mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem' (No 2) [2007] FCA 815 , 240 ALR 120
Outcome: followed
But there has been a departure from such a confined view, at least in a statutory context where declaratory relief is sought as an adjunct to an order imposing a pecuniary penalty or involving a matter of public interest. In the context of the Trade Practices Act , in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427 , 236 ALR 665 Kiefel J reviewed the earlier authorities and relevantly concluded as follows: [58] The power to grant declarations (s 21 of the Federal Court Act 1976 (Cth)) is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long-standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2). [59] It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. Millett J made declaratory orders in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541; [1991] 2 All ER 821 where justice to the plaintiff required it. The order, however, operated principally inter partes and it might be doubted whether it would be of interest to other persons. Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made: "upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the court". An appeal has been dismissed: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 , 244 ALR 300. Her Honour's views as to the ability of the Court to grant declaratory relief upon the basis of deemed admissions has since been followed and applied by Mansfield J in Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem" (No 2) [2007] FCA 815 at [7] [16], [2007] FCA 815 ; 240 ALR 120 at 122 5.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: followed
Proceedings to recover a civil penalty under s 42Y of the Therapeutic Goods Act , like proceedings under s 76 of the Trade Practices Act , are civil proceedings (s 42Y(4)) and by virtue of s 140 of the Evidence Act 1995 (Cth) attract the civil standard of proof, including for present purposes the principles in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361 3. Section 140 provides as follows: Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject matter of the proceeding; and (c) the gravity of the matters alleged. It has been said by the Full Court of this Court that the discussion by Dixon J in Briginshaw v Briginshaw " of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account ": Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 at [31] , [2007] FCAFC 132 ; 162 FCR 466 at 480 per Weinberg, Bennett and Rares JJ. See also: Employment Advocate v Williamson [2001] FCA 1164 at [65] , [2001] FCA 1164 ; 111 FCR 20 at 40 1 per Branson J; Australian Competition &amp; Consumer Commission v Construction, Forestry, Mining &amp; Energy Union [2008] FCA 678 at [13] per Finn J.
Case: Burton v Honan [1952] HCA 30 ; (1952) 86 CLR 169
Outcome: cited
Statutory provisions operating so as to effect an " automatic forfeiture " may be " draconian " and may be a reason for construing such provisions in a strict manner: Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19. In the course of importing a motor vehicle into Australia an answer to a question on a customs form was there provided by the Respondent which was wrong, but not deliberately or intentionally so. The majority, Deane, Dawson and Gaudron JJ, construed the term " false " so as to mean purposely, deliberately or intentionally untrue. In doing so Their Honours observed (at 28): ... [I]t seems to us to be more strongly arguable that clear words should be required before there is attributed to the Parliament an intention to take the draconian step of imposing automatic forfeiture as a penalty for "any" wrong "entry invoice declaration answer statement or representation" regardless of whether the wrong information was provided as the result of an innocent mistake or excusable ignorance. The effect of the penalty of automatic forfeiture under s 229(1)(i) can be devastating and quite disproportionate in that it applies regardless of the value of the goods or the importance or effect of the wrong statement which was made. ... Also in the context of s 229 of the Customs Act , it has been said that: ... [I]n the history of English and Australian Customs legislation forfeiture provisions are common, drastic and far-reaching ... they have been considered a necessary measure to vindicate the right of the Crown and to ensure the strict and complete observance of the Customs laws, which are notoriously difficult of complete enforcement in the absence of strong provisions supporting their administration: Burton v Honan [1952] HCA 30 ; (1952) 86 CLR 169 at 178 9 per Dixon CJ.
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 , 162 FCR 466
Outcome: applied
Proceedings to recover a civil penalty under s 42Y of the Therapeutic Goods Act , like proceedings under s 76 of the Trade Practices Act , are civil proceedings (s 42Y(4)) and by virtue of s 140 of the Evidence Act 1995 (Cth) attract the civil standard of proof, including for present purposes the principles in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361 3. Section 140 provides as follows: Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject matter of the proceeding; and (c) the gravity of the matters alleged. It has been said by the Full Court of this Court that the discussion by Dixon J in Briginshaw v Briginshaw " of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account ": Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 at [31] , [2007] FCAFC 132 ; 162 FCR 466 at 480 per Weinberg, Bennett and Rares JJ. See also: Employment Advocate v Williamson [2001] FCA 1164 at [65] , [2001] FCA 1164 ; 111 FCR 20 at 40 1 per Branson J; Australian Competition &amp; Consumer Commission v Construction, Forestry, Mining &amp; Energy Union [2008] FCA 678 at [13] per Finn J.
Case: Director of Public Prosecutions (Cth) v Mylecharane [2007] NSWSC 1174 , 215 FLR 18
Outcome: cited
The conferral of a discretion by s 54(3) stands in contrast to other statutory regimes which more simply provide that identified categories of goods " shall be forfeited to the Crown ": eg, Customs Act 1901 (Cth), s 229(1) ; Excise Act 1901 (Cth), s 116(1). Section 229, it has been said, " gives rise to an immediate forfeiture of affected goods, without the need for any specific act on the part of Customs or the courts ": Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17 at [63] , 243 ALR 556 at 571 per Basten JA (Hidden and Barr JJ agreeing). See also: Judiciary Act 1903 (Cth), s 85. Some provisions, such as s 261A of the Migration Act 1958 (Cth), provide that goods " are forfeited to the Commonwealth ". That section is contained within Part 2 Division 13A to the 1958 Act, a Division headed " Automatic forfeiture of things used in certain offences ". Forfeiture effected by s 261A nevertheless remains " contestable ": Tran v Commonwealth [2008] FCA 901 , 103 ALD 290. Many other instances can also be provided of Commonwealth and State legislatures authorising forfeiture of goods: eg, Proceeds of Crimes Act 2002 (Cth); Confiscation of Proceeds of Crime Act 1989 (NSW); Confiscation Act 1997 (Vic). See also: Director of Public Prosecutions (Cth) v Mylecharane [2007] NSWSC 1174 , 215 FLR 18; Director of Public Prosecutions (Vic) v Nikolaou [2008] VSC 111 at [24] .
Case: Director of Public Prosecutions (Vic) v Nikolaou [2008] VSC 111
Outcome: cited
The conferral of a discretion by s 54(3) stands in contrast to other statutory regimes which more simply provide that identified categories of goods " shall be forfeited to the Crown ": eg, Customs Act 1901 (Cth), s 229(1) ; Excise Act 1901 (Cth), s 116(1). Section 229, it has been said, " gives rise to an immediate forfeiture of affected goods, without the need for any specific act on the part of Customs or the courts ": Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17 at [63] , 243 ALR 556 at 571 per Basten JA (Hidden and Barr JJ agreeing). See also: Judiciary Act 1903 (Cth), s 85. Some provisions, such as s 261A of the Migration Act 1958 (Cth), provide that goods " are forfeited to the Commonwealth ". That section is contained within Part 2 Division 13A to the 1958 Act, a Division headed " Automatic forfeiture of things used in certain offences ". Forfeiture effected by s 261A nevertheless remains " contestable ": Tran v Commonwealth [2008] FCA 901 , 103 ALD 290. Many other instances can also be provided of Commonwealth and State legislatures authorising forfeiture of goods: eg, Proceeds of Crimes Act 2002 (Cth); Confiscation of Proceeds of Crime Act 1989 (NSW); Confiscation Act 1997 (Vic). See also: Director of Public Prosecutions (Cth) v Mylecharane [2007] NSWSC 1174 , 215 FLR 18; Director of Public Prosecutions (Vic) v Nikolaou [2008] VSC 111 at [24] .
Case: Employment Advocate v Williamson [2001] FCA 1164 , 111 FCR 20
Outcome: cited
Proceedings to recover a civil penalty under s 42Y of the Therapeutic Goods Act , like proceedings under s 76 of the Trade Practices Act , are civil proceedings (s 42Y(4)) and by virtue of s 140 of the Evidence Act 1995 (Cth) attract the civil standard of proof, including for present purposes the principles in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361 3. Section 140 provides as follows: Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject matter of the proceeding; and (c) the gravity of the matters alleged. It has been said by the Full Court of this Court that the discussion by Dixon J in Briginshaw v Briginshaw " of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account ": Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 at [31] , [2007] FCAFC 132 ; 162 FCR 466 at 480 per Weinberg, Bennett and Rares JJ. See also: Employment Advocate v Williamson [2001] FCA 1164 at [65] , [2001] FCA 1164 ; 111 FCR 20 at 40 1 per Branson J; Australian Competition &amp; Consumer Commission v Construction, Forestry, Mining &amp; Energy Union [2008] FCA 678 at [13] per Finn J.
Case: Greentree v Minister for Environment and Heritage [2005] FCAFC 128 , 144 FCR 388
Outcome: cited
In Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 , 136 LGERA 89 Sackville J reviewed the authorities and likewise concluded that the specific legislative context in which a penalty is being sought must obviously prevail. His Honour was there considering the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Reference was made to the checklist provided by French J in the CSR case and His Honour continued: [58] The principles formulated in the context of s 76(1) of the TP Act provide guidance in proceedings for pecuniary penalties under the EPBC Act, although they cannot be transferred uncritically into the rather different context of proceedings seeking the imposition of penalties for environmental damage to protected sites. Obviously enough, for example, the degree of market power is a consideration likely to be highly relevant to a penalty for a contravention of Pt IV of the TP Act, but is not likely to be relevant to the imposition of a penalty under the EPBC Act. Similarly, the question of a corporate culture may not necessarily have relevance to proceedings under the EPBC Act, although whether a contravener has taken remedial action to minimise environmental damage may be significant on the question of penalty. On the other hand, there may be circumstances relevant to proceedings under the EPBC Act that have no relevance to proceedings under the TP Act. In the end, while the statutory criteria must of course be taken into account, each case must depend upon its own unique circumstances. His Honour's decision was affirmed on appeal: Greentree v Minister for Environment and Heritage [2005] FCAFC 128 , 144 FCR 388. The application by the trial judge of the " principles " he identified does not appear to have been the subject of debate on appeal: [2005] FCAFC 128 at [51] [57].
Case: McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2 , 165 FCR 230
Outcome: cited
The objects of the Therapeutic Goods Act include the establishment and maintenance of a national system of controls relating to the quality, safety, efficacy and timely availability of therapeutic goods: s 4(1)(a). A useful overview of some of the provisions of the Act has been provided by Emmett J in McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2 , 165 FCR 230. 6 For present purposes it is sufficient to make reference to but a few provisions. 7 Chapter 2 of the Act provides for the maintenance of a register known as the Australian Register of Therapeutic Goods. Part 3 - 2 of Chapter 3 further provides for the registration and listing of therapeutic goods and provides for exemptions to be granted in respect to certain therapeutic goods which are not registered. Contained within that Part is s 19D which relevantly provides as follows: Civil penalties relating to registration or listing etc. of imported, exported, manufactured and supplied therapeutic goods Civil penalty relating to importing, exporting, manufacturing or supplying goods for use in humans (1) A person contravenes this subsection if: (a) the person does any of the following: (i) imports into Australia therapeutic goods for use in humans; ... and (b) none of the following subparagraphs applies in relation to the goods: (i) the goods are registered goods or listed goods in relation to the person; (ii) the goods are exempt goods; (iii) the goods are exempt under section 18A ; (iv) the goods are the subject of an approval or authority under section 19 ; (v) the goods are the subject of an approval under section 19A. Maximum civil penalty: (a) for an individual--5,000 penalty units; and (b) for a body corporate--50,000 penalty units.
Case: Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 , 136 LGERA 89
Outcome: applied
In Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 , 136 LGERA 89 Sackville J reviewed the authorities and likewise concluded that the specific legislative context in which a penalty is being sought must obviously prevail. His Honour was there considering the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Reference was made to the checklist provided by French J in the CSR case and His Honour continued: [58] The principles formulated in the context of s 76(1) of the TP Act provide guidance in proceedings for pecuniary penalties under the EPBC Act, although they cannot be transferred uncritically into the rather different context of proceedings seeking the imposition of penalties for environmental damage to protected sites. Obviously enough, for example, the degree of market power is a consideration likely to be highly relevant to a penalty for a contravention of Pt IV of the TP Act, but is not likely to be relevant to the imposition of a penalty under the EPBC Act. Similarly, the question of a corporate culture may not necessarily have relevance to proceedings under the EPBC Act, although whether a contravener has taken remedial action to minimise environmental damage may be significant on the question of penalty. On the other hand, there may be circumstances relevant to proceedings under the EPBC Act that have no relevance to proceedings under the TP Act. In the end, while the statutory criteria must of course be taken into account, each case must depend upon its own unique circumstances. His Honour's decision was affirmed on appeal: Greentree v Minister for Environment and Heritage [2005] FCAFC 128 , 144 FCR 388. The application by the trial judge of the " principles " he identified does not appear to have been the subject of debate on appeal: [2005] FCAFC 128 at [51] [57].
Case: Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Outcome: applied
But, and as noted by the Full Court in Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [59] [79] by Branson, Sackville and Gyles JJ, there have been decisions which " have expressed reservations about the approach taken in NW Frozen Foods ". In Mobil Oil a pecuniary penalty was sought in respect to a contravention of s 10 of the Petroleum Retail Marketing Sites Act 1980 (Cth). The resolution of those reservations was there effected by a direction given by the Chief Justice pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the jurisdiction of the Court should be exercised by a Full Court in respect to the following question: Where the parties propose an agreed amount to be imposed as a penalty pursuant to s 13 of the Petroleum Retail Marketing Sites Act 1980 (Cth), is the Court bound by the decision in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 to consider whether the proposed amount is within the permissible range in all of the circumstances and, if so, impose a penalty of that amount? 37 In the present proceeding it is considered that the principles expressed in NW Frozen Foods and Mobil Oil are equally applicable to a proceeding in which a civil penalty is sought under the Therapeutic Goods Act and where an agreement has been reached as between the Regulator and those against whom the penalty is sought. 48 Given the written submissions previously filed on behalf of the Secretary as to the penalties then being propounded, some reservation was expressed during the hearing as to whether the then proposed combined penalty of $100,000 was indeed " appropriate ". As was observed by Wilcox, Hill and Carr JJ in Australian Competition &amp; Consumer Commission v Ithaca Ice Works Pty Ltd [2001] FCA 1716 (and as approved by the Full Court in Mobil Oil [2004] FCAFC 72 at [56] [57]): [56] ... [W]here the Commission proposes to the Court an agreed penalty which is calculated taking into account a substantial discount from what would otherwise be considered the appropriate penalty so as to reflect a degree of co-operation, it would be desirable that the Commission disclose the process by which the discounted penalty has been arrived at. In particular, it would be of assistance to the Court, particularly where there are other proceedings pending, to hear submissions on the range of appropriate penalties and the discount which it is proposed should be allowed to take into account the level of co-operation afforded by the offender. ... The figure of $100,000 was such that submissions were sought from both Counsel. The caution previously expressed by Lockhart J, and other judges of this Court, as to the Court refraining from stating whether the penalty to which the parties have agreed was the same as that which the Court would have imposed, is nevertheless heeded.
Case: Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19
Outcome: cited
Statutory provisions operating so as to effect an " automatic forfeiture " may be " draconian " and may be a reason for construing such provisions in a strict manner: Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19. In the course of importing a motor vehicle into Australia an answer to a question on a customs form was there provided by the Respondent which was wrong, but not deliberately or intentionally so. The majority, Deane, Dawson and Gaudron JJ, construed the term " false " so as to mean purposely, deliberately or intentionally untrue. In doing so Their Honours observed (at 28): ... [I]t seems to us to be more strongly arguable that clear words should be required before there is attributed to the Parliament an intention to take the draconian step of imposing automatic forfeiture as a penalty for "any" wrong "entry invoice declaration answer statement or representation" regardless of whether the wrong information was provided as the result of an innocent mistake or excusable ignorance. The effect of the penalty of automatic forfeiture under s 229(1)(i) can be devastating and quite disproportionate in that it applies regardless of the value of the goods or the importance or effect of the wrong statement which was made. ... Also in the context of s 229 of the Customs Act , it has been said that: ... [I]n the history of English and Australian Customs legislation forfeiture provisions are common, drastic and far-reaching ... they have been considered a necessary measure to vindicate the right of the Crown and to ensure the strict and complete observance of the Customs laws, which are notoriously difficult of complete enforcement in the absence of strong provisions supporting their administration: Burton v Honan [1952] HCA 30 ; (1952) 86 CLR 169 at 178 9 per Dixon CJ.