mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432
Outcome: cited
I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case.
Case: Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299
Outcome: cited
I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case.
Case: Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247
Outcome: cited
I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case.
Case: Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027
Outcome: cited
I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case.
Case: Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665
Outcome: cited
I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case.
Case: Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212
Outcome: cited
I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case.
Case: Trade Practices Commission v ICI Australia Operations Pty Ltd (1991) 105 ALR 115
Outcome: cited
There is no specific evidence as to the amount of loss or damage that resulted from the contravening conduct, but this is not a mitigating factor in the imposition of penalties: see Dataline at [62]; Trade Practices Commission v ICI Australia Operations Pty Ltd (1991) 105 ALR 115 at 119; Australian Consumer and Competition Commission v DM Faulkner Pty Ltd [2004] FCA 1666 at [64] ; and Dermalogica at [81].
Case: Australian Consumer and Competition Commission v DM Faulkner Pty Ltd [2004] FCA 1666
Outcome: cited
There is no specific evidence as to the amount of loss or damage that resulted from the contravening conduct, but this is not a mitigating factor in the imposition of penalties: see Dataline at [62]; Trade Practices Commission v ICI Australia Operations Pty Ltd (1991) 105 ALR 115 at 119; Australian Consumer and Competition Commission v DM Faulkner Pty Ltd [2004] FCA 1666 at [64] ; and Dermalogica at [81].
Case: Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482
Outcome: cited
I also accept that the proposed penalties are consistent with the proper application of the totality and parity principles: compare Digital Products and Dataline at [64]-[75]. I was referred to a schedule of previous determinations. Whilst I have had regard to it, I have also borne in mind the observations in Dataline , where a Full Court said (at [67]-[68]): [T] he Court is confirmed in the view that there is little to be gained in undertaking ... a detailed comparative analysis of the conduct of each corporation in the identified cases, the extent to which particular officers of those corporations engaged in the contravening conduct or the scale and dimension of the conduct. The constellation of circumstances, essential character of the conduct and the factors to be weighed by the Court are inevitably sufficiently different in each case that previous determinations ultimately provide little utility in precisely informing the appropriate pecuniary penalty to be imposed in any particular contravention. However, an assessment of previous determinations in relation to resale price maintenance conduct may provide a high level broad range within which an appropriate pecuniary penalty may be imposed having regard to the character and content of the contravention and other considerations reflecting some elements broadly consistent with the evidence in the particular case. After making these observations, the Court undertook an analysis of several cases with sufficiently similar facts to provide a high level broad range of comparison. The penalties imposed in a number of cases ( Australian Consumer and Competition Commission v Dermalogica Pty Ltd [2005] 215 ALR 482 (" Dermalogica "), Humax , Australian Competition and Consumer Commission v Tooltechnic Systems (Aust) Pty Ltd [2007] FCA 432 , Australian Competition and Consumer Commission v Westminster Retail Pty Ltd (in liquidation) [2005] FCA 1299 , Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 , Australian Competition and Consumer Commission v Cambur Pty Ltd [2006] FCA 1027 , Dataline (upholding the decision in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665), Jurlique , and Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212) give a high level broad range of comparison for this case. 29 There is no specific evidence as to the amount of loss or damage that resulted from the contravening conduct, but this is not a mitigating factor in the imposition of penalties: see Dataline at [62]; Trade Practices Commission v ICI Australia Operations Pty Ltd (1991) 105 ALR 115 at 119; Australian Consumer and Competition Commission v DM Faulkner Pty Ltd [2004] FCA 1666 at [64] ; and Dermalogica at [81].
Case: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Outcome: cited
The test of whether a person 'had reasonable grounds to expect ... that the company would comply with the agreement' is an objective test. The issue is thus whether, having regard to those existing circumstances of which Mr Blaikie knew or, had he acted reasonably, ought to have known, it was reasonable for him to expect that Employment would comply with its Payment Agreement ( Deputy Commissioner of Taxation v Saunig [2002] NSWCA 390 ; (2002) 55 NSWLR 722 at 729-730). As Williams JA, with whom McMurdo P and Atkinson J agreed, observed in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [24]: 'an agreement pursuant to s. 222ALA is not to be entered into lightly, and any director must be conscious of the implications for the company so doing. Almost invariably the company will be in some financial difficulty and any director acting reasonably would appreciate that special steps would need to be taken if the company was to comply with its obligations thereunder.'
Case: Deputy Commissioner of Taxation v Saunig [2002] NSWCA 390 ; (2002) 55 NSWLR 722
Outcome: cited
The test of whether a person 'had reasonable grounds to expect ... that the company would comply with the agreement' is an objective test. The issue is thus whether, having regard to those existing circumstances of which Mr Blaikie knew or, had he acted reasonably, ought to have known, it was reasonable for him to expect that Employment would comply with its Payment Agreement ( Deputy Commissioner of Taxation v Saunig [2002] NSWCA 390 ; (2002) 55 NSWLR 722 at 729-730). As Williams JA, with whom McMurdo P and Atkinson J agreed, observed in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at [24]: 'an agreement pursuant to s. 222ALA is not to be entered into lightly, and any director must be conscious of the implications for the company so doing. Almost invariably the company will be in some financial difficulty and any director acting reasonably would appreciate that special steps would need to be taken if the company was to comply with its obligations thereunder.'
Case: Re Brink; Ex parte Commercial Banking Company of Sydney Limited (1980) 44 FLR 135
Outcome: cited
This question is to be determined by reference to legal considerations, not by reference to practicalities; see Re Brink; Ex parte Commercial Banking Company of Sydney Limited (1980) 44 FLR 135 at 139; Re Ling; Ex parte Ling v Commonwealth of Australia (1995) 58 FCR 129 at 132.
Case: Re Ling; Ex parte Ling v Commonwealth of Australia (1995) 58 FCR 129
Outcome: cited
This question is to be determined by reference to legal considerations, not by reference to practicalities; see Re Brink; Ex parte Commercial Banking Company of Sydney Limited (1980) 44 FLR 135 at 139; Re Ling; Ex parte Ling v Commonwealth of Australia (1995) 58 FCR 129 at 132.
Case: Guss v Johnstone (2000) 171 ALR 598
Outcome: cited
The state of satisfaction required by s 40(1)(g) and s 41(7) involves a weighing of the considerations as to the legal and factual merits of the claim relied upon by the debtor and the justice of permitting the bankruptcy proceedings to go ahead or requiring those proceedings to await the determination of the claim; Guss v Johnstone (2000) 171 ALR 598 at [40].
Case: Re Glew; Glew v Harrowell of Hunt and Hunt Lawyers (2003) 198 ALR 331
Outcome: cited
The debtor must satisfy the Court by evidence that there is sufficient substance to the claim to make it one which the debtor ought, in justice, be permitted to have heard and determined rather than be forced to comply with the bankruptcy notice by payment, or to commit an act of bankruptcy; see Re Glew; Glew v Harrowell of Hunt and Hunt Lawyers (2003) 198 ALR 331 at [12]; see also the summary of authorities set out by Lindgren J at [9] [11]. 31 Each of the cross-claims asserted by Mr and Mrs Maxwell-Smith arises out of facts which post-date the High Court's costs order. It would therefore seem that, as a matter of law, the claims could not have been set up in the proceeding in which the judgment was obtained. 32 Nevertheless, I am not satisfied that any of the cross-claims has any legal or factual merit. The claims do not therefore have sufficient substance to warrant their determination rather than to force compliance with the bankruptcy notice, if I am otherwise satisfied of the validity of the notice. 33 It is true that the debtor need not adduce admissible evidence which would make out a prima facie case at a final hearing; but the Court must be satisfied by evidence that the claim has a reasonable prospect of success; Ebert v Union Trustee Co of Australia Limited [1960] HCA 50 ; (1960) 104 CLR 346 at 351; see also Re Glew at [9].