mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46
Outcome: approved
The scope of the definition of a 'managed investment scheme' has been considered in a number of cases. In Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46, Barrett J adopted the description and explanation of a 'managed investment scheme and its components' in Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 at [45] - [49] and Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at [26]-[32]. Justice Goldberg in Australian Securities and Investments Commission v Primelife (2006) 235 ALR 328 agreed with and adopted those descriptions and I would be content to do likewise.
Case: Constantinidis v JGL Trading Pty Ltd (1995) 17 ACSR 625
Outcome: considered
In Constantinidis v JGL Trading Pty Ltd (1995) 17 ACSR 625, Kirby P said at 635: In Zempilas v J N Taylor Holdings Ltd (No 2) (1990) 55 SASR 103; 3 ACSR 5183 (SC(SA)), King CJ (with the agreement of Cox and Olsson JJ) stressed that: The appointment of a provisional liquidator pending adjudication upon the petition for winding up, is a drastic intrusion into the affairs of the company and is not to be contemplated if other measures would be adequate to preserve the status quo . (emphasis added)
Case: Re Bike World (Wholesale) Pty Ltd (1992) 6 ACSR 681
Outcome: considered
In Re Bike World (Wholesale) Pty Ltd (1992) 6 ACSR 681 Anderson J said at 684: ... An appointment is made primarily to preserve the assets and undertaking of the company pending the hearing of the petition. The task of the provisional liquidator is to attempt to maintain the status quo until a final decision can be made, after a full hearing, whether the company should be wound up: Re Carapark Industries Pty Ltd (in liq) [1967] 1 NSWR 337 at 341. Such an appointment is not to be made lightly. It works a major interference in the management of the company . ... (emphasis added) 35 I do not discount the possibility that a provisional liquidator may be appointed if there be some public interest element calling for his or her appointment, but there must be some need for such an appointment at this interlocutory stage. 36 I consider that if other appropriate orders can be made to protect the public interest element contended for by ASIC, which in my view there can be in the current circumstances, then the appointment of a provisional liquidator to the corporate defendants is not warranted.
Case: SZLBJ v Minister for Immigration &amp; Citizenship [2008] FMCA 90
Outcome: cited
A decision of the Federal Magistrates Court dismissed an application to review the decision of the Tribunal: SZLBJ v Minister for Immigration &amp; Citizenship [2008] FMCA 90. 5 The Appellant now appeals to this Court. The Grounds of Appeal as set forth in his Notice of Appeal (without alteration) are as follows: GROUNDS OF APPEAL: 1. THAT THE APPLICANT DID NOT RECEIVED THE INCITATION OF HEARING IN THE TIME AS PER MIGRATION REGULATION 4.35D. 2. THAT THE RRT FAILED TO COMPLY WITH THE MANADATORY REQUIRMENTS UNDER THE MIGRATION REGULATION AND MIGRATION ACT . 3. THAT THE APPLICANT FULLY DESCRIBED THE ABOVE SITUATION IN HIS APPLICATION SUBMITTED BEFORE THE FEDERAL MAGISTRATE ON 30/1/2008 THE SAME WAS NOT CONSIDERED BY THE RESPONDENT OF THE RRT. THEY HAVE COMMITTED THE LEGAL AND PRICEDURAL ERROR AND COUPLE THE JURIDICTIONAL ERROR. 6 The Appellant appeared unrepresented before the Court this afternoon, but he did have the benefit of a Court appointed interpreter.
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2001) 119 FCR 1
Outcome: discussed
On 21 December 2001 I ordered that the application brought by the applicant ("the Commission") against the first respondent ("Safeway") and the third respondent ("Mr Jones") for contraventions of various provisions under Pt IV of the Trade Practices Act 1974 (Cth) ("the Act ") be dismissed: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2001) 119 FCR 1. On 22 October 2002 I ordered that the Commission pay Safeway and Mr Jones' costs of and incidental to the application. The Commission appealed to the Full Court of the Federal Court and on 30 June 2003 the Full Court delivered judgment in the appeal, allowing it in part: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd and Anor [2003] FCAFC 149 ; (2003) 129 FCR 339. On 1 August 2003 the Full Court made orders giving effect to its earlier reasons.
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd and Anor [2003] FCAFC 149 ; (2003) 129 FCR 339
Outcome: discussed
On 21 December 2001 I ordered that the application brought by the applicant ("the Commission") against the first respondent ("Safeway") and the third respondent ("Mr Jones") for contraventions of various provisions under Pt IV of the Trade Practices Act 1974 (Cth) ("the Act ") be dismissed: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2001) 119 FCR 1. On 22 October 2002 I ordered that the Commission pay Safeway and Mr Jones' costs of and incidental to the application. The Commission appealed to the Full Court of the Federal Court and on 30 June 2003 the Full Court delivered judgment in the appeal, allowing it in part: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd and Anor [2003] FCAFC 149 ; (2003) 129 FCR 339. On 1 August 2003 the Full Court made orders giving effect to its earlier reasons.
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: applied
French J identified a further six factors to be taken into account in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 (" TPC v CSR ") at 52,152 (commonly known as the "French factors"): (1) the size of the contravening company; (2) the degree of power it has, as evidenced by its market share and ease of entry into the market; (3) the deliberateness of the contravention and the period over which it extended; (4) whether the contravention arose out of the conduct of senior management or at a lower level; (5) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and (6) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. 18 In NW Frozen Foods the majority of the Court observed at 293: "In TNT (at 40,168), it was pointed out that some other factors which have been regarded as important actually flow from what French J called in CSR Ltd (at 52,152) '[t]he primacy of the deterrent purpose in the imposition of penalty'. One of those factors is the size of the corporation involved, since '[w]hat would deter a small company might have little effect on a very large one'. ... As Smithers J emphasised in Stihl Chain Saws (at 17,896), insistence upon the deterrent quality of a penalty should be balanced by insistence that it 'not be so high as to be oppressive'. Plainly, if deterrence is the object, the penalty should not be greater than is necessary to achieve this object; severity beyond that would be oppression."
Case: Australian Competition and Consumer Commission v NW Frozen Foods (1996) ATPR 41-515
Outcome: applied
In Australian Competition and Consumer Commission v NW Frozen Foods (1996) ATPR 41-515 at 42,444-42,445, Heerey J considered the following additional three factors (commonly known as the "Heerey factors"): (1) similar conduct in the past; (2) financial position; (3) deterrent effect. These factors are not exhaustive; other factors may be relevant in a particular case depending upon the issues raised: Trade Practices Commission v CC (New South Wales) Pty Limited &amp; Ors (1994) ATPR 41-363 at 42,723.
Case: Trade Practices Commission v CC (New South Wales) Pty Limited &amp; Ors (1994) ATPR 41-363
Outcome: cited
In Australian Competition and Consumer Commission v NW Frozen Foods (1996) ATPR 41-515 at 42,444-42,445, Heerey J considered the following additional three factors (commonly known as the "Heerey factors"): (1) similar conduct in the past; (2) financial position; (3) deterrent effect. These factors are not exhaustive; other factors may be relevant in a particular case depending upon the issues raised: Trade Practices Commission v CC (New South Wales) Pty Limited &amp; Ors (1994) ATPR 41-363 at 42,723.
Case: Australian Competition and Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666
Outcome: cited
The French factors and the Heerey factors have been applied in numerous subsequent Federal Court decisions: see, for recent examples, Australian Competition and Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666 at [53] ; Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597 at [7] ; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( "ACCC v Leahy" ) at [32] [33].
Case: Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597
Outcome: cited
The French factors and the Heerey factors have been applied in numerous subsequent Federal Court decisions: see, for recent examples, Australian Competition and Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666 at [53] ; Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597 at [7] ; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( "ACCC v Leahy" ) at [32] [33].
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301
Outcome: applied
The French factors and the Heerey factors have been applied in numerous subsequent Federal Court decisions: see, for recent examples, Australian Competition and Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666 at [53] ; Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597 at [7] ; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( "ACCC v Leahy" ) at [32] [33].
Case: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296
Outcome: cited
It has been accepted for some considerable time that the principal object of s 76 penalties is deterrence, both specific and general: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 per Toohey J at 298; TPC v CSR at 52,152; Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 at 40,986; NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 294-295 (" NW Frozen Foods "). In Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) ATPR 41-815 (" ACCC v ABB No 1 "), Finkelstein J said at 42,938: "If general deterrence is the principal object of imposing a penalty, the number of cases that still come before the court, and the seriousness of the conduct that is involved in some of them, suggests that past penalties are not achieving that object. For a penalty to have the desired effect, it must be imposed at a meaningful level. Most antitrust violations are profitable. Accordingly, the penalty must be at a level that a potentially-offending corporation will see as eliminating any prospect of gain." More recently in Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247 , the Full Court of the Federal Court said at [11]: "As the cases to which the judge was referred show, the principal, if not the sole, purpose for the imposition of penalties for a contravention of the antitrust provisions in Part IV is deterrence, both specific and general. This rule is so well entrenched that citation of authority is unnecessary. Moreover, as deterrence (especially general deterrence) is the primary purpose lying behind the penalty regime, there inevitably will be cases where the penalty that must be imposed will be higher, perhaps even considerably higher, than the penalty that would otherwise be imposed on a particular offender if one were to have regard only to the circumstances of that offender." These observations are pertinent in the present circumstances.
Case: Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763
Outcome: cited
It has been accepted for some considerable time that the principal object of s 76 penalties is deterrence, both specific and general: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 per Toohey J at 298; TPC v CSR at 52,152; Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 at 40,986; NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 294-295 (" NW Frozen Foods "). In Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) ATPR 41-815 (" ACCC v ABB No 1 "), Finkelstein J said at 42,938: "If general deterrence is the principal object of imposing a penalty, the number of cases that still come before the court, and the seriousness of the conduct that is involved in some of them, suggests that past penalties are not achieving that object. For a penalty to have the desired effect, it must be imposed at a meaningful level. Most antitrust violations are profitable. Accordingly, the penalty must be at a level that a potentially-offending corporation will see as eliminating any prospect of gain." More recently in Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247 , the Full Court of the Federal Court said at [11]: "As the cases to which the judge was referred show, the principal, if not the sole, purpose for the imposition of penalties for a contravention of the antitrust provisions in Part IV is deterrence, both specific and general. This rule is so well entrenched that citation of authority is unnecessary. Moreover, as deterrence (especially general deterrence) is the primary purpose lying behind the penalty regime, there inevitably will be cases where the penalty that must be imposed will be higher, perhaps even considerably higher, than the penalty that would otherwise be imposed on a particular offender if one were to have regard only to the circumstances of that offender." These observations are pertinent in the present circumstances.
Case: NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285
Outcome: applied
It has been accepted for some considerable time that the principal object of s 76 penalties is deterrence, both specific and general: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 per Toohey J at 298; TPC v CSR at 52,152; Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 at 40,986; NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 294-295 (" NW Frozen Foods "). In Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) ATPR 41-815 (" ACCC v ABB No 1 "), Finkelstein J said at 42,938: "If general deterrence is the principal object of imposing a penalty, the number of cases that still come before the court, and the seriousness of the conduct that is involved in some of them, suggests that past penalties are not achieving that object. For a penalty to have the desired effect, it must be imposed at a meaningful level. Most antitrust violations are profitable. Accordingly, the penalty must be at a level that a potentially-offending corporation will see as eliminating any prospect of gain." More recently in Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247 , the Full Court of the Federal Court said at [11]: "As the cases to which the judge was referred show, the principal, if not the sole, purpose for the imposition of penalties for a contravention of the antitrust provisions in Part IV is deterrence, both specific and general. This rule is so well entrenched that citation of authority is unnecessary. Moreover, as deterrence (especially general deterrence) is the primary purpose lying behind the penalty regime, there inevitably will be cases where the penalty that must be imposed will be higher, perhaps even considerably higher, than the penalty that would otherwise be imposed on a particular offender if one were to have regard only to the circumstances of that offender." These observations are pertinent in the present circumstances.
Case: Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) ATPR 41-815
Outcome: applied
It has been accepted for some considerable time that the principal object of s 76 penalties is deterrence, both specific and general: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 per Toohey J at 298; TPC v CSR at 52,152; Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 at 40,986; NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 294-295 (" NW Frozen Foods "). In Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) ATPR 41-815 (" ACCC v ABB No 1 "), Finkelstein J said at 42,938: "If general deterrence is the principal object of imposing a penalty, the number of cases that still come before the court, and the seriousness of the conduct that is involved in some of them, suggests that past penalties are not achieving that object. For a penalty to have the desired effect, it must be imposed at a meaningful level. Most antitrust violations are profitable. Accordingly, the penalty must be at a level that a potentially-offending corporation will see as eliminating any prospect of gain." More recently in Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247 , the Full Court of the Federal Court said at [11]: "As the cases to which the judge was referred show, the principal, if not the sole, purpose for the imposition of penalties for a contravention of the antitrust provisions in Part IV is deterrence, both specific and general. This rule is so well entrenched that citation of authority is unnecessary. Moreover, as deterrence (especially general deterrence) is the primary purpose lying behind the penalty regime, there inevitably will be cases where the penalty that must be imposed will be higher, perhaps even considerably higher, than the penalty that would otherwise be imposed on a particular offender if one were to have regard only to the circumstances of that offender." These observations are pertinent in the present circumstances.
Case: Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247
Outcome: applied
It has been accepted for some considerable time that the principal object of s 76 penalties is deterrence, both specific and general: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 per Toohey J at 298; TPC v CSR at 52,152; Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 at 40,986; NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 294-295 (" NW Frozen Foods "). In Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) ATPR 41-815 (" ACCC v ABB No 1 "), Finkelstein J said at 42,938: "If general deterrence is the principal object of imposing a penalty, the number of cases that still come before the court, and the seriousness of the conduct that is involved in some of them, suggests that past penalties are not achieving that object. For a penalty to have the desired effect, it must be imposed at a meaningful level. Most antitrust violations are profitable. Accordingly, the penalty must be at a level that a potentially-offending corporation will see as eliminating any prospect of gain." More recently in Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247 , the Full Court of the Federal Court said at [11]: "As the cases to which the judge was referred show, the principal, if not the sole, purpose for the imposition of penalties for a contravention of the antitrust provisions in Part IV is deterrence, both specific and general. This rule is so well entrenched that citation of authority is unnecessary. Moreover, as deterrence (especially general deterrence) is the primary purpose lying behind the penalty regime, there inevitably will be cases where the penalty that must be imposed will be higher, perhaps even considerably higher, than the penalty that would otherwise be imposed on a particular offender if one were to have regard only to the circumstances of that offender." These observations are pertinent in the present circumstances.
Case: Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851
Outcome: cited
There has also been some debate as to whether the issue of punishment ought to also be considered: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,810 43,811; ACCC v ABB No 1 at 42,936. In Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851 at 44,543, the Full Court raised the issue of the dispute in relation to the role of punishment in imposing penalties. The Full Court noted: "...we see little or indeed no difference between taking into account, in computing the penalty, the deliberate nature of the conduct in question (a matter the relevance of which is not in dispute) and taking into account the fact that the penalty should act as a punishment of the offender."
Case: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375
Outcome: cited
Two further matters need to be taken into account, the totality principle (see Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 at 40,169 per Burchett J and Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,817) and the parity principle (see Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 1) (2004) ATPR 42-022 at [84]-[85] (" ACCC v McMahon ")). In ACCC v Leahy , I said at [43]: "When dealing with several respondents whose situation and culpability are not the same, it is inevitable that different penalties will be imposed. Nevertheless it is necessary to bear in mind what is generally referred to as the parity principle. All other things being equal, similar conduct should be deserving of similar penalties. Of course, as the Full Court said in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission ... 'other things are rarely equal where contraventions of the Trade Practices Act are concerned'. It is also desirable to bear in mind the penalties that have been imposed in past cases. A dramatic departure from previous practice might be seen as representing unjustifiable disparity but may also demonstrate that a level or quantum of previous penalties may, now in the present circumstances under consideration, be regarded as inadequate."