mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621
Outcome: cited
As already indicated, the Federal Magistrate's decision to refuse Mr Strangio's adjournment application was a discretionary one. The principles applicable on an appeal against the exercise of discretion are well established: see House v The King [1936] HCA 40 ; (1936) 55 CLR 499 , at 504-5 per Dixon, Evatt and McTiernan JJ; Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621 , at 627 per Kitto J; and Ahern, at 146-47 per Davies, Lockhart and Neaves JJ. In order for an appellate court to interfere with an exercise of discretion, it is not enough that the appellate court considers that, had it been the first instance judge, it would have taken a different course. Rather, the appellant must show that there was some error in exercising the discretion, as for example, that the first instance judge acted on a wrong principle. In the present case, there is nothing shown below or in the affidavits filed or the submissions made in this Court that would lead me to conclude that the Federal Magistrate made any discernible error in exercising her discretion. Her Honour did not deny Mr Strangio natural justice as he would allege.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
There is little judicial consideration of the current form of ss 45E and 45EA: cf Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Corke Instrument Engineering Australia Pty Ltd (2005) 223 ALR 480 ( 'Corke' ). There is, however, considerable authority in relation to phrases that occur in s 45E and in other provisions of Pt IV of the TPA. Those authorities are helpful in construing s 45E in a way that gives a consistent meaning to phrases that are used elsewhere in the TPA: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381-382 [69] - [71] .
Case: Keith Russell Simplicity Funerals Pty Ltd v Cremation Society of Australia (ACT) Ltd (1982) 57 FCR 472
Outcome: cited
The authorities on s 45 of the TPA explain the concept of a 'contract, arrangement or understanding' as it is used in Pt IV: see Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678 ; (2004) 141 FCR 183 (' Leahy' ); Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission [2005] ATPR 42-078 (' Apco' ); Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 (' Rural Press' ); Trade Practices Commission v Email Ltd (1980) 43 FLR 383 (' Email' ); and Trade Practices Commission v David Jones (Australia) Pty Ltd (1986) 13 FCR 446 (' David Jones' ). Some assistance is also to be gained from authorities that have considered s 45E in its original form: Gibbins ; see also Keith Russell Simplicity Funerals Pty Ltd v Cremation Society of Australia (ACT) Ltd (1982) 57 FCR 472.
Case: Top Performance Motors Pty Ltd v Ira Berk (Queensland) Pty Ltd (1975) 5 ALR 465
Outcome: cited
The cases on s 45 of the TPA make it clear that for an arrangement or understanding to occur, there must be a 'meeting of the minds' of the parties: Top Performance Motors Pty Ltd v Ira Berk (Queensland) Pty Ltd (1975) 5 ALR 465; Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609. There must be a consensus as to what is to be done, not just a mere hope as to what might be done or might happen: Email at 385. 111 As these passages from Leahy and Apco indicate, the authorities have expressly refrained from holding that the consensus or meeting of minds required by the words 'arrangement' or 'understanding' must involve a reciprocity of obligation. In Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (' Amcor' ) at 359-360 [75], Sackville J said: 'An arrangement or understanding for the purposes of s 45(2) of the TP Act is apt to describe something less than a binding contract or agreement: Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465; 24 FLR 286 at 290 1 (Aust Ind Ct, FC) per Smithers J. However, in order for there to be an arrangement or understanding for the purposes of s 45(2), there must be a meeting of the minds of those said to be parties to the arrangement or understanding. There must be a consensus as to what is to be done and not merely a hope as to what might be done or happen: Trade Practices Commission v Email Ltd (1980) 43 FLR 383 at 385 (Lockhart J); Ira Berk at FLR 291 per Smithers J. Ordinarily, an arrangement or understanding involves communication between the parties arousing expectations in each that the other will act in a particular way: Email at 395. There is no necessity for an element of mutual commitment between the parties to an arrangement or understanding, although in practice such an arrangement or understanding would ordinarily involve reciprocity of obligation: Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230 1; 116 ALR 643 per Lockhart J.' There are, however, several cases in which the courts have said that an assumption of mutual obligations or reciprocal commitments will be the common situation: eg Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 5 FCR 140 at 144. In Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230-231 and 238, the Full Court endorsed Lockhart J's observation in Email at 397 that it is difficult to envisage circumstances where there would be an understanding involving a commitment by one party as to the way it should behave, without some reciprocal obligation by the other party.
Case: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609
Outcome: cited
Burns' file note of the 10 August teleconference states: 'Telephone hook up R. Driscoll, C Sutherland, J Bacchi, C Weber (LV) BW, MP, WB &amp; PB - Col outlined mtg above [arrowup] and proposed settlement. 1 Grandfather existing contracts 2.' The vertical arrow in the note points to the first part of the page that sets out Burns' note of the 9 August meeting: see [22] above. 41 In his evidence, Burns said that Sutherland outlined what had happened at the 9 August meeting and proposed that the issues be settled. There was then general discussion about the two issues that the CEPU had asked the company to address concerning site access and the requirement that contractors have a certified EBA in place with the CEPU. By the end of the meeting, Burns said that agreement was reached as to what Edison was going to do: 'We in essence agreed that we would only employ electrical contractors that had a certified EBA in place and that the one contractor that the only contractor that seemed to be impacted which was DJN, would continue the work which it had been commissioned to do until that had concluded.' Burns recollected that Pearson or Buckley mentioned during the teleconference that the only contractor who appeared to be affected by this agreement was DJN. Burns also gave evidence that the reference to 'Grandfather existing contracts' in his handwritten note referred to the fact that DJN would be permitted to continue work it had already been commissioned to do until that work was concluded. 42 Pearson's understanding of what was discussed in the teleconference was that Edison was minded to proceed down the path of entering into an agreement with the CEPU that would put a limitation on Loy Yang B maintenance, such that only electrical contractors who had certified agreements with the CEPU would be engaged. Pearson said it was explained that Edison was proceeding down this path in order to get the Simon Engineering site agreement for the peaker plant signed, so that construction of the plant could commence. Pearson also said that towards the end of the meeting, or just afterwards, Warrillow instructed him, and Buckley, that they were not to engage electrical contractors who did not have a certified agreement with the CEPU and that they should look at putting that instruction into place. 106 The cases on s 45 of the TPA make it clear that for an arrangement or understanding to occur, there must be a 'meeting of the minds' of the parties: Top Performance Motors Pty Ltd v Ira Berk (Queensland) Pty Ltd (1975) 5 ALR 465; Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609. There must be a consensus as to what is to be done, not just a mere hope as to what might be done or might happen: Email at 385.
Case: Federal Commissioner of Taxation v Lutovi Investments Pty Ltd [1978] HCA 55 ; (1978) 140 CLR 434
Outcome: cited
In Federal Commissioner of Taxation v Lutovi Investments Pty Ltd [1978] HCA 55 ; (1978) 140 CLR 434 (' Lutovi' ), the meaning of an 'arrangement' was considered in the context of s 260 of the Income Tax Assessment Act 1936 (Cth). Gibbs and Mason JJ (Murphy J agreeing) said at 444: 'In the context of s 260 an arrangement is something less than a binding contract or agreement, something in the nature of an understanding which may not be enforceable at law ( Newton v Federal Commissioner of Taxation). ... It is, however, necessary that an arrangement should be consensual, and that there should be some adoption of it. But in our view it is not essential that the parties are committed to it or are bound to support it. An arrangement may be informal as well as unenforceable and the parties may be free to withdraw from it or to act inconsistently with it, notwithstanding their adoption of it.' The High Court's formulation in Lutovi has been applied in the context of 'arrangement or understanding' under s 45 of the TPA: see, eg, Email at 396; and David Jones at 463-464. In Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 (' TNT' ), Franki J referred to the above passage from Lutovi and said at 25: 'I lean with respect to the views expressed by Smithers J in L Grollo &amp; Co Pty Ltd v Nu-Statt Decorating Pty Ltd ... at 89; 17,842 where he said: "I have to remember that the concept of an understanding is broad and flexible. It may arise merely where the minds of the parties are at one that a proposed transaction proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct."' 174 Under s 45E of the TPA, I am not limited to an examination of the words of cl 4.1. This is not a proceeding to enforce a contract. Section 45E is not concerned only with written agreements; it is also concerned with the making of an 'arrangement' or arriving at an 'understanding'. An arrangement or understanding may be informal and unenforceable: Lutovi at 444. The concept of an 'understanding' is a broad and flexible one: L Grollo &amp; Co Pty Ltd v Nu-Statt Decorating Pty Ltd , supra, at 89; TNT at 25; and David Jones at 463-464. For the reasons explained above, I am satisfied that there was a broader arrangement between the parties which overshadowed and controlled the language used in the heads of agreement. It was understood and agreed between the CEPU and Edison that the heads of agreement imposed an obligation on Edison not to retain electrical contractors at the Loy Yang B site if they did not have a current certified agreement with the CEPU, and that this is the way in which Edison would implement it. Nothing in cl 4.1 prevented Edison implementing its arrangement with the CEPU in this way.
Case: Australian Competition and Consumer Commission v APCO Service Stations Pty Ltd [2006] HCATrans 272
Outcome: cited
On appeal, in Apco , the Full Court of this Court (Heerey, Hely and Gyles JJ) considered whether an understanding necessarily involves the making of a commitment to a particular course of action, as opposed to giving rise to a mere expectation or hope that a party will act in a certain way. After considering Merkel J's findings in Leahy , their Honours said at 43,234 - 43,235: 'Whilst the appellants attacked the factual finding that the parties arrived at the price-fixing understanding outlined in [330] of the reasons for judgment, they did not dispute that the primary judge had enunciated the correct legal principles which are applicable in determining whether parties have entered into an understanding. In particular, the primary judge referred to the following observations of Lindgren J in Australian Competition and Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954 ; (1999) 92 FCR 375 at [141] (emphasis in original) which were specifically endorsed by the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [79] : "The cases require that at least one party 'assume an obligation' or give an 'assurance' or 'undertaking' that it will act in a certain way. A mere expectation that as a matter of fact a party will act in a certain way is not enough, even if it has been engendered by that party. In the present case, for example, each individual who attended the meeting may have expected that as a matter of fact the others would return to their respective offices by car, or, to express the matter differently, each may have been expected by the others to act in that way. Each may even have 'aroused' that expectation by things he said at the meeting. But these factual expectations do not found an 'understanding' in the sense in which the word is used in ss 45 and 45A . The conjunction of the word 'understanding' with the words 'agreement' and 'arrangement' and the nature of the provisions show that something more is required." The primary judge's inference at [371] that Anderson [the Director and General Manager of one of the respondent companies] expected that his competitors would hold their increased price for a time whilst he was deciding whether or not to match their prices represents Anderson's assessment of what was likely to occur, without any assurance being given to him that the competitors would act in that way. It is no more than what Lindgren J described as a "factual expectation" which falls short of an "understanding".' Special leave to appeal the Full Court's decision was refused by the High Court in Australian Competition and Consumer Commission v APCO Service Stations Pty Ltd [2006] HCATrans 272.
Case: Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 5 FCR 140
Outcome: cited
As these passages from Leahy and Apco indicate, the authorities have expressly refrained from holding that the consensus or meeting of minds required by the words 'arrangement' or 'understanding' must involve a reciprocity of obligation. In Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 (' Amcor' ) at 359-360 [75], Sackville J said: 'An arrangement or understanding for the purposes of s 45(2) of the TP Act is apt to describe something less than a binding contract or agreement: Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465; 24 FLR 286 at 290 1 (Aust Ind Ct, FC) per Smithers J. However, in order for there to be an arrangement or understanding for the purposes of s 45(2), there must be a meeting of the minds of those said to be parties to the arrangement or understanding. There must be a consensus as to what is to be done and not merely a hope as to what might be done or happen: Trade Practices Commission v Email Ltd (1980) 43 FLR 383 at 385 (Lockhart J); Ira Berk at FLR 291 per Smithers J. Ordinarily, an arrangement or understanding involves communication between the parties arousing expectations in each that the other will act in a particular way: Email at 395. There is no necessity for an element of mutual commitment between the parties to an arrangement or understanding, although in practice such an arrangement or understanding would ordinarily involve reciprocity of obligation: Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230 1; 116 ALR 643 per Lockhart J.' There are, however, several cases in which the courts have said that an assumption of mutual obligations or reciprocal commitments will be the common situation: eg Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 5 FCR 140 at 144. In Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230-231 and 238, the Full Court endorsed Lockhart J's observation in Email at 397 that it is difficult to envisage circumstances where there would be an understanding involving a commitment by one party as to the way it should behave, without some reciprocal obligation by the other party.
Case: News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563
Outcome: applied
Section 45E is directed at a contract, arrangement or understanding containing a provision which has been included for a proscribed purpose, or for purposes including the proscribed purpose. The test of 'purpose' is a subjective test; it is determined by examining the subjective purposes of the parties for including the provision in the contract, arrangement or understanding: News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563 (' South Sydney' ) at 573 [18] per Gleeson CJ, at 580 [43] per McHugh J, at 585-587 [60], [62]-[63] per Gummow J, and at 636-637 [212] per Callinan J; and Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 (' Hughes' ).
Case: Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10
Outcome: followed
Section 45E is directed at a contract, arrangement or understanding containing a provision which has been included for a proscribed purpose, or for purposes including the proscribed purpose. The test of 'purpose' is a subjective test; it is determined by examining the subjective purposes of the parties for including the provision in the contract, arrangement or understanding: News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563 (' South Sydney' ) at 573 [18] per Gleeson CJ, at 580 [43] per McHugh J, at 585-587 [60], [62]-[63] per Gummow J, and at 636-637 [212] per Callinan J; and Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 (' Hughes' ). 125 In Pont Data , the Full Court considered the approach to the determination of purpose under s 4F which, like s 45E(3), operates where a particular provision was included in a contract, arrangement or understanding for a proscribed purpose. Their Honours said at 476: 'In its operation upon provisions stated to have a particular purpose, s 4F uses the words "the provision was included in the contract ... for that purpose or for purposes that included or include that purpose". This indicates that s 4F, in this operation, requires one to look to the purposes of the individuals by whom the provision was included in the contract, arrangement or understanding in question. It therefore directs attention to the "subjective" purposes of those individuals.' The Court adopted the test of purpose as construed by Toohey J in Hughes at 37-38, where his Honour said: 'I accept the view that it is the subjective purpose of those engaging in the relevant conduct with which the court is concerned. All other considerations aside, the use in s 45(2) of "purpose" and "effect" tends to suggest that a subjective approach is intended by the former expression. The application of a subjective test does not exclude a consideration of the circumstances surrounding the reaching of the understanding.'
Case: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367
Outcome: cited
The proscribed purpose can be one of a number of purposes, but it must be an operative purpose. In argument, senior counsel for the ACCC seemed to suggest that s 45E imposes a lower threshold than this, relying on the absence of the word 'substantial' in s 45E and the inapplicability of s 4F to ss 45E(3). Section 4F(1) provides that a reference to the 'purpose' of a provision of a contract, arrangement or understanding means the purpose, or one of the purposes, for including the provision, so long as it was or is a 'substantial purpose'. While it is true that s 4F does not apply to s 45E(3), this does not mean that an incidental purpose, which is not an operative purpose, will be sufficient to satisfy s 45E. Like s 45E(3), s 45D(1) is outside the ambit of s 4F and does not contain any explicit requirement that the purpose be a 'substantial' purpose. The High Court has construed s 45D(1) as requiring that the purpose be an operative subjective purpose: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 382-383 per Deane J. In my opinion, s 45E(3) should be construed in the same way. The reference to 'purpose' in s 45E connotes an operative subjective purpose.
Case: Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32
Outcome: cited
In the context of Pt IV of the TPA, 'preventing' and 'hindering' commonly refer to conduct which has the object of ceasing the supply or acquisition of goods or services. 'Hindering' has been given a broad construction by the courts; the concept encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of supplying or acquiring an article: Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 (' Devenish' ) at 45-46 per Mason CJ. Preventing or hindering can be engaged in by threat or verbal intimidation, as well as by physical interference with the actual activities: Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 153. The concept is not to be limited by any pre-conceived notion of a 'secondary boycott': see Devenish at 41-42 per Mason CJ, at 51-52 per Deane J, and at 58 per Toohey J; Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452 at 459 per Lockhart and Gummow JJ.
Case: Australian Broadcasting Commission v Parish (1980) 43 FLR 129
Outcome: cited
In the context of Pt IV of the TPA, 'preventing' and 'hindering' commonly refer to conduct which has the object of ceasing the supply or acquisition of goods or services. 'Hindering' has been given a broad construction by the courts; the concept encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of supplying or acquiring an article: Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 (' Devenish' ) at 45-46 per Mason CJ. Preventing or hindering can be engaged in by threat or verbal intimidation, as well as by physical interference with the actual activities: Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 153. The concept is not to be limited by any pre-conceived notion of a 'secondary boycott': see Devenish at 41-42 per Mason CJ, at 51-52 per Deane J, and at 58 per Toohey J; Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452 at 459 per Lockhart and Gummow JJ.
Case: Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452
Outcome: cited
In the context of Pt IV of the TPA, 'preventing' and 'hindering' commonly refer to conduct which has the object of ceasing the supply or acquisition of goods or services. 'Hindering' has been given a broad construction by the courts; the concept encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of supplying or acquiring an article: Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 (' Devenish' ) at 45-46 per Mason CJ. Preventing or hindering can be engaged in by threat or verbal intimidation, as well as by physical interference with the actual activities: Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 153. The concept is not to be limited by any pre-conceived notion of a 'secondary boycott': see Devenish at 41-42 per Mason CJ, at 51-52 per Deane J, and at 58 per Toohey J; Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452 at 459 per Lockhart and Gummow JJ.