mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543
Outcome: cited
I should note that the arguable ground of jurisdictional error on the part of the Tribunal was not explicitly identified before the Federal Magistrate. It emerged in the course of submissions on this application, prompted by a general reference in the proposed notice of appeal to the decision of the Tribunal being unfair and not carefully considered. I am mindful of the observations of the Full Court in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18] about the circumstances in which a new or refined proposed ground of appeal should be allowed in such circumstances, but as the applicant was not represented and because the Federal Magistrate was asked to consider generally the way in which the Tribunal had exercised its discretion under s 116(1), I think this is a case in which the point should be allowed to be considered on appeal. 44 I will hear the parties as to how the appeal should now progress. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 10 May 2007 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr B Cramer Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 8 May 2007 Date of Judgment: 11 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/691.html
Case: Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd (2007) ATPR 42-156
Outcome: referred to
It is now well established that the Court has power to impose a fine for contempt of Court: see s 31 of the Federal Court of Australia Act 1976 (Cth) and Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137 ; BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 ; Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd (2007) ATPR 42-156 ; Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129.
Case: Australian Competition and Consumer Commission v Hughes [2001] FCA 38 ; (2001) ATPR 41-807
Outcome: referred to
In Australian Competition and Consumer Commission v Hughes [2001] FCA 38 ; (2001) ATPR 41-807 Tamberlin J described the rationale behind the power to punish for contempt as follows: "Ultimately, in the case of mandatory or prohibitory orders made by it, the sanction which the Court has in order to enforce its decisions is the power to punish for contempt. This is the way in which the Court preserves respect for its role and the rule of law. Without the enforcement of court orders the whole process of adjudication becomes a hollow exercise. If a losing party can defy the orders of the Court then such disobedience renders futile, in the perception of the community, the remedy secured by the successful party. Orders are not made simply to suggest or advise persons that they ought to keep to the law as proclaimed but to ensure that the law is carried out as determined by the decision pursuant to which the order is made. Defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts." 6 Having regard to these principles I turn to the determination of the appropriate penalty.
Case: Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 , Merkel J identified the following considerations as being relevant to the determination of an appropriate penalty for contempt of Court (at 501-502): &#8226; The contemnor's personal circumstances; &#8226; The nature and circumstances of the contempt; &#8226; The effect of the contempt on the administration of justice; &#8226; The contemnor's culpability; &#8226; The need to deter the contemnor and others from repeating contempt; &#8226; The absence or presence of a prior conviction for contempt; &#8226; The contemnor's financial means; &#8226; Whether the contemnor has exhibited general contrition and made a full and ample apology; &#8226; Whether the conduct falls within the most serious category of criminal contempt cases such as to warrant the imposition of a term of imprisonment; and &#8226; Whether or not imprisonment is a "last resort" penalty in the circumstances of the case. See also Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537 at 540.
Case: Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 , Merkel J identified the following considerations as being relevant to the determination of an appropriate penalty for contempt of Court (at 501-502): &#8226; The contemnor's personal circumstances; &#8226; The nature and circumstances of the contempt; &#8226; The effect of the contempt on the administration of justice; &#8226; The contemnor's culpability; &#8226; The need to deter the contemnor and others from repeating contempt; &#8226; The absence or presence of a prior conviction for contempt; &#8226; The contemnor's financial means; &#8226; Whether the contemnor has exhibited general contrition and made a full and ample apology; &#8226; Whether the conduct falls within the most serious category of criminal contempt cases such as to warrant the imposition of a term of imprisonment; and &#8226; Whether or not imprisonment is a "last resort" penalty in the circumstances of the case. See also Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537 at 540.
Case: BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336
Outcome: referred to
It is now well established that the Court has power to impose a fine for contempt of Court: see s 31 of the Federal Court of Australia Act 1976 (Cth) and Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137 ; BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 ; Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd (2007) ATPR 42-156 ; Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129. 16 The applicant seeks its costs of its motion for contempt dated 22 November 2007 on an indemnity basis on the ground that it brought the application to vindicate the authority of the Court. The Courts have recognised that parties who prosecute contempt proceedings are performing a public duty and that it is appropriate that a costs order be made so they are not out of pocket: see BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336.
Case: Gregory v Philip Morris Ltd (1987) 74 ALR 300
Outcome: referred to
As the principal proceeding was a matter arising under the WR Act it is necessary to consider whether the contempt proceeding was also a matter arising under that Act, in which case s 824 would prevent the Court from ordering Mr Morrison and/or Morrison Clothing from paying the applicant's costs of the motion. It is well established that a motion for contempt is separate and distinct from the principal proceeding: see Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 at 151 referring to O'Shea v O'Shea (1890) 15 PD 59. In National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109 ; (1999) 91 FCR 513 the National Union of Workers appealed against a finding of contempt by Smart J of the Supreme Court of New South Wales. A Full Court of this Court said (at 522 523) that the contempt proceeding was not a matter arising under the WR Act , and therefore s 347 (the predecessor of s 824) did not stand in the way of a costs order. See also Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220 at 235 and Gregory v Philip Morris Ltd (1987) 74 ALR 300 at 308. It is clear on the authorities that s 824 of the WR Act does not apply to contempt proceedings.
Case: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 , Merkel J identified the following considerations as being relevant to the determination of an appropriate penalty for contempt of Court (at 501-502): &#8226; The contemnor's personal circumstances; &#8226; The nature and circumstances of the contempt; &#8226; The effect of the contempt on the administration of justice; &#8226; The contemnor's culpability; &#8226; The need to deter the contemnor and others from repeating contempt; &#8226; The absence or presence of a prior conviction for contempt; &#8226; The contemnor's financial means; &#8226; Whether the contemnor has exhibited general contrition and made a full and ample apology; &#8226; Whether the conduct falls within the most serious category of criminal contempt cases such as to warrant the imposition of a term of imprisonment; and &#8226; Whether or not imprisonment is a "last resort" penalty in the circumstances of the case. See also Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537 at 540.
Case: National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109 ; (1999) 91 FCR 513
Outcome: referred to
As the principal proceeding was a matter arising under the WR Act it is necessary to consider whether the contempt proceeding was also a matter arising under that Act, in which case s 824 would prevent the Court from ordering Mr Morrison and/or Morrison Clothing from paying the applicant's costs of the motion. It is well established that a motion for contempt is separate and distinct from the principal proceeding: see Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 at 151 referring to O'Shea v O'Shea (1890) 15 PD 59. In National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109 ; (1999) 91 FCR 513 the National Union of Workers appealed against a finding of contempt by Smart J of the Supreme Court of New South Wales. A Full Court of this Court said (at 522 523) that the contempt proceeding was not a matter arising under the WR Act , and therefore s 347 (the predecessor of s 824) did not stand in the way of a costs order. See also Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220 at 235 and Gregory v Philip Morris Ltd (1987) 74 ALR 300 at 308. It is clear on the authorities that s 824 of the WR Act does not apply to contempt proceedings.
Case: Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137
Outcome: referred to
It is now well established that the Court has power to impose a fine for contempt of Court: see s 31 of the Federal Court of Australia Act 1976 (Cth) and Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137 ; BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 ; Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd (2007) ATPR 42-156 ; Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129.
Case: Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150
Outcome: referred to
As the principal proceeding was a matter arising under the WR Act it is necessary to consider whether the contempt proceeding was also a matter arising under that Act, in which case s 824 would prevent the Court from ordering Mr Morrison and/or Morrison Clothing from paying the applicant's costs of the motion. It is well established that a motion for contempt is separate and distinct from the principal proceeding: see Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 at 151 referring to O'Shea v O'Shea (1890) 15 PD 59. In National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109 ; (1999) 91 FCR 513 the National Union of Workers appealed against a finding of contempt by Smart J of the Supreme Court of New South Wales. A Full Court of this Court said (at 522 523) that the contempt proceeding was not a matter arising under the WR Act , and therefore s 347 (the predecessor of s 824) did not stand in the way of a costs order. See also Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220 at 235 and Gregory v Philip Morris Ltd (1987) 74 ALR 300 at 308. It is clear on the authorities that s 824 of the WR Act does not apply to contempt proceedings.
Case: Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129
Outcome: referred to
It is now well established that the Court has power to impose a fine for contempt of Court: see s 31 of the Federal Court of Australia Act 1976 (Cth) and Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137 ; BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 ; Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd (2007) ATPR 42-156 ; Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129.
Case: Textile Clothing and Footwear Union of Australia v Morrison Country Clothing Australia Pty Ltd [2008] FCA 604
Outcome: referred to
On 5 September 2008 I found that the respondent, Morrison Country Clothing Australia Pty Ltd ("Morrison Clothing"), and Mr Brian Morrison had committed contempt of Court by failing to comply with paragraph 1 of the orders I made on 28 September 2007 ("the Order"): see Textile Clothing and Footwear Union of Australia v Morrison Country Clothing Australia Pty Ltd [2008] FCA 604. These reasons should be read in conjunction with those in Morrison . 2 Mr Morrison is the sole director, company secretary and sole shareholder of Morrison Clothing. The Order required Mr Morrison, both on his own behalf and on behalf of Morrison Clothing, to give discovery of the documents requested by the applicant (in its Request for Categories of Documents to be Discovered dated 9 August 2007) by serving a list of documents required to be disclosed and an affidavit verifying the list of documents on or before 19 October 2007. I concluded that the brief affidavit filed by Mr Morrison did not comply with the Order and that Mr Morrison's conduct was not merely casual, accidental or unintentional but constituted wilful disobedience of the Court's order. 3 The applicant seeks an order that Mr Morrison be fined $50,000.00 for his contempt. No penalty is sought against Morrison Clothing, which is now in liquidation.
Case: Textile Clothing and Footwear Union of Australia v Southern Cross Clothing Pty Ltd [2006] FCA 325
Outcome: referred to
In the principal proceeding, the applicant sought the imposition of penalties against Morrison Clothing pursuant to s 719 of the Workplace Relations Act 1996 (Cth) ("the WR Act ") for breaches of clauses 46 and 48 of the Clothing Trades Award 1999 . Clauses 46 and 48 regulate the terms and conditions of outworkers. The Award is intended to regulate the use of outworkers in the clothing industry to ensure that outworkers receive their minimum entitlements. The relevant provisions of the Award were specifically designed to remedy the exploitation of this vulnerable group of workers: see Clothing Trades Award 1982 Print R2749 and cf the observations of Marshall J in Textile Clothing and Footwear Union of Australia v Southern Cross Clothing Pty Ltd [2006] FCA 325 . 13 The applicant claimed, inter alia, that Morrison Clothing had utilised outworkers but had not provided the minimum wages and conditions provided for in the Award or kept all of the requisite work records. The work records of Morrison Clothing are essential for the applicant to prove its case. The failure of Mr Morrison to provide discovery of the work records has severely limited the ability of the applicant to continue the proceedings. As the applicant submits, if Mr Morrison is permitted to ignore the Order he is able to circumvent the outworkers' regulatory regime. In those circumstances, and particularly in light of the objectives of that regime, the amount of the penalty should be sufficient to deter Mr Morrison and others from conduct designed to circumvent the legislative protections which are provided for outworkers. 14 For the forgoing reasons, I consider that it is appropriate that Mr Morrison be fined $10,000.00.
Case: Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220
Outcome: referred to
As the principal proceeding was a matter arising under the WR Act it is necessary to consider whether the contempt proceeding was also a matter arising under that Act, in which case s 824 would prevent the Court from ordering Mr Morrison and/or Morrison Clothing from paying the applicant's costs of the motion. It is well established that a motion for contempt is separate and distinct from the principal proceeding: see Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 at 151 referring to O'Shea v O'Shea (1890) 15 PD 59. In National Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109 ; (1999) 91 FCR 513 the National Union of Workers appealed against a finding of contempt by Smart J of the Supreme Court of New South Wales. A Full Court of this Court said (at 522 523) that the contempt proceeding was not a matter arising under the WR Act , and therefore s 347 (the predecessor of s 824) did not stand in the way of a costs order. See also Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220 at 235 and Gregory v Philip Morris Ltd (1987) 74 ALR 300 at 308. It is clear on the authorities that s 824 of the WR Act does not apply to contempt proceedings.
Case: Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162
Outcome: referred to
Whilst Order 15A makes no provision as to the means whereby discovery should be given by a party such as the Minister to a party such as Telstra, it seems clear to me that discovery must be given in the manner for which Order 15 rule 2(2) provides, namely: '2(2) Unless the Court or a Judge orders otherwise, a party must give discovery by serving: (a) a list of documents required to be disclosed; and (b) an affidavit verifying the list.' Mansfield J expressed the same view in Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162 at [2] . 10 The form of the list of documents may, in my opinion, be taken to have been regulated by Order 15 rule 6, which relevantly provides: '6(1) A list of documents required by or under this Order shall, unless the Court otherwise orders, be in accordance with Form 22 and conform to the requirements of this rule. (2) A list of documents shall enumerate the documents which are ... in the possession ... of the party making the list. (3) A list of documents shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified. ... (8) Where a party making a list of documents has a solicitor in the proceeding, the solicitor shall certify on the list that, according to his instructions, the list and the statements in the list are correct.' 11 Form 22, of course, provides for documents to be enumerated one by one in either Schedule 1 Part 1, Schedule 1 Part 2 or Schedule 2 of the relevant list. The operative words in Form 22 are: '1. The party has in his possession ... the documents enumerated in Schedule 1. 2. The documents enumerated in Part 2 of Schedule 1 are privileged from production on the ground ... ...'
Case: Waind v Hill and National Employers' Mutual General Association Ltd. (1978) 1 NSWLR 376
Outcome: applied
As Moffitt P, with whose judgment Hutley and Glass JJA agreed, said in Waind v Hill and National Employers' Mutual General Association Ltd. (1978) 1 NSWLR 376 ('Waind's case') at 381 there are three steps involved in dealing with subpoenas and documents that may be produced thereunder. At p381 Moffitt P said: 'As Jordan C.J. pointed out in Small's case [The Commissioner for Railways v Small (1938) 38 SR (NSW) 564] and, as appears in Burchard's case [Burchard v Macfarlane [1891] 2 QB 241] there are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.'
Case: Seven Network Limited v News Limited (No 11) [2006] FCA 174
Outcome: considered
Once documents have been produced to the court, any objections to their production having been rejected, the documents are in the control of the court. At this stage the person producing the documents may state that he objects to them being handed to a party seeking access to them for inspection. Documents should not go beyond the judge against the objection of the owner, unless there is valid reason to do so. Subject to matters such as confidentiality, it is for the judge, as part of the second step, to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings, in which event the judge will permit inspection by one or both parties at an appropriate time. The question of their admissibility without more, in accordance with the rules of evidence, does not then arise (per Moffitt P in Waind's case at 382 385 cf per Sackville J in Seven Network Limited v News Limited (No 11) [2006] FCA 174 at [6] ). 48 The ultimate question of whether any documents are ruled to be relevant and/or admissible is left to the third stage of receiving evidence. As part of the second step inspection may be allowed, notwithstanding that a given document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it or use it in cross-examination (per Moffitt P in Waind's case at 385). 49 If a person wishes to resist production to the court of documents under a subpoena or in response to a notice to produce, objection should be taken as part of what Moffitt P describes as 'the first step'. Available grounds for objection to production include: (a) that the documents called for are the documents of title of the party burdened with production; (b) that the documents are privileged from production on the ground of self-incrimination; (c) that the documents are privileged from production on the ground of legal professional privilege; (d) that the documents are required for some spurious purpose unconnected with the litigation; (e) that the subpoena or notice to produce is oppressive in the sense that it is so wide as to impose an onerous task on the party burdened with production to collect and produce documents, many of which could have no apparent relevance to the litigation.