mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 41-996
Outcome: cited
In determining whether there has been an understanding for fixing prices, or a giving effect to such understanding, the relevant price may not necessarily be just a dollar figure: cf Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 41-996 at [22]. Allegations in the amended statement of claim itself indicate that this may be so in the present case. As has been mentioned, the alleged Over-arching Understanding includes a provision that the minimum price for supply by Amcor was to be $1250 and the price for Visy $1150. The particulars sub-joined to that paragraph include (sub-par (b)(ii)(B)(6)) an allegation that Mr Debney said to Mr Brown of Amcor that the price for Visy should be lower "having regard to Visy's different cost structure and different product mix". Another example is in the case of the alleged GFL &amp; Nestle Price Understanding. Paragraph 81 alleges that in relation to the prices proposed to GFL by Visy and Amcor, Visy's prices were higher than Amcor's prices "and/or GFL held the belief that Visy's prices were higher than Amcor's prices". This rather suggests that GFL engaged in some form of analysis going beyond a comparison of two dollar figures. Similar allegations are made in relation to the understandings involving other customers. Also Mr Ward speaks of calculating a price "with reasonable accuracy". 32 Accordingly, it may (I stress these are early days) become an important part of the case to assess dollar figures charged to customers in the context of the various factors of which Mr Heathcote speaks to see whether there was an understanding on a price or a giving effect to that understanding. I do not see how the Visy respondents could adequately deal with issues of this kind without input from the individual Visy respondents and other officers of the Visy companies who are familiar with these factors and how they impact on ultimate dollar figures. Counsel for Amcor suggested that an independent expert such as an accountant be interposed, but this would be a cumbersome and inadequate substitute.
Case: Ex parte Fielder Gillespie Limited [1984] 2 Qd R 339
Outcome: cited
In contrast to discovery under O 15 rr 1, 5 or 8, production under O 15 r 10 does not depend on any leave being given by the Court. The reason is obvious enough. When a document is directly relied on by an opposing party, basic procedural fairness would require that a party be able to inspect the document, if only to see whether it is what it is alleged to be. It may be that the only options available to the party served with an O 15 r 10 notice are those set out in sub-rule (2), viz, production, claiming privilege, or stating that the document is not in his possession and where he believes it is. On this basis confidentiality, either of the party receiving the notice or an outsider, would not be relevant since confidentiality is not one of the recognized grounds of privilege: Ex parte Fielder Gillespie Limited [1984] 2 Qd R 339 at 341.
Case: Harman v Secretary of State for the Home Department [1983] AC 280
Outcome: cited
By the end of the hearing it was common ground that if disclosure was not to be limited in the way Amcor sought then no express formal undertakings were required. The parties and their legal representatives are bound by the rule in Harman v Secretary of State for the Home Department [1983] AC 280 which says that parties and their legal representative obtaining documents in the course of discovery in litigation give an implied undertaking to the court not to use the documents, or allow them to be used, for any purpose other than the proper conduct of the proceeding. 36 There will be an order that the ACCC produce to the respondents the documents referred to in the amended statement of claim. The motion is otherwise dismissed. The parties may, within seven days, file written submissions as to costs.
Case: Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
Outcome: discussed
It is not necessary to decide this question because, assuming the confidentiality claimed by Amcor to be relevant, it is nevertheless outweighed by the centrality of the documents in question to the case against the respondents and the case they seek to make. In this regard I note that the leading Australian case on confidentiality in relation to the production of documents in litigation, the decision of the Victorian Court of Appeal in Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, dealt with ordinary discovery and not any equivalent of O 15 r 10. Hayne JA pointed out (at 39) that the information in the documents in question, which related to calculations of the proposed financial return to the plaintiff's rival bidders for a construction contract, was not directly in issue. The material did not bear on the case which the plaintiff sought to make (at 41).
Case: Trade Practices Commission v TNT Management Pty Ltd (1981) 39 ALR 665
Outcome: discussed
Finally, two matters should be mentioned. First, there was some mention of s 157 of the Trade Practices Act . In view of the outcome under O 15 r 10 there is no need to rely on that provision. However, I should note that I am inclined to the view that the section is not concerned with documents on which the ACCC relies. Rather, it is directed towards documents obtained by the ACCC "which tend to establish the case of the corporation or other person": subs (1)(e). The "other person" is a natural person (as distinct from a corporation) against whom a proceeding is instituted: subs (1)(c). In Trade Practices Commission v TNT Management Pty Ltd (1981) 39 ALR 665 at 671 Bowen CJ thought that the section did not extend to documents which might suggest some line of inquiry which could be of assistance to the corporation in conducting its case, although a document tending to impeach the plaintiff's case did tend to establish the defendant's case within the meaning of the section. This reasoning is inconsistent with the section applying to documents which only support the ACCC's case. Anyway, if this were not the case, the section would have simply referred to all relevant documents. 38 Secondly, the Visy respondents, in an argument adopted by Mr Carroll, submitted that in disclosing the documents to the ACCC, Amcor "must have known it was inevitable that documents such as these would be used in proceedings commenced by the ACCC against Visy, and took the risk of disclosure when facilitating serious proceedings against its major trade rival". 39 This argument should be firmly rejected. In disclosing to the ACCC (and also the Australian Stock Exchange) what it believed, on legal advice, to be unlawful conduct Amcor was complying with its legal obligations. The Court could not use Amcor's lawful action as a ground for depriving it of rights it might otherwise have. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 23 February 2006 Counsel for the Applicant: P J Jopling QC, C M Caleo and P Wallis Solicitor for the Applicant: Australian Government Solicitor Counsel for the first to fifth Respondents: J L Sher QC and P D Crutchfield Solicitors for the first to fifth Respondents: Arnold Bloch Liebler Counsel for the sixth Respondent: J W K Burnside QC and D Clough Solicitors for the sixth Respondent: Minter Ellison Counsel for the Amcor Group: P Solomon Solicitors for the Amcor Group: Allens Arthur Robinson Date of Hearing: 20 February 2006 Date of Judgment: 23 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/136.html
Case: Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No 2) [2001] FCA 1076
Outcome: followed
ACI contended that, under the scheme created by Part XA of the Act, it is not appropriate to award compensation for non-pecuniary loss. It said that an award of that type has yet to be made. In response the Union referred to the judgment of Madgwick J in Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No 2) [2001] FCA 1076 at [10] where his Honour said, in the context of s 298U(e): "It must be borne in mind that conduct contravening Part XA may be of many different kinds and may occur in many different circumstances. The statutory phrase is aimed at giving the Court maximum power and flexibility [to] do what it thinks appropriate in the circumstances. Further, the phrase in section 298U(f); "any other consequential orders" in my opinion, refers to orders consequential upon any order of a kind falling within ... subs (b), (c) or (e)."
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &amp; Allied Services Union of Australia v ACI Operations Pty Ltd [2005] FCA 1662
Outcome: referred to
Further, as I noted in the first judgment published in this proceeding Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing &amp; Allied Services Union of Australia v ACI Operations Pty Ltd [2005] FCA 1662 at [76] , predecessor provisions limited the Court to an order for reimbursement of wages lost. "Compensation" is a broad concept which should not be interpreted in a narrow way. In an appropriate case the Court is able to order compensation for non-economic loss. There is nothing in the scheme of the Act to support the contrary view. I agree, with respect, with the views of Madgwick J as to the flexibility the Court possesses to, in effect, correct injustice by the ordering of compensation beyond the mere reimbursement of lost wages.
Case: Australian Securities and Investment Commission; In the Matter of Richstar Enterprises Pty Ltd v Carey (No 3) [2006] FCA 433
Outcome: cited
On 20 April 2006 orders were made, on the application of the Australian Securities and Investments Commission (ASIC), appointing receivers to the property of four individuals and four companies associated with the Westpoint Property and Finance Group Australian Securities and Investment Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 3) [2006] FCA 433. By an interlocutory application filed in Court on 23 May 2006 in the same proceedings ASIC now applies for the appointment of receivers to a further Westpoint Company, Keypoint Developments Pty Ltd (ACN 115 507 232) (Keypoint). That company is named as ninth defendant. 2 The ASIC application is brought under s 1323 of the Corporations Act 2001 (Cth). Counsel for Keypoint indicated that it is not opposed. 3 Most of the affidavit evidence relevant to the appointment of receivers ordered on 20 April 2006 was also relied upon in the present application. The factual background disclosed by those affidavits is as set out in the earlier judgment and it is unnecessary to repeat it here.
Case: Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479
Outcome: referred to
The discretion of the Court to extend time is given for the purpose of enabling the court to do justice between the parties: WAAD v MIMIA [2002] FCAFC 399 at [7] , Hughes v National Trustees Executors &amp; Agency Co of Australasia Ltd [1978] VR 257 at 262; Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480. However, an extension of time within which to file an appeal will not be granted without a consideration of the putative appellant's prospects of successfully prosecuting his appeal: WAAD v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs at [9], Hughes at 264.
Case: Hughes v National Trustees Executors &amp; Agency Co of Australasia Ltd [1978] VR 257
Outcome: referred to
The discretion of the Court to extend time is given for the purpose of enabling the court to do justice between the parties: WAAD v MIMIA [2002] FCAFC 399 at [7] , Hughes v National Trustees Executors &amp; Agency Co of Australasia Ltd [1978] VR 257 at 262; Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480. However, an extension of time within which to file an appeal will not be granted without a consideration of the putative appellant's prospects of successfully prosecuting his appeal: WAAD v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs at [9], Hughes at 264.
Case: Joss v Scott (1986) 12 FCR 187
Outcome: referred to
By Order 52 rule 15(2), the time limit may be extended 'for special reasons'. To justify an extension of time, there must be 'a special reason why the appeal should be permitted to proceed, though filed after the expiry date of 21 days:' Joss v Scott (1986) 12 FCR 187 at 195. In that case the expression 'special reasons' was characterised as 'an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served'.
Case: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: referred to
The Tribunal's decision here is a privative clause decision, as defined by s 474(2) of the Act. Section 474 validly operates to prevent the judicial review of all decisions under the Act, except those vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476. 24 By Order 52 rule 15(1) of the Federal Court Rules , the time limit for filing a notice of appeal is 21 days from the date of the judgment, which was given on 18 April 2007. Taking into account Order 3 rule 2(2), the notice of appeal was required to have been filed on or before 9 May 2007. The application for an extension of time was filed on 22 May 2007. This is a delay of 13 days.
Case: WAAD v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 399
Outcome: applied
The discretion of the Court to extend time is given for the purpose of enabling the court to do justice between the parties: WAAD v MIMIA [2002] FCAFC 399 at [7] , Hughes v National Trustees Executors &amp; Agency Co of Australasia Ltd [1978] VR 257 at 262; Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480. However, an extension of time within which to file an appeal will not be granted without a consideration of the putative appellant's prospects of successfully prosecuting his appeal: WAAD v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs at [9], Hughes at 264.
Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Outcome: applied
The decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, handed down between the hearing of this matter and the publication of these reasons, confirms the arguments of the respondents with respect to the medical certificates that the Tribunal considered had been forged and the application of s 424A. In that case, Gleeson CJ, Gummow, Callinan, Heydon and Crennan examined the operation of s 424A. Their Honours held at [18] that if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). 36 The inconsistencies referred to by their Honours in that case were those which existed between statutory declarations made by the appellants and oral evidence given at the hearing. Their Honours went on to say: [h]owever broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Case: NATL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 112
Outcome: cited
The respondent submitted that the appellant had overstated the duty imposed on the Tribunal by s 424A. In NATL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 112 , the Full Court held at [14] that "[t]he section does not require the provision of evidence. The test is whether an applicant is fairly informed of the information considered to be adverse: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396." (Emphasis added.) The respondent also relied on comments of Heerey and Allsop JJ in Paul [2001] FCA 1196 ; 113 FCR 396. The Tribunal' s 1 March 2006 letter clearly identified the information that the Tribunal considered would be, subject to the appellant's response, a reason for affirming the delegate's decision. The factual proposition referred to in the letter was clear: the Tribunal had received information that the appellant had changed money prior to his arrival in Sydney, whereas the appellant had stated that he learned of a danger in Pakistan from his family by telephone after he arrived in Sydney. According to the respondent, the letter also explained the relevance of the information: that the changing of money prior to his arrival suggested that the appellant planned to stay in Sydney before he spoke with his family and it was therefore not true that he decided to stay in Sydney due to fears arising from his conversations with his family.
Case: (2005) 87 ALD 357
Outcome: cited
The appellant submitted that this statement only applied to the statutory declaration and not to the contents of the protection visa application. He further submitted that it could not be taken to refer to the material which was provided during the course of the previous Tribunal matter, such as the document titled "Background". The appellant submitted that the general rule in this area is that, as Jacobson J said in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357, s 424A(3)(b) may operate where there has been an express adoption of the material. Here, it was submitted, the only express written reference was to the statutory declaration attached to the protection visa application and perhaps, on a generous reading, the submissions in support of the visa application. The appellant submitted that the Federal Magistrate therefore erred by applying s 424A(3)(b) to material other than the statutory declaration. 24 The respondent submitted that there was no error in the Federal Magistrate's analysis of the treatment of the documents forwarded to the Tribunal by the appellant's lawyers (including the document titled "Background"). If those acting on behalf of an applicant send documents to the Tribunal, then the applicant has "given" the information for the purposes of s 424A(3)(b).
Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: cited
The respondent further submitted that any negative inference that the Tribunal may have drawn from information supplied by the appellant after the Tribunal hearing could not be considered "information" for the purposes of s 424A. Information in this context is "knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal": SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at [205] , and not "the Tribunal's subjective appraisals, thought processes or determinations": SZEEU 150 FCR at [206]. Breach of s 424A regarding various items of "information" (i) The document titled "Background" 32 In the respondent's submission, the Tribunal's view about the authenticity of documents provided by the appellant is not knowledge of a fact or circumstance "communicated to, or received by, the Tribunal". Rather, it was an aspect of the Tribunal's subjective appraisal of the evidence. There is no requirement in s 424A that the Tribunal give the appellant written notice of such appraisals: SZEEU 150 FCR at [205]-[206]. 33 In any case, the documents themselves were given by the appellant for the purpose of the application for review. As such they fall within the s 424A(3)(b) exception. 34 No point was taken in reliance on s 425. With respect to all matters raised in this appeal I agree with the submissions of counsel for the respondent and, generally, with the reasons of the court below. 37 These comments would appear to be fatal to the arguments of the appellant in this case with respect to the medical certificates. The conclusion that the medical certificates may have been forged cannot be "information" for the purposes of s 424A , rather the medical certificates themselves and the handwriting are the "information". That the handwriting in the two reports appeared identical was, in the language of Allsop J in SZEEU [2006] FCAFC 2 ; 150 FCR 214, a "subjective appraisal" by the Tribunal leading, with other matters also appraised, to a "determination" that the reports were not "authentic". 38 For these reasons, all aspects of the appellant's appeal must fail. The appeal is dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 24 January 2008 Counsel for the Appellant: Mr S E J Prince Counsel for the First Respondent: Mr Stephen Free Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 22 February 2007 Date of Judgment: 24 January 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/6.html
Case: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27
Outcome: cited
The respondent accepted that the reference to "application" in section 424A(3)(b) means the application for review that is under consideration by the Tribunal: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at [17] . However, the respondent submitted that information which has previously been given for some other purpose, such as the original visa application, can become information given by the applicant for the purpose of the Tribunal application if the applicant expressly adopts that information as part of the application for review to the Tribunal: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] ; NBHH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1198 at [12] - [13] ; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [10] - [11] . In its reasons for decision the Tribunal referred to a statutory declaration, and accompanying submission, by the appellant that he had submitted with his primary visa application. The appellant's advisor had expressly adopted these earlier documents for the purposes of the application for review to the Tribunal in the submission received by the Tribunal on 7 March 2006. It followed that the information contained therein had been adopted and become information which the appellant "gave for the purpose of the application" for review and so fell within the exception in s 424A(3)(b). (iv) Failure to provide written notice of the Tribunal's view that documents provided by the appellant would be given no weight