mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Zhang v Shanghai Wool and Jute Textile Co Ltd [2006] VSCA 133
Outcome: cited
an arbitration agreement will give rise to the Court holding the parties to an exclusive procedure to be followed by both parties for the resolution of any dispute to which the agreement applies: PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 312-313 per Brennan CJ, Gaudron and McHugh JJ. There is no reason why the parties cannot agree afterwards to use litigation, rather than follow the arbitration agreement in which case the agreement, becomes 'inoperative' within the meaning of s 7(5) of the International Arbitration Act 1974 (Cth) : Australian Granites Ltd v Eisenwerk Hensel Bayreuth Depl.-ing Burkhardt GmbH [2001] 1 Qd R 461 at 466-467 [15]-[16] per Pincus JA with whom Thomas JA and Shepherdson J agreed; Zhang v Shanghai Wool and Jute Textile Co Ltd [2006] VSCA 133 at [12] - [13] per Chernov JA with whom Ashley JA and Bongiorno AJA agreed.
Case: Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428
Outcome: referred to
The Senior Member then stated at [6]: In approaching the decision under the review as has been made clear by cases such as Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd and Anor [2004] FCA 843 ; (2003-4) 138 FCR 428 the question of the Applicant's fitness to practice has to be determined at the time of the making of the decision under review. 16 The Senior Member then identified at [7] the four specific allegations that were addressed in the review as follows: (i) The complaint by a Ms Millerd on behalf of her brother Mr Mohammed Nizam Khan, a resident of Fiji to the effect that the Applicant had not accounted to Mr Khan for monies received by way of a refund of tax overpaid following preparation of returns for Mr Khan by the Applicant, and that the Applicant had used undue pressure upon Mr Khan to induce him to withdraw his original complaint to the Respondent. (ii) The volume of tax claims prepared by the Applicant. (iii) The failure by the Applicant to comply with an undertaking he gave to the Respondent to close offices from which he operated at Liverpool and Harris Park and to remove all advertising. (iv) The operation of an office at Dandenong in Victoria despite the Respondent in 1998 disallowing the opening of an office at that location. 17 The Senior Member then addressed the facts, dealing with these issues in reverse order. 41 I do not see any error in the AAT's approach, whatever expression of principle was to be applied. The AAT heard all the evidence. Its conclusions were directed fundamentally to the lack of integrity of the applicant. Any textual differences between the reasons of Branson J in Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428 and Middleton J in Toohey [2007] FCA 431 are made irrelevant by the nature of the enquiry and the AAT's conclusions. The Senior Member, in examining past conduct and considering contested evidence, found a lack of truthfulness in the applicant and a proven lack of integrity. Any overlooking by the Senior Member of a late nomination by the applicant at the date of the AAT review was of no operative consequence to the decision.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: discussed
The Senior Member then stated that in evaluating the four specific allegations about the applicant, he had " kept firmly in mind the fact that if I am satisfied of the Respondent's case then the Applicant will be deprived of his livelihood ". In this context, the Senior Member referred to the well-known passage in the judgment of Dixon J in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 362. 42 The applicant submitted that the reasoning of the AAT was sufficiently illogical for it to be evident that the requirement of Briginshaw [1938] HCA 34 ; 60 CLR 336 had not been satisfied. 43 Whilst some aspects of the reasoning of the AAT are less than pellucid (for example the content of [27] of the reasons in the circumstances of s 251K(2)(d) and s 251JC(1)(a)(i)), the Senior Member was alive to the requirement that he have regard to the serious consequences of a finding and to the consequence thereof, as required by the passage from Briginshaw [1938] HCA 34 ; 60 CLR 336 , quoted by him. The matters in [55] of the AAT's reasons that the applicant, in effect, misled the Board about showing Ms Millerd the authority, that he exerted improper pressure upon Mr Khan to withdraw the complaint and that he sought to deceive the Board about the branch offices, were sufficiently clear and serious to warrant the conclusion reached, taking into account Briginshaw.
Case: Kazacos v Migration Agents Registration Authority [2007] FCA 1573 
Outcome: referred to
The approach to the construction of a provision of this kind was discussed in Kazacos v Migration Agents Registration Authority [2007] FCA 1573 at [4] . Neither party took exception to this approach.
Case: Minister Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: referred to
In the application, the applicant identified three factual matters that he said were legally irrelevant, given the principles in Minister Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. They were: (a) the fact that the applicant had opened branch offices at Liverpool and Parramatta (later Harris Park) with knowledge that the respondent had informed him that such branch offices would not be approved; (b) the fact that the applicant had taken no steps to notify the respondent of the existence of those said offices having regard to the requirements of reg 161 of the Income Tax Regulation 1936 (Cth) ("the regulations"); (c) the fact that at the time of the decision under review the applicant had not despite stating that he would do so, lodged an application for the appointment of an additional nominee or reduced his client list; 45 These matters were not an independent foundation of a conclusion by the AAT of a lack of integrity. Indeed, the AAT itself doubted whether approval needed to be sought for the opening of offices. Rather, they were matters which went to the lack of integrity of the applicant. In particular, the first two related to a conclusion of an attempted deception of the Board. Whilst the third matter is less than cogent as to the integrity of the applicant, that is how the AAT used the matter and to that extent, it cannot be said to be legally irrelevant. 46 Section 251N of the 1936 Act was disavowed by the respondent before the AAT hearing as a basis for affirming the order. This did not, however, make irrelevant matters of behaviour of the applicant which went to his integrity.
Case: Re Su and the Tax Agents' Board of South Australia (1982) 13 ATR 192
Outcome: discussed
The essence of the argument of the applicant was that the AAT erred by looking at questions of honesty and integrity alone, without linking them to any asserted incompetence with respect to the preparation of income tax returns. It was submitted that the following passage from the decision of Davies J in Re Su and the Tax Agents' Board of South Australia (1982) 13 ATR 192 at 195, was to the effect that the dishonesty must reflect on a capacity to prepare tax returns and transact business on behalf of taxpayers: "... a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently." 38 I think that the submission reads too narrowly what Davies J was saying. A person may not be fit and proper in the relevant sense if his competence and skill is unchallenged but his integrity is. Competence and integrity are required. This is so because clients and the Tax Office must proceed on the basis of his competence and honesty. 39 I do not think that the reasons of the AAT betray any misunderstanding of the terms of s 251JC.
Case: Toohey v Tax Agents' Board of Victoria [2007] FCA 431
Outcome: discussed
The applicant fixed upon the content of [6] of the AAT's reasons (see [15] above) in asserting an error based on what Middleton J said in Toohey v Tax Agents' Board of Victoria [2007] FCA 431. 41 I do not see any error in the AAT's approach, whatever expression of principle was to be applied. The AAT heard all the evidence. Its conclusions were directed fundamentally to the lack of integrity of the applicant. Any textual differences between the reasons of Branson J in Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843 ; (2004) 138 FCR 428 and Middleton J in Toohey [2007] FCA 431 are made irrelevant by the nature of the enquiry and the AAT's conclusions. The Senior Member, in examining past conduct and considering contested evidence, found a lack of truthfulness in the applicant and a proven lack of integrity. Any overlooking by the Senior Member of a late nomination by the applicant at the date of the AAT review was of no operative consequence to the decision.
Case: Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; (2009) 251 ALR 166
Outcome: distinguished
is true that the authorities, including three recent cases that have considered the question in relation to international air freight services, accept the proposition (either expressly or impliedly) that a global market is capable of constituting a market in Australia: Riverstone Computer Services Pty Limited v IBM Global Financing Australia Limited [2002] FCA 1608 at [21] , Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; (2009) 251 ALR 166 at [21] ; Australian Competition and Consumer Commission v Qantas Airways Ltd (2009) 253 ALR 89 at [35]; Emirates v Australian Competition and Consumer Commission [2009] FCA 312 at [70] . In Auskay , Tracey J dealt with an application to strike out a pleading in a class action that alleged contraventions of ss 45 and 45A of the Act in relation to understandings between Qantas and other international airlines in terms that resemble the nature of the allegations in the present case. Referring to the geographic location of the market, Tracey J said at [21]: The respondents in the present proceeding are entitled to know where in Australia it is said that they compete with each other named respondent for the provision of international airfreight services. This will depend on where negotiations between the respondents and their customers take place and contracts are entered into. The deficiency which Tracey J identified in the pleading was that it failed to identify any market whatsoever. That is sufficient to distinguish Auskay from the present proceeding. That proposition is somewhat at odds with the remarks of Middleton J in Emirates at [66] that the place of contracting is not determinative of the geographic location of the market. Nevertheless, his Honour did leave open at [72] the possibility that the place of contracting will have some relevance to the determination of the place where the competition takes place. His Honour went on to say of the observations of Tracey J in Auskay : I do not read his Honour's comments (made in the context of a pleading dispute) as dictating that in determinating [sic] the geographic location of the market one is confined by the location of the making of the contract for the subject services. However, I do not need to consider whether Middleton J's explanation of the earlier remarks of Tracey J in Auskay is correct. That is because, on the view I have reached, the pleading is defective for reasons which do not depend upon the relationship between the place of contracting and the geographic location of the market. General Observations
Case: Australian Competition and Consumer Commission v British Airways PLC [2008] FCA 1977
Outcome: distinguished
Australian Competition and Consumer Commission v British Airways PLC [2008] FCA 1977 at [20] , Lindgren J adopted the remarks he had earlier expressed in ACCC v Qantas. However, this observation is also to be read in light of admissions made by British Airways in that case. It does not, in my view, amount to a statement of general principle which is sufficient to support the present pleading.
Case: Banque Commerciale SA en liquidation v Akhil Holdings Limited [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: referred to
is true, as was observed by Dawson J in Banque Commerciale SA en liquidation v Akhil Holdings Limited [1990] HCA 11 ; (1990) 169 CLR 279 at 293, that pleadings are but a means to an end, not an end in themselves. But the function of pleadings is an important one because it is the pleading which defines the issues and presents the claim with reasonable clarity. For the reasons mentioned above, the Statement of Claim does not fulfil that function. It leaves open the fundamental nature of the ACCC's case that the conduct in question substantially lessens competition in a market in Australia. Subject to one exception, there are simply no material facts stated which demonstrate that the price fixing understandings in respect of international air freight services between destinations outside Australia have the proscribed effect on competition in a market in Australia. As Mr Archibald submitted, the key vice in the pleading is that the entirety of the conduct that occurs in respect of the making and giving effect to each of the understandings is said to involve a contravention. It is the breadth and generality of that allegation, without material facts to support it, which constitutes the real defect.
Case: Eastern Express Pty Limited v General Newspapers Pty Limited (1991) 30 FCR 385
Outcome: referred to
for s 45A(1) to be engaged, the services that are the subject of the anti-competitive provision must be supplied by the party to the illegal understanding in competition with the other party in a market in Australia: see Emirates at [22], citing Eastern Express Pty Limited v General Newspapers Pty Limited (1991) 30 FCR 385 at 419 420; South Sydney District Rugby League Ltd v News Ltd [2000] FCA 1541 ; (2000) 177 ALR 611 at [195] and ss 45A(8), 4D(1)(a) and 4D(2) of the Act.
Case: Kuligowski v Metrobus [2004] HCA 34 ; (2004) 220 CLR 363
Outcome: applied
O'Bryan submitted that the decision in Emirates gives rise to an issue estoppel. In my view it does not because, for the reasons stated above, Emirates did not decide the same question as that which arises in the present case: Kuligowski v Metrobus [2004] HCA 34 ; (2004) 220 CLR 363 at [21] , [40]. The relevance of the place of contracting
Case: Queensland Wire Industries Proprietary Limited v Broken Hill Proprietary Company Limited [1989] HCA 6 ; (1989) 167 CLR 177
Outcome: referred to
there was no real dispute as to the question of the correct principles of market definition. These principles were authoritatively stated by the High Court in Queensland Wire Industries Proprietary Limited v Broken Hill Proprietary Company Limited [1989] HCA 6 ; (1989) 167 CLR 177 at 188, 195, 199 and 210, and have been referred to in numerous other authorities including Singapore Airlines Limited v Taprobane Tours WA Pty Ltd [1991] FCA 621 ; (1991) 33 FCR 158 at 174.
Case: Riverstone Computer Services Pty Limited v IBM Global Financing Australia Limited [2002] FCA 1608
Outcome: referred to
is true that the authorities, including three recent cases that have considered the question in relation to international air freight services, accept the proposition (either expressly or impliedly) that a global market is capable of constituting a market in Australia: Riverstone Computer Services Pty Limited v IBM Global Financing Australia Limited [2002] FCA 1608 at [21] , Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; (2009) 251 ALR 166 at [21] ; Australian Competition and Consumer Commission v Qantas Airways Ltd (2009) 253 ALR 89 at [35]; Emirates v Australian Competition and Consumer Commission [2009] FCA 312 at [70] .
Case: Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: applied
my view, his Honour's observations do not stand for the proposition that it is sufficient to plead a global market, and the giving of effect to it anywhere in the world, in order to give rise to an arguable claim of contravention of s 45(2) of the Act. That was not the issue before his Honour, and the apparent breadth of his Honour's remarks at [38] seem to me to be explicable by the admissions made by Qantas: Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at [62] .
Case: Singapore Airlines Limited v Taprobane Tours WA Pty Ltd [1991] FCA 621 ; (1991) 33 FCR 158
Outcome: referred to
there was no real dispute as to the question of the correct principles of market definition. These principles were authoritatively stated by the High Court in Queensland Wire Industries Proprietary Limited v Broken Hill Proprietary Company Limited [1989] HCA 6 ; (1989) 167 CLR 177 at 188, 195, 199 and 210, and have been referred to in numerous other authorities including Singapore Airlines Limited v Taprobane Tours WA Pty Ltd [1991] FCA 621 ; (1991) 33 FCR 158 at 174.
Case: South Sydney District Rugby League Ltd v News Ltd [2000] FCA 1541 ; (2000) 177 ALR 611
Outcome: referred to
for s 45A(1) to be engaged, the services that are the subject of the anti-competitive provision must be supplied by the party to the illegal understanding in competition with the other party in a market in Australia: see Emirates at [22], citing Eastern Express Pty Limited v General Newspapers Pty Limited (1991) 30 FCR 385 at 419 420; South Sydney District Rugby League Ltd v News Ltd [2000] FCA 1541 ; (2000) 177 ALR 611 at [195] and ss 45A(8), 4D(1)(a) and 4D(2) of the Act.
Case: Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365 ; (2000) 104 FCR 253 at [37]
Outcome: followed
The notion of unconscionability in s 51AC is wider than that of "unconscionable within the meaning of the unwritten law...of the States and Territories" in s 51AA: Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365 ; (2000) 104 FCR 253 at [37] (Sundberg J), Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 59 IPR 435 at [183] (Selway J).
Case: Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 59 IPR 435 at [183]
Outcome: followed
The notion of unconscionability in s 51AC is wider than that of "unconscionable within the meaning of the unwritten law...of the States and Territories" in s 51AA: Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365 ; (2000) 104 FCR 253 at [37] (Sundberg J), Australian Competition and Consumer Commission v 4WD Systems Pty Ltd (2003) 59 IPR 435 at [183] (Selway J).
Case: Hurley v McDonald's Australia Ltd (2000) ATPR 41-741 at [22]
Outcome: applied
In Hurley v McDonald's Australia Ltd (2000) ATPR 41-741 at [22] a Full Court of this Court said in regard to s 51AC (emphasis in original): "For conduct to be regarded as unconscionable, serious misconduct or something clearly unfair or unreasonable , must be demonstrated - Cameron v Qantas Airways Ltd (1994) 55 FCR 147 at 179. Whatever " unconscionable " means in sections 51AB and 51AC , the term carries the meaning given by the Shorter Oxford English Dictionary, namely, actions showing no regard for conscience , or that are irreconcilable with what is right or reasonable - Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 262. The various synonyms used in relation to the term " unconscionable " import a pejorative moral judgment - Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 283-4 and 298." 59 A convenient starting point is the submission of counsel for the respondents that Mr Nagy and Mr Pavia were the agents of Mr Coggin in this transaction and were not the agents of Telstar or Mr Cunningham. Nothing could be further from the truth. The reality is that Mr Nagy and Mr Pavia were old comrades in arms from their door to door cookware selling days. And they were sufficiently familiar with Mr Cunningham to wake him up in the early hours of the morning, moor the Lady Christina at his private mooring (no doubt by prior arrangement), and borrow $400 from him to pay the skipper. Messrs Nagy, Pavia and Cunningham at all times worked together in pursuit of their own interests, and against the interests of Mr Coggin. This is most strikingly demonstrated by their exclusion of Mr Coggin from the meeting on 24 December 1999 at which they made the agreement recorded in Mr Cunningham's note ([37] above). They saw the only role of Mr Coggin as being "Joe's Father" who was to provide a boat as collateral for their venture. This is consistent with what Mr Gray told Mrs McIlwee, that Telstar was to make a loan Mr Coggin "for a business venture for Joe Nagy who is the son-in-law of Mr Coggin". 60 Mr Cunningham was the director of a finance company which usually did not lend on secured transactions, let alone maritime ones. Nor, as far as the evidence reveals, did this Brisbane finance company engage in wholesaling of goods in other States. As the respondents' counsel submitted, "this type of transaction was not common for Telstar".
Case: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: applied
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 was a s 46 case where, amongst other issues, individuals were sought to be made liable as persons involved in the contraventions. It was argued that the individuals did not know that their principal's conduct was engaged in for the purpose, or had the likely effect, of substantially lessening competition in the market as defined. Gummow, Hayne and Heydon JJ at [48] firmly rejected this argument, saying: "It is wholly unrealistic to seek to characterise knowledge of circumstances in that way. Only a handful of lawyers think or speak in that fashion, and then only at a late stage of analysis of any particular problem. In order to know the essential facts, and thus satisfy s 75B(1) of the Act and like provisions, it is not necessary to know that those facts are capable of characterisation in the language of the statute." Their Honours did not specifically refer to the leading case on accessorial liability under the Act, Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661, although it was cited in argument (at 58). However, Yorke v Lucas , in applying criminal law principles to accessorial liability under the Act, proceeded on the basis that to form the requisite intent for aiding and abetting a crime, the defendant "must have knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime" (at 667). Since, as already noted, the assessment of conduct as unconscionable or not under s 51AC may involve the consideration and weighting of 13 statutory criteria, and an infinite number of other criteria which appear relevant to the judge, it would be quite unworkable to suppose that there could be no finding of accessorial liability unless the individual, at the time of the contravention, considered the same factors, and gave them the same weight, as did the judge at the subsequent trial. Apart from anything else, the morally obtuse would have an undeserved advantage.