mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464
Outcome: considered
The CEPU drew support for this argument from judicial consideration of the words 'particular persons' in s 4D of the TPA in Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 (' Bullock' ); see also TNT at 75-76. Prior to 1986, s 4D referred to 'particular persons' as the target of the proscribed provision. In Bullock, the Full Court left open the question whether Gray J had been correct in limiting the words 'particular persons' in s 4D to 'persons whose identity is known or can be ascertained': at 473. In apparent response to the decisions in Bullock and TNT, the words 'or classes of persons' were added to s 4D by the Trade Practices Revision Act 1986 (Cth): see Gummow J's discussion in South Sydney at 589-590 [75]. The scope of s 45E has not been similarly expanded to include 'classes of persons'. According to senior counsel for the CEPU, it can therefore be inferred that the legislature did not intend to expand the scope of s 45E. Thus, it was submitted, the section requires the identification of a particular second person.
Case: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: distinguished
The CEPU submitted that, as the heads of agreement is a binding contract, the Court's task is to interpret the words of the contract, without regard to negotiations which transpired beforehand, so long as the words of the contract are clear: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 (' Codelfa' ). It said that cl 4.1 of the heads of agreement merely obliged Edison to 'request' that electrical contractors have acceptable industrial arrangements. On the CEPU's preferred reading, cl 4.1 simply provided that having a current certified agreement with the CEPU was one way, but not the mandated way, that an electrical contractor could have acceptable industrial arrangements for the purposes of the heads of agreement.
Case: L Grollo &amp; Co Pty Ltd v Nu-Statt Decorating Pty Ltd (1978) 34 FLR 81
Outcome: cited
In Federal Commissioner of Taxation v Lutovi Investments Pty Ltd [1978] HCA 55 ; (1978) 140 CLR 434 (' Lutovi' ), the meaning of an 'arrangement' was considered in the context of s 260 of the Income Tax Assessment Act 1936 (Cth). Gibbs and Mason JJ (Murphy J agreeing) said at 444: 'In the context of s 260 an arrangement is something less than a binding contract or agreement, something in the nature of an understanding which may not be enforceable at law ( Newton v Federal Commissioner of Taxation). ... It is, however, necessary that an arrangement should be consensual, and that there should be some adoption of it. But in our view it is not essential that the parties are committed to it or are bound to support it. An arrangement may be informal as well as unenforceable and the parties may be free to withdraw from it or to act inconsistently with it, notwithstanding their adoption of it.' The High Court's formulation in Lutovi has been applied in the context of 'arrangement or understanding' under s 45 of the TPA: see, eg, Email at 396; and David Jones at 463-464. In Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 (' TNT' ), Franki J referred to the above passage from Lutovi and said at 25: 'I lean with respect to the views expressed by Smithers J in L Grollo &amp; Co Pty Ltd v Nu-Statt Decorating Pty Ltd ... at 89; 17,842 where he said: "I have to remember that the concept of an understanding is broad and flexible. It may arise merely where the minds of the parties are at one that a proposed transaction proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct."' 108 In David Jones at 463-464, Fisher J agreed with Franki J's comments in TNT and also favoured the views expressed by Smithers J in L Grollo &amp; Co Pty Ltd v Nu-Statt Decorating Pty Ltd (1978) 34 FLR 81. 174 Under s 45E of the TPA, I am not limited to an examination of the words of cl 4.1. This is not a proceeding to enforce a contract. Section 45E is not concerned only with written agreements; it is also concerned with the making of an 'arrangement' or arriving at an 'understanding'. An arrangement or understanding may be informal and unenforceable: Lutovi at 444. The concept of an 'understanding' is a broad and flexible one: L Grollo &amp; Co Pty Ltd v Nu-Statt Decorating Pty Ltd , supra, at 89; TNT at 25; and David Jones at 463-464. For the reasons explained above, I am satisfied that there was a broader arrangement between the parties which overshadowed and controlled the language used in the heads of agreement. It was understood and agreed between the CEPU and Edison that the heads of agreement imposed an obligation on Edison not to retain electrical contractors at the Loy Yang B site if they did not have a current certified agreement with the CEPU, and that this is the way in which Edison would implement it. Nothing in cl 4.1 prevented Edison implementing its arrangement with the CEPU in this way.
Case: Australian Workers' Union v John Holland Pty Ltd (2001) 103 IR 205
Outcome: considered
The CEPU submitted that the surrounding circumstances show that the provision was included for the purpose of securing the signing of the Simon Engineering site agreement. Senior counsel for the CEPU submitted that the present case is analogous to Australian Workers' Union v John Holland Pty Ltd (2001) 103 IR 205. That case involved a prohibition under s 298K of the Workplace Relations Act 1996 (Cth) on dismissing an employee for 'a prohibited reason, or for reasons that include a prohibited reason'. The applicants claimed that the employer had terminated the employment of the second applicant for a 'prohibited reason', namely, because the second applicant was a member of Australian Workers' Union. In determining the reason for the employer's termination of the second applicant's employment, Goldberg J had regard to a broader industrial crisis created by another entity that was affecting the employer. Goldberg J concluded that the second applicant's membership of the union was not the reason for the employer's termination of his employment; the major reason was to solve the broader industrial relations problem that the employer faced: at 214 [41] and at 216 [49]. So too here, the CEPU submitted, the operative reason or purpose for including the provision was to secure the CEPU's signing of the Simon Engineering site agreement. 178 This argument faces insurmountable difficulties. Edison's reason for entering into an agreement with the CEPU may have been to secure the signing of the Simon Engineering site agreement and to ensure that construction work on the peaker plant commenced without further delay. But that was the motive for the agreement, not the purpose of including the provision: South Sydney at 573 [18]. The purpose of the provision is the end that it seeks to achieve. Here, Edison's operative purpose for including the provision was to restrict the electrical contractors it could engage at Loy Yang B to those who had a current certified agreement with the CEPU, conformably with the request from the CEPU. That was also the manifest effect of the provision. Notably, the CEPU's argument does not address its own purpose for including the provision in its arrangement with Edison. On any view of the evidence, the CEPU's purpose for including the provision was to limit the electrical contractors who could be engaged to work at Loy Yang B to those who had a current certified agreement with the CEPU. The CEPU did not include the provision in order to get the Simon Engineering site agreement signed; that was the leverage that the CEPU used to get Edison to agree to include the provision.
Case: R v Tyrell [1894] 1 QB 710
Outcome: cited
Insofar as it is possible to discern the policy of the legislation, it is unlikely that the legislature intended to exclude a union from liability in relation to a contravention of ss 45E and/or 45EA. Unions are not a class of persons whom the legislation is designed to protect: see Mallan v Lee ; cf R v Tyrell [1894] 1 QB 710. Quite the opposite, ss 45E and 45EA were designed to prohibit certain types of industrial action by unions. Although liability is imposed on a union as principal for the purposes of some provisions of Pt IV of the TPA, the fact that this course is not taken in relation to ss 45E and 45EA does not, of itself, evidence a legislative intention to exclude a union from liability under ss 76(1) and 80(1).
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: followed
The next question is whether the CEPU's conduct attracts liability under ss 76(1) and 80(1). The principles of accessorial liability applicable to the present case can be shortly stated. It is necessary to prove knowledge of the essential elements constituting the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 670. The requirement of 'knowledge' is actual and not constructive knowledge: Giorgianni at 504-507; Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 5. Actual knowledge may be established as a matter of inference from the circumstances surrounding the contravention: Pereira v Director of Public Prosecutions [1988] HCA 57 ; (1998) 82 ALR 217 at 219.
Case: Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1
Outcome: cited
The next question is whether the CEPU's conduct attracts liability under ss 76(1) and 80(1). The principles of accessorial liability applicable to the present case can be shortly stated. It is necessary to prove knowledge of the essential elements constituting the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 670. The requirement of 'knowledge' is actual and not constructive knowledge: Giorgianni at 504-507; Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 5. Actual knowledge may be established as a matter of inference from the circumstances surrounding the contravention: Pereira v Director of Public Prosecutions [1988] HCA 57 ; (1998) 82 ALR 217 at 219.
Case: Pereira v Director of Public Prosecutions [1988] HCA 57 ; (1998) 82 ALR 217
Outcome: cited
The next question is whether the CEPU's conduct attracts liability under ss 76(1) and 80(1). The principles of accessorial liability applicable to the present case can be shortly stated. It is necessary to prove knowledge of the essential elements constituting the contravention: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 670. The requirement of 'knowledge' is actual and not constructive knowledge: Giorgianni at 504-507; Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 5. Actual knowledge may be established as a matter of inference from the circumstances surrounding the contravention: Pereira v Director of Public Prosecutions [1988] HCA 57 ; (1998) 82 ALR 217 at 219.
Case: Dowling v Dalgety Australia Ltd (1992) 34 FCR 109
Outcome: cited
As to whether the CEPU was involved in Edison's contravention of s 45EA, it is necessary to bear in mind the width of the concept of 'give effect to'. It is defined in s 4(1) as including the doing of 'an act or thing in pursuance of or in accordance with' the contract, arrangement or understanding. An act or thing may be done in accordance with a contract, arrangement or understanding even though the person who did that act or thing did not have the contract, arrangement or understanding in mind at the time: TNT at 68. Independent decisions made by parties to a contract, arrangement or understanding can nevertheless give effect to an arrangement made between them: Dowling v Dalgety Australia Ltd (1992) 34 FCR 109.
Case: Electricity Supply Association of Australia v Australian Competition and Consumer Commission [2001] FCA 1296 ; (2001) 113 FCR 230
Outcome: cited
There is utility in making a declaration of the kind sought by the ACCC: see Rural Press at 92 [95]. It will record the consequences of the Court's findings in a legally binding way, and will mark the Court's disapproval of the CEPU's conduct. However, it is essential that the terms of the declaration are tied to the proven facts: see Rural Press at 91 [90]; cf Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334; and Electricity Supply Association of Australia v Australian Competition and Consumer Commission [2001] FCA 1296 ; (2001) 113 FCR 230. I propose to vary the terms of the declarations sought by the ACCC to ensure that they accord with and are sufficiently tied to the factual findings I have made.
Case: Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197
Outcome: considered
There are at least three limitations on the Court's power under s 80. They were summarised by Merkel J in Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 at 203-204 in these terms: 'First, the power is confined by reference to the scope and purpose of the TPA and in particular s 80. It is within the scope and purpose of s 80 to grant injunctive relief which is designed to prevent a repetition of the conduct for which the relief is sought. Secondly there is a contextual limitation within s 80 itself. As the jurisdiction to grant an injunction is enlivened by an alleged or actual contravention of a provision of Pt IV, IVA or V of the TPA, there must be a sufficient nexus or relationship between the contravention and the injunction granted. It is that nexus or relationship that enables determination by the Court of whether the injunction sought is "appropriate". Thirdly, there is the constitutional limitation which requires that the injunction granted be related to the case or controversy the subject of the proceeding.'
Case: Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296
Outcome: cited
In ICI, the Full Court at 257-258 and 267-268 rejected a submission that s 80 creates a presumption in favour of a grant of a final injunction where a contravention or proposed contravention of the TPA is made out. Lockhart J said at 256-257 that the public interest character of s 80, and the breadth and flexibility of its statutory provisions, do not mean that traditional equitable doctrines are irrelevant. It remains relevant to consider questions of repetition of conduct, whether it has ever occurred before, or whether imminent substantial damage is likely, although the absence of any one or more of those elements is not fatal to the grant of an injunction. Equally, the public interest character of s 80 means that deterrence is a relevant consideration. French J said that there is room within the statutory framework and its underlying policy for an injunction which is not intended to restrain an apprehended repetition of contravening conduct, but to deter an offender from repeating the offence: ICI at 268. In Trade Practices Commission v Mobil Oil Australia Ltd (1985) 4 FCR 296, Toohey J said that in the case of a particularly flagrant breach and in the absence of any evidence of an intention on the offender's part to continue the conduct, it might nonetheless be appropriate to mark the Court's disapproval by an injunction as well as a monetary penalty: at 300.
Case: Trade Practices Commission v Walplan Pty Ltd (1985) 7 FCR 495
Outcome: cited
As to the terms in which a final injunction should be granted, the Court's discretion is as wide as the phrase 'as the Court determines to be appropriate'. On first principles, it is plain that the terms of an injunction should be clear and unambiguous, leaving no room for doubt as to the nature and scope of the future conduct that falls within its boundaries: see, eg, ICI at 259 per Lockhart J. A final injunction should not be granted in terms which simply enjoin the respondent not to breach the Act: see Trade Practices Commission v Walplan Pty Ltd (1985) 7 FCR 495; Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574; ICI per Lockhart J at 259-260; and BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 ( 'BMW' ) at 465-466 [36]-[39].
Case: Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563
Outcome: cited
As to the terms in which a final injunction should be granted, the Court's discretion is as wide as the phrase 'as the Court determines to be appropriate'. On first principles, it is plain that the terms of an injunction should be clear and unambiguous, leaving no room for doubt as to the nature and scope of the future conduct that falls within its boundaries: see, eg, ICI at 259 per Lockhart J. A final injunction should not be granted in terms which simply enjoin the respondent not to breach the Act: see Trade Practices Commission v Walplan Pty Ltd (1985) 7 FCR 495; Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574; ICI per Lockhart J at 259-260; and BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 ( 'BMW' ) at 465-466 [36]-[39].
Case: BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452
Outcome: cited
As to the terms in which a final injunction should be granted, the Court's discretion is as wide as the phrase 'as the Court determines to be appropriate'. On first principles, it is plain that the terms of an injunction should be clear and unambiguous, leaving no room for doubt as to the nature and scope of the future conduct that falls within its boundaries: see, eg, ICI at 259 per Lockhart J. A final injunction should not be granted in terms which simply enjoin the respondent not to breach the Act: see Trade Practices Commission v Walplan Pty Ltd (1985) 7 FCR 495; Commodore Business Machines Pty Ltd v Trade Practices Commission (1990) 92 ALR 563 at 574; ICI per Lockhart J at 259-260; and BMW Australia Ltd v Australian Competition and Consumer Commission (2004) 207 ALR 452 ( 'BMW' ) at 465-466 [36]-[39]. 230 The terms of an injunction will not be appropriate if it extends to conduct that does not have an appropriate nexus with the contravening conduct that attracts the operation of s 80: see ICI at 367 per Gummow J. Depending upon the nature of the contravening conduct, it may be legitimate to grant an injunction against a respondent preventing it from engaging in conduct in a similar manner, or to like effect, as the conduct which was the subject of the established contravention: see ICI at 261; and BMW at 465 [36]. The desirability of granting an injunction in this extended form will depend on the circumstances of the case and the existence of a sufficient nexus with the conduct that contravenes the Act.
Case: Ferguson and Commissioner of Taxation [2004] AATA 779
Outcome: cited
As to the factor of fairness to other taxpayers identified in Re Wilson , being a factor which I would acknowledge to be relevant to the Tribunal's approach in principle to decision-making, the Tribunal recorded also that Mr Milne had earned a high level of income in the past, and was 'still earning income in a higher bracket'. Moreover the Tribunal found that Mr Milne had been '... able to acquire assets and to live reasonably well throughout his adverse business fortunes' , though the notions of high and higher are of course relative concepts, and need to be applied with care having regard to all conceivably relevant circumstances. In any event the Tribunal accepted in favour of the Commissioner the proposition that '... releasing Mr Milne would not be fair in the absence of special factors' , consistently with the previous Tribunal decisions of Ferguson and Commissioner of Taxation [2004] AATA 779 and Spicer and Commissioner of Taxation [2002] AATA 960 , the Tribunal exemplifying Ferguson as a case involving insufficient hardship for the availability of taxation relief. In the present case moreover, the Tribunal emphasised as a so-called 'special factor' in favour of Mr Milne for the grant of serious hardship relief his 'battle to continue work despite his very poor health and the need to support his dependant son until he finishes his schooling and obtains his HSC' .
Case: Spicer and Commissioner of Taxation [2002] AATA 960
Outcome: cited
As to the factor of fairness to other taxpayers identified in Re Wilson , being a factor which I would acknowledge to be relevant to the Tribunal's approach in principle to decision-making, the Tribunal recorded also that Mr Milne had earned a high level of income in the past, and was 'still earning income in a higher bracket'. Moreover the Tribunal found that Mr Milne had been '... able to acquire assets and to live reasonably well throughout his adverse business fortunes' , though the notions of high and higher are of course relative concepts, and need to be applied with care having regard to all conceivably relevant circumstances. In any event the Tribunal accepted in favour of the Commissioner the proposition that '... releasing Mr Milne would not be fair in the absence of special factors' , consistently with the previous Tribunal decisions of Ferguson and Commissioner of Taxation [2004] AATA 779 and Spicer and Commissioner of Taxation [2002] AATA 960 , the Tribunal exemplifying Ferguson as a case involving insufficient hardship for the availability of taxation relief. In the present case moreover, the Tribunal emphasised as a so-called 'special factor' in favour of Mr Milne for the grant of serious hardship relief his 'battle to continue work despite his very poor health and the need to support his dependant son until he finishes his schooling and obtains his HSC' .
Case: Giris Pty Ltd v Commissioner of Taxation [1969] HCA 5 ; (1969) 119 CLR 365 
Outcome: cited
Further in his reasons for judgment in Powell at 263, Hill J referred to the dictum of Windeyer J in Giris Pty Ltd v Commissioner of Taxation [1969] HCA 5 ; (1969) 119 CLR 365 at 384 concerning the need '... to be guided and controlled by the policy and purpose of the enactment, so far as that is manifest in it [and to] exclude from... consideration any matter which it would be unlawful... to take as a criterion... [subject to the qualification where] the statute seems to allow great latitude to the Commissioner in forming his opinion' . Moreover his Honour referred to what was said by Dixon J (as he then was) in R v Trebilco; Ex parte FS Falkiner &amp; Sons Ltd [1936] HCA 63 ; (1936) 56 CLR 20 at 32 as to certain statutory 'considerations by which an exercise of discretion is to be guided... [t] he nature of those considerations [to] be gathered from the scope and object of the provision' . Additionally his Honour referred further to dictum of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40, where his Honour described the statutory discretion there addressed, albeit not related to fiscal exaction, as '... similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard', and where his Honour thereafter proceeded to emphasise that '[b]y analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.' Those factors have aspects of materiality in relation to the issue or issues here falling for consideration.