mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Laws v Australian Broadcasting Tribunal [1990] HCA 31 ; (1990) 170 CLR 70
Outcome: cited
The second aspect of procedural fairness or natural justice is that a person should not be a judge in his or her own cause. Here, each committee has acted as a protagonist in this Court in their own cause and they now suggest they should be returned to the position of being a judge, in the sense of a lay tribunal charged with functions of administrative decision-making, in the same cause. That is an unsatisfactory outcome which should not occur unless it is necessary under the legislation: see Laws v Australian Broadcasting Tribunal [1990] HCA 31 ; (1990) 170 CLR 70 at 81-82 per Mason CJ and Brennan J, 96 per Deane J. I am of the preliminary opinion that it is not necessary, but I will hear the parties, if they desire, on whether I should make orders of the following nature: (a) An order in the nature of a writ of prohibition in the first instance issue prohibiting each of the first respondents from further constituting Professional Services Review Committee No 295 [293]. (b) An order in the nature of a writ of mandamus issue requiring the fourth respondent to reconstitute Professional Services Review Committee No 295 [293] to further consider the referral made on 13 December 2001 under s 86 of the Health Insurance Act 1973 (Cth) in accordance with law. 115 For the reasons I have given, each committee made a jurisdictional error and the doctors are entitled to relief. I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 26 March 2007 Counsel for the Applicants: MA Robinson Solicitor for the Applicants: Tress Cox Counsel for the Respondents: RM Henderson Solicitor for the Respondents: Minter Ellison Date of Hearing: 21, 22 September 2006 Date of Judgment: 26 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/388.html
Case: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273
Outcome: cited
However, in their approach the committees have made the tail of the regulation wag the dog of the statute. This eschewed the ordinary principles of statutory construction and the application of the salutary and broad discretion which the Parliament, by its words, conferred on the committees in s 106KA(2). While reg 11 gave effect to intentions expressed in the Review Report and in the Parliament, it did not restrict the circumstances which a committee must take into account in forming a view for the purposes of the application of s 106KA(2). Those intentions are matters to which the Court may have regard as part of the historical context in which s 106KA was enacted so that a purposive meaning can be given to the legislation: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273 at 280-281 [10] - [11] per McHugh ACJ, Gummow and Hayne JJ; Sydney Airport Corporation Ltd v Australian Competition Tribunal [2006] FCAFC 146 ; (2006) 155 FCR 124 at 125 [2] per French, Finn and Allsop JJ. The literal construction of s 106KA(2) and reg 11 will not defeat the intention of the Parliament (or the Executive in making the regulation).
Case: Sydney Airport Corporation Ltd v Australian Competition Tribunal [2006] FCAFC 146 ; (2006) 155 FCR 124
Outcome: cited
However, in their approach the committees have made the tail of the regulation wag the dog of the statute. This eschewed the ordinary principles of statutory construction and the application of the salutary and broad discretion which the Parliament, by its words, conferred on the committees in s 106KA(2). While reg 11 gave effect to intentions expressed in the Review Report and in the Parliament, it did not restrict the circumstances which a committee must take into account in forming a view for the purposes of the application of s 106KA(2). Those intentions are matters to which the Court may have regard as part of the historical context in which s 106KA was enacted so that a purposive meaning can be given to the legislation: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273 at 280-281 [10] - [11] per McHugh ACJ, Gummow and Hayne JJ; Sydney Airport Corporation Ltd v Australian Competition Tribunal [2006] FCAFC 146 ; (2006) 155 FCR 124 at 125 [2] per French, Finn and Allsop JJ. The literal construction of s 106KA(2) and reg 11 will not defeat the intention of the Parliament (or the Executive in making the regulation).
Case: The Queen v Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: approved
The members of the tribunal are the relevant officers of the Commonwealth for the purposes of the proceedings and it is necessary that they be joined as parties to the proceedings: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 173 [43] per McHugh J, 185-186 [91] per Gummow J, 199 [153] per Kirby J, 204 [180] per Hayne J. Here, the tribunal took what the High Court said in The Queen v Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 35-36 was an unusual course of contesting the doctors' case for relief by presenting a substantive argument. Gibbs, Stephen, Mason, Aickin and Wilson JJ said: 'In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which may take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.' 112 It is not satisfactory that the decision of a committee can be challenged, including on the basis that there is an apprehension of bias alleged against them, and have to defend themselves actively in proceedings of this kind, for the reasons given in Hardiman 144 CLR at 35-36. Moreover, the fact that each committee has defended its own interpretation of the legislation and their dismissal of the doctors' cases would suggest to a fair-minded lay person that they will find it difficult entirely to put out of their mind the approach which the Court in proceedings such as this finds to be erroneous if they were to come to reapply themselves to the task. Not everyone, especially a body which has actively defended themselves in contested litigation, would be able to approach the task anew, unaffected by the forensic demonstration of their previous error of approach. Moreover, there is no reason here not to order them to pay the doctors' costs. A fair-minded lay person would be entitled to think that the committees here would not have the equanimity of Sir Winston Churchill, who said: 'In the course of my life, I have often had to eat my own words, and I must confess that I have always found it a wholesome diet.' 113 That is not to suggest any adverse view about the members of either of the two committees. There is no reason to doubt that they would try to apply the law as the Court has declared it. But it is unsatisfactory that having actively sought to uphold a view of the law and their conclusions adverse to the doctors, the same committees should then be called upon to reconsider the matter.
Case: Australian Consumer and Competition Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329
Outcome: cited
The Court is not bound to make the orders on which the parties have agreed. However, having read the Joint Submissions and heard counsel today, I am satisfied that these orders are appropriate and should be made. The declarations serve the public interest by demonstrating that the impugned conduct contravenes the Act : see Australian Consumer and Competition Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 at 333 and Rural Press Limited v Australian Consumer and Competition Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91.
Case: Rural Press Limited v Australian Consumer and Competition Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: cited
The Court is not bound to make the orders on which the parties have agreed. However, having read the Joint Submissions and heard counsel today, I am satisfied that these orders are appropriate and should be made. The declarations serve the public interest by demonstrating that the impugned conduct contravenes the Act : see Australian Consumer and Competition Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 at 333 and Rural Press Limited v Australian Consumer and Competition Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91.
Case: Australian Consumer and Competition Commission v Francis [2004] FCA 487 ; (2004) 142 FCR 1
Outcome: cited
The injunctive relief is designed to make it clear to the respondents what conduct on their parts is proscribed in the three year period during which the injunctions are to be operative: see Australian Consumer and Competition Commission v Francis [2004] FCA 487 ; (2004) 142 FCR 1 at 39 and Australian Consumer and Competition Commission v Digital Products [2006] FCA 1732 (" Digital Products ") at [12].
Case: Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146
Outcome: cited
The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 (" Dataline ") at [60]-[75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285 at 290-295; J McPhee &amp; Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (" Mobil Oil ") at [51]-[58]. These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 (" Jurlique ") at [51]; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 (" Knight ") at [70]; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (" Visy Industries ") at [303].
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: cited
The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 (" Dataline ") at [60]-[75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285 at 290-295; J McPhee &amp; Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (" Mobil Oil ") at [51]-[58]. These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 (" Jurlique ") at [51]; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 (" Knight ") at [70]; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (" Visy Industries ") at [303].
Case: NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285
Outcome: cited
The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 (" Dataline ") at [60]-[75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285 at 290-295; J McPhee &amp; Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (" Mobil Oil ") at [51]-[58]. These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 (" Jurlique ") at [51]; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 (" Knight ") at [70]; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (" Visy Industries ") at [303].
Case: J McPhee &amp; Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532
Outcome: cited
The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 (" Dataline ") at [60]-[75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285 at 290-295; J McPhee &amp; Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (" Mobil Oil ") at [51]-[58]. These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 (" Jurlique ") at [51]; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 (" Knight ") at [70]; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (" Visy Industries ") at [303].
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Outcome: cited
The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 (" Dataline ") at [60]-[75]; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission (1997) 71 FCR 285 at 290-295; J McPhee &amp; Son (Aust) Pty Ltd v Australian Consumer and Competition Commission (2000) 172 ALR 532; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (" Mobil Oil ") at [51]-[58]. These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 (" Jurlique ") at [51]; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 (" Knight ") at [70]; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (" Visy Industries ") at [303].
Case: Australian Consumer and Competition Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301
Outcome: cited
Ordinary sentencing principles are relevant, including specific and general deterrence. Thus in Australian Consumer and Competition Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 at [39], Goldberg J concluded: The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention. What is known in the criminal law as the "totality principle" is also relevant. That is, the total penalty for related offences ought not to exceed what is appropriate for the entire contravening conduct involved: see Jurlique at [52]; Trade Practices Commission v TNT Australia Pty Ltd &amp; Ors (1995) ATPR 41-375 at 40,169; Knight at [73]; and Visy Industries at [304]. The "parity principle" is also relevant, namely, all other things being equal, like cases should be treated alike.
Case: Trade Practices Commission v TNT Australia Pty Ltd &amp; Ors (1995) ATPR 41-375
Outcome: cited
Ordinary sentencing principles are relevant, including specific and general deterrence. Thus in Australian Consumer and Competition Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 at [39], Goldberg J concluded: The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention. What is known in the criminal law as the "totality principle" is also relevant. That is, the total penalty for related offences ought not to exceed what is appropriate for the entire contravening conduct involved: see Jurlique at [52]; Trade Practices Commission v TNT Australia Pty Ltd &amp; Ors (1995) ATPR 41-375 at 40,169; Knight at [73]; and Visy Industries at [304]. The "parity principle" is also relevant, namely, all other things being equal, like cases should be treated alike.
Case: Australian Consumer and Competition Commission v ABB Power Transmission Pty Ltd (2004) ATPR 42-011; [2004] FCA 819
Outcome: cited
Further, the fact that the ACCC and the respondents have put forward a penalty that they have agreed as between themselves is relevant, although not conclusive because the Court retains the responsibility for imposing penalties: see Dataline at [59]; Visy Industries at [305]; and Australian Consumer and Competition Commission v ABB Power Transmission Pty Ltd (2004) ATPR 42-011; [2004] FCA 819 at [46] - [56] .