Case: Australian Competition and Consumer Commission v McCaskey [2000] FCA 1037 ; (2000) 104 FCR 8
Outcome: cited
As I observed in Australian Competition and Consumer Commission v McCaskey [2000] FCA 1037 ; (2000) 104 FCR 8 at 21 ([30]): The approach of the Court to the making of consent orders is informed by a general principle of judicial restraint. It is not the function of the Court to impede settlements between parties who are legally represented and able to understand and evaluate the desirability of agreeing to a settlement. Nor will the Court refuse to give effect to the terms of a settlement by refusing to make orders or accept undertakings where they are within jurisdiction and otherwise unobjectionable. The Court will not substitute orders which it thinks appropriate if those proffered are within power and within the range of appropriate dispositions of the case. But in making orders by consent or otherwise, the Court must ensure that the orders are within power and appropriate for it is exercising a public function in doing so and must have regard to the public interest: Australian Competition and Consumer Commission v Real Estate Institute (WA) Inc [1999] FCA 1387 ; (1999) 95 FCR 114 at 131. 19 I consider I should take a similar approach to these unopposed orders. In this case I do not doubt their appropriateness. The only question is whether they are within power in the sense that they are supportable on the basis of the undisputed facts having regard to the legal submissions which have been made. 20 The undisputed facts are that the applicants made an application for registration in respect of years of income including 1993/94. Given that the Board was prepared to grant registration for the years 1994/95 onwards there was nothing on the materials before it to indicate any relevant distinction between expenditure in the years 1993/94 and the successive financial years. Nor was there anything in the response given by the Board to the applicants to indicate such a distinction. In my opinion the failure of the Board to include the 1993/94 year in its registration of the syndicate was a slip and the Board's decision was intended to cover that year. It is frankly surprising that this matter was not able to be resolved administratively and at far less expense to the public purse a long time ago. The rather equivocal attitude adopted by the Board before the Court was, in the circumstances, puzzling. The orders proposed do not come before the Court as consent orders. They are simply not opposed by the Board. Nevertheless, having regard to the agreed facts and in the absence of opposition, I am satisfied that the proposed declaration reflects the factual and legal realities. It would seem to follow that the purported decision of 2 July 2001 and 18 September 2001 refusing registration and confirming that refusal were of no force or effect. I will therefore make the declarations which are proposed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 14 June 2007 Counsel for the Applicant: Mr BJ Sullivan SC and Mr TM Thawley Solicitor for the Applicant: Norton &amp; Smailes Counsel for the Respondent: Dr G Flick Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 June 2007 Date of Judgment: 14 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/914.html