mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) (2002) ATPR 41-905
Outcome: cited
By meeting with Amcor's CEO Mr Jones at the All Nations Hotel and confirming that Visy would adhere to the Over-arching Understanding, Mr Pratt was knowingly concerned in Visy's giving effect to that Understanding. The Commission does not seek the imposition of a pecuniary penalty on Mr Pratt because he and his family are the owners of Visy and thus the burden of the penalty on the company (not to mention legal costs) will fall on him personally. Decisions of this Court recognise that it is legitimate to avoid double counting where an individual contravenor is an owner of a corporate contravenor: Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2000) ATPR 41-777 at [13], Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) (2002) ATPR 41-905 at [27]-[29]. I accept this should be so in the present case. However, Mr Pratt's ownership of Visy has other significance for this case. I shall return to this aspect.
Case: Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2000) ATPR 41-777
Outcome: cited
By meeting with Amcor's CEO Mr Jones at the All Nations Hotel and confirming that Visy would adhere to the Over-arching Understanding, Mr Pratt was knowingly concerned in Visy's giving effect to that Understanding. The Commission does not seek the imposition of a pecuniary penalty on Mr Pratt because he and his family are the owners of Visy and thus the burden of the penalty on the company (not to mention legal costs) will fall on him personally. Decisions of this Court recognise that it is legitimate to avoid double counting where an individual contravenor is an owner of a corporate contravenor: Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2000) ATPR 41-777 at [13], Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) (2002) ATPR 41-905 at [27]-[29]. I accept this should be so in the present case. However, Mr Pratt's ownership of Visy has other significance for this case. I shall return to this aspect.
Case: Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd (No 5) (1998) ATPR 41-628
Outcome: cited
Section 76 imports into the penalty fixing process concepts of moral responsibility long known to the criminal law. Ordinary sentencing principles apply: Trade Practices Commission v Axive Pty Ltd (1994) ATPR 41-368 at 42,794, Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd (1998) ATPR 41-628 at 40,891.
Case: Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515
Outcome: cited
Decisions of this Court have identified additional relevant factors which can be taken into account (see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076, at 52,152-52,153; Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515 at 42,444-42,445): (v) the size of the contravening company; (vi) the degree of its power, evidenced by its market share and the ease of entry into the market; (vii) the deliberateness of the contravention and the period over which it extended; (viii) whether the contravention arose out of the conduct of senior management or at a lower level; (ix) whether the company had a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; (x) whether the contravenor has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention; (xi) similar conduct in the past; (xii) financial position; (xiii) deterrent effect.
Case: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444
Outcome: referred to
The Commission has not proceeded against those on the Amcor side of this cartel because in late 2004 Amcor approached the Commission and admitted liability. The Commission applied its Leniency Policy for Cartel Conduct, published in 2003, under which the first party to disclose a cartel of which the Commission is unaware will receive an immunity, provided it is not the "clear leader", gives full and frank disclosure, and continues to cooperate with the Commission. In unrelated litigation Amcor had sued former executives and obtained a Court order for a search of their premises. Incriminating material, including tape recordings of conversations, was discovered and on its solicitors' advice Amcor approached the Commission. Details of these events will be found in my earlier judgment on an interlocutory application: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444 at [7] - [52] . 9 A vast range of consumer goods are packaged in CFP. They include groceries, beverages, dairy products, fruit, produce, meat, poultry, seafood and confectionery. Returnable plastic crates, shrink wrap and other packaging products compete in segments of the CFP market, but otherwise there are no packaging materials which are reasonably substitutable for, or in close competition with, CFP products in relation to the packaging of the goods mentioned. CFP is used to make the ubiquitous cardboard box. 10 The type of CFP products and associated services supplied by Visy and Amcor would vary substantially between customers due to differing customer requirements in terms of board paper type, strength, construction, sheet size, design style, print characteristics and method of assembly. Different board grates were used in the manufacture for supply of CFP products to suit the different applications of the products. Corrugated boxed were supplied in a number of different styles. CFP products could have printing applied either in a pre-print or post-print process.
Case: Trade Practices Commission v Axive Pty Ltd (1994) ATPR 41-368
Outcome: cited
Section 76 imports into the penalty fixing process concepts of moral responsibility long known to the criminal law. Ordinary sentencing principles apply: Trade Practices Commission v Axive Pty Ltd (1994) ATPR 41-368 at 42,794, Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd (1998) ATPR 41-628 at 40,891.
Case: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Outcome: cited
Decisions of this Court have identified additional relevant factors which can be taken into account (see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076, at 52,152-52,153; Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515 at 42,444-42,445): (v) the size of the contravening company; (vi) the degree of its power, evidenced by its market share and the ease of entry into the market; (vii) the deliberateness of the contravention and the period over which it extended; (viii) whether the contravention arose out of the conduct of senior management or at a lower level; (ix) whether the company had a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; (x) whether the contravenor has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention; (xi) similar conduct in the past; (xii) financial position; (xiii) deterrent effect.
Case: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Outcome: cited
is trite law to say that I have a discretion in relation to costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth), the only constraint being, speaking generally, that I am obliged to exercise that discretion judicially. The usual rule in relation to costs is that costs follow the event, in the absence of special reasons to the contrary: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234-235.
Case: Fetherson v Peninsula Health (No 2) [2004] FCA 594 ; (2004) 137 FCR 262
Outcome: cited
departure from the usual rule requires a valid, special reason. When considering the exercise of discretion in relation to the exercise of costs, it is frequently submitted that other cases bear upon the issue, and provide guidance as to how those costs should be ordered, but it has been established in a number of cases that other cases are not particularly helpful where the facts are quite different, and I adopt the observations of Heerey J in Fetherson v Peninsula Health (No 2) [2004] FCA 594 ; (2004) 137 FCR 262 at par [12]. The defendant has submitted that the plaintiffs should pay his costs as he has succeeded on the whole of the claim in the sense that he is not liable to pay any of the amount claimed by the plaintiffs. The plaintiffs make a quite different submission. They submit that the defendant should pay their costs as they were successful in relation to all the substantive issues. The plaintiffs point to the fact that they succeeded in establishing the issues that the company was insolvent, that there were reasonable grounds to suspect insolvency and that the defendant was aware of those reasonable grounds. They also established that a reasonable person in a like position to the defendant would have been so aware of those reasonable grounds, and they succeeded in relation to the defences available under s 588H(2), which were not made out.
Case: Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622
Outcome: followed
situation which has arisen in relation to the interlocutory process is that at the time there was a reasonable basis for bringing it. That basis has now disappeared as a result of subsequent events. It is not appropriate that the Court try the whole of that interlocutory proceeding simply for the purpose of determining the costs, and there is clear authority for the proposition that, unless in those circumstances it is abundantly clear that the interlocutory process would have clearly succeeded or clearly failed, there should be no order as to costs in relation to it. I adopt and follow the reasoning of McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 , Finkelstein J in Gribbles Pathology Ltd v Health Insurance Commission (1997) 80 FCR 284 and Hill J in Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 22 December 2009 Counsel for the Plaintiffs: M Galvin Solicitor for the Plaintiffs: Maddocks Counsel for the Defendant: J L Evans Solicitor for the Defendant: Voitin Lawyers Date of Hearing: 14 December 2009 Date of Judgment: 14 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1540.html
Case: Gribbles Pathology Ltd v Health Insurance Commission (1997) 80 FCR 284
Outcome: followed
situation which has arisen in relation to the interlocutory process is that at the time there was a reasonable basis for bringing it. That basis has now disappeared as a result of subsequent events. It is not appropriate that the Court try the whole of that interlocutory proceeding simply for the purpose of determining the costs, and there is clear authority for the proposition that, unless in those circumstances it is abundantly clear that the interlocutory process would have clearly succeeded or clearly failed, there should be no order as to costs in relation to it. I adopt and follow the reasoning of McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 , Finkelstein J in Gribbles Pathology Ltd v Health Insurance Commission (1997) 80 FCR 284 and Hill J in Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 22 December 2009 Counsel for the Plaintiffs: M Galvin Solicitor for the Plaintiffs: Maddocks Counsel for the Defendant: J L Evans Solicitor for the Defendant: Voitin Lawyers Date of Hearing: 14 December 2009 Date of Judgment: 14 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1540.html
Case: Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194
Outcome: followed
situation which has arisen in relation to the interlocutory process is that at the time there was a reasonable basis for bringing it. That basis has now disappeared as a result of subsequent events. It is not appropriate that the Court try the whole of that interlocutory proceeding simply for the purpose of determining the costs, and there is clear authority for the proposition that, unless in those circumstances it is abundantly clear that the interlocutory process would have clearly succeeded or clearly failed, there should be no order as to costs in relation to it. I adopt and follow the reasoning of McHugh J in Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 , Finkelstein J in Gribbles Pathology Ltd v Health Insurance Commission (1997) 80 FCR 284 and Hill J in Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 22 December 2009 Counsel for the Plaintiffs: M Galvin Solicitor for the Plaintiffs: Maddocks Counsel for the Defendant: J L Evans Solicitor for the Defendant: Voitin Lawyers Date of Hearing: 14 December 2009 Date of Judgment: 14 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1540.html
Case: Baxter v Obacelo [2001] HCA 66 ; (2001) 205 CLR 635
Outcome: distinguished
applicant claimed to derive assistance from Baxter v Obacelo [2001] HCA 66 ; (2001) 205 CLR 635. That case concerned s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which provided in part that: Where damage is suffered by any person as a result of a tort ... (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered ... against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given ... The Court held that the provision applied only to cases where there was more than one proceeding, and thus did not preclude recovery against more than one defendant sued as joint tortfeasors in the one proceeding. Baxter [2001] HCA 66 ; 205 CLR 635 did not involve a limitation provision. I am unable to see how it assists the applicant. For the above reasons I am of the view that the Magistrate's decision is not attended with sufficient doubt to warrant reconsideration by this Court. If, contrary to my opinion, the Magistrate's order was a final order, I would dismiss the appeal for the same reasons I would refuse leave to appeal assuming the order to be interlocutory. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 22 December 2009 The applicant appeared in person. Counsel for the Respondent: J Brereton Solicitor for the Respondent: Rebecca Goodger, Ford Motor Company of Australia Date of Hearing: 10 December 2009 Date of Judgment: 22 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1554.html
Case: BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 2) [2008] FCA 1656
Outcome: cited
applicant accepted that but for the provisions of Part VIA of the Act, his proceeding was out of time. He submits that that Part permits his otherwise out of time claim. Part VIA deals with Proportionate Liability for Misleading and Deceptive Conduct and was introduced into the Act in 2004. Its purpose was explained by Finkelstein J in BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 2) [2008] FCA 1656 at [4] . Part VIA consists of ss 87CB to 87CI. Section 87CB(1) limits the operation of the Part to a claim for damages under s 82 for economic loss or damage to property caused by conduct in contravention of s 52. This type of claim is called an "apportionable claim". Section 87CD establishes proportionate liability for an apportionable claim. Subsection (1) provides: In any proceedings involving an apportionable claim: (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss; and (b) the court may give judgment against the defendant for not more than that amount. The expression "concurrent wrongdoer" is defined in 87CB(3) as a person who is one of two or more persons whose acts or omissions caused, independently of each other or jointly, the damage or loss that is the subject of the apportionable claim. Section 87CF provides that a defendant against whom judgment is given as a concurrent wrongdoer cannot be required to contribute to the damages recovered from another concurrent wrongdoer or indemnify any such wrongdoer. Section 87CG(1) provides: In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss. The applicant claims to bring himself within s 87CG(1) by reason of a settlement of his claim against Stillwell in October 2003. This is the proceeding referred to in the first paragraph of the passage quoted at [2]. The settlement occurred as the result of a mediation. The County Court proceeding was struck out by consent with no order as to costs. Accordingly s 87CG(1) does not apply for want of "judgment recovered". However, quite apart from this, Part VIA does not seem to me to provide any assistance to the applicant in displacing the limitation period in s 82(2).
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: applied
applicant appeared in person. Although he made no express application for leave, I will treat him as seeking it. Leave to appeal is only granted if the applicant establishes that the decision at first instance is attended with sufficient doubt to warrant its reconsideration by an appellate court and substantial injustice would result if leave were refused, supposing the decision to be wrong: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398-400.
Case: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 ; (2009) 259 ALR 319
Outcome: applied
17A of the Federal Magistrates Act is in the same terms as s 31A of the Federal Court of Australia Act 1976 (Cth). In Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 ; (2009) 259 ALR 319 the Full Court held that the decision of a single judge to grant summary judgment to the respondent on the basis that the applicant had no reasonable prospect of successfully prosecuting a proceeding is an interlocutory judgment because the legal effect of such a judgment is not final . See also Luck v University of Southern Queensland [2009] FCAFC 73 ; (2009) 176 FCR 268 at [101] per Rares J, with whom Graham J agreed. The observations of Rares J in Luck were approved by the Full Court in Kowalski [2009] FCAFC 117 ; 259 ALR 319 at [43] . Accordingly I must treat the Federal Magistrate's order as an interlocutory order requiring the grant of leave.
Case: Luck v University of Southern Queensland [2009] FCAFC 73 ; (2009) 176 FCR 268
Outcome: applied
17A of the Federal Magistrates Act is in the same terms as s 31A of the Federal Court of Australia Act 1976 (Cth). In Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 ; (2009) 259 ALR 319 the Full Court held that the decision of a single judge to grant summary judgment to the respondent on the basis that the applicant had no reasonable prospect of successfully prosecuting a proceeding is an interlocutory judgment because the legal effect of such a judgment is not final . See also Luck v University of Southern Queensland [2009] FCAFC 73 ; (2009) 176 FCR 268 at [101] per Rares J, with whom Graham J agreed. The observations of Rares J in Luck were approved by the Full Court in Kowalski [2009] FCAFC 117 ; 259 ALR 319 at [43] . Accordingly I must treat the Federal Magistrate's order as an interlocutory order requiring the grant of leave.
Case: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: cited
Magistrate went on to note the High Court's caution in Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 533 that it is undesirable for limitation questions of the kind under consideration in that case to be decided in interlocutory proceedings except in the clearest of cases. His Honour was of the view that this was the clearest of cases. The applicant had no reasonable prospect of succeeding. His claim was clearly out of time. The applicant has appealed against the Magistrate's dismissal of his application. By motion notice of which was filed on 15 October 2009 the respondent seeks an order that the appeal be dismissed "for failing to identify any legal, factual or discretionary error in the judgment under appeal". It contends first that the Magistrate's decision was interlocutory and no leave to appeal has been sought. It then contends, as per the motion, that the applicant has identified no error in the decision.
Case: McClure v Australian Electoral Commission [1999] HCA 31 ; (1999) 163 ALR 734
Outcome: cited
In a case where the relief sought is an order under s 360(1)(v) or (vii) of the Act (declaring that a person who was returned as elected was not duly elected or declaring an election void) on the ground that there has been a contravention of the Act, the consequence of s 362(3) of the Act is that, relevantly, the facts which would justify the relief must include facts which would allow the Court to be satisfied that the result of the election is likely to have been affected. The minimum assertion necessary to constitute such a fact is one raising the matter or matters by which the election is likely to be affected ( Webster at 225 per Gaudron J; McClure v Australian Electoral Commission [1999] HCA 31 ; (1999) 163 ALR 734 at [23] [24] per Hayne J). As Dawson J outlined in Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 649, paragraph (a) requires not only the essential facts relied on to be set out but also those facts must be sufficient to justify a finding in invalidity. As his Honour pointed out, otherwise s 355(a) in conjunction with s 358(1) would achieve little.