mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities &amp; Investments Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 21) [2008] FCA 381
Outcome: cited
On 12 March 2008 the Court accepted an undertaking given by the first defendant, Norman Carey, along with undertakings by the second defendant, Mr Rundle, the fifth defendant, Richstar Enterprises Pty Ltd (Richstar), the ninth defendant, Keypoint Developments Pty Ltd (Keypoint) and the tenth defendant, Silkchime Pty Ltd (Silkchime). The undertakings which had substantially the same effect as an extension of protective orders under s 1323 of the Corporations Act 2001 (Cth) (the Act) in respect of the assets of the various defendants, are in effect until 30 June 2008. At that time the undertakings will expire and these proceedings will effectively be at an end. The ex tempore reasons for judgment in relation to the acceptance of the undertakings have been published as: Australian Securities &amp; Investments Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 21) [2008] FCA 381. 2 In addition to accepting the undertakings proffered by Mr Carey the Court made certain substantive orders. One of those orders was in the following terms: The weekly allowance for ordinary living expenses fixed in respect of paragraph 7 of the undertaking proffered by the First Defendant be fixed at $4000 per week until 26 March, and thereafter at such rate as is fixed by the Court after consideration of affidavit evidence in relation to the appropriate rate, to be provided along with written submissions by 19 March 2008. 3 Paragraph 7 of Mr Carey's undertaking was in the following terms: I am also permitted to withdraw from My Accounts and, pay, ordinary living expenses of a weekly allowance as fixed by the Court from time to time.
Case: Anderson v Hassett (No 2) [2007] NSWSC 1444
Outcome: applied
In Anderson v Hassett (No 2) [2007] NSWSC 1444 at [6] , Brereton J listed ten factors which are now commonly considered by judges of the Supreme Court of New South Wales in determining the proper punishment for contempt. 23 I adopt the factors listed by Brereton J in Anderson , and accepted by Emmett J in Pappas , as guiding principles for the determination of the appropriate penalty. The tenth factor referred to by Brereton J, namely denunciation of the contempt, was not included in Emmett J's list. However, in my opinion it is a factor to be taken into account.
Case: Australian Securities and Investments Commission v Wynhoven (2004) 51 ACSR 384
Outcome: distinguished
This is not a case in which I am asked to take into account the defendant's limited financial circumstances: cf Pappas at [24]; Australian Securities and Investments Commission v Wynhoven (2004) 51 ACSR 384 at [10] per Selway J. Here, there is no evidence as to Mr Albarran's financial circumstances. Accordingly, this factor can neither increase nor reduce the penalty: Four Seasons Gutter Protection Pty Limited v Leafbusters Pty Limited (No 2) [2004] FCA 1402 at [18] per Heerey J.
Case: Australian Securities &amp; Investments Commission v Pappas [2007] FCA 672
Outcome: applied
As Emmett J remarked, in a different statutory context, in Australian Securities &amp; Investments Commission v Pappas [2007] FCA 672 at [23] , the power to examine witnesses is a significant one which is conferred in the public interest. His Honour continued: Members of the public should understand that failure to comply with orders of the Court requiring compliance with the Commission's requirements in connection with investigation will not be treated lightly. 19 In my view, his Honour's remarks are equally applicable to the failure to comply with the Board's requirements, in the exercise of powers that are conferred on it in the public interest. 20 It follows from these authorities, and from the statutory regime to which I referred at [13] [21] of my principal judgment, that an appropriate penalty would be one which signifies to Mr Albarran and to the public, that failure to comply with the obligation to answer the Board's questions will be treated no less seriously than it would in the exercise of similar functions by a Court. 22 Eight of those factors were listed by Emmett J in Pappas at [2] as relevant to the question of determination of penalty in the case of failure to assist ASIC in connection with an investigation under s 19 of the ASIC Act . 23 I adopt the factors listed by Brereton J in Anderson , and accepted by Emmett J in Pappas , as guiding principles for the determination of the appropriate penalty. The tenth factor referred to by Brereton J, namely denunciation of the contempt, was not included in Emmett J's list. However, in my opinion it is a factor to be taken into account. 50 This is not a case in which I am asked to take into account the defendant's limited financial circumstances: cf Pappas at [24]; Australian Securities and Investments Commission v Wynhoven (2004) 51 ACSR 384 at [10] per Selway J. Here, there is no evidence as to Mr Albarran's financial circumstances. Accordingly, this factor can neither increase nor reduce the penalty: Four Seasons Gutter Protection Pty Limited v Leafbusters Pty Limited (No 2) [2004] FCA 1402 at [18] per Heerey J.
Case: Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: referred to
Third, as was earlier observed by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited ("Mudginberri") [1986] HCA 46 ; (1986) 161 CLR 98 at 108, the punitive and remedial objects of the exercise of the contempt power are inextricably intertwined: Witham v Holloway at 533-534. 11 In Mudginberri their Honours referred to the "strong stream" of authority for the proposition that a fine may be imposed when the contempt consists of wilful disobedience of a court order, at least in the sense that the disobedience is not "casual, accidental or unintentional": 106-107, 109, 112-113. 12 Reference was also made in Mudginberri to the underlying rationale of every exercise of the contempt power, namely the need to uphold and protect the effective administration of justice. Their Honours quoted from the then current edition of the seminal work on the law of contempt, Borrie &amp; Lowe's Law of Contempt (2 nd ed, 1983): if a court lacked the means to enforce its orders, or if its orders could be disobeyed with impunity, the administration of justice would be brought into disrepute.
Case: BHP Steel (AIS) Pty Limited v Construction, Forestry, Mining and Energy Union [2001] FCA 336 
Outcome: applied
In BHP Steel (AIS) Pty Limited v Construction, Forestry, Mining and Energy Union [2001] FCA 336 , Kiefel J said at [3]: Penalties for contempt of Court orders necessarily recognise that the Court's authority must be vindicated, and that there is a public interest in compliance with all orders of the Court: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 , 533 . Orders for penalties recognise the need to deter not only the defaulting party, but others who might be like-minded. 53 In BHP Steel , Kiefel J observed at [22] that persons who prosecute contempt cases are often recognised as performing a public duty and an order for indemnity costs is made so that they are not out of pocket in taking that role. 56 As Sir Robert Megarry VC said in EMI Records at 984, indemnity costs are commonly ordered in contempt cases. The same practice is adopted in Australia, for reasons which include those stated by Kiefel J in BHP Steel . I therefore propose to order Mr Albarran to pay the costs of the proceeding (including the costs incurred prior to the substitution of ASIC as plaintiff) on an indemnity basis. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Date: 27 March 2008 Counsel for the Applicant: Mr R B S Macfarlan QC with Ms J S Gleeson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr P Byrne SC with Mr M Thangara Solicitor for the Respondent: ERA Legal Date of Hearing: 5 March 2008 Date of Judgment: 27 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/386.html
Case: Deputy Federal Commissioner of Taxation v Hickey [1999] FCA 259 ; (1999) 99 ATC 5124
Outcome: referred to
In Deputy Federal Commissioner of Taxation v Hickey [1999] FCA 259 ; (1999) 99 ATC 5124 at [35] , Carr J said: Any contempt of court is serious. The seriousness transcends matters such as the personal dignity of the judiciary, or the rights in this case of the Commissioner as a litigant in this Court. The offence involves interference with the effective administration of justice, by impeding and perverting its course: Johnson v Grant (1923) SC 789 at 790 per Lord President Clyde. Contempt of court is a matter of basic and public significance. Unless the laws of contempt are properly enforced our whole system of justice is at risk.
Case: EMI Records Ltd v Ian Cameron Wallace Ltd [1982] 2 All ER 980
Outcome: referred to
Gillard J ordered costs on a solicitor and own client basis rather than indemnity costs but those two bases are "more or less equated": EMI Records Ltd v Ian Cameron Wallace Ltd [1982] 2 All ER 980 at 984, 989; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (FCA, French J, 3 May 1991, unreported) at 5-6. 56 As Sir Robert Megarry VC said in EMI Records at 984, indemnity costs are commonly ordered in contempt cases. The same practice is adopted in Australia, for reasons which include those stated by Kiefel J in BHP Steel . I therefore propose to order Mr Albarran to pay the costs of the proceeding (including the costs incurred prior to the substitution of ASIC as plaintiff) on an indemnity basis. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Date: 27 March 2008 Counsel for the Applicant: Mr R B S Macfarlan QC with Ms J S Gleeson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr P Byrne SC with Mr M Thangara Solicitor for the Respondent: ERA Legal Date of Hearing: 5 March 2008 Date of Judgment: 27 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/386.html
Case: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (FCA, French J, 3 May 1991, unreported)
Outcome: referred to
Gillard J ordered costs on a solicitor and own client basis rather than indemnity costs but those two bases are "more or less equated": EMI Records Ltd v Ian Cameron Wallace Ltd [1982] 2 All ER 980 at 984, 989; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (FCA, French J, 3 May 1991, unreported) at 5-6.
Case: Four Seasons Gutter Protection Pty Limited v Leafbusters Pty Limited (No 2) [2004] FCA 1402 
Outcome: distinguished
This is not a case in which I am asked to take into account the defendant's limited financial circumstances: cf Pappas at [24]; Australian Securities and Investments Commission v Wynhoven (2004) 51 ACSR 384 at [10] per Selway J. Here, there is no evidence as to Mr Albarran's financial circumstances. Accordingly, this factor can neither increase nor reduce the penalty: Four Seasons Gutter Protection Pty Limited v Leafbusters Pty Limited (No 2) [2004] FCA 1402 at [18] per Heerey J. 51 For reasons mentioned below, I will make an order for indemnity costs. This is said to be a mitigating factor: Four Seasons Gutter Protection at [17]. But it does not follow that there ought to be a mechanical process under which the level of fine is reduced to reflect the difference between indemnity costs and party and party costs. 52 Taking into account all of the factors mentioned above, in particular the seriousness of Mr Albarran's contempt, his knowledge of the consequences and his failure to show contrition, I consider that I ought to impose a fine of $20,000.
Case: National Australia Bank Ltd v Juric (No 2) [2001] VSC 398
Outcome: referred to
The authorities which record the history of the practice of ordering solicitor/client costs in contempt proceedings are set out by Gillard J in National Australia Bank Ltd v Juric (No 2) [2001] VSC 398 at [67] [68].
Case: Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129
Outcome: referred to
As a statutory analogue for the exercise of the power to punish for contempt, no question arises under s 219(7) as to the Court's power of punishment. In any event, the Court's power to punish for contempt is well-established: Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at [74] . 6 In Siminton , a Full Court observed at [74] that where a natural person is the contemnor, the Court has power to impose a fine, order that the person be committed to serve a term of imprisonment, or to order both a fine and imprisonment. The statutory sources of the power are s 31 of the Federal Court of Australia Act 1976 (Cth), s 24 of the Judiciary Act 1903 (Cth) and rule 11.04 of the High Court Rules.
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: referred to
The distinction between civil and criminal contempt is no longer of any practical significance: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534. Nevertheless, a number of relevant principles are to be found in their Honours' analysis of the distinction that was previously thought to underlie the difference between the civil and criminal species of contempt. 8 First, disobedience to a court order or breach of an undertaking to a court amounts to a criminal contempt if it involves deliberate defiance or is contumacious: Witham v Holloway at 530. A contempt which is characterised in this way is therefore at the more serious end of the spectrum, although any contempt is a serious matter. 9 Second, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority, and a remedial or coercive effect: Witham v Holloway at 533. 10 Third, as was earlier observed by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited ("Mudginberri") [1986] HCA 46 ; (1986) 161 CLR 98 at 108, the punitive and remedial objects of the exercise of the contempt power are inextricably intertwined: Witham v Holloway at 533-534. 14 In BHP Steel (AIS) Pty Limited v Construction, Forestry, Mining and Energy Union [2001] FCA 336 , Kiefel J said at [3]: Penalties for contempt of Court orders necessarily recognise that the Court's authority must be vindicated, and that there is a public interest in compliance with all orders of the Court: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 , 533 . Orders for penalties recognise the need to deter not only the defaulting party, but others who might be like-minded.
Case: Ruddock v Vardalis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229
Outcome: cited
It is unnecessary here to consider the law with respect to costs at any length. The power to make an order for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). The nature of this power has been discussed on numerous occasions: see, for example, Ruddock v Vardalis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229. Order 52 r 19(3) of the Federal Court Rules applies in the present circumstances. Order 52 r 19 states: (1) An appellant may file and serve a notice of discontinuance: (a) at any time before the hearing of the appeal, without the leave of the Court; or (b) at the hearing, or after the hearing and before judgment is pronounced or made, with the leave of the Court. (1A) If a notice of discontinuance is filed and served under subrule (1), the appeal is abandoned. (2) ... (3) A party filing a notice of discontinuance under subrule (1) shall be liable to pay the costs of the other party or parties occasioned by the appeal. (4) A party whose costs are payable under subrule (3) may tax the costs and if the taxed costs are not paid within 14 days after service of the certificate of taxation may enter judgment for the taxed costs.
Case: Akbar v Minister for Immigration and Multicultural Affairs [2002] FCA 209
Outcome: cited
As indicated earlier, Mr and Mrs Lababidi have filed a notice of discontinuance. If the notice is effective, then Mr and Mrs Lababidi are liable to pay the respondent's costs pursuant to O 52 r 19(3). They seek to be relieved from this liability on the basis of financial incapacity. There are, however, numerous decisions in this Court to the effect that financial hardship or claimed incapacity does not justify an order relieving a party of a costs burden that would ordinarily be imposed. In Akbar v Minister for Immigration and Multicultural Affairs [2002] FCA 209 , for example, the appellant filed a notice of discontinuance and subsequently asked to be relieved of the obligation to pay costs on the basis that he was impecunious. The Court refused his request stating that his inability to pay "may be of very great importance to any decision to recover costs by the respondent, but it does not have any effect in altering the operation of O 52 r 19(3)". There is no basis shown for depriving the respondent of the benefit of O 52 r 19(3). There is also no basis upon which this Court might vary the order for costs that has been made by the Federal Magistrate in respect of the proceeding in the Federal Magistrates Court. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 12 October 2007 Counsel for the Appellant: The appellant appears in person Counsel for the Respondent: Ms P Heffernan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 October 2007 Date of Judgment: 12 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1568.html
Case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) (2007) 161 FCR 513
Outcome: referred to
In Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) (2007) 161 FCR 513 at [67-68], a Full Court pointed to the difficulties in determining an applicable range by reason of the wide variety of considerations arising in each case.
Case: Australian Competition and Consumer Commission v High Adventure Pty Limited (2006) ATPR 42-091 
Outcome: applied
The principal, and probably the only, object of the penalties that are imposed by s 76(1) is deterrence, both specific and general: CSR at 52,152; NW Frozen Foods at 292-293; Australian Competition and Consumer Commission v High Adventure Pty Limited (2006) ATPR 42-091 at [11]. There are many other authorities to the same effect. 117 Resale price maintenance was first made illegal in Australia in 1906, although the legislation did not refer to it in express terms: ACCC v High Adventure at [8]. 118 The policy which underlies s 48 of the Act is that competition is an important feature of the distribution of goods. Resale price maintenance, as a form of vertical price fixing, eliminates the competition which Part IV of the Act seeks to achieve: ACCC v High Adventure at [7]. 119 As the Full Court observed in ACCC v High Adventure , a number of reasons have been put forward to explain the undesirability of the practice. One of them is that resale price maintenance is often a manifestation of price fixing among retailers. Another is that it inevitably eliminates dealer competition, thereby restricting freedom of competition in the price of goods in the marketplace: ACCC v High Adventure at [7]. 132 I am not bound to accept statements merely because they have been agreed between the parties: Visy at [1]. I accept that Navman sought to avoid complaints from some of its larger retailers. The threats contained in the emails of Mr Baird and Mr King to non-compliant distributors suggest that this was so. But this also suggests that Navman's resale price maintenance conduct was a manifestation of price fixing among retailers: ACCC v High Adventure at [7].
Case: Australian Competition and Consumer Commission v Jurlique International Pty Ltd [2007] FCA 79
Outcome: applied
It seems to me that these difficulties inform the approach which Spender J took in Australian Competition and Consumer Commission v Jurlique International Pty Ltd [2007] FCA 79. The effect of what his Honour said at [109] [111] is that the Court should only depart from the penalties agreed by properly informed and legally assisted parties where it is clear that it should do so. 127 Navman's contraventions of s 48 were serious. Its conduct was deliberate and was carried out over a lengthy period of time in relation to a range of expensive products. Navman's conduct extended over a period of more than three years in the distribution of marine products, and more than a year in the distribution of PCN products.
Case: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617
Outcome: applied
Determination of the amount of a penalty is not an exact science. Each case turns on its own facts and limited assistance is to be obtained from considering the amounts imposed in other proceedings: NW Frozen Foods at 295; Mobil Oil at [51]; Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 at [320] . 124 Either approach raises broad questions of judgment because s 76 imports concepts of moral responsibility derived from the criminal law: Visy at [304]. 128 I am entitled to draw inferences and reach conclusions from the facts that have been agreed in the Joint Submissions: Visy at [1]. 129 The details of the contraventions show that Navman's conduct was not merely deliberate. It was pursued in an aggressive and high-handed way by the company's most senior managers. 130 Navman's corporate culture was not conducive to compliance with the Act . Mr Baird and Mr King did not receive any trade practices training from Navman. I would have thought that senior managers of a multi-national company would have, at very least, a basic understanding of the law even without the need for detailed training. In any event, the failure of the company to provide training and see that its senior managers arranged training for their subordinates reflects badly on Navman's corporate culture. 132 I am not bound to accept statements merely because they have been agreed between the parties: Visy at [1]. I accept that Navman sought to avoid complaints from some of its larger retailers. The threats contained in the emails of Mr Baird and Mr King to non-compliant distributors suggest that this was so. But this also suggests that Navman's resale price maintenance conduct was a manifestation of price fixing among retailers: ACCC v High Adventure at [7].