mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: JP Morgan Portfolio Services Limited v Deloitte Touche Tohmatsu [2008] FCA 433 ; (2008) 65 ACSR 636
Outcome: referred to
Mr Fernon SC, who appears this morning for the plaintiffs, has referred me to a line of authorities which reveals the dispute. I do not intend to record what was said in those authorities, but the cases and relevant paragraphs are: Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 at [50] ; Ramantanis v G and M Excavations; v I and M Excavations [2003] NSWSC 1250 at [7] to [8]; Murray Halstead v CTS Quality Building Products Pty Ltd (in liq) [2006] NSWSC 1022 at [12] ; JP Morgan Portfolio Services Limited v Deloitte Touche Tohmatsu [2008] FCA 433 ; (2008) 65 ACSR 636 at [7] -[8], and [10]. With the exception of the decision of Austin J in ACCC v ASIC , these authorities support the proposition that on registration of a company, the liquidator who was in office at the time of deregistration is not automatically reinstated.
Case: Murray Halstead v CTS Quality Building Products Pty Ltd (in liq) (2006) NSWSC 1022
Outcome: referred to
Mr Fernon SC, who appears this morning for the plaintiffs, has referred me to a line of authorities which reveals the dispute. I do not intend to record what was said in those authorities, but the cases and relevant paragraphs are: Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 at [50] ; Ramantanis v G and M Excavations; v I and M Excavations [2003] NSWSC 1250 at [7] to [8]; Murray Halstead v CTS Quality Building Products Pty Ltd (in liq) [2006] NSWSC 1022 at [12] ; JP Morgan Portfolio Services Limited v Deloitte Touche Tohmatsu [2008] FCA 433 ; (2008) 65 ACSR 636 at [7] -[8], and [10]. With the exception of the decision of Austin J in ACCC v ASIC , these authorities support the proposition that on registration of a company, the liquidator who was in office at the time of deregistration is not automatically reinstated.
Case: Ramantanis v G and M Excavations; v I and M Excavations [2003] NSWSC 1250
Outcome: referred to
Mr Fernon SC, who appears this morning for the plaintiffs, has referred me to a line of authorities which reveals the dispute. I do not intend to record what was said in those authorities, but the cases and relevant paragraphs are: Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 at [50] ; Ramantanis v G and M Excavations; v I and M Excavations [2003] NSWSC 1250 at [7] to [8]; Murray Halstead v CTS Quality Building Products Pty Ltd (in liq) [2006] NSWSC 1022 at [12] ; JP Morgan Portfolio Services Limited v Deloitte Touche Tohmatsu [2008] FCA 433 ; (2008) 65 ACSR 636 at [7] -[8], and [10]. With the exception of the decision of Austin J in ACCC v ASIC , these authorities support the proposition that on registration of a company, the liquidator who was in office at the time of deregistration is not automatically reinstated.
Case: Chief Executive, Department of Internal Affairs v Atkinson &amp; Ors CIV-2008-409-002391
Outcome: cited
to s 24(2)(c) , the circumstances in which the contravention took place are outlined in the agreed statement of facts. As to s 24(2)(d) , Mr Atkinson has not previously been found by the Court in proceedings under the Spam Act to have engaged in any conduct similar to a contravention of s 16(1). Section 24(2)(e) addresses the question of whether Mr Atkinson has previously been found by a Court in a foreign country to have engaged in any similar conduct. As to that matter, the parties make this joint submission at para 53: In December 2008, Mr Atkinson was found by the High Court of New Zealand to have engaged in similar conduct arising from the same underlying facts [ Chief Executive, Department of Internal Affairs v Atkinson &amp; Ors CIV-2008-409-002391, per French J, 19 December 2008]. Mr Atkinson cooperated with New Zealand authorities to resolve those proceedings, and paid a pecuniary penalty in the amount of NZ$100,000 in respect of contravening emails sent to recipients in New Zealand.
Case: Australian Communications and Media Authority v Mobilegate Limited A Company Incorporated in Hong Kong (No 4) [2009] FCA 1225 ; (2009) 261 ALR 326
Outcome: cited
have now been three judgments of the Court in respect of contraventions of s 16 (among other provisions) of the Spam Act . They are, Australian Communications and Media Authority v Clarity1 Pty Ltd [2006] FCA 1399; (2006) 155 FCR 377 per Nicholson J; Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 4) [2009] FCA 1225 ; (2009) 261 ALR 326 per Logan J; and a further ex tempore judgment by Logan J on 16 December 2009 concerning further respondents in the Mobilegate litigation ( Australian Communications and Media Authority v Mobilegate Ltd (No 6) [2009] FCA 1533).
Case: Australian Communications and Media Authority v Mobilegate Limited A Company Incorporated in Hong Kong (No 6) [2009] FCA 1533
Outcome: cited
have now been three judgments of the Court in respect of contraventions of s 16 (among other provisions) of the Spam Act . They are, Australian Communications and Media Authority v Clarity1 Pty Ltd [2006] FCA 1399; (2006) 155 FCR 377 per Nicholson J; Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 4) [2009] FCA 1225 ; (2009) 261 ALR 326 per Logan J; and a further ex tempore judgment by Logan J on 16 December 2009 concerning further respondents in the Mobilegate litigation ( Australian Communications and Media Authority v Mobilegate Ltd (No 6) [2009] FCA 1533).
Case: Trade Practices Commission v Stihl ChainSaws (Aust) Pty Ltd (1978) ATPR 40-091
Outcome: cited
Mobilegate , Logan J was addressing conduct involving the sending of unsolicited short-message-service messages to the mobile telephones of users who had been deceived into providing their mobile telephone numbers to representatives of either Mobilegate , the first respondent, or Winning Bid , the second respondent, under the belief that they were corresponding with individuals seeking to meet them and form relationships via dating web-sites. Logan J described the respondents as "predators on the emotionally vulnerable for reward" which was "a particularly vile form of behaviour". His Honour said the conduct was "duplicitous and exploitative" and "cruel and callous". His Honour concluded that this class of conduct warranted a "very substantial penalty". Among a number of considerations his Honour noted that the conduct was deliberate and covert and that penalties must be sufficiently significant to "deter the unscrupulous from taking a calculated business risk" but should not be so high as to be "oppressive" in the sense contemplated in Trade Practices Commission v Stihl ChainSaws (Aust) Pty Ltd [1978] FCA 104; (1978) ATPR 40-091. In addition, the evidence demonstrated that there was approximately $4m of financial loss on the part of individual mobile telephone users who were charged communications fees. His Honour found that the conduct was "of such an intimate exploitive nature that the exploiter by the very conduct gives itself, himself or herself, a degree of insulation at a practical level from suits for financial recovery" and the conduct involved a "consistent pattern of studied deception". It was deliberate contravening conduct with no mitigating circumstances. In addition, there was no evident cooperation in the administration of justice. The entity, Mobilegate , was ordered to pay $5m which represented 6.87% of a possible maximum of approximately $72,820,000. The entity Winning Bid was ordered to pay $3,500,000 representing 8.51% of a possible maximum of $41,140,000. So far as the individuals were concerned, Logan J took into account that their involvement was extensive, knowing and persistent. However, in examining the implications which might be drawn from statutory maximum pecuniary penalties in the context of individuals found to be parties to contravening corporate conduct, Logan J considered assessment of the maximum penalty as a "theoretical exercise". Significant pecuniary penalties were ordered against the individuals having regard to the quality of their engagement in the conduct of the corporation. There is little point isolating the amount of each penalty in respect of each individual in the circumstances of the findings.
Case: Markarian v The Queen (2005) 228 CLR 357
Outcome: cited
it is important to take into account the scale of penalties the Parliament has selected as the appropriate range leading to a maximum penalty in respect of contraventions of particular legislation. Often, careful attention will need to be given to the Parliament's selection of maximum penalties as an expression of the Parliamentary intention that particular conduct, must be transparently deterred. This is entirely consistent with Markarian v The Queen (2005) 228 CLR 357. In addition, the Regulation Impact Statement at p 4 of the EM sets out the following statement of the problem sought to be addressed by the Spam Act at p 4. B.1 Problem or issue identification Unsolicited electronic messages or "spam" are reaching plague proportions and growing exponentially. It is causing immense frustration and reduced productivity for users, businesses and government agencies. If left unchecked it will reach proportions which will threaten the viability of the internet as a reliable communications medium. A recent comprehensive review of the problem by the National Office for the Information Economy recommended a multi-layered approach to addressing the problem, including the implementation of specific anti-spam legislation. The EM describes the problem so identified as an international problem affecting the efficient operation of internet telecommunications networks and imposing costs on end-users. At p 5, the EM notes, "There are clear signs of a deleterious impact on the performance of the global e-mail network with some commentators predicting that the continuing proliferation of spam could mean the end of e-mail as an effective form of communication". At p 67, the EM contains this observation in relation to penalties: A daily ceiling for penalties has been set that may be charged for all contraventions against a particular provision that have occurred in one day. This has been included to ensure that a meaningful penalty may be charged for a single contravention without causing an unrealistically large penalty payable for multiple contraventions. For example, there are reported cases of dedicated spammers sending millions of unsolicited commercial electronic messages each day. Without a ceiling amount for daily contraventions, such a spammer could potentially be liable for a million contraventions. The ratio between the penalty payable for a person for single contravention and the ceiling amount is 20 times. Conclusions
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Outcome: cited
, although the pecuniary penalty is a matter for the Court to determine ( Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72), and the question of whether the Court ought to make declarations as to particular matters or injunctions framed in a particular way or at all necessarily involves discretionary considerations and questions of utility, the Court will attach significant weight to a negotiated settlement quickly reached between parties acting with the benefit of legal advice, provided the document identifies the conduct precisely; the responsibility of each respondent in that conduct is recognised (whether at the centre or at the margin); and the proposed penalty is within the range the Court would impose and is thus not manifestly inadequate: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199. The approach to the assessment of a pecuniary penalty under the Spam Act ought, in principle, to reflect some of the considerations applied by the Court in assessing a pecuniary penalty under the Trade Practices Act 1974 (Cth). In particular, the Court will have regard to the elements of specific and general deterrence and assess whether a proposed penalty might be so high as to be oppressive in all the circumstances: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; TPC v Stihl Chainsaws (Aust) Pty Limited ; NW Frozen Foods Pty Ltd v ACCC at 293.
Case: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375
Outcome: cited
, although the pecuniary penalty is a matter for the Court to determine ( Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72), and the question of whether the Court ought to make declarations as to particular matters or injunctions framed in a particular way or at all necessarily involves discretionary considerations and questions of utility, the Court will attach significant weight to a negotiated settlement quickly reached between parties acting with the benefit of legal advice, provided the document identifies the conduct precisely; the responsibility of each respondent in that conduct is recognised (whether at the centre or at the margin); and the proposed penalty is within the range the Court would impose and is thus not manifestly inadequate: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199. The approach to the assessment of a pecuniary penalty under the Spam Act ought, in principle, to reflect some of the considerations applied by the Court in assessing a pecuniary penalty under the Trade Practices Act 1974 (Cth). In particular, the Court will have regard to the elements of specific and general deterrence and assess whether a proposed penalty might be so high as to be oppressive in all the circumstances: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; TPC v Stihl Chainsaws (Aust) Pty Limited ; NW Frozen Foods Pty Ltd v ACCC at 293.
Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Outcome: cited
, although the pecuniary penalty is a matter for the Court to determine ( Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72), and the question of whether the Court ought to make declarations as to particular matters or injunctions framed in a particular way or at all necessarily involves discretionary considerations and questions of utility, the Court will attach significant weight to a negotiated settlement quickly reached between parties acting with the benefit of legal advice, provided the document identifies the conduct precisely; the responsibility of each respondent in that conduct is recognised (whether at the centre or at the margin); and the proposed penalty is within the range the Court would impose and is thus not manifestly inadequate: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199. The approach to the assessment of a pecuniary penalty under the Spam Act ought, in principle, to reflect some of the considerations applied by the Court in assessing a pecuniary penalty under the Trade Practices Act 1974 (Cth). In particular, the Court will have regard to the elements of specific and general deterrence and assess whether a proposed penalty might be so high as to be oppressive in all the circumstances: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; TPC v Stihl Chainsaws (Aust) Pty Limited ; NW Frozen Foods Pty Ltd v ACCC at 293.
Case: Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) [2009] FCA 754
Outcome: cited
, although the pecuniary penalty is a matter for the Court to determine ( Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72), and the question of whether the Court ought to make declarations as to particular matters or injunctions framed in a particular way or at all necessarily involves discretionary considerations and questions of utility, the Court will attach significant weight to a negotiated settlement quickly reached between parties acting with the benefit of legal advice, provided the document identifies the conduct precisely; the responsibility of each respondent in that conduct is recognised (whether at the centre or at the margin); and the proposed penalty is within the range the Court would impose and is thus not manifestly inadequate: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199. The approach to the assessment of a pecuniary penalty under the Spam Act ought, in principle, to reflect some of the considerations applied by the Court in assessing a pecuniary penalty under the Trade Practices Act 1974 (Cth). In particular, the Court will have regard to the elements of specific and general deterrence and assess whether a proposed penalty might be so high as to be oppressive in all the circumstances: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; TPC v Stihl Chainsaws (Aust) Pty Limited ; NW Frozen Foods Pty Ltd v ACCC at 293.
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301
Outcome: cited
, although the pecuniary penalty is a matter for the Court to determine ( Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72), and the question of whether the Court ought to make declarations as to particular matters or injunctions framed in a particular way or at all necessarily involves discretionary considerations and questions of utility, the Court will attach significant weight to a negotiated settlement quickly reached between parties acting with the benefit of legal advice, provided the document identifies the conduct precisely; the responsibility of each respondent in that conduct is recognised (whether at the centre or at the margin); and the proposed penalty is within the range the Court would impose and is thus not manifestly inadequate: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199. The approach to the assessment of a pecuniary penalty under the Spam Act ought, in principle, to reflect some of the considerations applied by the Court in assessing a pecuniary penalty under the Trade Practices Act 1974 (Cth). In particular, the Court will have regard to the elements of specific and general deterrence and assess whether a proposed penalty might be so high as to be oppressive in all the circumstances: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; TPC v Stihl Chainsaws (Aust) Pty Limited ; NW Frozen Foods Pty Ltd v ACCC at 293.
Case: Bright v Femcare Ltd [2002] FCAFC 243
Outcome: cited
reliance is placed by Counsel on behalf of Pharm-a-Care and IMF (Australia) Limited upon the need for compliance with s 33H to be apparent " from the pleadings ". See also: Bright v Femcare Ltd [2002] FCAFC 243 at [126] , [2002] FCAFC 243 ; 195 ALR 574 at 600 per Kiefel J, with whom Lindgren and Finkelstein JJ agreed. These provisions, together with the other provisions contained within Pt IVA, may have to be considered in greater detail when the Motions are heard seeking either judgment pursuant to s 31A or relief under O 11 rr 16 and 20 or O 13 r 5. The subpoena in issue refers to " [e]ach litigation funding agreement entered into by IMF (Australia) Limited as at 23 December 2008 referred to in paragraph 2(c) of the application filed on 23 December 2008 ... ".
Case: Fried v National Australia Bank Ltd [2000] FCA 911 , 175 ALR 194
Outcome: referred to
should be noted that considerable care should be exercised in placing reliance upon judicial interpretation of any provision without regard to the terms in which a particular statutory or regulatory provision was then expressed. One decision thus relied upon was Fried v National Australia Bank Ltd [2000] FCA 911 , 175 ALR 194. At the time of that decision the power to set aside a subpoena was that conferred by O 27 r 9, which then provided that " [t]he Court may, of its own motion or on the motion of any person having a sufficient interest, set aside the subpoena wholly or in part ". That decision may remain of assistance only in interpreting the expression " any person having a sufficient interest " as it appears in the current r 4(1): it has nothing to say about the phrase " a party ". Moreover, and since the relief claimed by Pharm-a-Care and IMF (Australia) Limited is identical, and since both corporations were represented by the same Counsel, it appeared to matter little which was the entity that sought the relief. Such differences as may emerge in different proceedings where a subpoena is served upon a third party having no interest in a proceeding may in the present proceeding assume less relevance given the role played by funding agreements with IMF (Australia) Limited and the description of Group Members . Different solicitors, however, separately represented each of the applicants on the motions. There may have been some significance if an issue of costs needed resolution. The Second to Sixth Respondents did not dispute that IMF (Australia) Limited had a " sufficient interest " to apply to have the subpoena set aside. Rejected, however, is any contention that Pharm-a-Care does not have standing to seek to have the subpoena served upon IMF set aside.
Case: Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541
Outcome: cited
importantly, however, it is not considered that there is any legitimate forensic purpose now being pursued by the Second to Sixth Respondents in seeking the production of the documents embraced by the subpoena at this point of time. In so concluding, it is recognised that a subpoena can be made returnable at a date prior to hearing. Indeed, there may well be many practical reasons why such a course may be desirable: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 716 to 717 per Clarke J. So much was not put in issue by Counsel on behalf of Pharm-a-Care and IMF. A subpoena may be made returnable at a date prior to hearing where it is " in the interests of justice and the proper and expeditious conduct of a proceeding " to do so: Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541 at 543 per Toohey J. The time at which a subpoena is sought or served may, however, be of relevance to an order setting it aside: cf Kennedy v Wallace [2004] FCA 636 at [26] , [2004] FCA 636 ; 136 FCR 114 at 121 per Gyles J.