mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities and Investments Commission v Alder (2002) 42 ACSR 80
Outcome: cited
The pecuniary penalties which the Act applies are punitive in nature. Their character is not adequately described by the rather anodyne term 'protective' Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129 at [35] [37], [41] [43] and [99]. Consistently with the characterisation as punitive the object of the penalties is general and specific deterrence. That is the deterrence of those who might be tempted not to comply with the law and the deterrence of the particular contravenor who might be tempted to re-offend Australian Securities and Investments Commission v Donovan (1998) 28 ACSR 583 at 608 (Cooper J), Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 at 114 (Santow J).
Case: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 69
Outcome: cited
When a regulator brings action to enforce the provisions of a public statute and agreed orders and penalties are proposed, it is not the role of the Court merely to rubber stamp them. In this respect what I said in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 79 is relevant in the present case (at 79]: 'As a general principle fair and appropriate settlements are encouraged to reduce the burden of litigation on both public and private resources. Courts are frequently asked to play their part by accepting formal undertakings or making orders by consent which prohibit parties from certain conduct or require them to do certain things. Sometimes they are asked to impose agreed pecuniary penalties. In carrying out those functions, courts are conscious of the public interest in the settlement of cases. They must also be conscious, however, that the laws they apply are public laws. It is in the public interest that, in considering agreements between parties requiring orders of the court, the court does not act as a mere rubber stamp. What is proposed must always be scrutinised to determine whether the undertakings or consent orders are within power and are appropriate.'
Case: King v AG Australia Holdings Ltd [2003] FCA 980
Outcome: considered
At the hearing on 31 March 2006, I raised two main issues concerning the form of the proposed settlement agreement, and invited counsel to make further submissions about those matters in due course. The first issue concerned a provision in the proposed settlement agreement which contemplated amendment to the statement of claim after Court approval to finalise the list of group members. The provision set out the circumstances in which the Court may add or delete persons from that list. Clause 1.1(g) of the proposed settlement agreement provided: 'On filing of the affidavit set out in sub-paragraph (f) above, the Statement of Claim be amended in an approved Form so that the Group Members to whom the proceeding relates within the meaning of Section 33H of the [FCA] Act be the Claimants. However, the addition or deletion of persons to or from the said list may be effected at any time by the Court if it is satisfied that the omission or inclusion of the person on the said list was the result of a slip by the Applicant's Lawyer or the Court.' I expressed concern at the hearing on 31 March 2006 that the proposed grounds upon which the Court may add or delete persons from the finalised list of group members under cl 1.1(g) were too narrow, having regard to the decision of Moore J in King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Ltd) [2003] FCA 980 (' King' ). In that case, Moore J considered the question whether the Court should make an order finalising the class of group members and, in particular, whether the Court should be able to add or delete persons from the final list of group members in circumstances other than those resulting from some kind of slip or mistake. His Honour considered that the Court should reserve a power to add or delete group members in 'other circumstances', and he so ordered: at [7]. 14 The variations to the proposed settlement agreement were threefold. First, cl 1.1(g) of the proposed settlement agreement was amended to widen the Court's power to add or delete members from the final list of group members. It now provides that the Court may add or delete members from the final list of group members not just in the case of error by any party, its representative or the Court, but also in 'other circumstances'. This reflects the language which Moore J included in the settlement agreement in King . 15 Secondly, cl 5.12 of the proposed settlement agreement was amended to provide that the determination of the quantum of damages of any claim by agreed counsel should be subject to the right of the claimant to apply to the Court on a question of law arising from the determination. 16 The third amendment provides a mechanism by which the Court can maintain an ongoing supervision of the process for assessment and determination of group members' claims. It involves the addition of a new cl 8.3 which provides: 'The solicitors for the parties have liberty to apply to the Court for determination of any matter arising in relation to the implementation of this settlement agreement.'
Case: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 4) [2004] VSC 466
Outcome: cited
I have carefully reviewed the proposed settlement agreement in the light of the relevant authorities: see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 4) [2004] VSC 466 ; Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 (' Williams'); King; Lopez . I am satisfied that the consolidated settlement agreement represents a fair, reasonable and appropriate settlement of the claims made in this proceeding and that it should be approved by the Court: Williams at 465 [19]. Of its nature, the settlement is one which is readily susceptible to Court approval. In effect, the terms of settlement provide for the admission of liability in respect of claims advanced by group members and set out a simplified process for the assessment of the quantum of damages on each claim by agreed counsel. In my view, this is an appropriate means of ensuring speedy, efficient and fair determination of the quantum of the claims.
Case: Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459
Outcome: cited
I have carefully reviewed the proposed settlement agreement in the light of the relevant authorities: see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 4) [2004] VSC 466 ; Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 (' Williams'); King; Lopez . I am satisfied that the consolidated settlement agreement represents a fair, reasonable and appropriate settlement of the claims made in this proceeding and that it should be approved by the Court: Williams at 465 [19]. Of its nature, the settlement is one which is readily susceptible to Court approval. In effect, the terms of settlement provide for the admission of liability in respect of claims advanced by group members and set out a simplified process for the assessment of the quantum of damages on each claim by agreed counsel. In my view, this is an appropriate means of ensuring speedy, efficient and fair determination of the quantum of the claims.
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: referred to
The applicant's submission that the Tribunal member misunderstood the nature of the discretion in s 501(2) of the Act must be rejected. It is true that he did appear to misstate the nature of the discretion in that part of his reasons which I have summarised above ([29]) but his reasons must be read as a whole and not with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272. The Tribunal member was clearly alert to the nature of the discretion he was called upon to exercise. At the beginning of his reasons he said the only issue before him was whether the discretion to cancel the visa should be exercised and he concluded his reasons by saying that he had decided that it was appropriate to exercise the discretion under s 501(2) of the Act to cancel the applicant's visa. Furthermore, throughout his reasons, and, in particular when addressing the three primary considerations, the Tribunal member referred to a particular factor as one favouring a decision to cancel the applicant's visa. 48 I do not think that the Tribunal member misunderstood the nature of the discretion. 49 The applicant submits that in his analysis of other relevant considerations, the Tribunal member should have, but did not take into account the following: 1. Articles 23 and 24 of the International Covenant on Civil and Political Rights (New York, 16 th December 1966) Australian Treaty Series 1980 No 23 and Articles 5, 9 and 10 of the Convention on the Rights of the Child (New York) 20 November 1989 Australian Treaty Series 1991 No 4; 2. The hardship which would be suffered by the applicant if he was to lose contact with his son; and 3. The fact that the applicant was not warned that if he committed serious offences he may jeopardise his visa.
Case: Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529
Outcome: referred to
The Tribunal member commenced his examination of the third primary consideration by summarising the relevant paragraphs in the direction. He noted that the applicant's submissions focused on the best interests of his son, Jedi. At the time of the hearing before the Tribunal, he was 16 months old. The applicant submitted that he was being denied access to his son, and that if his visa was cancelled, there would be virtually no way in which future access or contact could be made. The applicant gave evidence that he wanted to remain in Australia so that he could form a meaningful relationship with his son. He submitted that his son would be disadvantaged if he grew up without a father. He referred to the evidence of Mr Tuddenham and he submitted that he was African American and that it was his desire to share his cultural background with his son. The Tribunal member referred to certain observations of Gray J in Rocca v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 529. The Tribunal member then said: The applicant referred to the fact that Ms Fraser had consented to the contact orders for Jedi made in the Federal Magistrates Court. The Tribunal draws no adverse inferences from the fact that Ms Fraser so consented. Nor does the Tribunal accept the applicant's submission that, by granting the contact orders by consent, the Court was articulating that the best interests of the child would be served by allowing him to have contact with his father. 25 The orders referred to in the above passage were orders made by the Federal Magistrates Court on 29 May 2006 and 25 September 2006 respectively. The orders made on 29 May 2006 were interim orders made by consent and until final order. The orders made on 25 September 2006 were final orders. The orders deal with the relationship between Jedi and each of his parents, namely, the applicant and Ms Fraser. The orders are set out below [32]-[33]. 26 The Tribunal member then referred to the evidence of Mr Tuddenham and the evidence of Mr Courtney. In relation to the evidence of Mr Tuddenham, he said that Mr Tuddenham did not bring any formal qualification to the hearing of the matter and he concluded that his views did not greatly assist him. In relation to Mr Courtney, he found him to be "a most unimpressive witness".
Case: Mok v Minister for Immigration (No 2) (1993) 47 FCR 81
Outcome: cited
Martech submitted that the discretion to award costs is guided by the principle that, absent some special circumstance, a successful litigant is entitled to its costs. It acknowledged that where a litigant has succeeded on some issues but failed on others, an apportionment may be appropriate. That is a matter for discretion for the trial judge. It was submitted that the Court's power to order a successful applicant to pay the costs of an issue on which it has failed ought to be exercised only where the Court, on a consideration of all the circumstances, has concluded that the raising of that issue by the applicant was so unreasonable that it is fair and just to make the order. Reliance was placed upon Mok v Minister for Immigration (No 2) (1993) 47 FCR 81 at 84D. 7 Martech submitted that while the pleadings in its claim raised a number of causes of action there were two broad issues pursued by it. These were: 1. The forbearance affecting the level of remuneration. 2. The termination payment. Martech submitted that it was wholly successful in relation to the forbearance but acknowledged that it was unsuccessful in relation to the termination payment. The latter claim failed essentially on the proper construction of cl 8.6 of the consultancy agreement. Energy put in issue whether the consultancy agreement was terminated on 29 September 2000 and a significant amount of evidence was directed to that point. On that point, Martech succeeded. The forbearance issue was also one to which significant evidence was directed. There were other issues of fact on which Martech did not succeed. Martech submitted that it should have one third of its costs. It also pointed out that the first cross-claim was discontinued by leave on 20 September 2005 with costs reserved and that there was no reason why the respondent should not pay its costs of the first cross-claim.
Case: Namol Pty Ltd v AW Baulderston Pty Ltd (1993) 119 ALR 187
Outcome: cited
On the matter of interest on the judgment sum, Martech submitted that interest was usually ordered for the period between the cause of action arising and judgment. It correctly pointed out that the usual practice is to award interest at the rate applied in the Supreme Court of the State where the court is sitting unless there is evidence that those rates are penal and not commercial: Namol Pty Ltd v AW Baulderston Pty Ltd (1993) 119 ALR 187; GEC Marconi Assistance Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55. Martech submitted that the cause of action arose in respect of the judgment sum on 10 December 2001 when Mr Brand first wrote to Energy advising that Martech's forbearance had ceased. Alternatively it was put that interest should run from 6 November 2003 when a further demand was made by Martech and, alternatively, 24 March 2004 when the application was commenced. A calculation of the judgment sum with interest applied from those three dates was appended to the submission.
Case: GEC Marconi Assistance Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55
Outcome: cited
On the matter of interest on the judgment sum, Martech submitted that interest was usually ordered for the period between the cause of action arising and judgment. It correctly pointed out that the usual practice is to award interest at the rate applied in the Supreme Court of the State where the court is sitting unless there is evidence that those rates are penal and not commercial: Namol Pty Ltd v AW Baulderston Pty Ltd (1993) 119 ALR 187; GEC Marconi Assistance Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55. Martech submitted that the cause of action arose in respect of the judgment sum on 10 December 2001 when Mr Brand first wrote to Energy advising that Martech's forbearance had ceased. Alternatively it was put that interest should run from 6 November 2003 when a further demand was made by Martech and, alternatively, 24 March 2004 when the application was commenced. A calculation of the judgment sum with interest applied from those three dates was appended to the submission.
Case: New South Wales Dairy Corporation v Murray Goulbourn Co-operative Co Ltd (1989) 14 IPR 75
Outcome: cited
Energy submitted in response that Martech was unsuccessful in seven of the eight causes of action and claims. It did not obtain the principal commercial objective of the proceedings, which was the termination payment in excess of $800,000. It referred to New South Wales Dairy Corporation v Murray Goulbourn Co-operative Co Ltd (1989) 14 IPR 75 at 79. 10 Energy argued that the claim for unpaid fees was a distinct and separate cause of action for an amount well within the jurisdiction of the District Court of Western Australia. Had the claim been brought separately it may well have been settled commercially between the parties. It submitted that the costs should follow the event and the respondent should be entitled to the costs of the proceedings. In the alternative Martech should be ordered to pay costs in respect of the unsuccessful aspects of its case. An appropriate apportionment would be that Martech pay 90% of Energy's costs of the action. 11 Energy argued that the claim for unpaid fees occupied a relatively small amount of time at trial, both in terms of evidence and submissions. Martech adopted a "shotgun" approach to its claims for a termination payment, none of which succeeded. The claim based on implied terms required the Court to consider extensive evidence including expert evidence about allegations of non-disclosure and breaches of the Corporations Act 2001 (Cth). These proved to be false issues as Martech did not establish the implied terms. In addition it did not succeed in establishing the claim for unpaid fees as pleaded. The Court held that Martech was entitled to the unpaid fees as there was no consideration for the variation pleaded by Energy. The issue of lack of consideration or uncertainty was not pleaded in reply, nor was it put in closing submissions.
Case: Ruddock v Vadarlis (No 2) (12001) [2001] FCA 1865 ; 115 FCR 229
Outcome: cited
The "jurisdiction" conferred upon the Court by s 43 is in truth a power in aid of jurisdiction. It is not confined by any presumption about the manner of its exercise. Nevertheless, within the discretion of the courts to award costs in Australia, it has long been accepted that: . ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; . where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed; . a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235, following Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40-748.
Case: Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40-748
Outcome: cited
The "jurisdiction" conferred upon the Court by s 43 is in truth a power in aid of jurisdiction. It is not confined by any presumption about the manner of its exercise. Nevertheless, within the discretion of the courts to award costs in Australia, it has long been accepted that: . ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; . where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed; . a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other parties' costs of them. In this sense "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234-235, following Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40-748.
Case: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003)198 ALR 59
Outcome: cited
As already noted, the Tribunal referred to the fact that the appellant applied for a protection visa on 31 May 2005, which was over three years after his arrival in Australia. I reject the assertion implicit in ground 1 of the appellant's notice of appeal that the Federal Magistrate erred in holding that it was not irrational or unreasonable for the Tribunal to give weight to the consideration that the applicant made no claim to fear persecution in Bangladesh as a homosexual prior to May 2005. The appellant's delay in lodging a protection visa application was one factor that the Tribunal was entitled to take into account and to give such weight as the Tribunal thought appropriate in all the circumstances of the case. The Federal Magistrate did not err in this regard. Further, the Federal Magistrate did not err in his consideration of the Tribunal's treatment of the opinions of the psychiatrists and psychologist, or other lay witnesses. The Tribunal plainly considered both expert and lay witnesses' evidence and it was entitled to treat their evidence as it did. The Tribunal was not obliged to accept the evidence of expert opinion but was entitled to evaluate it as it did. The Tribunal specifically referred to earlier lay witnesses who claimed to have had sexual relations with the appellant, saying it did not "attach any weight" to their evidence because it found that the appellant had manufactured his claims to be a homosexual. It was open to the Tribunal to approach their evidence in this way. The appellant submitted that this approach was illogical, but illogicality on its own, even if demonstrated, does not establish jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003)198 ALR 59 (" Applicant S20/2002 ") at 60-64 per Gleeson CJ. The appellant's argument at this level was very largely "an emphatic way of expressing disagreement" (to use the words of Gleeson CJ) with the Tribunal's fact finding: see Applicant S20/2002 at 61.
Case: SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634
Outcome: applied
This ground alleged that the Federal Magistrate erred in dismissing the ground of jurisdictional error because, in making its finding about relocation, the Tribunal failed to consider a number of matters relating, broadly speaking, to the practicalities of relocation. The ground is not made out. The Tribunal applied the relocation test, as set out in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634 and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 237 ALR 660. It inquired as to whether it was reasonable, in the sense of practicable, for the appellant to relocate, given the circumstances of his case, including his personal circumstances relating to education, language ability, family situation and work prospects.
Case: SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 237 ALR 660
Outcome: applied
This ground alleged that the Federal Magistrate erred in dismissing the ground of jurisdictional error because, in making its finding about relocation, the Tribunal failed to consider a number of matters relating, broadly speaking, to the practicalities of relocation. The ground is not made out. The Tribunal applied the relocation test, as set out in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 237 ALR 634 and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 ; (2007) 237 ALR 660. It inquired as to whether it was reasonable, in the sense of practicable, for the appellant to relocate, given the circumstances of his case, including his personal circumstances relating to education, language ability, family situation and work prospects.