mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17 , 243 ALR 556
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: Trade Practices Commission v ICI Australia Operations Pty Ltd [1991] FCA 527 ; (1991) 105 ALR 115
Outcome: applied
For the purposes of s 42Y(3)(b) , it may finally be noted, the Secretary does not maintain that there has been " any loss or damage suffered as a result of the contravention ". But, as was pointed out by Olney J in Trade Practices Commission v ICI Australia Operations Pty Ltd [1991] FCA 527 ; (1991) 105 ALR 115 in the context of pecuniary penalties being sought under s 76 of the Trade Practices Act for resale price maintenance, " an absence of loss or damage is not a mitigating factor ". His Honour observed at 118 19: ... The Act also requires that regard be had to any loss or damage suffered as a result of the act or omission. In the facts of the present case there appears to be no basis upon which any loss or damage can be identified. Whatever may have been the circumstances that induced all other Victorian distributors to agree to maintain retail prices at the levels nominated by ICI, it is the conduct in relation to MRW and Heinrich O'Loughlin which is the subject of these proceedings. Nothing has been said to indicate that either of these companies, nor indeed any of their customers, suffered loss or damage by the attempt to induce them to maintain a minimum price. However, I do not think that the absence of loss or damage is necessarily a mitigating factor. In a case where the breach of the Act is an attempt to induce a reseller to impose a minimum price for goods supplied to the reseller, the question of loss or damage will rarely, if ever, arise. The Act does not distinguish in terms of culpability between the various types of conduct which constitute the practice of resale price maintenance. The same conclusion was also reached by Nicholson J in Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2) [2006] FCA 1399 at [29] , [2006] FCA 1399 ; 155 FCR 377 at 384 when considering s 24(2) of the Spam Act 2003 (Cth) . The same conclusion should also be reached in respect to s 42Y(3) of the 1989 Act now under consideration.
Case: Tran v Commonwealth [2008] FCA 901 , 103 ALD 290
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: Vivian v Fitzgeralds [2007] FCA 1602
Outcome: applied
Also of general relevance to most (if not all) civil penalty provisions is the significance that a pecuniary penalty may have for deterrence upon both the current offender and others: cf Trade Practices Commission v CSR Ltd (1990) ATPR 41-076 ; Australian Competition &amp; Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666 at [53] per Bennett J; Australian Competition &amp; Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727 at [34] per Kiefel J; Australian Competition &amp; Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 at [11] ; Australian Competition &amp; Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21 at [15] per Goldberg J. A " civil penalty ", it has been said, " needs to be sufficiently high to deter contravention by others, but not so high as to be oppressive ": Vivian v Fitzgeralds [2007] FCA 1602 at [29] per Logan J. An apparent limited capacity of a respondent to pay cannot mitigate against the need for an appropriate pecuniary penalty to be applied: Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2) [2006] FCA 1399 at [41] , [2006] FCA 1399 ; 155 FCR 377 at 386 7 per Nicholson J. See also: Beaton-Wells C, 'Recent corporate penalty assessment under the Trade Practices Act and the rise of general deterrence' (2006) 14 CCLJ 65; Yeung K, 'Quantifying Regulatory Penalties: Australian Competition Law Penalties in Perspective' (1999) 23 Melb Univ L Rev 440 (particularly at 468 74).
Case: Wallersteiner v Moir [1974] 1 WLR 991
Outcome: distinguished
The factual basis upon which a declaration may be made, however, seems to have evolved over time. Even quite recently it has been observed that the granting of declaratory relief has " always been regarded with much respect... and ought not to be made on admissions of the parties or on consent, but only if the court was satisfied by evidence ": Wallersteiner v Moir [1974] 1 WLR 991 at 1029 per Buckley LJ.
Case: MLGXAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 966
Outcome: cited
is an application for leave to appeal from a decision of the Federal Magistrates Court given on 28 April 2006. On that date the Federal Magistrates Court dismissed an application to quash a decision of the Refugee Review Tribunal of 15 December 2005. It did so pursuant to r 13.03A(c) of the Federal Magistrates Court Rules, because the applicant did not then appear. Consequently, the decision of the Federal Magistrates Court was an interlocutory judgment requiring leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth): See MLGXAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 966. The applicant has not appeared on his motion. He has been notified of the hearing date in accordance with the Court's direction by letter to his address for service dated 13 July 2006. He applied for a fee waiver to be able to file his application. On that document he provided a mobile telephone number. Efforts to contact him at that mobile telephone number, both today and on earlier occasions by the Court, have proved unsuccessful. Not only has the applicant not appeared today and not appeared before the Federal Magistrates Court on the hearing of his application then, but he also did not appear before the Tribunal at the hearing which it fixed for him to give oral evidence and to make submissions. He did not contact the Tribunal to explain his failure to attend. One cannot help but have the suspicion that the applicant is simply using the opportunities provided to him under the law to prolong his stay in Australia. His application for a protection visa was refused, first by a delegate of the first respondent on 15 September 2005, and then by the Tribunal on 15 December 2005, in essence, because his claims were not established to the satisfaction of the initial decision-maker or the Tribunal on the material before them. As the applicant has not appeared today on his own motion, I am entitled to proceed in his absence.
Case: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405
Outcome: considered
Heydon J D, Cross on Evidence (7 th Australian ed, 2004) sets forth as follows the circumstances in which a common interest privilege may arise (at [25265]): Where in circumstances of a mutual interest in a particular transaction or transactions the recipient of legal advice relating to such transactions passes documents or information containing that advice to someone who shares that interest, the essential question in each case is whether the nature of their mutual interest in the context of their relationship is such that the party to whom the documents are passed receives them subject to a duty of confidence which the law will protect in the interests of justice. Two persons interested in a particular question will not have a common interest if their individual interests in the question are selfish and potentially adverse to each other. ... See also: University of Western Australia v Gray (No 12) [2007] FCA 396 at [4] per French J. Potential differences in the respective positions of parties may lead to their not having a " common interest ": eg, Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410. Thus, in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 , no common interest privilege arose as between the Commission and entities providing witness statements to the Commission in circumstances where the Commission was asserting that those entities had been involved in breaches of the Trade Practices Act 1974 (Cth). " In that respect they each had interests which were either adverse, or potentially adverse, to each other. In such circumstances common interest privilege cannot arise as there is no common interest ": (1998) 81 FCR at 564 per Goldberg J.
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526
Outcome: followed
Heydon J D, Cross on Evidence (7 th Australian ed, 2004) sets forth as follows the circumstances in which a common interest privilege may arise (at [25265]): Where in circumstances of a mutual interest in a particular transaction or transactions the recipient of legal advice relating to such transactions passes documents or information containing that advice to someone who shares that interest, the essential question in each case is whether the nature of their mutual interest in the context of their relationship is such that the party to whom the documents are passed receives them subject to a duty of confidence which the law will protect in the interests of justice. Two persons interested in a particular question will not have a common interest if their individual interests in the question are selfish and potentially adverse to each other. ... See also: University of Western Australia v Gray (No 12) [2007] FCA 396 at [4] per French J. Potential differences in the respective positions of parties may lead to their not having a " common interest ": eg, Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410. Thus, in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 , no common interest privilege arose as between the Commission and entities providing witness statements to the Commission in circumstances where the Commission was asserting that those entities had been involved in breaches of the Trade Practices Act 1974 (Cth). " In that respect they each had interests which were either adverse, or potentially adverse, to each other. In such circumstances common interest privilege cannot arise as there is no common interest ": (1998) 81 FCR at 564 per Goldberg J.
Case: Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 132 FLR 466
Outcome: followed
A " mere common interest in the outcome of litigation will be sufficient to enable any party with that interest to rely on " common interest privilege: Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 132 FLR 466 at 472 per Sheller JA (Waddell A-JA agreeing). No submission was advanced that for a common interest privilege to be sustained there had to be such an identity of interests that the parties concerned could (had they chosen to do so) have used the same solicitor. 11 It is not considered that such a clear distinction can be drawn between those issues going to liability as opposed to quantum as is contended by the Applicants. 12 Although not of immediate relevance, s 122(2) and (4) of the Evidence Act 1995 (Cth), it may be noted, provides for circumstances in which " client legal privilege " may be lost by reason of the disclosure of evidence. An exception to that provision is that set forth as follows in s 122(5)(b): Loss of client legal privilege: consent and related matters ... (5) Subsections (2) and (4) do not apply to: ... (b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
Case: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275
Outcome: followed
In the circumstances of the present proceeding, it is considered that there is a sufficient common interest such that each of the documents is privileged. Common interest privilege is not a concept " rigidly defined " and it is a question of fact in each case whether there is a sufficient mutual interest: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 280. 9 Common to the position of the Respondents is their alleged factual involvement in the breaches of copyright being pursued by the Applicants. The fact that one or other of them has decided not to put in issue an entitlement of declaratory and injunctive relief does not otherwise deny a common involvement. All resist relief in the form of damages or an account of profits. All of the relevant Respondents also have in common a Defence asserting the illegality of the sales of the films the subject of the proceeding. And there has been no Cross-Claim filed as between any of the Respondents. 13 Nor is there considered to be anything " unfair " in maintaining the privilege otherwise attaching to such legal advice or views as were being exchanged between the solicitors for the Respondents: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275. The limited exchange of views as between the solicitors on a confidential basis could not be construed as a waiver of privilege: (1995) 36 NSWLR 275 at 286. 14 There remains outstanding those documents the subject of the reservation. These documents were described as " copies of tax invoices from Tzovaras Legal to the Fifth Respondent, including detailed narration of work undertaken by Tzovaras Legal on behalf of the Fifth Respondent in relation to the proceedings, including communications between Mr Tzovaras and Mr Armenis ". This is the document of 108 pages identified in the Affidavit of Ms Chylek as falling within paragraph [4] of the Subpoena . 15 Tzovaras Legal were lawyers formerly acting on behalf of the Fifth Respondent.
Case: University of Western Australia v Gray (No 12) [2007] FCA 396
Outcome: followed
Heydon J D, Cross on Evidence (7 th Australian ed, 2004) sets forth as follows the circumstances in which a common interest privilege may arise (at [25265]): Where in circumstances of a mutual interest in a particular transaction or transactions the recipient of legal advice relating to such transactions passes documents or information containing that advice to someone who shares that interest, the essential question in each case is whether the nature of their mutual interest in the context of their relationship is such that the party to whom the documents are passed receives them subject to a duty of confidence which the law will protect in the interests of justice. Two persons interested in a particular question will not have a common interest if their individual interests in the question are selfish and potentially adverse to each other. ... See also: University of Western Australia v Gray (No 12) [2007] FCA 396 at [4] per French J. Potential differences in the respective positions of parties may lead to their not having a " common interest ": eg, Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410. Thus, in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 , no common interest privilege arose as between the Commission and entities providing witness statements to the Commission in circumstances where the Commission was asserting that those entities had been involved in breaches of the Trade Practices Act 1974 (Cth). " In that respect they each had interests which were either adverse, or potentially adverse, to each other. In such circumstances common interest privilege cannot arise as there is no common interest ": (1998) 81 FCR at 564 per Goldberg J.
Case: Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622
Outcome: referred to
On 19 May 2006, I heard an application for interlocutory relief in this matter. The application was brought by Ms Kate Paras, who is an employed solicitor with the Department of Infrastructure of the State of Victoria. The proceedings and the interlocutory application arose from the purported termination of her employment on Friday 12 May 2006. It is unnecessary to repeat the detailed facts set out in my reasons for judgment of 19 May 2006: see Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622. 2 Upon the applicant giving certain undertakings, I ordered on 19 May 2006 that until the hearing and determination of this proceeding or until further order, the respondents be restrained from treating as valid or acting upon the purported notice of termination of employment dated 11 May 2006 or the purported dismissal of the applicant from her employment with the first respondent. 3 The respondents have now applied by notice of motion dated 25 May 2006 for orders that, in summary, the injunctive order of 19 May 2006 be discharged, or alternatively it be stayed on the giving of an undertaking by the respondents to pay out the applicant's entitlements, or alternatively for an order that the time for filing an application for leave to appeal be extended to 2 June 2006.
Case: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543
Outcome: followed
The first issue which arises concerns the application to discharge the injunctive order made on 19 May 2006. There is a preliminary question as to the circumstances that must be demonstrated before a court would consider varying or discharging an interlocutory injunction. Under O 35 r 7 of the Federal Court Rules , the Court has power to vary or set aside an order. Under sub-rule (1), the power extends to any judgment or order before it has been entered. After entry, the power is limited to stipulated cases which include the case where the order is interlocutory: see sub-rule (2)(c). In each case, the power is discretionary, and the authorities in this Court indicate that it is ordinarily only exercised in exceptional circumstances: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552; Dudzinski v Centrelink [2003] FCA 308 (' Dudzinski' ) at [11]; and McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25] . Where the order has not been entered, an order varying or setting aside the terms of a judgment can also be made to correct error or oversight or to give effect to a review of the contemplated order so that the orders made more adequately deal with the matter as litigated before the Court: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) 18 ATPR 41-508. 5 The authorities indicate that the kind of exceptional circumstances that might attract the power of discharge or variation include where an interlocutory order was obtained by fraud or non-disclosure of material facts, or through an accident or mistake that occurred without the fault of the parties seeking the relief under O 35 r 7: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-551. The court's discretion to vary or set aside an order is to be exercised with great caution having regard to the importance of the public interest in the finality of litigation: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 (' Brown' ) at 178; Baker v Beckett (unreported, Supreme Court of NSW, Cohen J, 26 May 1998) (' Baker' ); and Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745 (' Chanel' ) at 751. Similar principles apply to the variation or discharge of final orders: see Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 (' Autodesk' ) at 302, 307, 309-310, 317-318 and 321. Further, as Spender J emphasised in Dudzinski in relation to O 35 r 7(2)(c), the rule is not an alternative to the appellate procedure in respect of interlocutory judgments, nor is it to be invoked for the purpose of allowing a party to present a case a second time to its better advantage. In my opinion, these principles apply, a fortiori, where the party applying for discharge of an interlocutory order seeks to reargue the issues that have already been determined by reference to additional evidence that was available to it on the earlier occasion but which it chose not to advance: see also Autodesk at 310 per Brennan J.