mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859
Outcome: considered
have referred already to the requirements of s 76(1) and to the considerations it includes amongst matters relevant for the Court to have regard to in determining an appropriate pecuniary penalty. I need not repeat them. Additionally, a considerable body of authority has enlarged upon the principles governing the imposition of pecuniary penalties. Those principles were helpfully distilled by Kenny J in Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859 at [16] . Her Honour there said: "The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 at [60] - [75] ; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission [1996] FCA 1134 ; (1997) 71 FCR 285 at 290-295; J McPhee &amp; Son (Aust) Pty Ltd v Australian Consumer and Competition Commission [2000] FCA 365 ; (2000) 172 ALR 532 ; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] - [58] . These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) 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. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 at [51] ; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 at [70] ; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 at [303] ."
Case: Trade Practices Commission v ICI Operations Pty Ltd [1991] FCA 527 ; (1991) 105 ALR 115
Outcome: cited
attempt has been made to quantify loss or damage caused by Hobie's conduct either to consumers or to its dealers. This said, I do not consider the absence of such evidence in the circumstances to be either a mitigating or an aggravating factor: cf Trade Practices Commission v ICI Operations Pty Ltd [1991] FCA 527 ; (1991) 105 ALR 115 at 119. (iii) Prior Contraventions: s 76(1) Hobie has not been found previously to have contravened the Act. (iv) Hobie's size, resources and market power
Case: Australian Competition and Consumer Commission v Dermalogica Pty Ltd [2005] FCA 152 ; (2005) 215 ALR 482
Outcome: cited
Hobie is a significant participant in the recreational watercraft market I am prepared to assume for present purposes that such was the market and has a well recognised brand and high quality products, it is only a small to medium enterprise. Nonetheless, the evidence indicates it has substantial and growing revenue and net profits. There is no evidence of its market power or of the commercial impact of its conduct on the market. Even if that impact (if measurable with any precision at all) was slight, it would be no less blameworthy for that reason: cf Australian Competition and Consumer Commission v Dermalogica Pty Ltd [2005] FCA 152 ; (2005) 215 ALR 482 at [81] . (v) Was the conduct systematic, deliberate or covert? The decision taken by Mr Fields and its implementation was intentional and purposive but it involved no knowing (or deliberate) contravention of the Act. It was systematic in the sense that there was no differentiation between dealers, but it was not covert in that on the evidence before me it simply cannot be said that it did other than represent Hobie's terms of trade with any prospective dealer. (vi) The period over which the conduct occurred In the case of Glascraft, the conduct commenced in August 2004 and ceased on the termination of Glascraft's relationship with Hobie on 25 August 2006 for reasons unrelated to Hobie's price/advertising requirements. In relation to all other dealers, the only conduct relied upon occurred between September 2005 and September 2006. (vii) The involvement of senior management
Case: Trade Practices Commission v Milreis Pty Ltd (No 2) [1978] FCA 20 ; (1978) 32 FLR 234
Outcome: cited
determining whether the proposed pecuniary penalty is appropriate, it is of course important to recognise that the sum agreed represents a settlement between the parties: cf Trade Practices Commission v Milreis Pty Ltd (No 2) [1978] FCA 20 ; (1978) 32 FLR 234 at 243. However, it is also important to acknowledge the deterrent function, specific and general, of such a penalty. As Goldberg J observed in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301 at [39] : "The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention."
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301
Outcome: considered
determining whether the proposed pecuniary penalty is appropriate, it is of course important to recognise that the sum agreed represents a settlement between the parties: cf Trade Practices Commission v Milreis Pty Ltd (No 2) [1978] FCA 20 ; (1978) 32 FLR 234 at 243. However, it is also important to acknowledge the deterrent function, specific and general, of such a penalty. As Goldberg J observed in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301 at [39] : "The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention."
Case: Hamilton v Oades [1989] HCA 21 ; (1989) 85 ALR 1
Outcome: cited
27 r 4 of the Federal Court Rules empowers the Court to set aside a subpoena in whole or in part on the application of any party or person having a sufficient interest. Ms Chaloner is clearly such a person. Grounds upon which subpoenas are traditionally set aside include the excessive width of documents sought or whether the subpoena on its face is oppressive. Relevantly, Deane and Gaudron JJ in Hamilton v Oades [1989] HCA 21 ; (1989) 85 ALR 1 at 11 said: The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice... In this context injustice is not simply a question of the purpose for which the relevant proceedings were instituted but includes a consideration of the consequences for the person invoking the power. The terms oppressive and vexatious are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in an appropriate context, the meaning that the proceedings are seriously and unfairly burdensome, prejudicial or damaging and productive of serious and unjustified trouble and harassment. In the circumstances before me I am not prepared to set aside the subpoena served on Ms Chaloner. I take this view for the following reasons: The appropriate order is that the notice of motion be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 22 June 2009 Solicitor for the Applicant: Mr SC Russell of Russell and Company Counsel for the First and Second Respondents: Mr P Telford Solicitor for the First and Second Respondents: BCI Lawyers Date of Hearing: 11 June 2009 Date of Judgment: 11 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/639.html
Case: Re APN News &amp; Media Limited [2007] FCA 770
Outcome: referred to
The first was the issue of performance risk. This is an issue which has been raised in a number of cases to which Mr Jackman referred. The most recent case is Re APN News &amp; Media Limited [2007] FCA 770 at [23] . 6 I was satisfied that the "performance risk" was sufficiently addressed in relation to each of the Schemes for the reasons set out in the written submissions. 7 The second matter to which reference was made was an exclusivity provision contained in clause 19 of the Merger Implementation Agreement. This contained a "no shop restriction", a "no talk restriction" and a "no due diligence restriction".
Case: Re Arthur Yates &amp; Co Ltd [2001] NSWSC 40 ; (2001) 36 ACSR 758
Outcome: referred to
Each of the concerns in relation to exclusivity clauses expressed by Santow J in Re Arthur Yates &amp; Co Ltd [2001] NSWSC 40 ; (2001) 36 ACSR 758 at [9] was addressed in the written submissions. 9 The third issue to which Mr Jackman referred was the question of a break fee of $100 million provided for in cl 20.2 of the Merger Implementation Agreement.
Case: Re Hostworks Group Ltd (2008) 26 ACLC 137
Outcome: referred to
The fourth issue was the deemed warranty in cl 4.5 of the Share Scheme that the shares be free from encumbrances. Mr Jackman referred me to the view which is accepted in this Court as stated in Re Hostworks Group Ltd (2008) 26 ACLC 137 at [41]. This view has been followed in the Supreme Court of New South Wales by Barrett J in Macquarie Private Capital A Ltd (2008) 26 ACLC 366. The clause was therefore in accordance with established authority and it was drawn to the attention of scheme participants: see further Re APN News &amp; Media Ltd at [63]. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 11 December 2008 Counsel for the Plaintiff: Mr I Jackman SC Solicitor for the Plaintiff: Allens Arthur Robinson Counsel for Westpac Banking Corporation: Mr T F Bathurst QC with A J Payne Solicitors for Westpac Banking Corporation: Gilbert &amp; Tobin Date of Hearing: 29 September 2008 Date of Judgment: 29 September 2008 Date of Publication of Reasons for Judgment: 3 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1839.html
Case: Macquarie Private Capital A Ltd (2008) 26 ACLC 366
Outcome: referred to
The fourth issue was the deemed warranty in cl 4.5 of the Share Scheme that the shares be free from encumbrances. Mr Jackman referred me to the view which is accepted in this Court as stated in Re Hostworks Group Ltd (2008) 26 ACLC 137 at [41]. This view has been followed in the Supreme Court of New South Wales by Barrett J in Macquarie Private Capital A Ltd (2008) 26 ACLC 366. The clause was therefore in accordance with established authority and it was drawn to the attention of scheme participants: see further Re APN News &amp; Media Ltd at [63]. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 11 December 2008 Counsel for the Plaintiff: Mr I Jackman SC Solicitor for the Plaintiff: Allens Arthur Robinson Counsel for Westpac Banking Corporation: Mr T F Bathurst QC with A J Payne Solicitors for Westpac Banking Corporation: Gilbert &amp; Tobin Date of Hearing: 29 September 2008 Date of Judgment: 29 September 2008 Date of Publication of Reasons for Judgment: 3 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1839.html
Case: Re SFE Corporation Ltd [2006] FCA 670
Outcome: referred to
I was satisfied that the break fee provision did not offend the principles stated in the authorities including Re SFE Corporation Ltd [2006] FCA 670 at [6] [7].
Case: SZKJI v Minister for Immigration &amp; Anor [2007] FMCA 1998
Outcome: related
This appeal from a decision of the Federal Magistrates Court ( SZKJI v Minister for Immigration &amp; Anor [2007] FMCA 1998) refusing relief in relation to a decision of the Refugee Review Tribunal (the Tribunal) came on for hearing before me on 28 May last. The appellant is unrepresented. The only point of substance which appeared to me to arise out of the appellant's case was an argument that s 425 of the Migration Act 1958 (Cth) (the Act) had not been complied with. The appellant had been afforded a hearing by the Tribunal member then constituting the Tribunal. Following that hearing, the Tribunal was reconstituted and another member substituted. That Tribunal member refused the appellant's request for a hearing. The appellant, in addition to making a general request, had made particular criticisms of the manner in which the previous hearing had been conducted. Counsel for the first respondent submitted that, although some divergence had emerged between various single judge decisions about the application of s 425 , the circumstances of this case were, so far as is relevant, indistinguishable from those the subject of the Full Court decision in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541 and the appeal was bound to fail.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Outcome: followed
Federal Magistrate was also of the view that the finding that the appellant had engaged in delaying tactics did not constitute " Wednesbury " ( Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 233) unreasonableness in the sense that the Tribunal had acted unreasonably in not making enquiries of Dr Crimmins. The Federal Magistrate said there was no obligation on the Tribunal to embark on an open ended enquiry as to the fitness of an applicant to appear applying Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at par [43]. The Federal Magistrate held that the Tribunal's invitation in accordance with s 425 had been meaningful. At [64] of the judgment, the Federal Magistrate concluded: "The primary reason for rejecting the applicant's claims was their inconsistency with the evidence. The issue of whether the applicant was medically unfit to attend a hearing or provide responses to s.424A letters was a matter of subsidiary importance, and the Tribunal dealt with the matter in a reasonable manner." By a notice of appeal filed on 21 October 2008, the appellant appealed from the decision of the Federal Magistrate on the grounds that the Federal Magistrate erred in: "(a) Improperly construing or misdirecting itself as to the appellant's first ground of review as seeking to challenge a finding of fact by the Tribunal that "the applications for extensions of time and rescheduling of hearings were delaying tactics" (b) Failing to properly apply sections 425 and 426A of the Migration Act in determining whether the Tribunal failed to properly exercise its discretion to reschedule the applicant's appearance before it, or from delaying its discretion on the review to enable the applicant's appearance before it to be rescheduled (c) Failing to properly apply the [ Wednesbury ] principle to the Tribunal's decision in that the Tribunal in arriving at the Tribunal's decision acted so unreasonably in failing to make limited inquiries with Dr Bernard Crimmins on a critical issue which the Tribunal knew or ought to reasonably know was readily available that no reasonable decision maker would have proceeded to make a decision without such information. (d) Failing to properly apply sections 425 and 424A of the Migration Act in that the Tribunal failed to take such steps so as to provide a real or meaningful opportunity to the appellant to respond to the s.424A letters or to attend a hearing to give evidence and present arguments pursuant to s.425 of the Migration Act ."
Case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155
Outcome: cited
appellant submitted that ground (c) of his Notice of Appeal was made out as the Tribunal failed to make enquiries of Dr Crimmins. The appellant submitted that the present circumstances were "exceptional" so as to render such a failure a ground of jurisdictional error because the ensuing decision was "unreasonable" in the Wednesbury sense. The appellant relied on the decision of Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169 for the proposition that a decision-maker's failure to obtain important information on a critical issue which the decision-maker knows or ought to reasonably know is readily available, can be characterised as so unreasonable that no reasonable decision-maker would proceed to decision without making such inquiry. However, it must be remembered that in that case Wilcox J said at 169-170: "The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries."
Case: Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48
Outcome: cited
do not consider that the present circumstances fall into the category of a rare and exceptional circumstance which is an exception to the well accepted proposition that the Tribunal is not bound to initiate or make its own enquiries: Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at 73-74; Minister for Immigration and Citizenship v Le (2007) (supra) at 174-176. The Tribunal was under no obligation to call Dr Crimmins and clarify the appellant's capacity to attend the hearing or respond to questions having regard to the content of his letter and the previous communications to the appellant and his solicitor. This was not a matter which constituted "some obvious omission or obscurity that needs to be resolved before a decision is made": Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J.
Case: Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151
Outcome: cited
appellant accepted that there is no general obligation on the Tribunal to initiate enquiries or to make out an appellant's case but submitted that there was authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision unreasonable in the sense used in Wednesbury (supra). The appellant relied on Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151. In Le , the primary decision-maker relied on a mistranslated version of the applicant's statement. The Tribunal's failure to allude to this and failure to make enquiries of the relevant department gave rise to a jurisdictional error. The circumstances in the present case are quite different. Given the background of the communications between the Tribunal and the appellant's representative prior to Dr Crimmins' letter and its contents, it was not unreasonable for the Tribunal to assume that Dr Crimmins had said all that he could relevantly say and that there was no point in making any enquiry of Dr Crimmins. I do not consider that the present circumstances fall into the category of a rare and exceptional circumstance which is an exception to the well accepted proposition that the Tribunal is not bound to initiate or make its own enquiries: Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at 73-74; Minister for Immigration and Citizenship v Le (2007) (supra) at 174-176. The Tribunal was under no obligation to call Dr Crimmins and clarify the appellant's capacity to attend the hearing or respond to questions having regard to the content of his letter and the previous communications to the appellant and his solicitor. This was not a matter which constituted "some obvious omission or obscurity that needs to be resolved before a decision is made": Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J.
Case: Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167
Outcome: cited
do not consider that the present circumstances fall into the category of a rare and exceptional circumstance which is an exception to the well accepted proposition that the Tribunal is not bound to initiate or make its own enquiries: Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at 73-74; Minister for Immigration and Citizenship v Le (2007) (supra) at 174-176. The Tribunal was under no obligation to call Dr Crimmins and clarify the appellant's capacity to attend the hearing or respond to questions having regard to the content of his letter and the previous communications to the appellant and his solicitor. This was not a matter which constituted "some obvious omission or obscurity that needs to be resolved before a decision is made": Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J.
Case: Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719
Outcome: referred to
As the respondent acknowledged, the Minister doubtless knew that, if the applicant were removed from Australia, he would be returned to China since he was a citizen of that country. It might reasonably be assumed that, on his return, he would be arrested and face the charges to which the Interpol Red Notice referred. It does not follow from this, however, that the Minister's purpose in cancelling the applicant's visa under s 501(3) was to effect his extradition to China. Unless it can be said that the Minister's purpose in exercising power under s 501(3) was to bring the applicant to justice in China, the exercise of power was not an improper one: see Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 at 731 per Wilcox and French JJ. In Schlieske 84 ALR at 731, a case concerned with the lawfulness of a Ministerial deportation order, their Honours said: The golden rule is that the Australian authorities are entitled, notwithstanding their knowledge that a particular deportee is wanted in the country of destination, to do everything which is necessary for the enforcement of the Migration Act ... But they are not entitled to go beyond that, and in purported exercise of powers under that Act, to take steps whose only purpose is the bringing to justice of the deportee in a foreign country. At that stage the Australian authorities would not be exercising deportation powers; they would be involved in an unlawful extradition.