mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993
Outcome: applied
Nevertheless, the parties accept, as they must, that the Court is not merely a "rubber stamp" for the agreement reached between them. It is for me to determine the appropriate penalties having regard to all the circumstances: NW Frozen Foods Pty Limited v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 290-291 (per Burchett and Kiefel JJ); Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 (per Branson, Sackville and Gyles JJ). 116 Determination of the amount of a penalty is not an exact science. Each case turns on its own facts and limited assistance is to be obtained from considering the amounts imposed in other proceedings: NW Frozen Foods at 295; Mobil Oil at [51]; Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 at [320] . 120 The reasons given by Burchett and Kiefel JJ in NW Frozen Foods contain an authoritative statement of the principles to be applied where the parties agree on the appropriate penalty. The Full Court in Mobil Oil set out at [51] the six propositions which emerge from the reasons in NW Frozen Foods. 121 In Mobil Oil , Branson, Sackville and Gyles JJ agreed at [79] with the principles stated in NW Frozen Foods . 122 It is unnecessary for me to repeat the six propositions enumerated in Mobil Oil . I referred at [3] [5] above to the principal factors to which I must have regard. I would add to this that the view of the regulator, as a specialist body, is a relevant consideration, but it is not determinative of the ultimate question of the appropriateness of the penalty: Mobil Oil at [51(iv)]. 123 It is open to the Court to commence its reasoning by referring to the proposed figure and then limiting itself to considering whether that penalty is within the permissible range. Alternatively, the Court may adopt the reverse process of addressing the appropriate range independently of the agreed figure and then determine whether the proposed penalty falls within the range: Mobil Oil at [54].
Case: Trade Practices Commission v CSR Limited (1991) ATPR 41-076
Outcome: applied
The matters to which the Court may have regard under s 76(1) are not confined to the four matters enumerated in the sub-section. The authorities have identified a number of additional factors which the Court may take into account: Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52,152-52,153; NW Frozen Foods at 292-293. 113 The principal, and probably the only, object of the penalties that are imposed by s 76(1) is deterrence, both specific and general: CSR at 52,152; NW Frozen Foods at 292-293; Australian Competition and Consumer Commission v High Adventure Pty Limited (2006) ATPR 42-091 at [11]. There are many other authorities to the same effect. 114 The penalty should take into account the deliberateness of the contravention and the period over which it occurred. The involvement of senior management and the corporate culture in which the conduct occurred are also relevant factors: CSR at 52,152-52,153; NW Frozen Foods at 292-293. 115 The penalty should constitute a real punishment which takes into account the size of the company and the overall commercial environment, but it should not be so high as to be oppressive: CSR at 51,152-52,153; NW Frozen Foods at 293.
Case: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 (2003) 131 FCR 28
Outcome: cited
There are perhaps greater difficulties in relation to the questions of bias and discrimination. There is little doubt that a denial of procedural fairness can amount to an error of law on the part of the Tribunal, and that the Court can receive evidence and make findings of fact in relation to such a denial. See Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 (2003) 131 FCR 28 at [3] - [13] per Gray ACJ and North J. There is also little doubt that the Tribunal is bound by the Racial Discrimination Act 1975 (Cth) ("the Racial Discrimination Act ") and the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Under the latter, of course, before a proceeding is taken in Court in respect of a complaint of discrimination, including a complaint of discrimination under the Racial Discrimination Act , it is necessary to make that complaint to the Human Rights and Equal Opportunity Commission, and to have the certificate of the Commission before the proceeding can be commenced in the Court. To the extent, therefore, that the applicant seeks to rely on those Acts, there is nothing to show that the proceeding is properly within the jurisdiction of this Court. 14 The orders that the applicant seeks in the notice of appeal, with the exception of the awarding of costs to the applicant for the proceeding in this Court if he should succeed, are manifestly orders that the Court could not make. The question whether the Social Security Appeals Tribunal decision should be set aside is a question entirely for the Tribunal and would not activate this Court's jurisdiction at all. For the Court to order that the Tribunal set aside the earlier decision would be for the Court itself to engage in merits review in a proceeding which can only be on a question of law. An order that the Tribunal apologise for racial discrimination would also be beyond the power of the Court, at least without a complaint having been lodged with the Human Rights and Equal Opportunity Commission as a preliminary to the proceeding in this Court. An order that the Tribunal award costs of the proceeding in the Tribunal to the applicant is likewise beyond the power of the Court. 15 The end result, it seems to me, is that if the applicant wishes to raise any question of bias on the part of the Tribunal, his obligation is to await the conclusion of the proceeding in the Tribunal. If he were to be successful in that proceeding, of course, he would have no right of appeal on the question of bias, and would be bound in any event to fail. If he were to fail in that proceeding, it would then be open to him to pursue, by way of appeal to this Court, any question of bias on the part of the Tribunal. In my view, I am bound by the authorities that say that, with limited exceptions, a decision for the purposes of s 44(1) of the AAT Act is only a final decision.
Case: Director-General of Social Services v Chaney (1980) 31 ALR 571
Outcome: followed
There is authority, some of it binding on me, establishing that, with minor exceptions, the phrase "any decision" in s 44(1) must be construed to mean a final decision constituting the effective determination of an application to the Tribunal for review of an administrative decision. In other words, it is not permissible to appeal under s 44(1) in respect of any decision at any interlocutory stage of a proceeding before the Tribunal. See Director-General of Social Services v Chaney (1980) 31 ALR 571 at 593, per Deane J, with whom Fisher J concurred, and Lowth v Comcare [1999] FCA 1692 at [3] - [5] .
Case: Lowth v Comcare [1999] FCA 1692
Outcome: followed
There is authority, some of it binding on me, establishing that, with minor exceptions, the phrase "any decision" in s 44(1) must be construed to mean a final decision constituting the effective determination of an application to the Tribunal for review of an administrative decision. In other words, it is not permissible to appeal under s 44(1) in respect of any decision at any interlocutory stage of a proceeding before the Tribunal. See Director-General of Social Services v Chaney (1980) 31 ALR 571 at 593, per Deane J, with whom Fisher J concurred, and Lowth v Comcare [1999] FCA 1692 at [3] - [5] . 4 I am advised by the solicitor appearing for the respondent that, on Friday 30 November, he sent by email to the applicant a brief letter, enclosing the notice of appearance of the respondent, as well as another letter dated 30 November 2007 and a copy of the judgment in Lowth v Comcare . The substantive letter notified the applicant that the respondent would argue at this directions hearing that the proceeding should be struck out, on the basis that it relates to an intermediate decision and not a final decision of the Tribunal. 5 The nature of the decision that the Tribunal is said to have made can be discerned in part from the notice of appeal itself. That commences with the words: TAKE NOTICE that the applicant appeals from the decision or determination of ( Administraive [sic] Appeals Tribunal ) constituted by ( Mr JR Handley, Senior Member ) given on ( 15 October 2007 ) at ( Melbourne ) by which the Tribunal decided or determined ( Adjournment of hearing and vexatious and frivolous and selective and racial discrimination ). 6 The questions of law are specified as follows: Judicial Bias: a. Administrative Appeals Tribunal Act 1975 : whether the AAT has the jurisdiction to seek evidence not presented to the Social Security Tribunal (SSAT) and outside the scope of the Appeals from SSAT; b. Human Rights and Equal Opportunity Act (Cth) 1986 and the Racial Discrimination Act (Cth) 1975: Whether the AAT can racially discriminate against the Applicant by running the case for the Respondent after the Applicant sought that the Respondent call witnesses to prove their case; frivolous and vexatious and racially discriminatory abuse of powers to waste Tribunal time and money as well as the witnesses' time and money; whether the affidavits and worn [sic] statements of Australian Citizen with South-East Asian descent is less valid than the lies and fabricated documents of the Commonwealth of Australia and its Departments;
Case: Bahonko v Sterjov [2007] FCA 1556
Outcome: cited
is authority in this Court to the effect that a mere direction by a Judge of this Court to a Registrar of this Court pursuant to O 46 r 7A(2) (and its predecessor rule) is not a judgment of this Court able to be subjected to appeal by a person whose document has been rejected by a Registrar pursuant to the direction given by the Judge (see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [11] [19] (pp 356 357) (per Lee, Whitlam and Jacobson JJ); Bahonko v Sterjov [2007] FCA 1556 at [16] (per Gordon J); and Bahonko v Sterjov [2007] FCA 1717 at [58] (per Lander J). See also Legal Aid Commission (WA) v Edwards (No 2) [1982] FCA 103 ; (1982) 61 FLR 419 ; 42 ALR 154 which is not directly in point but which contains reasoning to the same effect). In Bizuneh [2003] FCAFC 42 ; 128 FCR 353 , the Full Court said (at [15]) (p 357), that a rule substantially in the same form as the current rule " removed a clog on the Registrar's discretion ". The Full Court said that the Registrar can now act to refuse to accept or issue a document without first obtaining the authority from a Judge so to act. This power is intended to enable the Registrar to maintain the efficient operation of the Registry and thus, of the Court.
Case: Bahonko v Sterjov [2007] FCA 1717
Outcome: cited
is authority in this Court to the effect that a mere direction by a Judge of this Court to a Registrar of this Court pursuant to O 46 r 7A(2) (and its predecessor rule) is not a judgment of this Court able to be subjected to appeal by a person whose document has been rejected by a Registrar pursuant to the direction given by the Judge (see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [11] [19] (pp 356 357) (per Lee, Whitlam and Jacobson JJ); Bahonko v Sterjov [2007] FCA 1556 at [16] (per Gordon J); and Bahonko v Sterjov [2007] FCA 1717 at [58] (per Lander J). See also Legal Aid Commission (WA) v Edwards (No 2) [1982] FCA 103 ; (1982) 61 FLR 419 ; 42 ALR 154 which is not directly in point but which contains reasoning to the same effect). In Bizuneh [2003] FCAFC 42 ; 128 FCR 353 , the Full Court said (at [15]) (p 357), that a rule substantially in the same form as the current rule " removed a clog on the Registrar's discretion ". The Full Court said that the Registrar can now act to refuse to accept or issue a document without first obtaining the authority from a Judge so to act. This power is intended to enable the Registrar to maintain the efficient operation of the Registry and thus, of the Court.
Case: Gunter v Doogan [1999] FCA 1648
Outcome: cited
body of authority has developed notwithstanding the fact that an earlier Full Court assumed, without deciding, that a direction given by a Judge to a Registrar pursuant to O 46 r 7A was a " judgment, decree or order " of the Court (see Gunter v Doogan [1999] FCA 1648 at [12] , [14], [18] and [19]).
Case: Legal Aid Commission (WA) v Edwards (No 2) [1982] FCA 103 ; (1982) 61 FLR 419 ; 42 ALR 154
Outcome: cited
is authority in this Court to the effect that a mere direction by a Judge of this Court to a Registrar of this Court pursuant to O 46 r 7A(2) (and its predecessor rule) is not a judgment of this Court able to be subjected to appeal by a person whose document has been rejected by a Registrar pursuant to the direction given by the Judge (see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [11] [19] (pp 356 357) (per Lee, Whitlam and Jacobson JJ); Bahonko v Sterjov [2007] FCA 1556 at [16] (per Gordon J); and Bahonko v Sterjov [2007] FCA 1717 at [58] (per Lander J). See also Legal Aid Commission (WA) v Edwards (No 2) [1982] FCA 103 ; (1982) 61 FLR 419 ; 42 ALR 154 which is not directly in point but which contains reasoning to the same effect). In Bizuneh [2003] FCAFC 42 ; 128 FCR 353 , the Full Court said (at [15]) (p 357), that a rule substantially in the same form as the current rule " removed a clog on the Registrar's discretion ". The Full Court said that the Registrar can now act to refuse to accept or issue a document without first obtaining the authority from a Judge so to act. This power is intended to enable the Registrar to maintain the efficient operation of the Registry and thus, of the Court.
Case: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559
Outcome: distinguished
The Minister argued that the tribunal had found that the Chinese authorities were only interested in individuals who were politically active or suspected of being so. In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 575, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said that a determination whether there was a real chance that something would occur required an estimation of the likelihood that one or more events would give rise to the occurrence of that thing. They said that in many, if not most cases, determining what was likely to occur in the future would require findings as to what had occurred in the past because what had occurred in the past was likely to be the most reliable guide as to what would happen in the future. And, they said that without making findings about the policies of the Chinese government's authorities, in that case, and the past relationship of Mr Guo with those authorities, '... the tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC'. 24 Of course, in Guo 191 CLR 557 at 568-569 the tribunal had found that a considerable number of the applicant's claims were not credible and only accepted one of them, on the basis of which it made its assessments. There the tribunal found that Mr Guo had not had any political profile attributed to him by the Chinese authorities, and accordingly he had no well-founded fear of persecution for a Convention reason ( Guo 191 CLR at 569). In the present case, the tribunal made clear findings about what happened to the appellant, his actual political profile, and the conduct and the policies of the Chinese authorities.
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586
Outcome: distinguished
The Minister then argued that the appellant never put a claim to the tribunal that he wished to be active in the future but feared to do so. He argued that the tribunal was bound to consider only the claims raised by the appellant in the material before it. He said that a claim had to be a substantial, clearly articulated argument relying upon established facts: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 17-22 [55] - [68] , especially at 22 [68] per Black CJ, French and Selway JJ. The Minister argued that the tribunal was not bound to consider an hypothesis that had not been raised by an applicant for review, citing Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586 at 593 [46] - [47] where Weinberg, Jacobson and Lander JJ applied Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441 at 457 [31] - [32] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. The circumstances in SZANS 141 FCR at 593 [43]-[45] involved a situation in which the Full Court observed that it was difficult to see how the applicant there had raised before the tribunal the subjective fear of persecution on which he sought to rely in challenging the decision to refuse him a protection visa.
Case: NAEU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 259
Outcome: distinguished
The Minister argued that in order to establish a jurisdictional error by the tribunal it was necessary for the appellant to have expressly raised a claim that if returned to China he would continue to express his political opinion. He argued that because the appellant had not made this claim before the tribunal, he was precluded from doing so here. The Minister relied on NAEU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 259 at [19] - [20] per Madgwick J, with whom Merkel and Conti JJ agreed. He argued that there had to be some evidence to establish that the appellant would seek to exercise his right to express political opinion if he were returned to China. Madgwick J identified the denial of a person's freedom to express his or her opinion, which the person aspires to express, as a serious affront to his or her human dignity were the person returned to his or her homeland, based on the test that he had earlier formulated in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 at [20] . However, in NAEU [2002] FCAFC 259 there was no evidence to suggest that the applicant for a protection visa would wish to assert his opposition to the conduct he claimed to be offensive were he returned to Sri Lanka, nor that his conscience would seriously be affronted if he felt unable to do so ( NAEU [2002] FCAFC 259 at [20] ).
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419
Outcome: discussed
The Minister argued that the tribunal's approach was consistent with that held to be correct in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 438-439 [75] . There Young J, (with whom Gyles and Stone JJ agreed) said that the factual inquiry which the tribunal had to undertake was to be done by reference to an applicant's individual circumstances. However, for the reasons that I have given, that is the error which the tribunal made in this case. It failed to look at the circumstances of the appellant's claim concerning his treatment in China, which it found had occurred. After making that finding, the tribunal needed to consider whether the appellant had a well-founded fear of persecution by reason of his political opinions and whether he would fear to express them, were he returned to China.
Case: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132
Outcome: referred to
The Minister argued that in order to establish a jurisdictional error by the tribunal it was necessary for the appellant to have expressly raised a claim that if returned to China he would continue to express his political opinion. He argued that because the appellant had not made this claim before the tribunal, he was precluded from doing so here. The Minister relied on NAEU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 259 at [19] - [20] per Madgwick J, with whom Merkel and Conti JJ agreed. He argued that there had to be some evidence to establish that the appellant would seek to exercise his right to express political opinion if he were returned to China. Madgwick J identified the denial of a person's freedom to express his or her opinion, which the person aspires to express, as a serious affront to his or her human dignity were the person returned to his or her homeland, based on the test that he had earlier formulated in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 at [20] . However, in NAEU [2002] FCAFC 259 there was no evidence to suggest that the applicant for a protection visa would wish to assert his opposition to the conduct he claimed to be offensive were he returned to Sri Lanka, nor that his conscience would seriously be affronted if he felt unable to do so ( NAEU [2002] FCAFC 259 at [20] ). 38 In Appellant S395 216 CLR at 491-492 [48] McHugh and Kirby JJ described Win [2001] FCA 132 as recognising that it was no answer to a claim for refugee status that the applicant took steps to hide political opinions and activities where the applicant claimed he or she would be persecuted for those opinions and activities.
Case: Sofia and Anor v Pattison and Anor [1997] VG 7619 (Unreported, Finkelstein J, 20 October 1997)
Outcome: cited
Sofia and Anor v Pattison and Anor , [1997] VG 7619 (Unreported, Finkelstein J, 20 October 1997), his Honour said: "Whether the word "file" in s 54(1) is intended to be a reference to the act of the bankrupt or the act of the Registrar is unclear. But, having regard to the context in which the word is used it should be regarded as a reference to the act of the bankrupt. In the first place, the obligation that is imposed by s 54(1) is an obligation that is imposed on the bankrupt. In the second place the obligation is to file a document at a particular place namely at a Registry. This suggests that the statement will be filed when it is left with an officer at the Registry rather than when it has been placed on a file that is maintained at the Registry. Thus the section will be complied with whether or not the statement is subsequently placed on a file by the officer who received it." This decision provides some assistance to Mr Lelleton. It is authority for the proposition that it cannot be concluded that a statement has not been filed for the purposes of s 54(1) simply because the document does not appear on a file maintained by the Registrar. Mr Lelleton did not, however, hand deliver his Statement to the Registry. He posted it and is unable to explain why it does not appear on file. There are a number of possibilities, the most obvious ones being that it went astray in the mail or, having been delivered to the Registry it was, for some unknown reason, not placed on file.
Case: Australian Competition and Consumer Commission v GIA Pty Ltd (2002) ATPR 41-902
Outcome: cited
I accept a submission by counsel for the ACCC that the conduct of the defendant during the examinations on 28 February 2006 and 20 March 2006 was that of denial and laying of a false trail rather than that of minimisation and evasion: cf Australian Competition and Consumer Commission v GIA Pty Ltd (2002) ATPR 41-902 at 45,419 [19] per Heerey J. 26 There are no such other offences. 27 The offences occurred on both 28 February 2006 and 20 March 2006 and to that extent each offence formed part of a course of conduct, at least within the boundaries of the defendant's giving of evidence before the member of the ACCC.