Noack, P.M. v. General Motors-Holdens Ltd [1985] FCA 489

Noack, P.M. v. General Motors-Holdens Ltd [1985] FCA 489

The amended information in matter no. 7 of 1985 was permitted because it charged one act of dismissal and alleged alternative or cumulative forbidden circumstances under s.5(1), which under Bowling v. General Motors-Holdens Pty Ltd did not make the information bad for uncertainty or duplicity. The prosecutor had to provide further and better particulars because the reference to unspecified facts and circumstances surrounding the dismissal was inadequate. Discovery was refused because these were criminal proceedings, discovery against a prosecutor is foreign to criminal procedure, the private status of the prosecutor did not alter that principle, and the Federal Court Rules did not make...

Jurisdiction
Australia
Judgment Date
25 September 1985
Procedural Posture
Criminal Proceedings by Information Alleging Breach of S.5(1) of the Conciliation and Arbitration Act 1904 1981 in Respect of Dismissal From Employment. / Notices of Motion Concerning Strike Out, Further and Better Particulars and Discovery; Prosecutor's Application for Leave to Amend Information in Matter No. 7 of 1985 and Discontinue Matter No. 8 of 1985.
Outcome
Leave to amend the information in action number 7 of 1985 was granted; the prosecutor was allowed to discontinue action number 8 of 1985; further and better particulars were ordered; discovery was refused; leave to appeal was refused.
Legal Topics
['amendment of Information' 'duplicity' 'further and Better Particulars' 'discovery in Criminal Proceedings' 'dismissal for Union Office or Delegate Activity']
['practice and Procedure' 'industrial Law' 'criminal Procedure'] ['amendment of Information' 'duplicity' 'further and Better Particulars' 'discovery in Criminal Proceedings' 'dismissal for Union Office or Delegate Activity']

Case Brief

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Procedural Posture

Criminal Proceedings by Information Alleging Breach of S.5(1) of the Conciliation and Arbitration Act 1904 1981 in Respect of Dismissal From Employment. / Notices of Motion Concerning Strike Out, Further and Better Particulars and Discovery; Prosecutor's Application for Leave to Amend Information in Matter No. 7 of 1985 and Discontinue Matter No. 8 of 1985.

Legal Issues

  1. 1 ['Whether the prosecutor should be granted leave to amend the information in matter no. 7 of 1985 to allege breach of both s.5(1)(a) and s.5(1)(f) of the Conciliation and Arbitration Act 1904-1981 in respect of the same dismissal.' 'Whether alleging alternative or cumulative circumstances under s.5(1) rendered the information bad for uncertainty or duplicity.' "Whether the prosecutor's answer to the defendant's request for particulars of the facts and circumstances surrounding the dismissal was adequate." 'Whether discovery could or should be ordered against the prosecutor in criminal proceedings, including where the prosecutor is a private individual and where Federal Court Rules directions powers were invoked.']

Ratio Decidendi

The amended information in matter no. 7 of 1985 was permitted because it charged one act of dismissal and alleged alternative or cumulative forbidden circumstances under s.5(1), which under Bowling v. General Motors-Holdens Pty Ltd did not make the information bad for uncertainty or duplicity. The prosecutor had to provide further and better particulars because the reference to unspecified facts and circumstances surrounding the dismissal was inadequate. Discovery was refused because these were criminal proceedings, discovery against a prosecutor is foreign to criminal procedure, the private status of the prosecutor did not alter that principle, and the Federal Court Rules did not make...

Court Disposition

Leave to amend the information in action number 7 of 1985 was granted; the prosecutor was allowed to discontinue action number 8 of 1985; further and better particulars were ordered; discovery was refused; leave to appeal was refused.

Orders

  • ['Leave be granted to the prosecutor to amend the information in action number 7 of 1985.' 'The prosecutor be at liberty to discontinue action number 8 of 1985.' "The prosecutor do pay the defendant's costs to be taxed, referable only to action number 8 of 1985 and not to include costs referable to action number 7...