mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443
Outcome: cited
It is accepted by the Commission that Telstra is a person ' entitled to make an application to [the Court]... under section 5 ' in relation to the decision to issue the Competition Notice (s 13(1)). The Commission submits, however, that that decision is a decision in connection with the institution or conduct of proceedings in a civil court and, by the application of para (f) of Sch 2 to the ADJR Act, not a decision to which s 13 of the ADJR Act applies. The Commission relies on the following matters in support of that submission: &#8226; The investigative nature of the Commission's role in deciding whether to issue a Part A competition notice, including the "reason to believe" threshold; &#8226; The close connection between the institution of proceedings in a civil court and the issue of a Part A competition notice, including the institution of proceedings for the recovery of pecuniary penalties, as emphasised by Telstra in its submissions as to the effect of a Part A competition notice; &#8226; The breadth of the expression "in connection with" as used in para (f) of Sch 2 ( Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146); and &#8226; Authority to the effect that a decision to issue a s 155 notice is not a decision to which s 13 of the ADJR applies ( Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443).
Case: SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357
Outcome: cited
There is no general principle that uncertainty in an executive instrument spells invalidity ( Television Corporation Ltd v The Commonwealth [1963] HCA 30 ; (1963) 109 CLR 59 at 71 per Kitto J). The question is whether what has been done in fact answers the description of what the statute permits to be done in law. A statutory notice such as a s 151AKA(10) notice or a Part A competition notice (together, 'the Statutory Notices') must not be so vaguely expressed that its meaning of application is a matter of real uncertainty. The Statutory Notices must convey, with reasonable and sufficient clarity and certainty, the subject matter with which they deal and enable the recipient to know what is required if their issue is to be a valid exercise of statutory power ( Television Corporation Ltd at 70 per Kitto J; SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 369 per Fisher and French JJ (with whom Wilcox J agreed); Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 at 373, 374 per the Full Court). Where different kinds of subject matter are dealt with by different statutory provisions, the Statutory Notices should specify or make clear which particular aspects of the statutory regime are referred to and/or relied upon ( Department of Industrial Relations v Forrest (1990) 21 FCR 93 at 118 per Lockhart and Hill JJ). 39 The Statutory Notices should be reasonably construed and the requirement for clarity is not to be applied ' in a precious or hypercritical fashion ' ( Pyneboard at 375). Nor should the Statutory Notices themselves be construed as statutory provisions: '[a] rtificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning ' of what is required ( Pyneboard at 375). The Statutory Notices need not plead all the facts necessary to constitute a contravention or possible contravention of the Act ( SA Brewing at 370 per Fisher and French JJ). 43 As stated in SA Brewing at 375, with respect to notices under s 155 of the Act, the Statutory Notices ' must specify the information sought with sufficient clarity to enable [the] recipient to know what is required '. As with s 155 notices, the Statutory Notices are to be reasonably construed and terms used in them ' will ordinarily take their meaning ' from the commercial circumstances in which the notices are given ( SA Brewing at 369 citing Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163 at 175 6).
Case: Salim v Loh [2005] FCA 372
Outcome: cited
The Commission contends that Telstra has not established that any departure from the requirements of procedural fairness was material or significant in reliance on NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [71] per Kirby J; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [87] per McHugh J in dissent but not on this point). Even if there were deficiencies in the Statutory Notices, the Commission submits that the anti-competitive conduct there described may be sufficiently clear that Telstra suffered no prejudice ( Salim v Loh [2005] FCA 372 at [4] , [32]).
Case: Television Corporation Ltd v The Commonwealth [1963] HCA 30 ; (1963) 109 CLR 59
Outcome: cited
There is no general principle that uncertainty in an executive instrument spells invalidity ( Television Corporation Ltd v The Commonwealth [1963] HCA 30 ; (1963) 109 CLR 59 at 71 per Kitto J). The question is whether what has been done in fact answers the description of what the statute permits to be done in law. A statutory notice such as a s 151AKA(10) notice or a Part A competition notice (together, 'the Statutory Notices') must not be so vaguely expressed that its meaning of application is a matter of real uncertainty. The Statutory Notices must convey, with reasonable and sufficient clarity and certainty, the subject matter with which they deal and enable the recipient to know what is required if their issue is to be a valid exercise of statutory power ( Television Corporation Ltd at 70 per Kitto J; SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 369 per Fisher and French JJ (with whom Wilcox J agreed); Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 at 373, 374 per the Full Court). Where different kinds of subject matter are dealt with by different statutory provisions, the Statutory Notices should specify or make clear which particular aspects of the statutory regime are referred to and/or relied upon ( Department of Industrial Relations v Forrest (1990) 21 FCR 93 at 118 per Lockhart and Hill JJ). 206 As I have noted earlier, where the subject matter of the Competition Notice is conduct, the recipient is entitled to know what is required of it ( Television Corporation at 70 per Kitto J). Absence of information will involve a failure to provide necessary details if, without such information, the notice will not fulfil the purpose for which it is required to be given ( Deputy Commissioner of Taxation v Woodhams [2000] HCA 10 ; (2000) 199 CLR 370 at [33] ). However, a notice analogous to a notice before action is not intended to serve the purpose of a statement of claim if and when action is taken ( Woodhams at [35] and [37]). Despite the complexity and alleged ambiguity of the Statutory Notices on which Telstra relies, in context, the conduct described is sufficiently clear within each notice.
Case: Telstra Corporation Limited v Australian Competition and Consumer Commission (2006) 68 IPR 571
Outcome: cited
Where the Consultation Notice was insufficient as described, Telstra was entitled to be given additional information to be able to provide the meaningful submission contemplated by s 151AKA(10). Where the differences between the notices were as described earlier in these reasons, it is reasonable to assume that, acting bona fide in the context of the Consultation Notice, the Commission relied upon additional material and material adverse to Telstra that went to the matters not described in the Consultation Notice. If the Commission based its decision to issue the Competition Notice on some particular issue or material adverse to Telstra that was not apparent from the Consultation Notice, procedural fairness would require that some step additional to the issue of the Consultation Notice be taken ( Alphaone at 591-2). Telstra was entitled to be given notice of that material or the substance of it. The Commission accepts that, if it was obliged to provide that material to Telstra which it denies, Telstra was not accorded procedural fairness ( Telstra Corporation Limited v Australian Competition and Consumer Commission (2006) 68 IPR 571 at [30]). Failure to provide such information was a denial of procedural fairness or natural justice.
Case: The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543
Outcome: cited
The Commission does not accept Telstra's characterisation of the consequences of a Part A competition notice as "extraordinary" and "punitive". It points out that such a notice is an exercise of executive rather than judicial power and cannot be "breached". It contends that the Competition Notice ' simply indicates that [the Commission] has reached the "relatively low threshold of 'reason to believe'" in relation to the conduct described in the notice '. That imports a requirement to come to the view in good faith and on reasonable grounds that Telstra is breaching or has breached the competition rule. There is no "finding" that Telstra has engaged or is proposing to engage in anti-competitive conduct, just a public announcement that the Commission has "reason to believe" that Telstra has engaged in at least one instance of anti-competitive conduct of a kind described in the Competition Notice. This is described as a ' relatively low threshold ' ( The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543 at [130] per Callinan J). The Commission does not accept that this involves damage to Telstra's reputation. 247 No penalties or orders flow directly from the Competition Notice; it allows proceedings to be commenced. The Commission points out that the consequences of the Competition Notice could have been avoided by Telstra if Telstra had accepted the Commission's invitation to give undertakings not to engage in the impugned conduct or successfully sought an exemption order pursuant to s 151AS of the Act. If Telstra were able to satisfy the Commission that the conduct was not anti-competitive or that the benefit to the public outweighs the detriment constituted by any lessening of competition, the Commission could make an exemption order (s 151BC(1) of the Act). 248 However, such an undertaking or the seeking of an exemption order would involve an acknowledgement by Telstra that its conduct or proposed conduct was anti-competitive, a proposition that it does not accept. The issue of a Part A competition notice should not force a recipient to accept the veracity of the allegations made which it disputes.
Case: Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265
Outcome: cited
As Finn J observed in Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 at 274, the courts have indicated in a variety of contexts that '[c] onsultation is no empty term ' nor ' a mere formality '. The Commission has been given extensive powers which have been granted and affirmed in the context of certain conditions. The statutory process of consultation envisaged by s 151AKA(9) and (10) is rendered ineffective if the recipient is not given adequate and appropriate information in order to make an informed response. 237 Telstra was not afforded the opportunity to address issues relevant to the issue of the Competition Notice. Procedural fairness required that Telstra have that opportunity, whether such natural justice was in accordance with the statutory regime or common law principles. 238 Optus relies upon the context of the statutory power being exercised under a scheme in which the Part A competition notice: (a) does not prevent Telstra from engaging in the conduct referred to in the notice; (b) is not evidence of the matters referred to in it; (c) is akin to a notice before action, in the sense that a person (including the Commission) has no right to sue for a breach of the competition rule unless a Part A competition notice has been issued; and (d) may lead to the possibility of proceedings after its issue (in which proceedings the allegation of a breach of the competition rule will have to be proved to the civil standard of proof).
Case: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559
Outcome: cited
Optus also points to the decision of the Full Court in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [27] where it was pointed out that the analysis of whether natural justice is afforded: 'is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.'
Case: Cannane v Official Trustee (1996) 65 FCR 453
Outcome: distinguished
Ms Rome-Sievers for the respondents referred to observations by Beaumont and Hill JJ, with whom Lehane J agreed, in Cannane v Official Trustee (1996) 65 FCR 453 at 471 et seq. Those observations deal with a quite different setting, a company which had a deficiency of assets. Its controller, Mr Cannane, contemplated using it as a vehicle for a backdoor listing on the stock exchange. The only value from the point of view of a prospective purchaser was "something extraneous to the shares, namely the assurance by Mr Cannane that the benefit of the advantageous back door listing would inure to (the company)" (at 472). 28 I now turn to the issues in dispute between Mr Lipson and Mr Ferrier which go to the quantum of market value.
Case: Deputy Federal Commissioner of Taxation v Gold Estates of Australia (1903) Ltd (1934) 51 CLR 509
Outcome: cited
It was common ground that the term "market value" as it appears in s 120(1)(b) is to be construed consistently with the valuation principles stated in Spencer v The Commonwealth [1907] HCA 82 ; (1907) 5 CLR 418 at 432, 436-437, 440 et seq. As the High Court said in Deputy Federal Commissioner of Taxation v Gold Estates of Australia (1903) Ltd (1934) 51 CLR 509 at 515: The supposition must be made that a sale is not forced, and that the owner is willing to sell on reasonable terms, and negotiates with a person willing to buy, that the one is not so anxious to sell and the other to buy, as to disregard the effect of any business consideration, and that each is equipped with knowledge of the existing relevant circumstances.
Case: Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4 ; (1981) 146 CLR 336
Outcome: distinguished
Ms Rome-Sievers referred to a passage in the judgment of Aickin J in Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4 ; (1981) 146 CLR 336 at 396 where his Honour said: Where no individual shareholder can procure liquidation and where there is no likelihood of the holders of four out of the five shares joining together in the foreseeable future to wind up the company it can seldom be appropriate to use s. 18 (2) (c). That case concerned liability for Commonwealth gift duty. Section 18(2)(c) of the Gift Duty Assessment Act 1942 (Cth) provided in effect that where a gift included shares in an unlisted company, the Commissioner might, in his discretion, adopt as the value of those shares the sum the holder would receive in the event of the company being voluntarily wound up on the date when the gift was made. On the facts of that case (see the passage from the judgment of the trial judge, Sheppard J, cited at 146 CLR 395) all the members of the Court, except Murphy J, held that it was unnecessary to adopt a winding up basis because the shares were properly valued on an earnings basis. 31 In the present case, as already noted, neither valuer suggested an earnings basis would be appropriate. In any event, the notional winding up in the present case assumes an order made on an oppression petition: Corporations Act 2001 (Cth) s 232 , or on the just and equitable and related grounds: s 461(e) , (f), (g) and (k), not the voluntary winding up predicated by s 18(2)(c) of the Gift Duty Act as relevant in St Helens Farm . 32 If, as both valuers agree, a liquidation basis is appropriate, how would the notional purchaser, properly advised, assess the prospects of obtaining a winding up order? 33 Ms Rome-Sievers points to the history and circumstances of the Weeden Companies. They are closely held family companies. They do not carry on any business, their sole economic worth being the potential receipt of trust distributions as beneficiaries of trusts within the wider Weeden Group. However, the directors of trustees of the relevant trusts have stated that they do not intend to make any distributions in the foreseeable future, and have not done so for some time. No dividends have been declared by the Weeden Companies since 1988 and are not likely to be declared in the future.
Case: Gambotto v WCP Limited [1995] HCA 12 ; (1995) 182 CLR 432
Outcome: cited
A controlling majority which diverts assets and opportunities of the company to other entities under its control, and from which it will benefit, will be acting oppressively. This is essentially the kind of conduct held to be oppressive in Scottish Cooperative Wholesale Society Ltd v Meyer [1959] AC 324 and a breach of fiduciary duty in Mordecai v Mordecai (1988) 12 NSWLR 58. Similarly, an inflexible policy of not declaring dividends can constitute oppression: Shamsallah Holdings Pty Ltd v CBD Refrigeration and Airconditioning Services Pty Ltd (2001) 19 ACLC 517 at [51]-[56]. It would be no answer to say that such conduct happened to suit the interests of the Weeden family. In Gambotto v WCP Limited [1995] HCA 12 ; (1995) 182 CLR 432 the High Court has reaffirmed the willingness of the courts to protect minority shareholders albeit in the context of a majority seeking to amend Articles of Association.
Case: Geita Sebea v Territory of Papua [1941] HCA 37 ; (1941) 67 CLR 544
Outcome: cited
In Abrahams v Federal Commissioner of Taxation [1944] HCA 32 ; (1944) 70 CLR 23 at 44 Williams J, sitting as a single Justice of the High Court, considered that the presence of restrictive Articles was not a factor that should depreciate value because directors were obliged to exercise fiduciary duties conferred by the Article in a proper manner, bona fide and for the benefit of the company. Such obligations are enforceable in the courts. Citing the Privy Council case of Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer Vizagapatam [1939] AC 302 , as applied by the High Court in Geita Sebea v Territory of Papua [1941] HCA 37 ; (1941) 67 CLR 544 , Williams J said (70 CLR at 44): ...the full value to the seller must be ascertained, however limited the market may be, even where there is only one possible hypothetical purchaser. To a prudent purchaser willing to give full value for the shares sooner than fail to obtain them, this restriction should not, to my mind, have many terrors.
Case: Hilder v Dexter [1902] AC 474
Outcome: cited
It might be suggested that the Explanatory Memorandum ([21] above) is inconsistent with this principle insofar as it disregards "any sort of discount or incentive". However, the Memorandum is not to be taken too literally. For example, a range of "kerbside valuations" would hardly be a determination of market value binding on a court. In any event, an Explanatory Memorandum, however helpful, is not an expression of the will of Parliament and cannot prevail when a statute uses an expression, such as market value, to which courts of the highest authority have given a clear meaning. While Explanatory Memoranda are explicitly included in the extrinsic materials to which a court may give consideration under s 15AB of the Acts Interpretation Act 1901 (Cth), there may still be something to be said for the trenchant view expressed by Lord Halsbury LC in Hilder v Dexter [1902] AC 474 at 477: ... I believe the worst person to construe (a statute) is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed. 48 Mr Ferrier has applied a 10 per cent "minority discount". To some extent that overlaps with a further discount for litigation risk which he fixes at 25 per cent. 49 Mr Ferrier's figures quoted in [18] above do not take into account this latter discount because his instructions were to assume as a fact that the applicants (strictly speaking, that should be a hypothetical purchaser) would be able to establish oppression and obtain a winding up order. Mr Lipson's corresponding discount is 92.5 per cent, ie he assumes the chance of success at 7.5 per cent. The estimate of the prospects of success in litigation is probably not something within the specialised knowledge of a Chartered Accountant: see Evidence Act 1995 (Cth) s 79.
Case: Jenkins v Enterprise Gold Mines NL (1992) 10 ACLC 136
Outcome: applied
The concept of oppression and the relevant authorities are discussed extensively by the Full Court of the Supreme Court of Western Australia in Jenkins v Enterprise Gold Mines NL (1992) 10 ACLC 136 at 143-147 in a passage too lengthy to set out, but which I respectfully adopt and incorporate in these reasons. I particularly note what their Honours said at 145-146: In our opinion the application of the test involves a question of fairness. It is for the court to decide whether in balancing the interests of the company as a whole against minority interests the directors have acted so as to unfairly prejudice the interests of the minority. The court decides this "according to ordinary standards of reasonableness and fair dealing". Whether the conduct is unfairly discriminatory will be judged on standards which reasonable directors with such skills as directors should have, acting bona fide, would think to be fair. 36 The respondents' defence in a hypothetical oppression and winding up application would necessarily be that the assets of the Weeden Companies can be used for the exclusive benefit of the controllers, through the medium of the Related and Associated Entities. The minority shareholder in the Weeden Companies can expect nothing by way of income and nothing by way of capital for the indefinite future. If the net assets of the Weeden Companies were $100 million and the minority interest were 20 per cent, the unfairness of such conduct would be unarguable. It does not become any less unfair when the minority is smaller.
Case: Mallett v Mallet (1984) 156 CLR 605
Outcome: cited
Neither valuer considered a capitalisation of future earnings basis appropriate; see Mallett v Mallet (1984) 156 CLR 605 at 627.