mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175
Outcome: referred to
In SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175 , the applicants sought a further review by the Tribunal of a delegate's decision. Justice Moore said at [16]: In my view, a proper construction of the Act tells against a conclusion that the Tribunal is empowered to again review the delegate's decision in circumstances where the Tribunal's original decision was not attended with jurisdictional error. Treating the Tribunal as authorised to undertake a second review of the delegate's decision would be contrary to the statutory aim of providing a mechanism of review that is "fair, just, economical, informal and quick": see s 420(1) of the Act. 24 As Smith FM said in SZEYK v Minister for Immigration [2008] FCA 1354 at [5] : ... the Tribunal referred to well known authority which establishes that it does not have jurisdiction to review a delegate's decision twice. That line of cases has recently been followed by Cowdroy J in SZCKX v Minister for Immigration &amp; Citizenship [2008] FCA 526 and Moore J in SZBWJ v Minister for Immigration &amp; Citizenship [2008] FCA 1175. 25 For these reasons, Smith FM did not err in his conclusion that the third Tribunal did not have jurisdiction to consider the application to conduct a second review of the delegate's decision. The third Tribunal correctly found that it lacked jurisdiction. 26 The applicant contends that he was denied procedural fairness by the third Tribunal. He claims that when he filed his application he was issued with a standard letter and then received no further correspondence from the third Tribunal (until the letter notifying him of the decision) and was not asked the reason for his repeat application. He claims that the third Tribunal did not give him an opportunity to reply concerning the validity of his application.
Case: Collier Constructions Pty Ltd v Foskett Pty Ltd (1992) 33 FCR 591
Outcome: referred to
As French J held in Collier Constructions Pty Ltd v Foskett Pty Ltd (1992) 33 FCR 591 at 592, the purpose of the subsection "is to require prospective applicants in proceedings in this Court, when the money sum or damages claim is likely to be modest, to consider the desirability to proceeding in another jurisdiction ..."
Case: Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287
Outcome: referred to
The damages sought by the applicant in this proceeding were far from modest. They amounted to $1,380,000. This was not a case which, had the applicant's principal submissions been accepted, it was likely that the best that could be hoped for by way of damages would have been less than $100,000. Moreover, the issues were complex as evidenced by the engagement, on both sides, of senior counsel and the length of the submissions made on behalf of both parties: cf Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287 at 293. These considerations warrant, in my view, a departure from the general rule. 13 There should, therefore, be an order that costs not be reduced pursuant to O 62 r 36A(1) of the Rules. Save for the addition of this order and the deletion of the words "reduced by one third" in the first of the two orders proposed by the respondent the orders of the Court should be in accordance with those proposed by the respondent. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 12 June 2007 Counsel for the Applicant: Mr M Colbran QC &amp; Mr I Upjohn Solicitor for the Applicant: Scanlan Carroll Counsel for the Respondent: Mr C Macaulay SC &amp; Mr T Woodward Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: (Written Submissions received 23 &amp; 28 May 2007) Date of Judgment: 12 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/878.html
Case: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Outcome: considered
spoken word is the vehicle used to shape views on radio current affairs programs. The identity of the speaker, if known to the audience, can itself influence their receptivity to what he or she says; as can the speaker's oratorical style and manner of delivery. And, because of its orality, publication in a radio broadcast conveys a transient message. The listener may tune in or turn on the radio part way through a program; he or she may have missed an earlier disclosure announcement by the presenter when he or she returns to a topic that attracts an obligation to make such an announcement. If it is not made, that new listener will not be aware of what the disclosure standard, and the licence, require be conveyed contemporaneously, namely the presenter's sponsorship. Additionally, listeners may not always be attentive to what is being broadcast on radio and may miss the significance, or indeed the occurrence, of an earlier disclosure statement in the same program. That can affect the meaning which the listener understands to have been conveyed by what he or she hears the presenter saying later. These characteristics of transient communications, such as radio or television broadcasts, are also recognised in the common law principles of defamation: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165G-166E per Hunt CJ at CL, Mason P and Handley JA agreeing. Thus, the transience both of what is spoken on-air during a radio broadcast and of the listening audience (who may tune in or out at any time and, when tuned in, may pay closer or lesser degrees of attention) underlie the policy behind the disclosure standard's insistence on the presenter making a disclosure announcement contemporaneously each time one of his or her sponsor's name, products or service is mentioned. The liability in s 140A(3) corresponds to, but is distinct from the criminal liability imposed by s 139(3). The conduct proscribed by each section is the same, namely a breach of a condition of a licence set out in cl 8(1) of Sch 2, including a breach of the disclosure standard. But the objects of the two sections are not the same. One object of s 140A(3) is to create a civil, not criminal, liability so as to enable the Authority to secure compliance with important provisions in the Act more readily than through criminal proceedings. But another object of the section is to reinforce the norm of conduct for licensees in s 139(3) and to provide a means to enforce their compliance with it less drastic than the remedies existing before 2006.
Case: Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106
Outcome: cited
Victoria v Australian Building Construction Employees' and Builders Labourers' Union [1982] HCA 31 ; (1982) 152 CLR 25 at 98 as Mason J spoke of "... the overriding importance of freedom of discussion and speech", adding "without information, there can be no meaningful discussion": see too Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 139-140 per Mason CJ. It is now established that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is the correlative of the interest in receiving it: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. The media fulfil a vital role in the ability of the Australian community and, in particular, electors to engage in the discussion of government and political matters, and ss 3 and 4(1) of the Act, in part, recognise this.
Case: Australian Competition and Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715
Outcome: cited
Australian Competition and Consumer Commissioner v Qantas Airways Ltd (2008) 253 ALR 89 at 107-108 [25]-[27] Lindgren J identified 11 propositions relating to the fixing of penalties under the Trade Practices Act as flowing from the decisions in NW Foods [1996] FCA 1134 ; 71 FCR 285 and Mobil (2004) ATPR p41-993 (and these were recently applied by Jacobson J in Australian Competition and Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715 at [20] - [24] ). These included the propositions that: the Court is not obliged to commence its reasoning with the level of the agreed penalty and limit itself to considering whether that penalty is within the range; the Court is entitled to address the question independently at the outset of its reasoning; the admissions and agreed facts should not be approached as if they had been "tailored or modified to reflect the difficulties faced by the [regulator] in proving its case"; the regulator should always explain to the Court the process of reasoning said to justify a discounted penalty.
Case: Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89
Outcome: discussed
Australian Competition and Consumer Commissioner v Qantas Airways Ltd (2008) 253 ALR 89 at 107-108 [25]-[27] Lindgren J identified 11 propositions relating to the fixing of penalties under the Trade Practices Act as flowing from the decisions in NW Foods [1996] FCA 1134 ; 71 FCR 285 and Mobil (2004) ATPR p41-993 (and these were recently applied by Jacobson J in Australian Competition and Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715 at [20] - [24] ). These included the propositions that: the Court is not obliged to commence its reasoning with the level of the agreed penalty and limit itself to considering whether that penalty is within the range; the Court is entitled to address the question independently at the outset of its reasoning; the admissions and agreed facts should not be approached as if they had been "tailored or modified to reflect the difficulties faced by the [regulator] in proving its case"; the regulator should always explain to the Court the process of reasoning said to justify a discounted penalty.
Case: Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339
Outcome: cited
common law the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence in a criminal proceeding. That is because it is usually evidence of some remorse on the part of the offender, and secondly, an acceptance of responsibility. It may also indicate a willingness to facilitate the course of justice: see Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339 at 343 [11] - [14] per Gaudron, Gummow and Callinan JJ. In Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at 404-405 [73] - [76] , Stone and Buchanan JJ considered the applicability to civil penalty proceedings of the common law principle of affording a discount to a sentence imposed after a plea of guilty. Stone and Buchanan JJ concluded that the rationale for providing a discount for an early plea of guilty in a criminal case did not apply neatly to a case where a civil penalty is sought and the case proceeded on pleadings. They said, that nonetheless, it should be accepted for the same reasons as given in Cameron [2002] HCA 6 ; 209 CLR 339 , that a discount should not be available simply because a respondent has spared the community the cost of a contested trial. They held that the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability, first had indicated an acceptance of wrongdoing and a suitable and credible expression of regret, and or secondly, had indicated a willingness to facilitate the course of justice: Mornington Inn 168 FCR at 405 [76].
Case: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australia Competitions and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466
Outcome: cited
Parliament provided that the civil penalty could match the criminal penalty for the same conduct of a commercial radio broadcasting licensee in breaching a condition of its licence. However, the imposition of a civil penalty under s 140A(3) would not carry the stigma attached to a criminal conviction under s 139(3). And, pursuant to s 205K of the Act the civil penalty could be imposed after a trial using the civil onus of proof (see too s 140 of the Evidence Act 1995 (Cth)): see too Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 477-482 [19] - [38] per Weinberg, Bennett and Rares JJ.
Case: Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5 ; (1990) 168 CLR 594
Outcome: cited
2UE had a privilege conferred on it under the Act to conduct a broadcasting service on the public radio spectrum. Conditions of its licence required it to ensure that the disclosure standard's requirements were met. Mr Laws had significant and valuable commercial agreements with six different sponsors in 2007. I infer that those sponsors saw considerable benefit to their businesses in having Mr Laws refer to and promote their names and brands, products or services in as favourable light as possible. It can also be safely inferred that he was seen by his sponsors to be able to use Radio 2UE's licence to influence public awareness and opinion with respect to their own products or services (see s 4(1) of the Act). Material which is designed or calculated to draw public attention to a person, product or service or to promote its use may constitute an advertisement: Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5 ; (1990) 168 CLR 594 at 598 per Brennan, Dawson and Gaudron JJ, 605 per Toohey and McHugh JJ. And, Radio 2UE was conscious that Mr Laws was not only able to use its licence in this way, but that he had done so.
Case: Gray v Motor Accident Commission (1998) 196 CLR 1
Outcome: cited
fact that a defendant who is covered by compulsory third party motor vehicle insurance and so will not pay the sum awarded as exemplary damages from his, her or its own pocket, or that the defendant is the insurer, does not restrict the power of the court to award exemplary damages: Lamb 164 CLR at 11; Gray v Motor Accident Commission (1998) 196 CLR 1 at 12-13 [32]-[36] per Gleeson CJ, McHugh, Gummow and Hayne JJ, 29 [87] per Kirby J, 50 [141] per Callinan J.
Case: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121
Outcome: followed
140A(3) in terms, imposes liability directly on a licensee by requiring it not to breach a condition of its licence set out in cl 8(1) of Sch 2 to the Act. That liability is not a vicarious liability imposed on Radio 2UE for the conduct of its presenters, but a direct liability on it: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 at 127-128. There, Mason CJ, Wilson and Toohey JJ held that when an employee acted in the course of his or her employment he or she did so as the embodiment of the corporate employer: Hamilton 166 CLR at 127; Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1 ; [1972] AC 153 at 170 per Lord Reid. Under s 140A(3) a corporation will incur liability for what its agent, Mr Laws, did or failed to do to comply with the disclosure standard. This is because Mr Laws was acting as the licensee when using its licence to broadcast his program. Mason CJ, Wilson and Toohey JJ said of a provision similar to s 140A(3) in Hamilton 166 CLR at 127 that it: "... speaks directly to the company. It is not a case of a company being made liable for an act performed by a servant of the company on its behalf. The liability imposed is direct, not vicarious. The distinction was drawn by Viscount Haldane LC in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd ([1915] AC 705 at p 173). Its significance is explained by Lord Reid in Tesco Supermarkets Ltd v Nattrass ([1972] AC 153 at p 170): 'I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company . There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company , within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.' See also the statement of Denning LJ in H L Bolton (Engineering) Co Ltd v T J Graham &amp; Sons Ltd ([1957] 1 QB 159 at p 172). There can be no doubt, on the facts of the present case, that the respondent, in placing the advertisement and in dealing with those who replied to it, was the company. He was its managing director and his mind was the mind of the company. The company therefore was liable as a principal for the breaches of s 169 of the Code. The liability was direct, not vicarious." (emphasis added)
Case: L Vogel &amp; Sons Pty Ltd v Anderson (1968) 120 CLR 157
Outcome: applied
arriving at the appropriate pecuniary penalties to be imposed for multiple contraventions, a court must first assess individual penalties for each contravention. But, before finalising the civil penalty orders the Court must look at and, if need be, adjust the resulting total effect of the individual orders it is considering, so as to produce an overall set of civil penalty orders appropriate to deal with all the contraventions. In other words, the totality principle applicable in passing criminal sentences should be adapted to apply to the overall civil penalty orders imposed on a contravenor: Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 62-63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ, applied in a civil penalty context by Stone and Buchanan JJ in Mornington Inn (2008) 168 FCR at 408 [91]; see too at 397-398 [42]-[45]; see also per Gyles J who dissented in the result but not on the principle's applicability at 386-387 [5]-[9]. Where contraventions are separate offences in law but are substantially contemporaneous and connected, the Court must have regard to the totality principle in fixing the individual penalties: L Vogel &amp; Sons Pty Ltd v Anderson (1968) 120 CLR 158 at 168 per Taylor, Menzies and Owen JJ. The Court must also have regard to the relative closeness of the relationship in time and character of the offences (or contraventions): Mill 166 CLR at 64.
Case: Lamb v Cotogno [1987] HCA 47 ; (1987) 164 CLR 1
Outcome: discussed
Lamb v Cotogno [1987] HCA 47 ; (1987) 164 CLR 1 at 8 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ cited with approval Pratt LCJ's explanation in Wilkes v Wood [1763] EngR 103 ; (1763) Lofft 1 at 19 [98 ER 489 at 498-499] that exemplary damages are awarded "as a punishment to the guilty, to deter from any such proceeding for the future and as a proof of the detestation of the jury to the action itself". The Court held in Lamb 164 CLR at 8-11 that the objects of an award of exemplary or punitive damages include: &#8226; punishment of a defendant; &#8226; deterrence of that defendant and others; and &#8226; marking the Court's condemnation of the defendant's behaviour. The fact that a defendant who is covered by compulsory third party motor vehicle insurance and so will not pay the sum awarded as exemplary damages from his, her or its own pocket, or that the defendant is the insurer, does not restrict the power of the court to award exemplary damages: Lamb 164 CLR at 11; Gray v Motor Accident Commission (1998) 196 CLR 1 at 12-13 [32]-[36] per Gleeson CJ, McHugh, Gummow and Hayne JJ, 29 [87] per Kirby J, 50 [141] per Callinan J.
Case: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520
Outcome: cited
Victoria v Australian Building Construction Employees' and Builders Labourers' Union [1982] HCA 31 ; (1982) 152 CLR 25 at 98 as Mason J spoke of "... the overriding importance of freedom of discussion and speech", adding "without information, there can be no meaningful discussion": see too Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 139-140 per Mason CJ. It is now established that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is the correlative of the interest in receiving it: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. The media fulfil a vital role in the ability of the Australian community and, in particular, electors to engage in the discussion of government and political matters, and ss 3 and 4(1) of the Act, in part, recognise this.
Case: Lukatela v Brich (2008) 223 FLR 1
Outcome: cited
assessment of a pecuniary penalty that is appropriate, having regard to all relevant factors under s 205F(3) is, like a criminal sentence, the result of the "process of instinctive synthesis" described in Markarian 228 CLR at 373-374 [36]-[37] and Wong v The Queen [2001] HCA 64 ; (2001) 207 CLR 584 at 611-612 [74] - [76] per Gaudron, Gummow and Hayne. If what is suggested by the parties as an appropriate penalty is unreasonable or plainly unjust, the court can reject it on similar principles to those used when sentences are either manifestly excessive or inadequate: cf Markarian 228 CLR at 370-371 [25]; Lukatela v Birch (2008) 223 FLR 1 at 7 [25]-[26]. In Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR p41-993 at 48,632 [77] Branson, Sackville and Gyles JJ said: "Just as the criminal court will take into account the prosecution's views on the appropriate sentence, so the court in the civil penalty case, as NW Frozen Foods explained, will take account of the regulator's position. But in neither case is the court relieved from the responsibility of exercising its own judgment as to the appropriate sentence (in criminal cases), or whether the proposed penalty is within the appropriate range for the contravention (in civil penalty cases). In each case, the Court should be satisfied that it is being given accurate, reliable and complete information on critical questions." Some aspects of the totality principle are not as easily applied to pecuniary penalties as to sentences of imprisonment using the method preferred in Mill 166 CLR at 63. The High Court suggested its preference for making sentences wholly or partially concurrent, where practicable, to reflect the appropriate overall punishment in the ultimate total result rather than lowering individual sentences below what would otherwise be appropriate to reflect the fact that a number of sentences were being imposed: Mill 166 CLR at 63; RH McL v The Queen [2000] HCA 46 ; (2000) 203 CLR 452 at 457 [15] - [16] , 462-464 [32]-[34] per Gleeson CJ, Gaudron and Callinan JJ, 476 [75] per McHugh, Gummow and Hayne JJ; see too Lukatela 223 FLR at 15-16 [75]-[77] where I discussed the principle. Concurrent pecuniary penalties cannot be imposed. So the Court must consider the overall burden imposed by the set of pecuniary penalties to assess whether, in totality, the burden is greater that is warranted by the contraventions in all of the circumstances: see too s 205F(3). In fixing the penalties below I have had regard to the totality principle as explained above.