mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commissioner v Simply No-Knead Franchising Pty Limited [2000] FCA 1365 ; (2000) 104 FCR 253
Outcome: followed
There is a body of authority in this Court which establishes the following propositions: (a) The scope of s 51AC is wider than that of s 51AA. The meaning of unconscionable for the purposes of s 51AC is not limited to the meaning of the word according to established principles of common law and equity: per French J in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491 at [24] and [25] (p 503); per Sundberg J in Australian Competition and Consumer Commissioner v Simply No-Knead Franchising Pty Limited [2000] FCA 1365 ; (2000) 104 FCR 253 at [31] (p 265); per Selway J in Australian Competition and Consumer Commission v 4WD Systems Pty Limited (2003) 59 IPR 435 at [183] (p 487) and per Jacobson J in Pacific National (ACT) Limited v Queensland Rail (2006) 28 ATPR 46-268 (p 53,515) at [918] (p 53,527). (b) The ordinary or dictionary meaning of unconscionable, which involves notions of serious misconduct or something which is clearly unfair or unreasonable, is picked up by the use of the word in s 51AC. When used in that section, the expression requires that the actions of the alleged contravenor show no regard for conscience, and be irreconcilable with what is right or reasonable. Inevitably the expression imports a pejorative moral judgment: per Heerey, Drummond and Emmett JJ in Hurley v McDonalds Australia Limited (2000) 22 ATPR 41-741 (p 40,578) at [22] (p 40,585). This helpful articulation of the meaning of the word when used in s 51AC was followed by Selway J in ACCC v 4WD Systems Pty Ltd (2003) 59 IPR 435 at [183]-[185] (pp 487-488) and by Sundberg J in ACCC v Simply No-Knead Franchising Pty Limited [2000] FCA 1365 ; (2000) 104 FCR 253 at [30] (p 264); and (c) Normally, some moral fault or moral responsibility would be involved. This would not ordinarily be present if the critical actions are merely negligent. There would ordinarily need to be a deliberate (in the sense of intentional) act or at least a reckless act: per Selway J in ACCC v 4WD Systems Pty Ltd (2003) 59 IPR 435 at [185] (p 488).
Case: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR
Outcome: followed
In his Reasons for Judgment, at [13] (p 218), Gleeson CJ expressly approved the following passage from the Reasons for Judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. 20 The remaining questions identified by Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; 161 CLR 148 when adapted to the present case, require the ACCC to show that the balance of convenience and the balance of justice favour the grant of an injunction. 21 These matters require the Court to exercise a discretion.
Case: Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810
Outcome: cited
In 2006, Hoy Mobile Pty Limited ( Hoy Mobile ) commenced proceedings in this Court against Allphones. Those proceedings ( the Hoy Mobile proceedings ) were heard in February and March 2008 by Rares J. His Honour delivered Reasons for Judgment on 30 May 2008 ( Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810). 33 Hoy Mobile had been a franchisee of Allphones for approximately four years prior to the commencement of those proceedings. 34 The Hoy Mobile proceedings were hard fought. There were many issues requiring determination by his Honour. 35 At the end of his Honour's Reasons for Judgment, his Honour summarised the conclusions which he had reached (see Hoy Mobile Pty Ltd [2008] FCA 810 at [429] [431]). Allphones has appealed from his Honour's decision. That appeal has not yet been heard. It is neither necessary nor desirable for me to comment further on the subject matter of the Hoy Mobile proceedings. At the moment, it is sufficient if I note the date when his Honour delivered judgment (viz 30 May 2008) and the fact that his Honour said that Allphones had to account to its franchisees who were operating under the old franchise agreement for significant sums of money which it had received by way of commissions and rebates. 36 On 25 March 2008, the ACCC commenced proceedings against Allphones, Matthew Donnellan, Ian Harkin and Anthony Baker in this Court (No NSD 408 of 2008) ( the main ACCC proceedings ). The individuals named as respondents in those proceedings are or were employees and directors of Allphones at various times over the period with which the main ACCC proceedings deal. The Statement of Claim in the main ACCC proceedings comprises 89 pages and the Application comprises 25 pages. There are many allegations made in the Statement of Claim concerning Allphones' dealings with its franchisees and its management of the Allphones business of which the franchisees are an integral part. 37 In the main ACCC proceedings, the ACCC makes complaint about a large number of events and actions for which Allphones is alleged to have been responsible and contends that the respondents to those proceedings have contravened ss 51AC , 51AD , 52 and 59 of the Trade Practices Act in the operation of the Allphones franchise system.
Case: Hurley v McDonalds Australia Limited (2000) 22 ATPR 41-741
Outcome: followed
There is a body of authority in this Court which establishes the following propositions: (a) The scope of s 51AC is wider than that of s 51AA. The meaning of unconscionable for the purposes of s 51AC is not limited to the meaning of the word according to established principles of common law and equity: per French J in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491 at [24] and [25] (p 503); per Sundberg J in Australian Competition and Consumer Commissioner v Simply No-Knead Franchising Pty Limited [2000] FCA 1365 ; (2000) 104 FCR 253 at [31] (p 265); per Selway J in Australian Competition and Consumer Commission v 4WD Systems Pty Limited (2003) 59 IPR 435 at [183] (p 487) and per Jacobson J in Pacific National (ACT) Limited v Queensland Rail (2006) 28 ATPR 46-268 (p 53,515) at [918] (p 53,527). (b) The ordinary or dictionary meaning of unconscionable, which involves notions of serious misconduct or something which is clearly unfair or unreasonable, is picked up by the use of the word in s 51AC. When used in that section, the expression requires that the actions of the alleged contravenor show no regard for conscience, and be irreconcilable with what is right or reasonable. Inevitably the expression imports a pejorative moral judgment: per Heerey, Drummond and Emmett JJ in Hurley v McDonalds Australia Limited (2000) 22 ATPR 41-741 (p 40,578) at [22] (p 40,585). This helpful articulation of the meaning of the word when used in s 51AC was followed by Selway J in ACCC v 4WD Systems Pty Ltd (2003) 59 IPR 435 at [183]-[185] (pp 487-488) and by Sundberg J in ACCC v Simply No-Knead Franchising Pty Limited [2000] FCA 1365 ; (2000) 104 FCR 253 at [30] (p 264); and (c) Normally, some moral fault or moral responsibility would be involved. This would not ordinarily be present if the critical actions are merely negligent. There would ordinarily need to be a deliberate (in the sense of intentional) act or at least a reckless act: per Selway J in ACCC v 4WD Systems Pty Ltd (2003) 59 IPR 435 at [185] (p 488).
Case: Master Education Services Pty Ltd v Ketchell [2008] HCA 38 ; (2008) 82 ALJR 1322
Outcome: cited
It must also be remembered that, as is the case with other sections of the TPA contained in Parts IVA , IVB and V, s 51AC establishes a norm of conduct. Failure to observe that norm has consequences provided elsewhere in the Act. (See the judgment of the High Court in Master Education Services Pty Ltd v Ketchell [2008] HCA 38 ; (2008) 82 ALJR 1322 at [28] to [32] (pp 1329-1330) and the cases cited in those paragraphs).
Case: Pacific National (ACT) Limited v Queensland Rail (2006) 28 ATPR 46-268
Outcome: followed
There is a body of authority in this Court which establishes the following propositions: (a) The scope of s 51AC is wider than that of s 51AA. The meaning of unconscionable for the purposes of s 51AC is not limited to the meaning of the word according to established principles of common law and equity: per French J in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491 at [24] and [25] (p 503); per Sundberg J in Australian Competition and Consumer Commissioner v Simply No-Knead Franchising Pty Limited [2000] FCA 1365 ; (2000) 104 FCR 253 at [31] (p 265); per Selway J in Australian Competition and Consumer Commission v 4WD Systems Pty Limited (2003) 59 IPR 435 at [183] (p 487) and per Jacobson J in Pacific National (ACT) Limited v Queensland Rail (2006) 28 ATPR 46-268 (p 53,515) at [918] (p 53,527). (b) The ordinary or dictionary meaning of unconscionable, which involves notions of serious misconduct or something which is clearly unfair or unreasonable, is picked up by the use of the word in s 51AC. When used in that section, the expression requires that the actions of the alleged contravenor show no regard for conscience, and be irreconcilable with what is right or reasonable. Inevitably the expression imports a pejorative moral judgment: per Heerey, Drummond and Emmett JJ in Hurley v McDonalds Australia Limited (2000) 22 ATPR 41-741 (p 40,578) at [22] (p 40,585). This helpful articulation of the meaning of the word when used in s 51AC was followed by Selway J in ACCC v 4WD Systems Pty Ltd (2003) 59 IPR 435 at [183]-[185] (pp 487-488) and by Sundberg J in ACCC v Simply No-Knead Franchising Pty Limited [2000] FCA 1365 ; (2000) 104 FCR 253 at [30] (p 264); and (c) Normally, some moral fault or moral responsibility would be involved. This would not ordinarily be present if the critical actions are merely negligent. There would ordinarily need to be a deliberate (in the sense of intentional) act or at least a reckless act: per Selway J in ACCC v 4WD Systems Pty Ltd (2003) 59 IPR 435 at [185] (p 488).
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: followed
In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 at [65] and [66] (pp 41 43), Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ, in a joint judgment, expressly adopted a passage from Spry, The Principles of Equitable Remedies (5th edn, 1997, at pp 402 403), which may be summarised as follows: (a) In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; (b) Whether those interests tend to favour the grant or the refusal of an injunction in any given case depends upon the circumstances of that case; and (c) Hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive. 23 In the present case, I must assess and compare the prejudice and hardship likely to be suffered by Allphones, any relevantly affected third parties and the public generally if an injunction is granted, with that which is likely to be suffered by Allphones' franchisees who remain on the old franchise agreement, any other relevantly affected third parties and the public generally if no injunction is granted. In determining these matters, I must make an assessment of the likelihood that the final relief (if granted) will adequately compensate and protect those affected by the alleged wrongful conduct for the continuing contraventions which will have occurred between the date of the interlocutory hearing and the date when final relief might be expected to be granted. 24 Section 80(6) of the TPA provides that, in a case such as the present, the Court shall not require the ACCC to give any undertaking as to damages. 25 This provision puts the ACCC in a privileged position when compared with the position of ordinary litigants. 26 In my judgment, in a case where the ACCC seeks interlocutory injunctive relief, it may be necessary to take into account the absence of an undertaking as to damages when the Court comes to determine where the balance of convenience and the balance of justice lie. The extent to which this circumstance will play a role in any particular case will be governed by all of the circumstances of the case including the nature and strength of the ACCC's case as presented at the interlocutory stage.
Case: Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543
Outcome: followed
The appellant requires leave to amend his pleadings pursuant to Order 52 Rule 21(3) of the Federal Court Rules . The principles relating to a grant of such leave were considered by the Full Court of this Court in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 where the Court observed that ' exceptional circumstances' might exist to justify such grant. The Court said at [18]: 'The reference to "exceptional circumstances" indicates that there remains a discretion in the court to entertain a new ground of appeal if it is expedient and in the interests of justice to do so...' 15 The function of this Court in an appeal is to review alleged errors of the Federal Magistrate and not alleged errors of the Tribunal see: Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10] . However, since the decision in NBKT which was handed down after Emmett FM gave her decision directly impacts upon the issues to be considered in this appeal, ' exceptional circumstances ' as referred to in Gomez exist. Accordingly the Court considers that the interests of justice require that the appellant be permitted to rely upon the Amended Notice of Appeal and the Court will consider the appellant's claims as they relate to the Tribunal proceedings.
Case: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131
Outcome: considered
There is no evidence that the Tribunal provided any notification to the appellant, in advance of the hearing date, that the statutory declaration would be relied upon. Further, the Tribunal was not invited by the appellant by a written communication before or at the hearing to consider the information in his declaration which would have activated the exemption: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 , SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 and SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611 , nor did the appellant bring the statutory declaration to the hearing. These facts suggest that the statutory declaration was not regarded by the appellant as being significant in his application before the Tribunal.
Case: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
Outcome: considered
The information contained in the statutory declaration formed part of the reasons for the Tribunal's decision. It was not uncontentious, foundational or basic, nor was it information which was given to the Tribunal by the appellant to enliven the exception under s 424A(3)(b). The fact that the appellant was asked to supplement the information in his statutory declaration orally in answer to the Tribunal's questions and the fact that the appellant referred to the statutory declaration in the course of these answers is not sufficient to constitute ' giving' the document to the Tribunal: see SZFXG; NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 , which was approved by the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 225 [20] per Moore J, with whom Weinberg J (at 252 [157]) and Allsop J at 262 [219] agreed. Accordingly s 424A(1) of the Act applied to the information the appellant had provided to the Tribunal in answer to its questions.
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: considered
McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [63] referred to the rationale underlying the statutory requirements of s 424A(1) of the Act in relation to evidence adverse to an appellant provided by a third party. His Honour found that such provision was intended to ensure that an appellant is aware of the significance of such information to the Tribunal's determination. He said: 'So it is in the interests of fairness that the applicant should have the information in writing and should be given an opportunity to comment on it. For that reason s 424A should not be regarded as spent because the applicant is present at the hearing.' 26 In this instance his Honour's observations provide a guide for the interpretation of s 424A of the Act, namely, where the Tribunal intends to rely upon information which is more than historical fact or other basic detail, the appellant is entitled to be given notice that the Tribunal will rely upon such information. 27 There is no error in the judgment in Emmett FM. However arising from the Amended Notice of Appeal, the Court finds that the appellant was entitled to receive notice from the Tribunal that it would be relying on the statutory declaration for the purposes of determining his application for review. The Court finds the Tribunal's failure to provide such notification breached s 424A(1) of the Act and accordingly the appeal is upheld. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 29 June 2007 Counsel for the Appellant: T. Baw Counsel for the Respondent: T. Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 18 August 2006, 28 May 2007 Date of Judgment: 29 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/827.html
Case: Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210
Outcome: followed
The function of this Court in an appeal is to review alleged errors of the Federal Magistrate and not alleged errors of the Tribunal see: Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10] . However, since the decision in NBKT which was handed down after Emmett FM gave her decision directly impacts upon the issues to be considered in this appeal, ' exceptional circumstances ' as referred to in Gomez exist. Accordingly the Court considers that the interests of justice require that the appellant be permitted to rely upon the Amended Notice of Appeal and the Court will consider the appellant's claims as they relate to the Tribunal proceedings.
Case: SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034
Outcome: considered
There is no evidence that the Tribunal provided any notification to the appellant, in advance of the hearing date, that the statutory declaration would be relied upon. Further, the Tribunal was not invited by the appellant by a written communication before or at the hearing to consider the information in his declaration which would have activated the exemption: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 , SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 and SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611 , nor did the appellant bring the statutory declaration to the hearing. These facts suggest that the statutory declaration was not regarded by the appellant as being significant in his application before the Tribunal.
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: cited
The information contained in the statutory declaration formed part of the reasons for the Tribunal's decision. It was not uncontentious, foundational or basic, nor was it information which was given to the Tribunal by the appellant to enliven the exception under s 424A(3)(b). The fact that the appellant was asked to supplement the information in his statutory declaration orally in answer to the Tribunal's questions and the fact that the appellant referred to the statutory declaration in the course of these answers is not sufficient to constitute ' giving' the document to the Tribunal: see SZFXG; NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 , which was approved by the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 225 [20] per Moore J, with whom Weinberg J (at 252 [157]) and Allsop J at 262 [219] agreed. Accordingly s 424A(1) of the Act applied to the information the appellant had provided to the Tribunal in answer to its questions.
Case: SZEPI v Minister for Immigration and Multicultural Affairs [2006] FCA 1645
Outcome: cited
The Minister concedes that a mere general affirmation of the correctness of information in a statutory declaration used for the purpose of a protection visa application is insufficient to satisfy the exception provided by s 424A(3)(b) of the Act. However, the Minister relies upon the appellant's acknowledgement that he had typed the statutory declaration, answered questions and was able to provide his understanding of a statutory declaration. The Minister submits that it was thereby adopted by him: see VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; [2006] 154 FCR 302 at [49] - [50] . For these reasons the Minister submits that the appellant provided the information in his statutory declaration to the Tribunal and that the exemption provided by s 424A(3)(b) applies to such information: see SZFXG v Minister for Immigration and Citizenship [2007] FCA 116 and SZEPI v Minister for Immigration and Multicultural Affairs [2006] FCA 1645.