters which might be relied upon today to found an estoppel. [20] The inability to contract out of an award by virtue of its statutory operation militates against the proposition that parties may be estopped from enforcing its provisions or may waive its benefits in a way that is legally enforceable. The effect of the statutory provisions which give awards their binding force are at least as powerful against the common law and equitable principles of estoppel and waiver as they are against the common law of contract. There is nothing novel in the general proposition that statutes which preclude contracting out of the rights and obligations they confer will defeat the application of estoppel and waiver to like effect: Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1986) 73 ALR 373 at 378 (Pincus J). ... [22] At least up until the amendment of the Industrial Relations Act by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (the WROLA Act), there was a well-established line of judicial authority in relation to industrial awards inimical to the notion of contracting out of award obligations and, a fortiori, the invocation of principles of estoppel or waiver in relation to them. The underlying philosophy goes back to the beginnings of industrial law in Australia. It is exemplified in Duncan v Ellis (1916) 21 CLR 379. That case concerned a prosecution brought under the Factories and Shops Act 1915 (Vic) against an employer who had paid his employee less than the minimum rate applicable by statutory determination in the belief induced by his employee that he was younger than the age which would have entitled him to that rate. It was not a defence that the employer reasonably believed what his employee had said. The primary object of the Act was "the benefit of the public" in the sense that it was an Act "not merely for regulating certain trade matters but, generally speaking, one of social reform - an Act for improving the condition of wage earners and others, not only for their sake but for the public betterment which will ensue from these provisions", per Barton J (at 382). Isaacs J identified as the fundamental notion of the Act (at 385): "... the inability of employees to bargain effectively for themselves as to their surroundings and their remuneration, and therefore, in order to protect them as a class and carry out the professed object of the enactment, the Legislature have found themselves compelled to lay down a rigid rule, precluding inquiry as to accident, or inadvertence, or negligence, or other person's acts, except where it has expressly or by necessary intendment introduced those factors..." Although estoppel was not raised in Duncan, it was relied upon in similar circumstances in Walsh v Commercial Travellers Association of Victoria (1940) VLR 259. An adult who had obtained employment by fraudulently misrepresenting that he was 19 and had been paid the rate of wages payable to persons of that age, sued his employer to recover the difference between such rate and the Wages Board Rate prescribed for adults. He was held by the Full Court to be entitled to succeed despite his own fraud. Neither estoppel nor a counterclaim for deceit could avail the defendant. The relationship between the inability to contract out of the obligations and the inapplicability of estoppel was made clear by Mann CJ (at 263): "It would destroy in a large measure the operation of the statute to allow a plea of estoppel where the statement relied upon constituted the means employed to bring about a contract of employment although the contract itself can afford no defence." 25Any one of the bases relied upon by the TWU to dismiss Wyanga's cross-claims was sufficient to enable the Court to do so: there is no power in the Court to entertain a claim under s 52 of the Trade Practices Act, no power to award damages under that Act and the doctrine of estoppel has no application. Wyanga's applications disclosed no reasonable cause of action. Indeed, the applications could not possibly succeed; they were manifestly groundless. 26Despite the opportunities provided to Wyanga to appear before the Court to explain its position or to make submissions opposing summary judgment, nothing was heard from Wyanga or its directors.
Orders 27The Court confirms the orders made on 12 November 2014, namely that: (1)The applications by Wyanga Holdings Pty Limited in Matter Nos IRC 145, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156 and 157 of 2014 are dismissed. (2)Wyanga Holdings Pty Limited shall pay the cross respondents' costs in respect of each of the applications as agreed or assessed.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2014
Wyanga Holdings Pty Ltd
Forno
[1964] HCA 69
(1988) 14 NSWLR 481
(1935) 52 CLR 713
(1964) 112 CLR 125
(2000) 99 FCR 95
(2004) 134 IR 149
(1986) 73 ALR 373
(1916) 21 CLR 379
The Court confirms the orders made on 12 November 2014 dismissing all twelve applications (cross-claims) by Wyanga Holdings Pty Limited and ordering that Wyanga pay the cross-respondents' costs in each matter as agreed or assessed.