mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: followed
Moreover, his Honour asked Ms Wong, who had also appeared before him as counsel for the Minister, to make submissions on a possible contravention of the procedure laid down in s 424A in light of the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. His Honour adopted as correct Ms Wong's submissions that there had been no contravention of s 424A because sufficient independent bases for the Tribunal's decision appeared in its reasons ([2005] FMCA 1519 [17]). 21 But as Allsop J pointed out in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [213] - [215] (Weinberg J agreeing at [2006] FCAFC 2 [155]) that approach is inconsistent with the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. I agree with Weinberg and Allsop JJ. The decision of the majority of the High Court in SAAP v Minister [2005] HCA 24 ; (2005) 215 ALR 162, of course, was decided after Finn and Stone JJ's judgment was given. Hayne J, with whom Kirby J expressly agreed on this point (215 ALR at 203 [173]-[174]) said that where the Act prescribes steps that the Tribunal must take in conducting its review and those steps were directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, any failure to comply with the requirements of s 424A rendered the decision invalid. McHugh J was equally emphatic (215 ALR at 184 [83]).
Case: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014
Outcome: applied
Lord Wilberforce said in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E: ' If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the Court must enquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, it becomes capable of challenge ...' (see too Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 233 [27] , 241 [58], 250 [97])
Case: Smith v NSW Bar Association [1992] HCA 36 ; (1992) 176 CLR 256
Outcome: followed
The significance of the misconstruction of the appellant's claim about her house in the present case was highlighted by the Tribunal's positive conclusion that she had been untruthful about it. That was tantamount to a finding that she had deliberately lied. Whether or not the lie was on oath, there is a difference between the rejection of a person's evidence and a finding that he or she deliberately lied as Brennan, Dawson, Toohey and Gaudron JJ explained in Smith v NSW Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 268. Their Honour's concluded: 'But, as a matter of logic and common sense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.' 41 The finding of the appellant lying about her claim was tied by the Tribunal to its misconception of what the original claim was and was arrived at in the prism of that pejorative misconception.
Case: SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200
Outcome: followed
Moreover, there is a number of judgments in the Court in which conflicting views have been expressed as to whether the general proposition in VAF v Minister (2004) 206 ALR 471 at 447 lays down a rule of general application that identified gaps, defects or lack of detail or specificity in evidence or conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc. can never amount to information. In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 at [21] , Allsop J pointed out there may be a distinction, sometimes fine, but nevertheless important, between information which may be knowledge acquired by the Tribunal and the subjective appraisal or thought processes of it. His Honour concluded (at [2005] FCA 1200 at [29] - [30] ): 'If, as here, the very form and content of a statement (including what was not said) is central to the rejection of virtually all of the evidence of the appellant, I do not see anything [Branson J said] in NIAH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 124 FCA 223 at [28] as necessarily inconsistent with an application of s 424A. To say that there is no information here because the statement (which is information) lacked the aspect now being adduced would be to fail to recognize that the information that is central to the reason for the decision is that the appellant said so much and no more on an earlier occasion. That is the relevant information.'
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: followed
At no time did the Tribunal give the appellant any particulars under s 424A. The Tribunal had before it, and had regard to, the information which the applicant had provided in her original visa application and the other material in the departmental file, including that which the delegate had elicited from her. None of the information of the kind just mentioned fell within the meaning of the exception in s 424A(3)(b): SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [5] - [9] , [154], [184] applying Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at 33-34 [17] . 21 But as Allsop J pointed out in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [213] - [215] (Weinberg J agreeing at [2006] FCAFC 2 [155]) that approach is inconsistent with the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. I agree with Weinberg and Allsop JJ. The decision of the majority of the High Court in SAAP v Minister [2005] HCA 24 ; (2005) 215 ALR 162, of course, was decided after Finn and Stone JJ's judgment was given. Hayne J, with whom Kirby J expressly agreed on this point (215 ALR at 203 [173]-[174]) said that where the Act prescribes steps that the Tribunal must take in conducting its review and those steps were directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, any failure to comply with the requirements of s 424A rendered the decision invalid. McHugh J was equally emphatic (215 ALR at 184 [83]).
Case: SZGIZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1739
Outcome: referred to
The Minister also referred me to more recent authority including Stone J's decision in SZGIZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1739 [31] to like effect. The Minister submitted that the Tribunal had a duty to consider all the material before it for the purposes of identifying what claim or claims an applicant for review had made in support of the claim for a protection visa, relying on the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 (see e.g. at 393-394 [23]-[24] and [26]). For that purpose it was said that the Tribunal was entitled to have regard to all of the material before it.
Case: Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777
Outcome: referred to
The CEPU contested the allegations made against it. The proceeding, in so far as it involved allegations against the CEPU, went to trial before Young J. On 19 December 2006 his Honour made orders declaring that the CEPU had been an accessory to the contraventions, by Edison, of ss 45E(3) and 45EA of the Act . His Honour further ordered that the CEPU be restrained for a period of three years from engaging in any repetition of such conduct directed to Edison: see Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777. Having heard further submissions relating to the quantum of penalty and costs his Honour, on 16 January 2007, ordered that the CEPU pay a penalty of $125,000 and costs of $200,000: see Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No. 2) [2007] FCA 11. The CEPU has lodged an appeal against his Honour's decision. The appeal grounds challenge his Honour's findings in relation to liability and penalty.
Case: Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851
Outcome: cited
The maximum monetary penalty which may be imposed upon a corporation for a contravention of ss 45E and 45EA of the Act is, in each case, $750,000: see s 76(1A) of the Act . Edison's admissions, therefore, render it liable to a maximum aggregate penalty of $1.5m. It was submitted that an appropriate penalty, absent any ameliorative factors, was one tenth of that amount, namely $150,000. A discount of $30,000 was applied to take account of Edison's cooperation with the ACCC in the course of the ACCC's investigation and Edison's early admission of liability: cf Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851.
Case: Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329
Outcome: cited
The declarations, proposed by the parties, and made by the Court, identify the relevant conduct and declare that it involved contraventions of the Act . Such declarations are appropriate in circumstances such as the present. They serve the public interest by making it plain that conduct of the kind admitted by Edison contravenes the Act : see Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 at 333; Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91.
Case: Australian Competition and Consumer Commission v NW Frozen Foods (1996) ATPR 41-515
Outcome: referred to
In determining the "proper range" within which a monetary penalty for contravention of the Act falls a wide range of considerations has potential application. The Court is required, by s 76(1) of the Act , to have regard "to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under ... Part [VI] to have engaged in any similar conduct." Additional factors have been identified by the Court: see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-153; ACCC v NW Frozen Foods (1996) ATPR 41-515 at 42,444-42,445. To the extent that these factors have application in the circumstances in the present case, I have taken them into account.
Case: Lowe v R [1984] HCA 46 ; (1984) 154 CLR 606
Outcome: referred to
The agreement between the ACCC and Edison had been entered into well before Young J determined that a penalty of $125,000 should be imposed on the CEPU. In these circumstances the principle of parity assumes considerable importance in determining the appropriate penalty to be imposed on Edison. That principle of parity, better known in the context of criminal sentencing, is applicable in cases such as the present: see Northwest Frozen Foods at 295. It requires, inter alia, that disparate penalties should not be imposed on co-offenders such as to engender "a justifiable sense of grievance" on the part of one of them or as to "give the appearance that justice has not been done": see Lowe v The Queen [1984] HCA 46 ; (1984) 154 CLR 606 at 611; Postiglione v The Queen [1997] HCA 26 ; (1997) 189 CLR 295 at 301, 338. The tests are objective and they are to be applied "having regard to the different circumstances of the co-offenders in question and their different degrees of [culpability]": Postiglione at 302.
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Outcome: cited
The parties were agreed that a single pecuniary penalty should be imposed in respect of all of the contravening conduct. It was submitted that the appropriate amount was $120,000. The parties acknowledged that it remained a matter for the Court to make an independent judgment as to the amount of the penalty. The exercise of the Court's powers in this regard is guided by the principles outlined in the joint judgment of Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 291 . Their Honours said: "There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, except in a clear case." See also Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; (2004) ATPR 41-993.
Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Outcome: followed
The parties were agreed that a single pecuniary penalty should be imposed in respect of all of the contravening conduct. It was submitted that the appropriate amount was $120,000. The parties acknowledged that it remained a matter for the Court to make an independent judgment as to the amount of the penalty. The exercise of the Court's powers in this regard is guided by the principles outlined in the joint judgment of Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 291 . Their Honours said: "There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, except in a clear case." See also Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; (2004) ATPR 41-993.
Case: Postiglione v R [1997] HCA 26 ; (1997) 189 CLR 295
Outcome: referred to
The agreement between the ACCC and Edison had been entered into well before Young J determined that a penalty of $125,000 should be imposed on the CEPU. In these circumstances the principle of parity assumes considerable importance in determining the appropriate penalty to be imposed on Edison. That principle of parity, better known in the context of criminal sentencing, is applicable in cases such as the present: see Northwest Frozen Foods at 295. It requires, inter alia, that disparate penalties should not be imposed on co-offenders such as to engender "a justifiable sense of grievance" on the part of one of them or as to "give the appearance that justice has not been done": see Lowe v The Queen [1984] HCA 46 ; (1984) 154 CLR 606 at 611; Postiglione v The Queen [1997] HCA 26 ; (1997) 189 CLR 295 at 301, 338. The tests are objective and they are to be applied "having regard to the different circumstances of the co-offenders in question and their different degrees of [culpability]": Postiglione at 302.
Case: Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: cited
The declarations, proposed by the parties, and made by the Court, identify the relevant conduct and declare that it involved contraventions of the Act . Such declarations are appropriate in circumstances such as the present. They serve the public interest by making it plain that conduct of the kind admitted by Edison contravenes the Act : see Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 at 333; Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91.
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: referred to
In determining the "proper range" within which a monetary penalty for contravention of the Act falls a wide range of considerations has potential application. The Court is required, by s 76(1) of the Act , to have regard "to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under ... Part [VI] to have engaged in any similar conduct." Additional factors have been identified by the Court: see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-153; ACCC v NW Frozen Foods (1996) ATPR 41-515 at 42,444-42,445. To the extent that these factors have application in the circumstances in the present case, I have taken them into account.
Case: Alfred v Walter Construction Group Pty Ltd [2005] FCA 497
Outcome: referred to
engaged in prior to 15 February 2006 (when the first contravention occurred) and for which no contravention was recorded until after 15 February 2006 is not treated as a prior contravention: see Alfred v Walter Construction Group Pty Ltd [2005] FCA 497 at [13] per Branson J. However, similar conduct engaged in prior to 15 February 2006 and for which a contravention was recorded after that date can be taken into account ( Alfred [2005] FCA 497 at [13] ) although will usually be given less weight than a prior contravention as judicially determined: see R v McInerney (1986) 42 SASR 111 at 113 per King CJ and 124 per Cox J. Further, similar conduct subsequently found to have been done after the relevant date (here 15 February 2006) is not irrelevant to the assessment of appropriate penalty. As the applicant noted, there have been cases involving s 170NC that have, in substance, involved judicial findings of similar unlawful conduct by the Union's representatives prior to 15 February 2006: see Alfred v Construction, Forestry, Mining &amp; Energy Union , District Court of New South Wales, 5 March 2004 and Alfred v Walter Construction Group Limited [2005] FCA 497. Although involving different conduct, these two s 170NC cases may be said to demonstrate a similar modus operandi on the Union's part to this case in which coercion is used to secure control of employees on building site. I would regard both these prior contraventions as relevant to the imposition of penalties, although I note that in both cases the conduct in question took place in New South Wales, rather than in Victoria. For reasons explained below, this affects the weight I would attach to them. As noted below, the question of weight is an unavoidable one when considering the significance of prior contraventions. Each of the other s 170NC cases relied on by the applicant is in a different class.
Case: R v McInerney (1986) 42 SASR 111
Outcome: referred to
engaged in prior to 15 February 2006 (when the first contravention occurred) and for which no contravention was recorded until after 15 February 2006 is not treated as a prior contravention: see Alfred v Walter Construction Group Pty Ltd [2005] FCA 497 at [13] per Branson J. However, similar conduct engaged in prior to 15 February 2006 and for which a contravention was recorded after that date can be taken into account ( Alfred [2005] FCA 497 at [13] ) although will usually be given less weight than a prior contravention as judicially determined: see R v McInerney (1986) 42 SASR 111 at 113 per King CJ and 124 per Cox J. Further, similar conduct subsequently found to have been done after the relevant date (here 15 February 2006) is not irrelevant to the assessment of appropriate penalty.
Case: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375
Outcome: discussed
unlawful conduct in the past is relevant and may justify a heavier penalty than might otherwise be imposed, although not a penalty that is disproportionate to the contravention in question: see Coal and Allied Operations Pty Ltd (No 2) 94 IR at 232 [7]-[8] per Branson J. As Tracey J observed in Stuart-Mahoney 177 IR at 70 [44], "[s]imilar previous conduct demonstrates that the respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions". Also, as his Honour went on to say: Conduct which is of a different character does not assist this assessment: see Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 389 [67] . Similar conduct which has been found to contravene other legislative provisions will have potential relevance. In support of this proposition, the respondents relied on Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 390 and Temple v Powell 173 IR 189 at 209 [63]. In Leighton Contractors , the Supreme Court of Western Australia was called to fix a penalty for contravention of s 38 of the Building and Construction Industry Improvement Act . In connection with the Union's prior contraventions, after citing with approval the comments of Branson J in Coal and Allied Operations Pty Ltd (No 2) 94 IR 231 (see [9] above), Le Miere J said (at 390 [67]) that: One matter her Honour considered was whether the respondent had previously been found to have engaged in conduct in contravention of Pt XA of that Act. In my view, that is the correct approach. It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the first defendant anywhere in Australia. The first defendant is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the first defendant are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of the conduct of the first defendant through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in questions and are contraventions of different legislation.