mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421
Outcome: cited
Fourth, the respondent's submissions concerning this issue have substantially equated "person aggrieved" for the purposes of s 46P HREOC Act with principles articulated in Boyce [1903] 1 Ch 109 and the possession by a complainant of a special interest so as to enforce the public rights created by statute. Clearly, there is a different jurisprudential approach entailed by identifying whether rights created by statute are public rights permitting enforcement by an individual in circumstances only where the individual has a special interest, compared with considering legislation authorising a person aggrieved to enforce statutory rights created by the legislation. Nonetheless, it is certainly the case that Courts have explained the words "person aggrieved" in terms of special interest in the public law sense. So, for example, in Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 at 447, Bowen CJ and Franki J said the words "a person who is aggrieved": ...are not to be confined to those who can establish that they have a legal interest at stake in the making of the decision. In our view they cover a person who can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public. (see Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 per Ellicott J) (cf United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 527, Ogle v Strickland .) 44 Fifth, traditionally the term "person aggrieved" should not be interpreted narrowly: N'Jie [1961] AC at 634 , Koowarta 153 CLR at 185, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; Ogle v Strickland (1987) 13 FCR 306 (especially Fisher J at 307-308 and Lockhart J at 314-315). Further, as Gibbs CJ said in Onus v Alcoa of Australia Ltd 149 CLR at 36 in relation to whether a person has a "special interest" sufficient to sustain litigation, The rule is obviously a flexible one since, as was pointed out in [ Australian Conservation Foundation ], the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation. 65 In Tooheys Ltd v Minister for Business and Consumer Affairs 54 FLR at 437 Ellicott J said: The question whether an applicant is a person aggrieved is one of mixed law and fact and in many cases would best be determined at a final hearing when all the facts are before the court and the court has the benefit of a full argument on the matter.
Case: United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520
Outcome: cited
Fourth, the respondent's submissions concerning this issue have substantially equated "person aggrieved" for the purposes of s 46P HREOC Act with principles articulated in Boyce [1903] 1 Ch 109 and the possession by a complainant of a special interest so as to enforce the public rights created by statute. Clearly, there is a different jurisprudential approach entailed by identifying whether rights created by statute are public rights permitting enforcement by an individual in circumstances only where the individual has a special interest, compared with considering legislation authorising a person aggrieved to enforce statutory rights created by the legislation. Nonetheless, it is certainly the case that Courts have explained the words "person aggrieved" in terms of special interest in the public law sense. So, for example, in Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 at 447, Bowen CJ and Franki J said the words "a person who is aggrieved": ...are not to be confined to those who can establish that they have a legal interest at stake in the making of the decision. In our view they cover a person who can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public. (see Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 per Ellicott J) (cf United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 527, Ogle v Strickland .)
Case: University of Newcastle v Chopra [1989] HCA 27 ; (1989) 85 ALR 321
Outcome: cited
The respondent submits further that as s 32 DD Act provides that contravention of disability standards is unlawful , public rights are created. However the fact that legislation provides that conduct is "unlawful" does not of itself mean that exclusively public rights of enforcement exist in relation to that legislation. There is an extensive body of law which provides that simply because a statute deems that certain actions are required by law, and failure to comply is unlawful even to the extent of prescribing a penalty, it does not mean that personal actions are therefore excluded (note for example comments of Atkin LJ in Phillips [1923] 2 KB 832; Groves v Lord Wimborne [1898] 2 QB 402 especially at 415-416; Britannic Merthyr Coal Company Ltd v David [1910] AC 74; Knox CJ, Isaacs, Gavan Duffy and Rich JJ in Mallinson v The Scottish Australian Investment Company Ltd [1920] HCA 51 ; (1920) 28 CLR 66 at 70-72; Potter v Ferguson [1979] 1 NSWLR 364 at 372; Toohey J in University of Newcastle v Chopra [1989] HCA 27 ; (1989) 85 ALR 321 at 343; Campbell v University of New South Wales (1992) 44 IR 56 at 68-69; Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 648; "GS" v News Ltd (1998) Aust Torts Reports 81-466 at 64,906). In all cases, notwithstanding the existence of other remedies (such as penalties), whether personal rights of action exist will depend on the construction of the statute itself.
Case: Victorian Chamber of Manufactures v The Commonwealth [1943] HCA 19 ; (1943) 67 CLR 335
Outcome: cited
Tenth, to the extent that incorporated associations are bodies corporate which may sue or be sued in their own name, in assessing the interests of a body corporate the interests of its members are arguably irrelevant. So in Victorian Chamber of Manufactures v The Commonwealth [1943] HCA 19 ; (1943) 67 CLR 335 at 343 Starke J, without needing to decide the point, observed that an infringement of the rights of members of an incorporated body does of itself mean that the rights of the incorporated body are infringed, or that the incorporated body has standing to maintain an action (cf Lockhart J in Right to Life 56 FCR at 253 and Nicholson J in Defence Coalition against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142). This may be distinguished from the position concerning unincorporated associations. A useful illustration of this point in this context is Scully 79 FCR 537, where an unincorporated association commenced proceedings under the Racial Discrimination Act 1975 (Cth) (in its then form), Wilcox J said: I agree with Commissioner Nettlefold that, as Executive Council for Australian Jewry is not a "person" in the eyes of the law, it is incapable of being a 'person aggrieved' within the meaning of s 22(1) of the Racial Discrimination Act . Therefore it is not itself a competent complainant. However, this does not mean its complaint is a nullity. It is necessary to go behind the name and consider whether the juristic persons who constitute the unincorporated association are 'persons aggrieved' by the allegedly unlawful act. If they are, the complaint is competent in law, though not in name, as it was made by them. (at 548) 59 Second, there is substantial body of authority, to which I have already referred, that the interests of members of a body corporate do not equate with the interests of the body corporate: Victorian Chamber of Manufactures [1943] HCA 19 ; 67 CLR 335, Right to Life 56 FCR 50, Defence Coalition against RCD 74 FCR 142.
Case: Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1
Outcome: cited
In contrast, in the case before me the HREOC Act and the DD Act (including the Disability Standards formulated pursuant to s 31) provide a scheme which allows "a person aggrieved" by alleged unlawful discrimination - including, as I have already noted, conduct deemed unlawful by s 32 DD Act - to lodge a complaint with HREOC (s 46P HREOC Act); and in the event that the complaint is terminated, a person affected by the termination to make application to the Federal Court or the Federal Magistrates Court (s 46PO HREOC Act). Significantly, the HREOC Act also creates a specific structure sanctioning applications to the Court for remedies where the Court is satisfied that there has been unlawful discrimination, including payment of damages by the respondent, employment or re-employment an applicant, an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination as is sought in this case (s 46PO(4) HREOC Act). Indeed the point of the statutory scheme as constituted in this case by the HREOC Act and the DD Act is to make laws with respect to discriminatory conduct, and to allow those who are aggrieved by discriminatory conduct, personal rights to seek redress in respect of such conduct. To adopt the language of the majority of the High Court in Re East, ex parte Nguyen 196 CLR at 365, repeated in Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at 96, The elaborate and special scheme...was plainly intended by the Parliament to provide the means by which a person aggrieved by a contravention ... might obtain a remedy, and thus was regarded by Parliament as fulfilling Australia's treaty obligations, bearing always in mind the legal structure and system which formed the context in which the [legislation] was to operate. (That those comments were in respect of the legislation as it stood prior to amendments, and the removal of provisions from the HREOC Act into the DD Act and other statutes, does not in any way minimise their relevance. As observed, in my view correctly, by Nicholson J in Bropho v State of Western Australia [2004] FCA 1209 at [26] - [29] and [51]-[52], they are equally applicable to the scheme as it presently exists.)
Case: Wool Sliping and Scouring Co Ltd v Central Wool Committee [1920] HCA 21 ; (1920) 28 CLR 51
Outcome: cited
Further, it is clear that legislation may create personal statutory rights which can be enforced by an individual in a Court of law: Wool Sliping and Scouring Co Ltd v Central Wool Committee [1920] HCA 21 ; (1920) 28 CLR 51 per Knox CJ at 61-62; Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 76; SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 246, Dajon Investments Pty Ltd v Talbot [1969] VR 603 at 613, Australian Conservation Foundation 146 CLR at 537, 542-544; Re East, ex parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354. As Stephen J observed in Australian Conservation Foundation 146 CLR at 541, referring to s 52 Trade Practices Act 1974 (Cth): statutes may of course confer standing in express terms...they may also do so by conferring some right the denial of the enjoyment of which gives standing to sue to complain of that denial. Although that very denial might be thought to qualify as the suffering of special damage such as that of which Buckley J spoke, it is, perhaps, preferable in such a case to resolve the question of standing by the direct route of a search for enforceable rights conferred by statute, rather than follow the circuitous course of seeking, in accordance with Boyce's Case, for the existence of special damage. (cf Gibbs J at 532)
Case: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57
Outcome: followed
The applicants have, in my view, established a serious question to be tried, or as that time honoured phrase has been refined more recently in the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 , a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. 27 I then come to the question of the balance of convenience. On the one hand, the applicants assert that there is a risk if these new V-Series plates are issued following the auction that the value of their plates will significantly depreciate. The respondent does not gainsay that proposition. I note that, in the auction catalogue that I have already referred to which is concerned with the auction tomorrow night, although the other plates that constitute lots in the auction have a guiding monetary range adjacent to them, the V-Series plates do not. It is evident that VicRoads is wishing to test the water and that the valuation which might be placed on particular plates is presently a matter only of speculation and will depend on what the market will bear when the auction takes place. 28 The auction, as I've already indicated, is not confined to V-Series plates. There are 40 other lots that will be available, and there is therefore no reason why the auction cannot proceed tomorrow night. The two applicants have indicated a willingness to give undertakings as to damages, such that if the other plates, the V-Series plates, are not offered for auction tomorrow night, and damage to the respondent ensues they will be responsible for the payment of compensation. Accordingly, I think, on balance, convenience favours the granting of the injunction sought, not in the form that appears in the application, but in the form of a minute of proposed order that was handed to me this afternoon. There will simply be a restraint until trial or further order on the respondent offering the V-Series numberplates for sale.
Case: Australian Securities and Investments Commission v Beekink [2006] FCA 388
Outcome: applied
Both McHugh J and Finkelstein J recognised that in cases of this kind the factors referred to by Santow J are cognate with the similar kinds of factors which judges sentencing in criminal matters would take into account in assessing what was the appropriate penalty for that conduct. As Finkelstein J said (145 FCR 65 [33] and see too Australian Securities and Investments Commission v Beekink (2006)57 ACSR 284 at [99] per Nicholson J): 'The sentence must be exemplary and sufficient so that members of the business community are put on notice that if they break the trust which has been reposed in them they will receive a proper punishment. It is vital, not only in the interests of the business community but in the interests of society, that leaders of that community will act honestly in all their dealings. Any slip from the high standards demanded of directors can put at risk the fortunes of their company and also the fortunes (large or small) of those who invest in them. In extreme cases, the misconduct can affect the economy as a whole.'
Case: Australian Securities and Investments Commission v Southcorp Limited (No 2) [2003] FCA 1369 ; (2003) 130 FCR 406
Outcome: considered
The question for me is whether I am satisfied that the proposed order under s 206E of the Corporations Act 2001 (Cth) that Mr Haddad be disqualified from managing corporations for a period of five years is appropriate: N.W. Frozen Foods Pty Limited (No 2) v Australian Competition &amp; Consumer Commission (1996) 71 FCR 285 at 298G to 299B per Burchett and Kiefel JJ; Australian Securities and Investments Commission v Southcorp Limited [2003] FCA 1369 ; (2003) 130 FCR 406 per Lindgren J. In considering the period of disqualification it appears to me that I should have regard to the 15 propositions formulated by Santow J in Re HIH Insurance Limited (in prov liq) ; Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 at 97 to 99 [56]-[57].
Case: Australian Securities and Investments Commission v Vizard [2005] FCA 1037 ; [2005] 145 FCR 57
Outcome: approved
As the majority of the Court recognised, orders under s 206E are not susceptible of the classification that they are simply protective of the public; they have a punitive effect such that, inter alia, they give a personal defendant the right to claim privilege against self exposure as to penalties (220 CLR at 147 [37]). The effect of that decision was summarised by Finkelstein J in Australian Securities and Investments Commission v Vizard [2005] FCA 1037 ; (2005) 145 FCR 57 at 65 [35] as making clear that a disqualification order can be imposed not only to protect the company's shareholders against further abuse, but also by way of punishment and, importantly, for general deterrence. 51 Both McHugh J and Finkelstein J recognised that in cases of this kind the factors referred to by Santow J are cognate with the similar kinds of factors which judges sentencing in criminal matters would take into account in assessing what was the appropriate penalty for that conduct. As Finkelstein J said (145 FCR 65 [33] and see too Australian Securities and Investments Commission v Beekink (2006)57 ACSR 284 at [99] per Nicholson J): 'The sentence must be exemplary and sufficient so that members of the business community are put on notice that if they break the trust which has been reposed in them they will receive a proper punishment. It is vital, not only in the interests of the business community but in the interests of society, that leaders of that community will act honestly in all their dealings. Any slip from the high standards demanded of directors can put at risk the fortunes of their company and also the fortunes (large or small) of those who invest in them. In extreme cases, the misconduct can affect the economy as a whole.'
Case: N.W. Frozen Foods Pty Limited v Australian Competition &amp; Consumer Commission (1996) 71 FCR 285
Outcome: considered
The question for me is whether I am satisfied that the proposed order under s 206E of the Corporations Act 2001 (Cth) that Mr Haddad be disqualified from managing corporations for a period of five years is appropriate: N.W. Frozen Foods Pty Limited (No 2) v Australian Competition &amp; Consumer Commission (1996) 71 FCR 285 at 298G to 299B per Burchett and Kiefel JJ; Australian Securities and Investments Commission v Southcorp Limited [2003] FCA 1369 ; (2003) 130 FCR 406 per Lindgren J. In considering the period of disqualification it appears to me that I should have regard to the 15 propositions formulated by Santow J in Re HIH Insurance Limited (in prov liq) ; Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 at 97 to 99 [56]-[57].
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
So much must be taken from his admission that the declarations are appropriate since in order to be knowingly concerned in order to aid or abet the making of a contravention of s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth), s 12DB(1)(c) of that Act, and s 1041H(1) of the Corporations Act 2001 (Cth), it was essential for Mr Haddad to have had knowledge of the material ingredients of the offence (see Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 667 to 669 per Mason ACJ and Wilson, Deane and Dawson JJ). 37 Moreover, I am satisfied that Mr Haddad, on the evidence, did have actual knowledge of the material ingredients of each contravention of the law, the subject of his admissions in the consent declarations. 38 Mr Khoury submitted that Mr Haddad is a young man who had not aimed his conduct at vulnerable persons in the community; he submitted that I should accept that Mr Haddad had not aimed to take advantage of persons who were vulnerable but dealt principally with business people at arms length, and although Mr Haddad's evidence showed that he believed that the policies were underwritten by Zurich, he had been misled into that belief by Mr Dano's evidence. Mr Khoury submitted that Mr Haddad had been cooperative and had complied with Court orders and had not held information back from the Commission or the Court. Mr Khoury submitted that Mr Haddad had been foolish and naive, that he had learned his lesson, that he would not offend again and that he had lost virtually everything as a result of his business and his judgment in involving himself in, among other things, the business the subject of the current proceedings.
Case: Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483
Outcome: cited
These are not in issue and can be stated shortly. First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 515-516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40] . Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at [19] . Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at [6] . Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534.
Case: Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609
Outcome: cited
These are not in issue and can be stated shortly. First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 515-516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40] . Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at [19] . Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at [6] . Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534.