mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cachia v Westpac Financial Services Limited [2003] FCA 817
Outcome: cited
At the hearing, the parties referred to the debate, recorded in various decisions of this Court, as to the appropriate approach that the Court should take to the question of reviewing a taxing officer's decision under O 62 r 44 of the Rules. The debate is well described in the decision of Hely J in Cachia v Westpac Financial Services Limited [2003] FCA 817 ('Cachia') . On one view, an applicant is entitled to a review de novo by the Court. On the other view, the Court is to apply the approach set out in the observations of Jordan CJ in the case of Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178 at 183. Under that approach, the Court is reluctant to interfere unless the applicant shows that there was an error of principle by the taxing officer or, in respect of a matter involving the taxing officer's discretion, it appears that the taxing officer has not exercised his or her discretion at all or exercised it in a manner which is manifestly wrong; and where the question is one of amount only, the Court will only interfere in extreme cases.
Case: Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178
Outcome: cited
At the hearing, the parties referred to the debate, recorded in various decisions of this Court, as to the appropriate approach that the Court should take to the question of reviewing a taxing officer's decision under O 62 r 44 of the Rules. The debate is well described in the decision of Hely J in Cachia v Westpac Financial Services Limited [2003] FCA 817 ('Cachia') . On one view, an applicant is entitled to a review de novo by the Court. On the other view, the Court is to apply the approach set out in the observations of Jordan CJ in the case of Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178 at 183. Under that approach, the Court is reluctant to interfere unless the applicant shows that there was an error of principle by the taxing officer or, in respect of a matter involving the taxing officer's discretion, it appears that the taxing officer has not exercised his or her discretion at all or exercised it in a manner which is manifestly wrong; and where the question is one of amount only, the Court will only interfere in extreme cases.
Case: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328
Outcome: referred to
Counsel acknowledged that the circumstances in which an in limine objection to making an affidavit of documents, in a case such as the present, might be upheld are extremely rare. He contended that the circumstances of the present case brought it within the rare exception, the existence of which was recognised by Deane J in Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live Stock Corporation (1979) 42 FLR 204. In Refrigerated Express Deane J held that, in a criminal proceeding or a proceeding in which the imposition of a pecuniary penalty was sought, a Court should not order a respondent to give discovery or produce documents for inspection. In other forms of proceeding his Honour recognised that the general rule was that a party ought not to be excused, in limine , from giving discovery on the ground that production might tend to expose him to a penalty. His Honour held that there might exist "exceptional" cases in which "the only means of protecting the right against self incrimination ... [would be] to excuse a party in limine from discovery ..." (at 211) (Emphasis added). His Honour said that such cases would be "rare indeed." He said (at 211) that: "The cases where the making of an order for discovery or interrogatories will, in itself, involve exposing a party to self incrimination ... must, however, be rare indeed in view of the fact that the party will remain entitled to refuse to answer questions asked or produce documents discovered if the answers or production might tend to incriminate him or expose him to a penalty." Deane J's judgment was referred to in the joint judgment of Mason A.C.J., Wilson and Dawson JJ in Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328 at 336. Their Honours noted that: "There [in Refrigerated Express] his Honour drew a distinction between discovery in a mere action for a penalty and discovery in an action which was not for a penalty the result of which might be used to establish a party's liability to a penalty in other proceedings (50). In the first situation, the court should, in the absence of statutory provision to the contrary, refuse to make any order for discovery, production of documents or the provision of information for the reason that an intended consequence of the discovery, production of documents or provision of information is the imposition of the penalty, this being the object of the action ... But in the second situation the order will be made and the party against whom the order is made may object to the production of particular documents or to the provision of particular information on the ground that it may tend to expose him to a penalty."
Case: Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372
Outcome: referred to
In Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3 ; (2002) 116 FCR 372 Lindgren J reviewed a series of cases in which Deane J's decision in Refrigerated Express had been applied or followed. He summarised his conclusions as follows (at 388): "Although the course of authority since Refrigerated Express is not all one way, there has been a strong disposition in a proceeding not itself concerned with the imposition of a penalty for an offence or a civil penalty, in favour of ordering discovery, reserving the issue of self incrimination to the stage of production for inspection, and also reserving liberty to apply in relation to the degree of specificity with which a document is to be described in the individual's list of documents."
Case: A. B. Pty Limited v Australian Crime Commission [2009] FCA 119
Outcome: cited
where a large number of documents or extensive information is sought within a short period of time, and where an extension of time is not possible, the specification of a short period of time may reflect upon whether the power was exercised in good faith, for a collateral purpose or was unreasonable: see, eg, A. B. Pty Limited v Australian Crime Commission [2009] FCA 119 at [65] per Flick J. In fact, it was alleged that the burden imposed on the applicants was of such a magnitude that no reasonable person exercising the power under s 155 would have made the decisions giving rise to the issue of certain of the Notices. Reliance was placed on the principles stated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and s 5(2)(g) of the ADJR Act.
Case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Outcome: cited
where a large number of documents or extensive information is sought within a short period of time, and where an extension of time is not possible, the specification of a short period of time may reflect upon whether the power was exercised in good faith, for a collateral purpose or was unreasonable: see, eg, A. B. Pty Limited v Australian Crime Commission [2009] FCA 119 at [65] per Flick J. In fact, it was alleged that the burden imposed on the applicants was of such a magnitude that no reasonable person exercising the power under s 155 would have made the decisions giving rise to the issue of certain of the Notices. Reliance was placed on the principles stated by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and s 5(2)(g) of the ADJR Act.
Case: Auskay International Marketing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458
Outcome: cited
preliminary attack was made on the use of the concept of point of origin or destination of a service as a reference point able to be used in the Notices. It was contended that the Notices (even if confined to outbound services) did not sufficiently describe a matter involving a contravention of the Act, particularly in failing to describe the market in Australia. I accept that just because services cover the movement of goods in or out of Australia, does not necessarily indicate that there is a relevant market located in Australia in respect of those services: see Auskay International Marketing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 at [19] and [21] per Tracey J. However, as I mention later, the Notices when properly construed adequately describe matters capable of involving a contravention of the Act and by reference to a market in Australia. I make one further observation as to the Notices. The identified matters concern the alleged contravention of s 45 of the Act and concentrate on the supply of the international air cargo services. However, as I have alluded to earlier, it is important to observe that the description of the matters in the Notices concern price fixing as defined by s 45A of the Act, and it is upon that provision attention should be focussed in interpreting the Notices. Justice Tracey in Auskay FCA 1458 did observe that '[b]uyers and sellers of goods and services must negotiate and enter transactions in an area in which suppliers are engaged in close competition with each other' and '[t]hat area must be located within Australia' (at [19]). However, his Honour also referred to the importance of the place where the relevant competition takes place, and where parties compete to obtain contracts (at [21]). I do not read his Honour's comments (made in the context of a pleading dispute) as dictating that in determinating the geographic location of the market one is confined by the location of the making of the contract for the subject services. Once it is accepted that the place of contracting is not determinative, then in view of the above reasoning, it cannot be concluded that the particular conduct complained of is not capable of constituting a contravention of the Act. We are not then dealing with a market that is wholly outside Australia, but rather, with a possible contravention s 45 of the Act in relation to inbound and outbound services in a market in Australia. Therefore, upon construing the Notices in the manner indicated, I do not regard them as invalid on the ground that the matters the subject of them extend beyond conduct that is capable of constituting a contravention of the Act.
Case: Australian Competition and Consumer Commission v Qantas Airways Limited [2008] FCA 1976
Outcome: cited
notion of a 'market in Australia' was recently referred to by Lindgren J in Australian Competition and Consumer Commission v Qantas Airways Limited [2008] FCA 1976 , where his Honour stated (at [33]-[34]): Although the notion of a "market in Australia" in s 4E has been referred to in two cases ( Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608 at [21] per Hill J and Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd (2008) ATPR 42-256 at [19] per Tracey J), the concept has not been the subject of extensive judicial consideration. In Riverstone , Hill J rejected the proposition that in order to be a "market in Australia" a market must be wholly within Australia. His Honour said (at [21]) that the fact that a market was global did not signify that there could not be a market in Australia for the same products. As the Commission points out, a contrary view would considerably reduce the efficacy and utility of the competition law provisions of the Act, especially in the modern telecommunications era. Justice Lindgren went on to conclude that the definition of "market in Australia" in s 4E excludes a market that is wholly outside Australia, a conclusion with which I respectfully agree. As other aspects of the decision in Qantas [2008] FCA 1976 proceeded upon agreed facts, however, that case provides little assistance in determining the other issues raised before me which involved 'a concrete dispute reached after contest in argument': see Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at [62] (per Gummow, Hayne and Heydon JJ).
Case: Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127
Outcome: cited
principles relevant to this aspect of the proceedings can be simply stated: (a) The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is an abuse of discretion entitling a party with sufficient standing to seek judicial review of the decision. (b) This ground of review can only be made out if the decision-maker fails to take into account a consideration that they are bound to take into account in making the decision. (c) The factors a decision-maker is bound to take into account in making a decision are determined by construction of the statute conferring the power. Where the matters to be taken into account are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 per Mason J. (d) A decision-maker may not have had proper regard to a relevant consideration if they merely make a formalistic reference to the consideration: see Azriel v NSW Land &amp; Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with whom Santow and Ipp JJA agreed at [1] and [3]). (e) A decision-maker is required to give proper, genuine and realistic consideration to a relevant consideration: see Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468 (per Lindgren J); Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ and the authorities cited therein. (f) The mere failure to refer expressly to a matter will not necessarily give rise to the inference that it was not taken into account: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 (per Burchett J). However, it is open to the Court to infer that a matter was not taken into account where no reference is made to it: see, eg, Sullivan v Department of Transport (1978) 20 ALR 323 at 349 (per Deane J). (g) In Deloitte Touche Tohmatsu 136 ALR 453 , Lindgren J said (at 468): It is for an applicant to make out its case of "failure to take into account", but the circumstances may be such that the applicant will be aided in this task by an absence of evidence from the decision-maker on a particular matter, such as an absence of evidence giving rise to an inference of a failure to make further inquiries when a genuine taking into account would have called for them.
Case: Azriel v NSW Land &amp; Housing Corporation [2006] NSWCA 372
Outcome: cited
principles relevant to this aspect of the proceedings can be simply stated: (a) The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is an abuse of discretion entitling a party with sufficient standing to seek judicial review of the decision. (b) This ground of review can only be made out if the decision-maker fails to take into account a consideration that they are bound to take into account in making the decision. (c) The factors a decision-maker is bound to take into account in making a decision are determined by construction of the statute conferring the power. Where the matters to be taken into account are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 per Mason J. (d) A decision-maker may not have had proper regard to a relevant consideration if they merely make a formalistic reference to the consideration: see Azriel v NSW Land &amp; Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with whom Santow and Ipp JJA agreed at [1] and [3]). (e) A decision-maker is required to give proper, genuine and realistic consideration to a relevant consideration: see Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468 (per Lindgren J); Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ and the authorities cited therein. (f) The mere failure to refer expressly to a matter will not necessarily give rise to the inference that it was not taken into account: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 (per Burchett J). However, it is open to the Court to infer that a matter was not taken into account where no reference is made to it: see, eg, Sullivan v Department of Transport (1978) 20 ALR 323 at 349 (per Deane J). (g) In Deloitte Touche Tohmatsu 136 ALR 453 , Lindgren J said (at 468): It is for an applicant to make out its case of "failure to take into account", but the circumstances may be such that the applicant will be aided in this task by an absence of evidence from the decision-maker on a particular matter, such as an absence of evidence giving rise to an inference of a failure to make further inquiries when a genuine taking into account would have called for them.
Case: Bray v F Hoffmann-La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1
Outcome: cited
a prefatory matter, a few words must be directed to the question of the reach of the Act. Initially, it appeared that these proceedings were going to concern the extent to which the Act extended to extraterritorial conduct. It has long been accepted in the United States that a court may assert jurisdiction under the Sherman Act 15 USC &#167; 1 for anticompetitive conduct occurring wholly outside the territory of the United States, provided that the conduct has effects felt in the United States: see F Hoffmann-La Roche Ltd v Empagran S.A. [2004] USSC 2381 ; 542 US 155 (2004); Hartford Fire Insurance Co v California [1993] USSC 100 ; 509 US 764 (1993). That s 45 of the Act should be read similarly, at least with respect to corporations carrying on business in Australia, was considered by Merkel J in Bray v F Hoffmann-La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1 , at 15-16, and affirmed by the Full Court in Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317.
Case: Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317
Outcome: cited
a prefatory matter, a few words must be directed to the question of the reach of the Act. Initially, it appeared that these proceedings were going to concern the extent to which the Act extended to extraterritorial conduct. It has long been accepted in the United States that a court may assert jurisdiction under the Sherman Act 15 USC &#167; 1 for anticompetitive conduct occurring wholly outside the territory of the United States, provided that the conduct has effects felt in the United States: see F Hoffmann-La Roche Ltd v Empagran S.A. [2004] USSC 2381 ; 542 US 155 (2004); Hartford Fire Insurance Co v California [1993] USSC 100 ; 509 US 764 (1993). That s 45 of the Act should be read similarly, at least with respect to corporations carrying on business in Australia, was considered by Merkel J in Bray v F Hoffmann-La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1 , at 15-16, and affirmed by the Full Court in Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317.
Case: Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453
Outcome: cited
principles relevant to this aspect of the proceedings can be simply stated: (a) The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is an abuse of discretion entitling a party with sufficient standing to seek judicial review of the decision. (b) This ground of review can only be made out if the decision-maker fails to take into account a consideration that they are bound to take into account in making the decision. (c) The factors a decision-maker is bound to take into account in making a decision are determined by construction of the statute conferring the power. Where the matters to be taken into account are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 per Mason J. (d) A decision-maker may not have had proper regard to a relevant consideration if they merely make a formalistic reference to the consideration: see Azriel v NSW Land &amp; Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with whom Santow and Ipp JJA agreed at [1] and [3]). (e) A decision-maker is required to give proper, genuine and realistic consideration to a relevant consideration: see Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468 (per Lindgren J); Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ and the authorities cited therein. (f) The mere failure to refer expressly to a matter will not necessarily give rise to the inference that it was not taken into account: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 (per Burchett J). However, it is open to the Court to infer that a matter was not taken into account where no reference is made to it: see, eg, Sullivan v Department of Transport (1978) 20 ALR 323 at 349 (per Deane J). (g) In Deloitte Touche Tohmatsu 136 ALR 453 , Lindgren J said (at 468): It is for an applicant to make out its case of "failure to take into account", but the circumstances may be such that the applicant will be aided in this task by an absence of evidence from the decision-maker on a particular matter, such as an absence of evidence giving rise to an inference of a failure to make further inquiries when a genuine taking into account would have called for them.
Case: Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385
Outcome: cited
services the subject of the unlawful provision must be the services supplied by the relevant party to the arrangement in competition with the other party in any market in Australia. Put another way, the area of competition has to coincide with the area of restriction imposed by the unlawful provision: see ss 45A(8), 4D(1)(a) and 4D(2); Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385 at 419-20 per Wilcox J; and South Sydney District Rugby League Football Club v News Limited [2000] FCA 1541 ; (2000) 177 ALR 611 at 657 per Finn J.
Case: F Hoffmann-La Roche Ltd v Empagran S.A. [2004] USSC 2381 ; 542 US 155 (2004)
Outcome: cited
a prefatory matter, a few words must be directed to the question of the reach of the Act. Initially, it appeared that these proceedings were going to concern the extent to which the Act extended to extraterritorial conduct. It has long been accepted in the United States that a court may assert jurisdiction under the Sherman Act 15 USC &#167; 1 for anticompetitive conduct occurring wholly outside the territory of the United States, provided that the conduct has effects felt in the United States: see F Hoffmann-La Roche Ltd v Empagran S.A. [2004] USSC 2381 ; 542 US 155 (2004); Hartford Fire Insurance Co v California [1993] USSC 100 ; 509 US 764 (1993). That s 45 of the Act should be read similarly, at least with respect to corporations carrying on business in Australia, was considered by Merkel J in Bray v F Hoffmann-La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1 , at 15-16, and affirmed by the Full Court in Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317.