mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Foster v Australian Competition and Consumer Commission (ABN 83 975 695 966) [2006] FCAFC 21 ; (2006) 149 FCR 135
Outcome: referred to
The Commission in this case only seeks injunctions to restrain conduct which would constitute a contravention of the Act and does not seek to restrain conduct which would not or may not constitute a contravention of the Act. In an appropriate case it seems the court has the power to make such orders: Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 ; (2006) 149 FCR 135. In this case, the granting of injunctions would add only one remedy, ie, a remedy for contempt of court, to those provided by the Act. 101 Generally speaking, injunctions which do no more than restrain contraventions of the Act will have little impact in terms of general deterrence. The pecuniary penalties are likely to have the greatest impact in that respect. Injunctions restraining no more than contraventions of the Act may have an effect in terms of personal deterrence and may be granted because of that consideration. They may also be granted because, in a particular case, they will reduce the likelihood of further contraventions. In this case, I am satisfied that the possibility of further contraventions is slight. Although Cambur Industries should have exercised greater control over Mr Caulfield, it was Mr Caulfield who was responsible for the contraventions. I am satisfied that the investigation, court proceedings, and pecuniary penalty I propose to impose has had and will have a very significant impact on him in terms of deterrence and, coupled with the compliance programme put in place by Cambur Industries, means it is very unlikely that he will engage in contravening conduct in the future. 102 As far as Cambur Industries and Mr Jeffs are concerned, I am satisfied that Mr Jeffs' lack of knowledge of the provisions of the Act, his lack of control and supervision of Mr Caulfield, and the lack of education programmes and checks and balances to ensure compliance with the Act have now been addressed and, coupled with the pecuniary penalty I propose to impose on Cambur Industries, means it is very unlikely that the company will engage in contravening conduct in the future.
Case: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
Outcome: referred to
Under s 80 of the Act, the court may grant an injunction in such terms as the court determines to be appropriate. The section provides that the court may grant an injunction whether or not the person intends to engage in the relevant conduct again, whether or not the person has previously engaged in the relevant conduct and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in the relevant conduct: s 80(4) of the Act. These matters, which are often highly relevant to whether a court exercising equitable jurisdiction grants an injunction in an action between private parties, are of much less relevance when a court is considering the power to grant an injunction under s 80. However, they are not irrelevant to the exercise of that power: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 253-257 per Lockhart J.
Case: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: referred to
It is common ground that it is appropriate to make declarations and the only question is the form of those declarations. A declaration under the Act and s 21 of the Federal Court Act 1976 (Cth) must identify the contravening conduct. It must be precise in its terms, such that a person reading the declaration understands the nature of the contravention and, in broad terms, the conduct constituting the contravention. On the one hand, it is not necessary to put all the relevant findings of fact in the declaration, but, on the other, the gist of the conduct (as found) should be identified: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91 [89] - [90] per Gummow, Hayne and Heydon JJ. 97 The declarations I am prepared to make are set out at the end of these reasons. They are similar to the declarations put forward by the Commission, with the qualification that I have identified eight acts of resale price maintenance in relation to Pete N Peppa and four acts of resale price maintenance in the case of Tabletop and Kitchen. I do not think it offends any principle to declare that some acts referred to in the declarations fall within more than one paragraph of s 96(3) of the Act and I have framed the declarations accordingly. 98 The Commission seeks a series of injunctions against the respondents. The injunctions it seeks against Cambur Industries would restrain it from engaging in conduct in breach of s 48 of the Act by virtue of engaging in conduct which falls within the terms of s 96(3)(a), (b), (d) and (f) of the Act for a period of three years. Similar injunctions are sought in relation to Mr Caulfield, the first restraining him from being involved in contravening conduct by a corporation and the second restraining him from being involved in conduct where the recipient of the goods is a corporation (see s 96(2)).
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: referred to
In Trade Practices Commission v CSR Ltd (1991) ATPR 41-076, French J identified other relevant matters as follows: 5. the size of the contravening company; 6. the degree of power it has, as evidenced by its market share and ease of entry into the market; 7. the deliberateness of the contravention and the period over which it extended; 8. whether the contravention arose out of the conduct of senior management or at a lower level; 9. whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programmes and disciplinary or other corrective measures in response to an acknowledged contravention; and 10. whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention.
Case: Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151
Outcome: cited
Appellant contended that when explaining her case to the Tribunal she was " nervous ". Given the importance to her of the claim that she was making, so much may be expected. Indeed, it is important to constantly recall the difficult circumstances in which applicants for refugee status are called upon to give an account of their circumstances: Taylor S, "Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions" (1994) 13 U Tas LR 43. In Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194, Foster J also helpfully gave the following reminder: It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected. In the case at hand, the Tribunal has carefully set forth the claims being advanced by the now Appellant and has made findings of fact by reference to the materials before it. In such a context, those findings are findings for the Tribunal alone and not this Court: cf Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552 and 559. Such findings are findings of fact falling far short of jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423 per McHugh J.
Case: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547
Outcome: referred to
Appellant contended that when explaining her case to the Tribunal she was " nervous ". Given the importance to her of the claim that she was making, so much may be expected. Indeed, it is important to constantly recall the difficult circumstances in which applicants for refugee status are called upon to give an account of their circumstances: Taylor S, "Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions" (1994) 13 U Tas LR 43. In Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194, Foster J also helpfully gave the following reminder: It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected. In the case at hand, the Tribunal has carefully set forth the claims being advanced by the now Appellant and has made findings of fact by reference to the materials before it. In such a context, those findings are findings for the Tribunal alone and not this Court: cf Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552 and 559. Such findings are findings of fact falling far short of jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423 per McHugh J.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407
Outcome: cited
Appellant contended that when explaining her case to the Tribunal she was " nervous ". Given the importance to her of the claim that she was making, so much may be expected. Indeed, it is important to constantly recall the difficult circumstances in which applicants for refugee status are called upon to give an account of their circumstances: Taylor S, "Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions" (1994) 13 U Tas LR 43. In Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194, Foster J also helpfully gave the following reminder: It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected. In the case at hand, the Tribunal has carefully set forth the claims being advanced by the now Appellant and has made findings of fact by reference to the materials before it. In such a context, those findings are findings for the Tribunal alone and not this Court: cf Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ; (1998) 86 FCR 547 at 552 and 559. Such findings are findings of fact falling far short of jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423 per McHugh J.
Case: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 , 232 CLR 189
Outcome: applied
2, for example, alleges a failure to " afford procedural fairness ". Section 422B of the Migration Act provides that Div 4 of Pt 7 of the Act " is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with ". See: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48] , [2007] HCA 35 ; 232 CLR 189. One of those requirements is the obligation imposed by s 425 to invite a person seeking review " to give evidence and present arguments relating to the issues arising in relation to the decision under review ". But the manner in which it is said that the Tribunal failed to afford procedural fairness in the present proceeding was not explained and was not readily apparent. The Appellant, for example, appeared before the Tribunal to give evidence and to present her arguments during the course of a hearing held on 20 March 2009. Prior to that, the Tribunal had written to the Appellant pursuant to s 424A of the Migration Act on 23 February 2009. The Appellant's representative wrote to the Tribunal on 7 March 2009 and forwarded a further submission on 15 March 2009. A yet further submission was received on 19 March 2009. When reference is made in Ground 3 to the " relevant considerations or integers central " to the claims being advanced, the " integers " are not further identified. Nor has there been any identification of the manner in which the Tribunal " failed to consider " the claims being advanced or was otherwise " preoccupied " for the purposes of Grounds 4 and 5. There is no evidence that the Tribunal was " preoccupied " and the detailed elaboration of the claims being advanced and the manner in which they were resolved belie any conclusion other than a conclusion that the Tribunal discharged the functions entrusted to it in a careful and measured fashion. Nor was there any elaboration of the manner in which Grounds 6, 7 and 8 were sought to be advanced. Grounds 2 to 8 of the Notice of Appeal (inclusive) are rejected.
Case: SZKOO v Minister for Immigration and Citizenship [2009] FMCA 729
Outcome: affirmed
application for review by the Federal Magistrates Court was then filed and in February 2009 that Court quashed the Tribunal's decision by consent. A differently constituted Tribunal thereafter conducted a further review and on 24 March 2009 again affirmed the decision not to grant the protection visa. On 5 August 2009 the Federal Magistrates Court dismissed an application seeking review of the March 2009 decision of the Tribunal: SZKOO v Minister for Immigration and Citizenship [2009] FMCA 729. On 26 August 2009 the Appellant filed a Notice of Appeal in this Court. The Appellant appeared before the Court unrepresented, although she did have the assistance of an interpreter.
Case: Australian Competition and Consumer Commission v Berbatis [2000] FCA 2 ; (2000) 169 ALR 324
Outcome: cited
Paragraphs 105-109 of the Statement of Claim will be struck out on the ground that they do not disclose a reasonable cause of action. Nonetheless I consider it appropriate that Dr Wearne be granted leave to replead, should she be so advised, the alleged contravention of s 51AA of the Trade Practices Act. The phrase 'conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories' is not confined to conduct of the kind considered by Amadio (see Australian Competition and Consumer Commission v Berbatis [2000] FCA 2 ; (2000) 169 ALR 324 esp at [13]-[28]).
Case: Australian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Ltd [2005] FCA 1071
Outcome: cited
The power conferred on the Court by O 11 r 16 is to be exercised to ensure that a party complies with the rules of pleading ( Australian Competition and Consumer Commission v Fox Symes &amp; Associates Pty Ltd [2005] FCA 1071 ( 'Fox Symes' ) at [95]). Ordinarily the party should be given an opportunity to replead in accordance with the rules ( Fox Symes at [95]). However, if a party's pleading is repeatedly struck out, it may be inferred that the party is unable to plead a reasonable cause of action as required by the rules ( Fox Symes at [109]). 12 The principal rules of pleading are, for present purposes, to be found in Orders 11 and 12 of the FCRs. Order 11 r 2 provides: 'Subject to these Rules (a) a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved; (b) paragraph (a) has effect subject to this Order and to Order 4 (which relates to commencement of proceedings) and to Order 12 (which relates to particulars).' Order 11 r 4 provides: 'Where any document or spoken words are referred to in a pleading, it is permissible to state the effect of the document or spoken words without setting out the precise terms thereof.' Order 12 r 1(1) provides: 'A party pleading shall state in the pleading or in a document filed and served with it the necessary particulars of any claim, defence or other matter pleaded by him.'
Case: Burazin v Blacktown City Guardian [1995] IRCA 660
Outcome: cited
The University submitted that while an implied term of mutual trust and confidence is part of the law of the United Kingdom, there remains a question whether such a term may be implied by law in an Australian contract of employment. I accept that the law is not certain in this respect ( Heptonstall v Gaskin (No 2) (2005) 138 IR 103 at [22]-[23]). However, the implied term as pleaded (which does not involve mutual obligations) finds some support in Australian authorities ( Burazin v Blacktown City Guardian [1995] IRCA 660 Madgwick J's consideration of this issue was not disapproved by the Full Court on appeal in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186). It would not be appropriate on the present motion to foreclose argument on the important question of whether an Australian employer has the implied obligation pleaded in par 10 of the Statement of Claim.
Case: Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Outcome: cited
The University submitted that while an implied term of mutual trust and confidence is part of the law of the United Kingdom, there remains a question whether such a term may be implied by law in an Australian contract of employment. I accept that the law is not certain in this respect ( Heptonstall v Gaskin (No 2) (2005) 138 IR 103 at [22]-[23]). However, the implied term as pleaded (which does not involve mutual obligations) finds some support in Australian authorities ( Burazin v Blacktown City Guardian [1995] IRCA 660 Madgwick J's consideration of this issue was not disapproved by the Full Court on appeal in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186). It would not be appropriate on the present motion to foreclose argument on the important question of whether an Australian employer has the implied obligation pleaded in par 10 of the Statement of Claim.
Case: Commercial Bank of Australia Limited v Amadio [1983] HCA 14 ; (1983) 151 CLR 447
Outcome: cited
I therefore conclude that Dr Wearne has not adequately pleaded a claim pursuant to s 51AA of the Trade Practices Act. It is therefore unnecessary for me to give detailed consideration to pars 107 and 108 of the Statement of Claim. I am, however, inclined to doubt that par 107 adequately pleads circumstances of 'special disadvantage' for the purpose of the unconscionable dealings doctrine expounded by the High Court in Commercial Bank of Australia Limited v Amadio [1983] HCA 14 ; (1983) 151 CLR 447 (' Amadio' ) esp per Mason J at 462. 35 Paragraphs 105-109 of the Statement of Claim will be struck out on the ground that they do not disclose a reasonable cause of action. Nonetheless I consider it appropriate that Dr Wearne be granted leave to replead, should she be so advised, the alleged contravention of s 51AA of the Trade Practices Act. The phrase 'conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories' is not confined to conduct of the kind considered by Amadio (see Australian Competition and Consumer Commission v Berbatis [2000] FCA 2 ; (2000) 169 ALR 324 esp at [13]-[28]).
Case: Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: cited
I accept, at least, that the argument that such conduct was 'conduct in trade and commerce' could not be characterised as clearly untenable (see, for example, Stoelwinder v Southern Health Care Network (2000) 177 ALR 501). However, par 106 does not plead that the relevant conduct was 'in trade or commerce' ; it is drawn on the apparent assumption that it is sufficient for the relevant contract to be in respect of trade or commerce. In Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 603 the High Court observed with respect to the identical expression in s 52 of the Trade Practices Act: 'it is plain that s. 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities.'
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
As this proceeding was instituted before 1 December 2005, the power conferred on the Court by O 20 r 2 is to be exercised to ensure that a clearly untenable case that cannot possibly succeed does not proceed to trial ( General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125; Murex Diagnostics Australia Pty Limited v Chiron Corporation (1995) 55 FCR 194). The lower threshold of 'no reasonable prospect of successfully prosecuting the proceeding' , for which s 31A(2)(b) of the Federal Court of Australia Act 1976 (Cth) now provides, has no application in respect of a proceeding instituted before 1 December 2005 (Item 44 of Part 2 of Schedule 1 of the Migration Litigation Reform Act 2005 (Cth)).
Case: Griggs v Noris Group of Companies (Including SA Helicopters Pty Ltd and Captured Pty Ltd) (2006) 94 SASR 126
Outcome: distinguished
The University further complained of Dr Wearne's failure to identify the basis upon which an implication of the kind which she alleges may be made. However, as I understand Dr Wearne's case, she will contend that the implied term presently pleaded in par 10 of the Statement of Claim is to be implied as a matter of law into every employment contract. She does not accept that the necessary implication depends upon the express terms of the contract and the actual intention of the parties (cf Griggs v Noris Group of Companies (Including SA Helicopters Pty Ltd and Captured Pty Ltd) (2006) 94 SASR 126). Again it would not be appropriate to foreclose argument on this important question. 24 Although par 10 of the Statement of Claim will be struck out for the reason identified in [21] above, it is appropriate that Dr Wearne be granted leave to replead the implied term. I am not satisfied that her case in this respect is clearly untenable. 25 The Statement of Claim does not plead as a material fact that the University breached the implied term in one or more specified ways and then particularise the specified breach or breaches. Rather the Statement of Claim provides a narrative of Dr Wearne's experiences as an employee of the University and her dealings with other employees of the University. The narrative concludes with par 111 of the Statement of Claim which opens as follows: 'The respondent breached the term of the contract set out in paragraph 10 above in that the following conduct of the respondent, was, separately and cumulatively, calculated or likely to damage or destroy the relationship of trust and confidence between the parties: ...'