mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SmithKline Beecham PLC v Alphapharm Pty Ltd [2001] FCA 271
Outcome: followed
The variety of orders as sought by the Respondent in the most recent Motion desirably should have been resolved at the one time. The Respondent in an Outline of Submissions filed on 28 March 2008 thus contends that the order as first made under O 15A -- and as subsequently varied -- has served its purpose and that " Order 15A is now exhausted" . On behalf of the Respondent, reliance is placed upon the following observations of Finkelstein J in SmithKline Beecham PLC v Alphapharm Pty Ltd [2001] FCA 271: [26] There is a limit to the discovery to which an applicant is entitled under O15A. As I have indicated, O15A is not a substitute for general discovery. The object is to disclose what is sufficient to permit the applicants to establish whether the elements of a cause of action are made out and to plead sufficient particulars to support a claim. Even though the Respondent has previously filed Affidavits , it is simply submitted that there should be no cross-examination because the object and purpose of O 15A in the present proceedings has been fulfilled. 16 That there is a limit to the power conferred by O 15A may readily be accepted. A question which will have to be resolved is to determine whether that limit has now been reached. But that is a matter which can be resolved at the hearing on 1 May 2008. That is a course which was not opposed this morning by Counsel for the Respondent. 17 It is inappropriate to require Senior Counsel for the Applicants to detail in advance the precise questions or even the detailed subject-matter of those areas of factual dispute which will be the focus of any cross-examination. To do so may of itself frustrate the effectiveness of any cross-examination. But it is appropriate to oblige any counsel requiring a deponent who normally resides overseas to attend in person, to satisfy the Court that there is a legitimate reason for requiring him to do so. To that end, it was put on behalf of the Applicants (without being exhaustive) that there would be cross-examination on the following issues: (i) why there has been production of a number of Swiss bank accounts but non-production of the first pages of those accounts, the first pages presumably disclosing the names of the beneficiaries of each of those accounts; (ii) the references contained within those Swiss bank accounts to other accounts described as " fiduciary accounts ", without any further explanation as to the identity of those accounts or those having an interest in them; and (iii) assets asserted by the Respondent to belong to himself and not to his mother but in respect to which legitimate bases for reservation exist. Some of the documents upon which the Respondent is to be cross-examined have previously been seen by him; others, however, have apparently not been seen by him.
Case: St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360
Outcome: followed
Contestable issues of fact may just as likely arise in applications under O 15A as they may in other proceedings. And they may be resolved in the same manner, with the Court always conscious of the need to ensure that the process itself does not become a " full-blown " hearing or an abuse of process. In Tyco Australia , Hely J relevantly observed: [54] Contestable issues of fact may arise in proceedings under O 15A for preliminary discovery: St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147. There is no reason why the ordinary interlocutory procedures should not be available to assist in the resolution of those contestable issues of fact, subject to the overriding consideration that the invocation of those procedures does not amount to an abuse of the process of the Court: Kimberley Mineral Holdings Ltd (In Liq) v McEwan (1980) 1 NSWLR 210. Thus, at least prima facie, it would be an abuse of process for an applicant for preliminary discovery to seek to compel the production of documents by notice to produce, when the production of those documents is sought under O 15A r 6. But it does not follow, for example, that a subpoena sought to be issued by an applicant for preliminary discovery against a third party would necessarily be an abuse, depending upon the scope and purpose of the subpoena. Even short of an abuse of process, considerable caution should be exercised before exposing any witness to the inconvenience of travelling from overseas to Australia unless it is considered necessary in the interests of the administration of justice. 18 Those are areas of cross-examination which, it is considered, can be further pursued in an application under O 15A. But it must further be recognised that the point of time at which the Applicants must be required to file an application and statement of claim and thereafter invoke the general rules for discovery conferred by O 15A must be very imminent. Whether such an order should be made, as is sought by the Respondent, will be further considered at the hearing on 1 and 2 May 2008. Rule 6 is a rule " designed to amplify the court's power to penetrate obscurities and uncertainties in the interests of justice ": cf Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 at 733 per Burchett J. It is a rule which should be " beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case ": St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 at [26] , [2004] FCA 1360 ; 211 ALR 147 at 153 per Hely J.
Case: Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115
Outcome: followed
Counsel for the Respondent accepts that there may, in an appropriate case, be cross-examination of deponents of affidavits filed and read in proceedings commenced under O 15A. So much may presently be accepted. An application under O 15A does not exclude the availability of other interlocutory procedures of the Court nor exclude the normal rule that a " party may require the attendance for cross-examination of a person making an affidavit ": Federal Court Rules 1979 (Cth), O 14, r 9. When addressing the availability of interlocutory procedures, including the ability to issue a notice to produce, Hill J (with whom Hely and Conti JJ agreed) concluded in Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 , 142 FCR 428: [46] However, for the reasons I have given, I am of the view that there is power to issue, in an appropriate case, a notice to produce in pre-action discovery proceedings. Whether the notice should be confined clearly depends upon the issues that are said to arise and in respect of which the production of documents is sought. An applicant who seeks to use a notice to produce, in effect, to gain production of the very documents which are the subject of the pre-action discovery will not have given the notice to produce in good faith, but rather, will have acted in a way that is an abuse of process. Otherwise, in principle at least, the notice to produce procedure may be exercised by both parties if otherwise relevant to issues in dispute. However, I would emphasise that it clearly is not contemplated that a pre-action discovery proceeding become a full-blown factual contest between the parties. The judge hearing the application will, no doubt, confine cross-examination and examine the subject matter of any notice to produce to ensure this does not become the case.
Case: Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd (2008) ATPR 42-256
Outcome: cited
the notion of a "market in Australia" in s 4E has been referred to in two cases ( Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608 at [21] per Hill J and Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd (2008) ATPR 42-256 at [19] per Tracey J), the concept has not been the subject of extensive judicial consideration.
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21 ; (2006) ATPR 42-101
Outcome: referred to
Commission submits that the benefit obtained by the contravening conduct is not the only, or indeed the main, determinant of the size of the appropriate penalty in price fixing cases. It notes that, particularly in cases involving conduct over a lengthy period, the extent of that benefit will be impossible to determine. The Commission referred to observations made by Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21 ; (2006) ATPR 42-101 at [56] - [57] and by me in Australian Competition and Consumer Commission v Roche Vitamins Australia Pty Ltd (2001) ATPR 41-809 at [42].
Case: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (2007) ATPR 42-192
Outcome: discussed
in Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (2007) ATPR 42-192 , his Honour had to consider a proposed four year time limit. Of this limit, his Honour said (at [8]): It provides a limit to the remedy of contempt of Court for breach. More particularly, it sets a period during which the party restrained will have a very powerful incentive to ensure that there is no further contravening conduct. By the end of that period it is to be hoped that the procedures and, perhaps, the culture of the organisation will be such that further contravention is unlikely. It seems to me that the undertakings which have been obtained in relation to compliance programs are appropriate for that purpose.
Case: Australian Competition and Consumer Commission v George Weston Foods Ltd [2004] FCA 1093 ; (2004) 210 ALR 486
Outcome: discussed
appropriateness of injunctions of limited duration under s 80 has been considered in several recent cases. In Australian Competition and Consumer Commission v George Weston Foods Ltd [2004] FCA 1093 ; (2004) 210 ALR 486 ( George Weston Foods ) at [30], Gyles J expressed a reservation concerning the time limit of three years proposed by both parties in that case. His Honour found it difficult to see the reason for the time limit in relation to a properly framed injunction, bearing in mind that under s 80(3) of the Act the Court has power to rescind or vary an injunction granted under s 80(1). Gyles J had occasion to consider the question again in Australian Competition and Consumer Commission v Liquorland (Aust) Pty Ltd (2005) ATPR 42-070 where, again, a time limit of three years was proposed. His Honour (at [71]) repeated the reservation he had voiced in George Weston Foods but granted an injunction limited to three years on the basis that in the circumstances it was not necessary to subject Liquorland (Aust) Pty Ltd to the threat of contempt of court for any longer period. In forming that view, his Honour referred to the existence of a compliance programme, a change in New South Wales licensing laws, and the sharp shock that had been administered to the company by the proceeding.
Case: Australian Competition and Consumer Commission v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162
Outcome: discussed
J and Stone J have also had occasion to consider the question of time limits on injunctions granted on the Commission's application. In Australian Competition and Consumer Commission v IPM Operation &amp; Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162 ( IPM ), the Commission sought a final injunction against the respondent Union. Young J unequivocally rejected (at [233]) a final injunction as "plainly inappropriate" and would "not contemplate an injunction that operates indefinitely" in a case where the relevant conduct had come to an end. His Honour observed that in such a case, any injunction should be for only a limited period of time, and noted that this course was commonly taken in the authorities. For her part, Stone J, in Australian Competition and Consumer Commission v Signature Security Group Pty Ltd (2003) ATPR 41-942 , incorporated a two year time limit in the injunction that she granted, even though, as in IPM , the Commission sought a permanent injunction. Her Honour regarded the purpose of the injunction in the case before her as being not to restrain apprehended repetition but to deter the contravening party from repeating the contravention. Her Honour referred to the following observation by French J in ICI Australia Operations Pty Limited v Trade Practices Commission [1991] FCA 527 ; (1992) 38 FCR 248: There is room in the statutory framework and the policy that underlies it for an injunction which is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court ... The remedy is flexible and may be applied in service of a variety of functions to support the policy of the Act. In imposing the two year time limit, Stone J noted that the respondent had instituted appropriate measures to prevent a recurrence of its contravening conduct, and that if it had not done so she might have granted a permanent injunction, leaving it to the respondent to apply under s 80(3) for its termination.
Case: Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851
Outcome: cited
Full Court in Mobil Oil made the following further five points: &#8226; First, the rationale for giving weight to a joint submission on penalty is the saving in resources for the regulator and the Court, which, in the case of the regulator, can be used to increase the likelihood that other contraveners will be detected and brought before the Court. &#8226; Second, the sixth proposition from NW Frozen Foods (see [26] above) does not mean that the Court must commence its reasoning with the level of penalty proposed and limit itself to considering whether that penalty is within the permissible range: the Court may, instead, address the question independently at the outset. &#8226; Third, there was no suggestion in NW Frozen Foods that the admissions or statement of agreed facts had been "tailored or modified to reflect the difficulties faced by the [Commission] in proving its case" (at [55]). &#8226; Fourth, the regulator should always explain to the Court the process of reasoning said to justify a discounted penalty (the Court referred to Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851 at [56]). &#8226; Fifth, there is nothing in NW Frozen Foods inconsistent with any of the following propositions: (i) The Court may request the parties to provide additional evidence or information or to verify the information provided, in default of which the Court may well not be satisfied that the proposed penalty is within the permissible range; (ii) If the absence of a contradictor inhibits the Court in the performance of its duty under s 76 of the Act, it may seek the assistance of an amicus curiae or of an individual or body prepared to act or intervene under O 6 r 17 of the Federal Court Rules ; and (iii) If the Court is disposed not to impose the agreed penalty, it may be appropriate for the parties or either of them to be given the opportunity to withdraw consent and for the matter to proceed as a contested hearing.
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 ; (2005) 215 ALR 281
Outcome: referred to
passage was cited with approval by Merkel J in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 ; (2005) 215 ALR 281 at [10] . In Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301 at [39] , Goldberg J concluded that the level of penalty must be sufficiently high that the party penalised will realise the seriousness of its conduct and will not be inclined to repeat it. His Honour noted that obviously the sum required to achieve that object would be the larger where the company has vast resources.
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301
Outcome: referred to
passage was cited with approval by Merkel J in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 ; (2005) 215 ALR 281 at [10] . In Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301 at [39] , Goldberg J concluded that the level of penalty must be sufficiently high that the party penalised will realise the seriousness of its conduct and will not be inclined to repeat it. His Honour noted that obviously the sum required to achieve that object would be the larger where the company has vast resources.
Case: Australian Competition and Consumer Commission v Liquorland (Aust) Pty Ltd (2005) ATPR 42-070
Outcome: discussed
J had occasion to consider the question again in Australian Competition and Consumer Commission v Liquorland (Aust) Pty Ltd (2005) ATPR 42-070 where, again, a time limit of three years was proposed. His Honour (at [71]) repeated the reservation he had voiced in George Weston Foods but granted an injunction limited to three years on the basis that in the circumstances it was not necessary to subject Liquorland (Aust) Pty Ltd to the threat of contempt of court for any longer period. In forming that view, his Honour referred to the existence of a compliance programme, a change in New South Wales licensing laws, and the sharp shock that had been administered to the company by the proceeding.
Case: Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 42-031
Outcome: referred to
Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 42-031 at [15], Selway J stated in relation to price fixing: Once it is understood that deterrence, and particularly general deterrence, is the primary principle in the imposition of penalty for price fixing, then at least two conclusions flow from that. First, it means that penalties for collusive price fixing will need to be substantial and significant. This is, of course, reflected in the size of the maximum penalty upon corporations of $10 million. However, it also follows logically from the principle. Collusive price fixing, particularly between tenderers is difficult to detect. Public enforcement often only occurs with "a tip from an affected party or an insider" (see Marshall &amp; Meurer, "Bidder Collusion and Antitrust Law: Refining the Analysis of Price Fixing to Account for the Special Features of Auction Markets" (2004) 72 AntiTrust Law Journal 83 at 101). Given these difficulties and the potential for large profits from such practices there is a chance that those in the market place might be prepared to factor the risk of a low penalty into its pricing structure as a 'business cost'. That would be inimical to the statutory purpose of ensuring that the practices do not occur. The penalty must be sufficiently high that a business, acting rationally and in its own best interest, will not be prepared to treat the risk of such a penalty as a business cost.
Case: Australian Competition and Consumer Commission v McPhee &amp; Son (Australia) Pty Ltd (1998) ATPR 41-628
Outcome: referred to
difficulty of detection of collusive price fixing understandings was referred to by Heerey J in Australian Competition and Consumer Commission v McPhee &amp; Son (Australia) Pty Ltd (1998) ATPR 41-628 at 40,891-40,892: This form of contravention commonly occurs in secret and between parties who seek a mutual benefit. The risk of detection is often low and the potential gain to the contraveners, and damage to the community, large. Therefore the penalty needs to be correspondingly high.
Case: Australian Competition and Consumer Commission v Roche Vitamins Australia Pty Ltd (2001) ATPR 41-809
Outcome: referred to
Commission submits that the benefit obtained by the contravening conduct is not the only, or indeed the main, determinant of the size of the appropriate penalty in price fixing cases. It notes that, particularly in cases involving conduct over a lengthy period, the extent of that benefit will be impossible to determine. The Commission referred to observations made by Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21 ; (2006) ATPR 42-101 at [56] - [57] and by me in Australian Competition and Consumer Commission v Roche Vitamins Australia Pty Ltd (2001) ATPR 41-809 at [42].
Case: Australian Competition and Consumer Commission v Signature Security Group Pty Ltd (2003) ATPR 41-942
Outcome: discussed
her part, Stone J, in Australian Competition and Consumer Commission v Signature Security Group Pty Ltd (2003) ATPR 41-942 , incorporated a two year time limit in the injunction that she granted, even though, as in IPM , the Commission sought a permanent injunction. Her Honour regarded the purpose of the injunction in the case before her as being not to restrain apprehended repetition but to deter the contravening party from repeating the contravention. Her Honour referred to the following observation by French J in ICI Australia Operations Pty Limited v Trade Practices Commission [1991] FCA 527 ; (1992) 38 FCR 248: There is room in the statutory framework and the policy that underlies it for an injunction which is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court ... The remedy is flexible and may be applied in service of a variety of functions to support the policy of the Act. In imposing the two year time limit, Stone J noted that the respondent had instituted appropriate measures to prevent a recurrence of its contravening conduct, and that if it had not done so she might have granted a permanent injunction, leaving it to the respondent to apply under s 80(3) for its termination.
Case: J McPhee &amp; Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532
Outcome: referred to
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 ( NW Frozen Foods ) and J McPhee &amp; Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 (J McPhee &amp; Son ), Full Courts of this Court approved of French J's list and added: (j) similar conduct in the past; (k) effect on the functioning of the market and other economic effects of the conduct; and (l) whether the conduct was systematic, deliberate or covert. The Commission refers to J McPhee &amp; Son in which a pecuniary penalty of $2.5 million was ordered in relation to making and attempting to make price fixing arrangements. As another illustration, the Commission refers to non-compete agreements in which one party might derive no direct benefit in a particular market or market segment because it has merely agreed to stay out of that market or segment. For airlines with a 2% or less share of the Australian segment of the Air Cargo Market, the Commission proposed no uplift or increase in the base penalty. The Commission did not propose to discriminate between those with 2% or less, but accepted that all would have been likely to derive a relatively minor benefit in the Australian segment, which would probably be less than the base penalty. Over the relevant period, Qantas carried approximately 24% of all air cargo to and from Australia based on weight, well above the 2% level. Some 69% of Qantas's fuel surcharges were obtained on flights to and from Australia. Qantas's penalty in Australia must reflect the fact that Qantas's activities had the most significant connection with Australia and that Australia is therefore the primary jurisdiction in which those activities should be penalised. The figure reached by the Commission, prior to any discount, was $40 million.