mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Commerce Commission v New Zealand Milk Corporation Ltd [1994] 2 NZLR 730
Outcome: referred to
The proceeding against the second respondent be otherwise dismissed.' 3 Having heard submissions I made the declaration and orders sought and indicated that I would publish my reasons at a later date. These are those reasons. 4 The Court is not, of course, bound to make orders giving effect to terms of settlement agreed on between the parties. The principles to be applied by the Court in determining whether to order the imposition of a pecuniary penalty for contravention of the Act, where parties propose a particular sum, are expounded in N W Frozen Foods Pty Ltd v Australian Competition &amp; Consumer Commission (1997) 71 FCR 285 at 290-5. They are refined and elaborated upon in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] to [58]; (2004) ATPR 41-993 at [51] to [58]. I am also mindful of the observations of Emmett J in Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd [2004] FCA 819 at [46] to [56]; (2004) ATPR 42-011 at [46] to [56]. In particular, I note the following observations made by his Honour in that case: '[53] ... there is a public interest in prompting settlement of litigation, particularly litigation that is likely to be lengthy and complex. Thus, in giving weight to a joint submission on a proposal that would resolve a proceeding, the Court can have regard to the savings of resources both for a regulator, such as the Commission, and for the Court if the proposal were to be accepted. The savings in resources, for example, are capable of being used by the regulator to increase the likelihood that other contraveners will be detected and brought before the court. [ 54] The view of a regulator such as the Commission as a specialist body is relevant in determining the question of penalty, although it is by no means determinative. The Court will expect a regulator such as the Commission to explain to it the process of reasoning that has led to the resolution proposed. In particular, if a proposed penalty involves a discount from that which might otherwise be considered to be the appropriate penalty so as to reflect a degree of cooperation, the Court would expect the Commission to explain the basis upon which the discount had been calculated. ... [56] The Court will be mindful that, where an agreed penalty is proposed, there may be elements of compromise involved in both sides. Thus, it may be that evidentiary difficulties perceived by the Commission would warrant the abandonment of some claims. Certainty of outcome for both parties may be a very significant factor in the reasoning process that leads to agreement on penalty. For reasons such as those, if the Court is not disposed to impose a penalty proposed by the parties, it would be appropriate to give the parties the opportunity to withdraw consent for all of the proposed orders and to permit the proceeding to continue on a contested basis." See also Commerce Commission v New Zealand Milk Corporation Ltd [1994] 2 NZLR 730 at 733.
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; (2004) ATPR 41-993
Outcome: referred to
The proceeding against the second respondent be otherwise dismissed.' 3 Having heard submissions I made the declaration and orders sought and indicated that I would publish my reasons at a later date. These are those reasons. 4 The Court is not, of course, bound to make orders giving effect to terms of settlement agreed on between the parties. The principles to be applied by the Court in determining whether to order the imposition of a pecuniary penalty for contravention of the Act, where parties propose a particular sum, are expounded in N W Frozen Foods Pty Ltd v Australian Competition &amp; Consumer Commission (1997) 71 FCR 285 at 290-5. They are refined and elaborated upon in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] to [58]; (2004) ATPR 41-993 at [51] to [58]. I am also mindful of the observations of Emmett J in Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd [2004] FCA 819 at [46] to [56]; (2004) ATPR 42-011 at [46] to [56]. In particular, I note the following observations made by his Honour in that case: '[53] ... there is a public interest in prompting settlement of litigation, particularly litigation that is likely to be lengthy and complex. Thus, in giving weight to a joint submission on a proposal that would resolve a proceeding, the Court can have regard to the savings of resources both for a regulator, such as the Commission, and for the Court if the proposal were to be accepted. The savings in resources, for example, are capable of being used by the regulator to increase the likelihood that other contraveners will be detected and brought before the court. [ 54] The view of a regulator such as the Commission as a specialist body is relevant in determining the question of penalty, although it is by no means determinative. The Court will expect a regulator such as the Commission to explain to it the process of reasoning that has led to the resolution proposed. In particular, if a proposed penalty involves a discount from that which might otherwise be considered to be the appropriate penalty so as to reflect a degree of cooperation, the Court would expect the Commission to explain the basis upon which the discount had been calculated. ... [56] The Court will be mindful that, where an agreed penalty is proposed, there may be elements of compromise involved in both sides. Thus, it may be that evidentiary difficulties perceived by the Commission would warrant the abandonment of some claims. Certainty of outcome for both parties may be a very significant factor in the reasoning process that leads to agreement on penalty. For reasons such as those, if the Court is not disposed to impose a penalty proposed by the parties, it would be appropriate to give the parties the opportunity to withdraw consent for all of the proposed orders and to permit the proceeding to continue on a contested basis." See also Commerce Commission v New Zealand Milk Corporation Ltd [1994] 2 NZLR 730 at 733.
Case: N W Frozen Foods Pty Ltd v Australian Competition &amp; Consumer Commission (1997) 71 FCR 285
Outcome: applied
The proceeding against the second respondent be otherwise dismissed.' 3 Having heard submissions I made the declaration and orders sought and indicated that I would publish my reasons at a later date. These are those reasons. 4 The Court is not, of course, bound to make orders giving effect to terms of settlement agreed on between the parties. The principles to be applied by the Court in determining whether to order the imposition of a pecuniary penalty for contravention of the Act, where parties propose a particular sum, are expounded in N W Frozen Foods Pty Ltd v Australian Competition &amp; Consumer Commission (1997) 71 FCR 285 at 290-5. They are refined and elaborated upon in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] to [58]; (2004) ATPR 41-993 at [51] to [58]. I am also mindful of the observations of Emmett J in Australian Competition and Consumer Commission v ABB Power Transmission Pty Ltd [2004] FCA 819 at [46] to [56]; (2004) ATPR 42-011 at [46] to [56]. In particular, I note the following observations made by his Honour in that case: '[53] ... there is a public interest in prompting settlement of litigation, particularly litigation that is likely to be lengthy and complex. Thus, in giving weight to a joint submission on a proposal that would resolve a proceeding, the Court can have regard to the savings of resources both for a regulator, such as the Commission, and for the Court if the proposal were to be accepted. The savings in resources, for example, are capable of being used by the regulator to increase the likelihood that other contraveners will be detected and brought before the court. [ 54] The view of a regulator such as the Commission as a specialist body is relevant in determining the question of penalty, although it is by no means determinative. The Court will expect a regulator such as the Commission to explain to it the process of reasoning that has led to the resolution proposed. In particular, if a proposed penalty involves a discount from that which might otherwise be considered to be the appropriate penalty so as to reflect a degree of cooperation, the Court would expect the Commission to explain the basis upon which the discount had been calculated. ... [56] The Court will be mindful that, where an agreed penalty is proposed, there may be elements of compromise involved in both sides. Thus, it may be that evidentiary difficulties perceived by the Commission would warrant the abandonment of some claims. Certainty of outcome for both parties may be a very significant factor in the reasoning process that leads to agreement on penalty. For reasons such as those, if the Court is not disposed to impose a penalty proposed by the parties, it would be appropriate to give the parties the opportunity to withdraw consent for all of the proposed orders and to permit the proceeding to continue on a contested basis." See also Commerce Commission v New Zealand Milk Corporation Ltd [1994] 2 NZLR 730 at 733.
Case: Thomson Australian Holdings Pty Ltd v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150
Outcome: followed
In agreeing to make the declaration and orders proposed by the parties I have also had regard to the evidence received during the first three weeks of the trial to the extent that it was not contested. I also treat Mr Carney's consent to the making of the orders as 'an admission of all facts necessary or appropriate to the granting of the relief sought': see Thomson Australian Holdings Pty Ltd v The Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 164. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY J. Associate: Dated: 5 December 2006 Counsel for the Appellant: Mr S Marks SC &amp; Mr P Renehan Counsel for the Second Respondent: Litigant in Person Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 27 November 2006 Date of Judgment: 5 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1652.html
Case: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Outcome: cited
It is well understood that the discretion given by O 9 r 1 imposes no threshold requirement, for example, the demonstration of special or exceptional circumstances. Nonetheless the discretion must be exercised in accordance with judicial principle in light of the evident expectation of the rule that ordinarily a corporation will be required to be represented by a solicitor: see Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241. In the present matter Mr Jorgensen was informed of what was expected of Dynacast before consideration would be given to his representation of it. It, or he, I know not which, chose not to take the course indicated. Hence I refused his application. 22 These now relate only to the Phoneflasher Co and can be dealt with compositely. They provide respectively: " First Charge 14. Order 3 of the orders required the First Respondent to provide a corrective notice and letter, in the terms specified by the order, to all retail outlets to which the First Respondent had distributed the Phoneflasher , within 30 days of the date of the orders. 15. The date by which the First Respondent was to have complied with order 3 of the orders was 2 December 2004. 16. The First Respondent has not to the date of this Statement of Charge, supplied the corrective notice and letters in the terms specified by order 3 of the orders, to all the retail outlets to which it had distributed the Phoneflasher. 17. The First Respondent has committed a contempt of court as it has failed or refused to comply with order 3 of the orders to provide by 2 December 2004 all retail outlets to which it distributed the Phoneflasher a corrective notice and letter in the terms specified by order 3. ... Second Charge 21. Order 4 of the orders required the First Respondent to provide to the Applicant within 35 days of 2 November 2004 a list of names and addresses of retail outlets to which it had provided the corrective notice and letter in accordance with order 3 of the orders. 22. The date by which the First Respondent was to have complied with order 4 of the orders was 7 December 2004. 23. The First respondent did not supply to the Applicant a list of names and addresses of the retail outlets to which it had provided the corrective notice and letter by 7 December 2004.
Case: Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483
Outcome: cited
It is well accepted that strict compliance with the terms of mandatory orders, such as Order 3 and 4 of the consent orders in this matter, is required of the party to whom they are addressed. Nonetheless the orders themselves must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 515-516. It equally is well accepted that breach of an order must be proved beyond reasonable doubt: see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525; Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at [15] .
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: cited
It is well accepted that strict compliance with the terms of mandatory orders, such as Order 3 and 4 of the consent orders in this matter, is required of the party to whom they are addressed. Nonetheless the orders themselves must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 515-516. It equally is well accepted that breach of an order must be proved beyond reasonable doubt: see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525; Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at [15] .
Case: Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110
Outcome: cited
It is well accepted that strict compliance with the terms of mandatory orders, such as Order 3 and 4 of the consent orders in this matter, is required of the party to whom they are addressed. Nonetheless the orders themselves must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 515-516. It equally is well accepted that breach of an order must be proved beyond reasonable doubt: see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525; Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at [15] . 26 In the quotation above of the first charge I have highlighted the words "all retail outlets to which [Phoneflasher Co] had distributed the Phoneflasher". I have done so because there is an issue as to the proper construction of the order: on construction see Universal Music Australia Pty Ltd, at [19] ff. The ACCC has tendered evidence taken from the phoneflasher website which indicated that (i) on 6 January 2003, the number of retail outlets in Australia listed as having Phoneflashers available for sale, was 157; and (ii) on 3 March 2005, the website listed more than 350 such retail suppliers. Order 4 of the consent orders required the company to provide the ACCC with the required names and address of the retail outlets to which it had provided corrective signs and letters on or before 7 December 2004. No such names were by then provided. Letters informing the respondent of the breach were sent to Phoneflasher Co's solicitors and to Mr Jorgensen. 27 An ACCC officer in late December 2004 observed a Phoneflasher display stand in an Adelaide retail centre. On speaking to the manager she was informed that the manager had not received the notice required to be sent in the order. 28 On 27 January 2005, a letter from the company's lawyers was received by the lawyer for the ACCC. It enclosed a letter from Mr Kerville of 23 January 2005 which stated that (i) "the company ceased trading over 18 months ago and there are few customers on the books"; (ii) the person "who took over the distribution at that time has also since ceased trading"; and (iii) the ACCC notices had been sent "to prior Phoneflasher customers shown on the attached list". That list contained eight names and addresses.
Case: Secretary of State of Trade and Industry v Deverell [2001] Ch 340
Outcome: cited
Insofar as both of the definitions refer to a person in accordance with whose instructions or wishes the directors are accustomed to act, I should note the following well settled principles: (i) though the purpose of the definition is to identify those persons, other than professional advisers, who have real influence in, or indeed control of, the corporate affairs of a company, it is not necessary that such influence or control should be exercised over the whole field of its corporate activities: Secretary of State of Trade and Industry v Deverell [2001] Ch 340 at 354; and (ii) the influence or control exercised by a shadow director may be strategic in character, defining the context in which, or conditions upon which, the company operates, or else contriving the transactions of significance to the company: Australian Securities Commission v A S Nominees Ltd (1995) 133 ALR 1 at 52-53. See generally Ho v Akai Pty Ltd (in liq) [2005] FCAFC 265 ; (2006) 24 ACLC 1, 526.
Case: Australian Securities Commission v A S Nominees Ltd (1995) 133 ALR 1
Outcome: cited
Insofar as both of the definitions refer to a person in accordance with whose instructions or wishes the directors are accustomed to act, I should note the following well settled principles: (i) though the purpose of the definition is to identify those persons, other than professional advisers, who have real influence in, or indeed control of, the corporate affairs of a company, it is not necessary that such influence or control should be exercised over the whole field of its corporate activities: Secretary of State of Trade and Industry v Deverell [2001] Ch 340 at 354; and (ii) the influence or control exercised by a shadow director may be strategic in character, defining the context in which, or conditions upon which, the company operates, or else contriving the transactions of significance to the company: Australian Securities Commission v A S Nominees Ltd (1995) 133 ALR 1 at 52-53. See generally Ho v Akai Pty Ltd (in liq) [2005] FCAFC 265 ; (2006) 24 ACLC 1, 526. 72 For all practical purposes relating to the principal proceedings (the only known matter of continuing significance to the company), Mr Jorgensen presumed, without apparent let or hindrance of Mr Kerville, to act as the company's mind and will notwithstanding that he was not at the time a person who had been appointed to the position of director. I emphasize in this the importance of the matter to the company: cf Deputy Commissioner of Taxation v Austin (1998) 28 ACSR 565 at 570; the strategic nature of the intervention being made by Mr Jorgensen in the company's affairs; cf Australian Securities Commission v A S Nominees Ltd , at 52-53; and his apparent real influence in the affairs of the company. I should add that, while Mr Jorgensen is referred to in a website extract of 28 August 2005 a "Director" in China, I do not consider that this advances the matter. That reference could well be to a position he held in Shanghai Connexion.com Co Ltd.
Case: Ho v Akai Pty Ltd (in liq) [2005] FCAFC 265 ; (2006) 24 ACLC 1, 526
Outcome: cited
Insofar as both of the definitions refer to a person in accordance with whose instructions or wishes the directors are accustomed to act, I should note the following well settled principles: (i) though the purpose of the definition is to identify those persons, other than professional advisers, who have real influence in, or indeed control of, the corporate affairs of a company, it is not necessary that such influence or control should be exercised over the whole field of its corporate activities: Secretary of State of Trade and Industry v Deverell [2001] Ch 340 at 354; and (ii) the influence or control exercised by a shadow director may be strategic in character, defining the context in which, or conditions upon which, the company operates, or else contriving the transactions of significance to the company: Australian Securities Commission v A S Nominees Ltd (1995) 133 ALR 1 at 52-53. See generally Ho v Akai Pty Ltd (in liq) [2005] FCAFC 265 ; (2006) 24 ACLC 1, 526.
Case: Deputy Commissioner of Taxation v Austin (1998) 28 ACSR 565
Outcome: cited
For all practical purposes relating to the principal proceedings (the only known matter of continuing significance to the company), Mr Jorgensen presumed, without apparent let or hindrance of Mr Kerville, to act as the company's mind and will notwithstanding that he was not at the time a person who had been appointed to the position of director. I emphasize in this the importance of the matter to the company: cf Deputy Commissioner of Taxation v Austin (1998) 28 ACSR 565 at 570; the strategic nature of the intervention being made by Mr Jorgensen in the company's affairs; cf Australian Securities Commission v A S Nominees Ltd , at 52-53; and his apparent real influence in the affairs of the company. I should add that, while Mr Jorgensen is referred to in a website extract of 28 August 2005 a "Director" in China, I do not consider that this advances the matter. That reference could well be to a position he held in Shanghai Connexion.com Co Ltd.
Case: Australian Competition and Consumer Commission v World Netsafe Pty Ltd (No 3) [2003] FCA 159 ; (2003) 127 FCR 542
Outcome: cited
If Mr Jorgensen is to be found guilty of contempt because of the company's failure to comply with that order, it can only be on the basis that he aided or abetted the breach by the company or that did an act intending to subvert the effect of the order: see Australian Competition and Consumer Commission v World Netsafe Pty Ltd (No 3) [2003] FCA 159 ; (2003) 127 FCR 542 at [86] - [87] ; LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1213 at [50] ; Arledge, Eady &amp; Smith on Contempt , 12-109 (3 rd ed, 2005).
Case: LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1213
Outcome: cited
If Mr Jorgensen is to be found guilty of contempt because of the company's failure to comply with that order, it can only be on the basis that he aided or abetted the breach by the company or that did an act intending to subvert the effect of the order: see Australian Competition and Consumer Commission v World Netsafe Pty Ltd (No 3) [2003] FCA 159 ; (2003) 127 FCR 542 at [86] - [87] ; LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1213 at [50] ; Arledge, Eady &amp; Smith on Contempt , 12-109 (3 rd ed, 2005).