mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 All ER 918
Outcome: cited
Broadly, the Commission alleges that AAA Club meetings occurred for the purpose of coordinating prices in various markets, including but not limited to Australia. At some meetings the attenders have been identified. Some of the meetings were attended by the fourteenth respondent who was a servant or agent of APP Australia. APP Australia then implemented the agreed prices. Accepting that the Commission cannot identify all of the members of the group and that the pleading alleges directions by unidentified members, the Commission relies upon Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 All ER 918. The Commission says that Meridian stands for the proposition that the process of determining whether a particular individual's act or knowledge is attributable to a corporation is complex and is based on all of the evidence. The Commission emphasises that this is established by the evidence, not the pleading.
Case: Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] HCA 11 ; (1966) 115 CLR 10
Outcome: cited
The Commission contends that there is authority to support the proposition that s 6(2) does extend the application of the principal provisions of the Act to corporations while they are engaged in overseas trade and commerce ( CLM Holdings at 244; Seamen's Union of Australia v Utah Development Co [1978] HCA 46 ; (1978) 144 CLR 120 at 136 137; Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] HCA 11 ; (1966) 115 CLR 10 per Menzies J at 38). It submits that, with the changing times and more experience with cartels, the High Court may adopt an "effects test" to competition law jurisdiction. The Commission's submission is that this is a novel question in an area of law that is still developing. It accepts that cases and texts relied upon by Mr George, such as Zhu contain dicta and comment in support of his position but submits that there is no binding authority on the point. The Commission concedes that the dicta in Zhu is contrary to its case on the application of s 6 of the Act. However, it points out that the point has not been fully argued and that there is authority, including what it describes as a powerful dissenting opinion in the High Court to supports its contention.
Case: Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 88
Outcome: cited
The Commission submits that it is arguable that, as in a case of criminal conspiracy, a person may be liable under s 45 of the Act for conspiring with persons unknown. Similarly, it is arguable that a person may be liable for having an understanding restricted to the conduct to be pursued by one of the parties without any element of mutual obligation so far as the other party or parties to the understanding are concerned ( Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 88; Trade Practices Commission v Email Limited (1980) 43 FCR 383). The Commission also says that a meeting of minds does not require the identity of the other party or parties to be known, as long as there is sufficient material from which it can be inferred that Mr George had a meeting of minds with another person.
Case: Pancontinental Mining Pty Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405
Outcome: cited
The Commission accepts that parts of the pleading state conclusions and are of a general nature. It submits that such pleading may still define the issues and inform the respondents of the case they have to meet. In the present case, the Commission says that a level of generality is appropriate and that a conclusion may also be a pleading of a material fact ( Kernel Holdings per French J; State of Queensland v Pioneer Concrete [2003] FCA 1454 ; (1999) ATPR 41-961 per Drummond J). It submits that this, like Pioneer , is a case in which it is unnecessary to strike out a conclusionary pleading. It is not, the Commission submits, a question whether the facts pleaded are sufficient in themselves to give rise to a cause of action but whether it would be open on the pleadings to prove the facts at the trial which would constitute a cause of action (Pancontinental Mining Pty Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 per Beaumont J at 414). The Commission submits that it has pleaded the overt acts of the alleged conspirators and the conclusion. The Commission says that, taken together, this leads to the conclusion that there was an arrangement or understanding which contained a provision of the type impugned.
Case: R v Australian Industrial Court; ex parte CLM Holdings Pty Ltd [1977] HCA 6 ; (1977) 136 CLR 235
Outcome: cited
Under the heading "contraventions", the pleading bears a sub-heading "nexus with Australia". The parties accept that the effect of paragraphs 177 and 179 in this part of the pleading is to bring conduct occurring outside Australia within the reach of the Act by the operation of s 6(2)(b) of the Act. Mr George contends that s 6(2)(b) does not give the Act extra-territorial operation. He relies upon authority such as R v Australian Industrial Court; ex parte CLM Holdings Pty Ltd [1977] HCA 6 ; (1977) 136 CLR 235 at 234 235 and Zhu v The Treasurer of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530 at [96] in support of that proposition. He submits that s 6(2)(b) provides wider constitutional support for the Act but does not operate to bring conduct carried on outside Australia within the ambit of the Act. 66 The Commission contends that there is authority to support the proposition that s 6(2) does extend the application of the principal provisions of the Act to corporations while they are engaged in overseas trade and commerce ( CLM Holdings at 244; Seamen's Union of Australia v Utah Development Co [1978] HCA 46 ; (1978) 144 CLR 120 at 136 137; Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] HCA 11 ; (1966) 115 CLR 10 per Menzies J at 38). It submits that, with the changing times and more experience with cartels, the High Court may adopt an "effects test" to competition law jurisdiction. The Commission's submission is that this is a novel question in an area of law that is still developing. It accepts that cases and texts relied upon by Mr George, such as Zhu contain dicta and comment in support of his position but submits that there is no binding authority on the point. The Commission concedes that the dicta in Zhu is contrary to its case on the application of s 6 of the Act. However, it points out that the point has not been fully argued and that there is authority, including what it describes as a powerful dissenting opinion in the High Court to supports its contention.
Case: Seamen's Union of Australia v Utah Development Co [1978] HCA 46 ; (1978) 144 CLR 120
Outcome: cited
The Commission contends that there is authority to support the proposition that s 6(2) does extend the application of the principal provisions of the Act to corporations while they are engaged in overseas trade and commerce ( CLM Holdings at 244; Seamen's Union of Australia v Utah Development Co [1978] HCA 46 ; (1978) 144 CLR 120 at 136 137; Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] HCA 11 ; (1966) 115 CLR 10 per Menzies J at 38). It submits that, with the changing times and more experience with cartels, the High Court may adopt an "effects test" to competition law jurisdiction. The Commission's submission is that this is a novel question in an area of law that is still developing. It accepts that cases and texts relied upon by Mr George, such as Zhu contain dicta and comment in support of his position but submits that there is no binding authority on the point. The Commission concedes that the dicta in Zhu is contrary to its case on the application of s 6 of the Act. However, it points out that the point has not been fully argued and that there is authority, including what it describes as a powerful dissenting opinion in the High Court to supports its contention.
Case: Seven Network v News Ltd [2003] FCA 388
Outcome: followed
As was said by Sackville J in Seven Network v News Ltd [2003] FCA 388 at [21] material facts, not conclusions, must be pleaded with a sufficient degree of specificity, having regard to the subject matter, to convey to the opposite party the case that party has to meet. His Honour observed that it must be apparent on the face of the document that the facts pleaded if proved would establish the cause of action relied on. An example given by Sackville J at [22] was that a mere assertion that an agreement contained a provision that had the purpose or effect of substantially lessening competition is not a proper pleading. It is not suggested by the Commission and it would not cure the pleading if Mr George could request further particulars ( Australian Wool Innovation Ltd v Newkirk (2005) ATPR 42-053 at [20]-[25]; Shelton v National Roads &amp; Motorists Assn Ltd (2004) 51 ACSR 278 at [18]-[22]). The pleading of a conclusion without underlying material facts is liable to be struck out ( Australian Wool Innovation, Shelton ).
Case: Shelton v National Roads &amp; Motorists Assn Ltd (2004) 51 ACSR 278
Outcome: cited
As was said by Sackville J in Seven Network v News Ltd [2003] FCA 388 at [21] material facts, not conclusions, must be pleaded with a sufficient degree of specificity, having regard to the subject matter, to convey to the opposite party the case that party has to meet. His Honour observed that it must be apparent on the face of the document that the facts pleaded if proved would establish the cause of action relied on. An example given by Sackville J at [22] was that a mere assertion that an agreement contained a provision that had the purpose or effect of substantially lessening competition is not a proper pleading. It is not suggested by the Commission and it would not cure the pleading if Mr George could request further particulars ( Australian Wool Innovation Ltd v Newkirk (2005) ATPR 42-053 at [20]-[25]; Shelton v National Roads &amp; Motorists Assn Ltd (2004) 51 ACSR 278 at [18]-[22]). The pleading of a conclusion without underlying material facts is liable to be struck out ( Australian Wool Innovation, Shelton ).
Case: Stanley v Layne Christenson &amp; Co [2006] WASCA 56
Outcome: cited
Central to the Commission's submissions is the principle that in a modern form of pleading some generality and the pleading of conclusions are allowable. Further, the Commission submits that in claims of conspiracy sought to be proved by inference from acts done in pursuance of the apparent common purpose, it may be appropriate to defer the provision of particulars until after appropriate discovery or not require them where they are within the knowledge of the respondent ( Stanley v Layne Christenson &amp; Co [2006] WASCA 56 per Wheeler J [50]). It may also be appropriate simply to require the Commission to put on its evidence. 49 It is relevant that this is a complex case, alleging cartel behaviour. This necessarily involves pleading conduct the effect of which is known and some of the alleged participants identified, but where information cannot be provided until after discovery and subpoenas. I do not consider that the Commission has impermissibly pleaded conclusions, although some conclusions are present in the pleading. The pleading sets out, with sufficient clarity, the case against Mr George. 50 Mr George's complaint seems to be that, by pleading what he describes as material facts, being the details of known incidences of meetings of the AAA Club as particulars, the Commission can add other meetings. The same applies to other specific paragraphs referred to by Mr George. The concern expressed was not really as to the form of the pleading, which may not be susceptible to a strike out, but as to the lack of real detail. He fears that the Commission will attempt to fill the gaps in the case by the process of rolling discovery and subpoenas. Mr George is not alleged to have been present at any of the AAA Club meetings. He is not alleged to have been present when the alleged arrangements were made and understandings arrived at. His alleged knowledge and actions in contemplation of the arrangement or understanding must, therefore, be based on inferences. Mr George complains that there are no material facts pleaded from which those inferences are invited to be drawn. He wants those facts, matters and circumstances to be included formally in the pleading and not provided as particulars, as offered by the Commission.
Case: State of Queensland v Pioneer Concrete [2003] FCA 1454 ; (1999) ATPR 41-961
Outcome: cited
The Commission accepts that parts of the pleading state conclusions and are of a general nature. It submits that such pleading may still define the issues and inform the respondents of the case they have to meet. In the present case, the Commission says that a level of generality is appropriate and that a conclusion may also be a pleading of a material fact ( Kernel Holdings per French J; State of Queensland v Pioneer Concrete [2003] FCA 1454 ; (1999) ATPR 41-961 per Drummond J). It submits that this, like Pioneer , is a case in which it is unnecessary to strike out a conclusionary pleading. It is not, the Commission submits, a question whether the facts pleaded are sufficient in themselves to give rise to a cause of action but whether it would be open on the pleadings to prove the facts at the trial which would constitute a cause of action (Pancontinental Mining Pty Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 per Beaumont J at 414). The Commission submits that it has pleaded the overt acts of the alleged conspirators and the conclusion. The Commission says that, taken together, this leads to the conclusion that there was an arrangement or understanding which contained a provision of the type impugned.
Case: Trade Practices Commission v Email Limited (1980) 43 FCR 383
Outcome: cited
The Commission submits that it is arguable that, as in a case of criminal conspiracy, a person may be liable under s 45 of the Act for conspiring with persons unknown. Similarly, it is arguable that a person may be liable for having an understanding restricted to the conduct to be pursued by one of the parties without any element of mutual obligation so far as the other party or parties to the understanding are concerned ( Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 88; Trade Practices Commission v Email Limited (1980) 43 FCR 383). The Commission also says that a meeting of minds does not require the identity of the other party or parties to be known, as long as there is sufficient material from which it can be inferred that Mr George had a meeting of minds with another person.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
In answer to Mr George's assertion that the pleading of knowledge on the part of Mr George does not comply with the principles of Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661, the Commission relies on Giorgianni v R [1985] HCA 29 ; (1985) 156 CLR 473 and contends that the pleading of the allegations of aiding, abetting, counselling and procuring the making of the alleged agreement complies with the principles applicable to accessorial conduct in Giorgianni .
Case: Zhu v The Treasurer of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530
Outcome: cited
Under the heading "contraventions", the pleading bears a sub-heading "nexus with Australia". The parties accept that the effect of paragraphs 177 and 179 in this part of the pleading is to bring conduct occurring outside Australia within the reach of the Act by the operation of s 6(2)(b) of the Act. Mr George contends that s 6(2)(b) does not give the Act extra-territorial operation. He relies upon authority such as R v Australian Industrial Court; ex parte CLM Holdings Pty Ltd [1977] HCA 6 ; (1977) 136 CLR 235 at 234 235 and Zhu v The Treasurer of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530 at [96] in support of that proposition. He submits that s 6(2)(b) provides wider constitutional support for the Act but does not operate to bring conduct carried on outside Australia within the ambit of the Act. 66 The Commission contends that there is authority to support the proposition that s 6(2) does extend the application of the principal provisions of the Act to corporations while they are engaged in overseas trade and commerce ( CLM Holdings at 244; Seamen's Union of Australia v Utah Development Co [1978] HCA 46 ; (1978) 144 CLR 120 at 136 137; Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] HCA 11 ; (1966) 115 CLR 10 per Menzies J at 38). It submits that, with the changing times and more experience with cartels, the High Court may adopt an "effects test" to competition law jurisdiction. The Commission's submission is that this is a novel question in an area of law that is still developing. It accepts that cases and texts relied upon by Mr George, such as Zhu contain dicta and comment in support of his position but submits that there is no binding authority on the point. The Commission concedes that the dicta in Zhu is contrary to its case on the application of s 6 of the Act. However, it points out that the point has not been fully argued and that there is authority, including what it describes as a powerful dissenting opinion in the High Court to supports its contention.
Case: Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491
Outcome: referred to
It is not open to the appellant, on this appeal, effectively to advance a case that was not run at trial. This is so, even if the case which it is now sought to run can be supported by reference to particulars contained in the statement of claim. He is bound by the way in which his application was prosecuted at trial: see Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491 at 497. It cannot, fairly, be asserted that the Federal Magistrate fell into error by failing to deal with aspects of the appellant's pleaded case which were not presented at trial. 27 In any event, I do not consider that the appellant's claim that representations were made on occasions other than the 18 April 2002 meeting can be sustained. I have examined each of the documents relied on by the appellant (listed above at [9] and [13]) and the evidence relating to those documents. At best for the appellant, some of them may, arguably, contain statements which might be said to be consistent with the appellant's allegation that the relevant representations were made at the meeting on 18 April 2002. None of them contained evidence of any separate representations of the kind alleged being made at other times. The Federal Magistrate did not overlook this material. Most of it is referred to in his reasons at paras 18ff. He was not invited to find that any of this material evidenced the making of either of the representations at other times and he did not do so. 28 In my view the Federal Magistrate did not err. It was open to him, on the evidence and the case presented to him, to conclude, as he did, that the alleged representations had not been made by Professor Angus on 18 April 2002.
Case: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55
Outcome: referred to
scope of an appeal under s 44(1) of the AAT Act and the requirement that the notice of appeal state a question, or questions of law, have been discussed in the authorities. The relevant principles are well established and I refer to Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302 ; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 ; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 ; Hussain v Minister for Foreign Affairs &amp; Anor [2008] FCAFC 128 ; (2008) 169 FCR 241. The difference between a question of fact and a question of law has also been discussed in the authorities. Again, although there are sometimes difficulties in applying the relevant principles, they are well established and I refer to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1995-1996) 186 CLR 389.
Case: Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302
Outcome: referred to
scope of an appeal under s 44(1) of the AAT Act and the requirement that the notice of appeal state a question, or questions of law, have been discussed in the authorities. The relevant principles are well established and I refer to Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302 ; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 ; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 ; Hussain v Minister for Foreign Affairs &amp; Anor [2008] FCAFC 128 ; (2008) 169 FCR 241. The difference between a question of fact and a question of law has also been discussed in the authorities. Again, although there are sometimes difficulties in applying the relevant principles, they are well established and I refer to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1995-1996) 186 CLR 389.
Case: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 ; (2009) 253 ALR 263
Outcome: referred to
question whether the Tribunal has complied with s 43(2B) in a particular case is, I think, a question of law: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 ; (2009) 253 ALR 263 at 271-273 [30] - [37] per Perram J.
Case: Civil Aviation Safety Authority v Central Aviation Pty Limited [2009] FCAFC 137
Outcome: referred to
writing these reasons, I note that the Full Court of this Court held in Civil Aviation Safety Authority v Central Aviation Pty Limited [2009] FCAFC 137 that a failure by the Tribunal to comply with s 43(2) of the AAT Act is an error of law. However, the Court also held that a failure to comply with s 43(2) did not inevitably lead to an order setting aside the decision. Whether the decision is set aside will depend on the facts and circumstances of the individual case and the exercise of the discretion conferred by s 44(5) of the AAT Act.
Case: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1995-1996) 186 CLR 389
Outcome: referred to
scope of an appeal under s 44(1) of the AAT Act and the requirement that the notice of appeal state a question, or questions of law, have been discussed in the authorities. The relevant principles are well established and I refer to Brown v The Repatriation Commission [1985] FCA 194 ; (1985) 7 FCR 302 ; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 ; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 ; Hussain v Minister for Foreign Affairs &amp; Anor [2008] FCAFC 128 ; (2008) 169 FCR 241. The difference between a question of fact and a question of law has also been discussed in the authorities. Again, although there are sometimes difficulties in applying the relevant principles, they are well established and I refer to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1995-1996) 186 CLR 389.