mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225
Outcome: cited
Kowalski has not presented any proper basis for asserting the primary judge did not bring an unprejudiced mind to the appeal ( Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at [35] - [36]). Mr Kowalski's dissatisfaction with his Honour's reasons is not sufficient to establish bias or reasonable apprehension of bias on the part of the primary judge ( Bienstein at [32]). As pointed out by Medicare, Mr Kowalski did not ask his Honour to disqualify himself before judgment was given. Mr Kowalski has not established any basis for such an allegation. None is apparent. Is there utility in the proceedings? What is Mr Kowalski's purpose in maintaining the proceedings? Mr Kowalski clarified why, despite the fact that Medicare has stated clearly that it will take no steps to recover any money he received from Mitsubishi, thus depriving the proceedings of any apparent utility, he wishes to maintain the proceedings. He says that he wishes to have determined at law whether or not monies received by him from Mitsubishi were compensation under the HOSC Act. He says that it is relevant to other proceedings presently before the Courts that he is bringing against the Military Compensation Commission and against Mitsubishi. He says that in both of these proceedings, the nature of the payments made by Mitsubishi is in issue. He also says that he believes that his failure to challenge Medicare will prejudice his claim against the Military Compensation Commission. There is no utility in the present proceeding. In effect, this case has no subject matter. An attempt by Mr Kowalski to maintain these proceedings in order to influence in some unspecified way other proceedings is an abuse of process and forms no basis for allowing this application for leave to appeal. Other matters have been raised in Mr Kowalski's notice of appeal, with which I will deal, although they were not pressed in oral argument. Alleged failure on the part of the Tribunal to provide reasons This ground seems to be based upon the fact that the Tribunal provided written reasons after the appeal was instituted in the Federal Court. The Tribunal did provide reasons for its decision and those reasons were considered by the primary judge. There is no suggestion in his Honour's reasons that the Tribunal's reasons were inadequate. There is no evidence before me to suggest that they were. Alleged failure correctly to apply the law regarding uncontradicted affidavit evidence
Case: Kowalski v Chief Executive Officer of Medicare [2009] AATA 427
Outcome: affirmed
23D of the HOSC Act confers jurisdiction on the Tribunal to review a decision by the Medicare CEO that a statement under ss 18 or 23A, or an amended statement under s 23B, is not substantially correct. The Tribunal found that none of the correspondence from Mr Kowalski to Medicare constituted a statement under s 18 ( Kowalski v Chief Executive Officer of Medicare [2009] AATA 427 at [7] ). It found at [8] that it had no evidence before it that Medicare ever received a statement from Mr Kowalski under ss 18 or 23A, or an amended statement under s 23B, or that the Medicare CEO had made a decision of the kind referred to in s 23D(1). The Tribunal did not consider that there had been any reviewable decision by Medicare and dismissed Mr Kowalski's application.
Case: Kowalski v Chief Executive Officer of Medicare [2009] FCA 1072
Outcome: affirmed
Kowalski instituted an appeal to the Federal Court from the decision of the Tribunal. The primary judge dismissed the appeal pursuant to a motion brought by the Medicare CEO for summary dismissal pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) ( the FCA Act ) on the ground that Mr Kowalski had no reasonable prospects of success ( Kowalski v Chief Executive Officer of Medicare [2009] FCA 1072). The primary judge (at [13]) was of the view that the Tribunal's conclusion was correct. His Honour found that the Tribunal correctly concluded that the letters did not amount to statements of past benefits for the purposes of s 18(1) of the HOSC Act nor did they constitute or evidence a decision under s 23B of that Act. His Honour found that the Tribunal correctly concluded that the "decision" identified by Mr Kowalski by reference to the correspondence did not amount to or evidence a reviewable decision, that is, a decision reviewable by the Tribunal in accordance with the powers in ss 18, 23A and 23B of the HOSC Act. His Honour rejected the assertions that the Tribunal failed to provide adequate reasons and held that the Tribunal did not err in law in deciding that it did not have jurisdiction to entertain Mr Kowalski's application. His Honour dismissed the application and awarded indemnity costs. There was a further matter. As his Honour noted at [1], the purpose of these proceedings, in a practical sense, was not apparent. Medicare had informed Mr Kowalski in writing that it did not intend to take any further action against him under the HOSC Act to recover any monies paid by Mitsubishi and had pointed out to him that the proceedings appeared to be entirely unnecessary. As his Honour said at [19], '[t] hat is self-evident '. Application for leave to appeal
Case: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401
Outcome: followed
Kowalski made an oral application to the primary judge for leave to appeal both the judgment and the costs order after his Honour made orders and delivered reasons in this matter. His Honour ordered that the notice be treated as an application for leave to appeal for the purposes of the Federal Court Rules and that the proceedings be referred to another judge of the Court. An order under s 31A is interlocutory ( Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [42]-[43] per Spender, Graham and Gilmour JJ ( Kowalski FCAFC ) approving Luck v University of Southern Queensland [2009] FCAFC 73 ; (2009) 176 FCR 268 at [101] per Rares J with whom Graham J agreed at [58]). Accordingly, Mr Kowalski needs leave to appeal the decision of the primary judge under s 24(1A) of the FCA Act.
Case: Kowalski v Repatriation Commission (2009) 259 ALR 444
Outcome: followed
Kowalski submits that the Court has no jurisdiction to award costs in this matter because the jurisdiction of the Court is enlivened by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ( AAT Act ). That submission was made and answered in Kowalski v Repatriation Commission (2009) 259 ALR 444 at [24] [28] per Spender, Graham and Gilmour JJ. The Full Court pointed out that there is no question of the Court's power to award costs and that the submission is answered by s 43(1) of the Federal Court of Australia Act which provides: Subject to subsection (1A) and section 570 of the Fair Work Act 2009, the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded. No other Act has been identified which provides that costs should not be awarded in these proceedings. The primary judge awarded costs against Mr Kowalski on an indemnity basis. I see no basis for any suggestion that his Honour's discretion in that regard miscarried. Medicare seeks costs of this application on an indemnity basis. Medicare submits that it was capricious for Mr Kowalski to institute these proceedings in circumstances where he should have known that there was no reasonable prospect of success and where Medicare was not seeking to recover anything from him or seeking in any way to implement what he described as a reviewable decision. Mr Kowalski was clearly on notice from the decision of the primary judge that his Honour was of the view that the proceedings had no utility. He had been warned by Medicare, when pointing out to him the futility of the proceedings commenced before the primary judge, that it would seek indemnity costs from his Honour. Mr Kowalski has persisted in this application for leave to appeal. There is no basis for his grounds of appeal. Medicare should be compensated for its costs of defending this application. Although the Court is generally more reluctant to order indemnity costs against self-represented litigants, I consider that it is appropriate to order costs against Mr Kowalski on an indemnity basis in these circumstances. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 2 December 2009 Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Applicant: Mr A Schatz of Australian Government Solicitor Date of Hearing: 11 November 2009 Date of Final Submissions: 30 November 2009 Date of Judgment: 2 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1420.html
Case: Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546
Outcome: cited
Kowalski asserts that the primary judge misapplied the law in Anasson v Phillips (unreported, Sup Ct, NSW, Young J, 4 March 1988) and Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546. These cases are, Mr Kowalski submits, authorities for the proposition that, where statements made in affidavits are not replied to or contradicted by other evidence and the deponents of the affidavits are not cross-examined, those statements will be accepted by the Court.
Case: Luck v University of Southern Queensland [2009] FCAFC 73 ; (2009) 176 FCR 268
Outcome: referred to
Kowalski made an oral application to the primary judge for leave to appeal both the judgment and the costs order after his Honour made orders and delivered reasons in this matter. His Honour ordered that the notice be treated as an application for leave to appeal for the purposes of the Federal Court Rules and that the proceedings be referred to another judge of the Court. An order under s 31A is interlocutory ( Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [42]-[43] per Spender, Graham and Gilmour JJ ( Kowalski FCAFC ) approving Luck v University of Southern Queensland [2009] FCAFC 73 ; (2009) 176 FCR 268 at [101] per Rares J with whom Graham J agreed at [58]). Accordingly, Mr Kowalski needs leave to appeal the decision of the primary judge under s 24(1A) of the FCA Act.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
All the individual respondents were knowingly concerned in such contraventions and thus are liable by virtue of s 75B. They were aware of the essential facts which constituted the contraventions indeed it was the individuals themselves who engaged in the relevant conduct. That they were not aware that the conduct was unlawful is relevant to the fixing of penalty but does not avoid liability: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. 35 The original 1992 Agreement and its amendments and successive agreements were conceived by the orthodontists with extensive and ongoing legal advice. There seems to have been a widespread misunderstanding amongst the lawyers involved (and possibly many other lawyers) that professions were not subject to the Trade Practices Act . The assumption of legality was reinforced when Dr Gupta, prior to becoming a signatory to the Agreement in 2000, furnished the then existing contracts to a separate solicitor for perusal and that solicitor similarly failed to raise any competition law issues. The same occurred when Dr Stankevicius joined the arrangements. 36 While of course ignorance of the law is not an excuse, the Commission, properly in my view, accepts that the failure of lawyers in separate firms to properly advise their clients is a matter that goes some way towards explaining and mitigating the conduct of the orthodontists.
Case: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375
Outcome: considered
Litigation to establish contraventions such as those admitted by Messrs Knight and Ross can be very complex, time consuming and costly. It is in the public interest for litigation to be concluded in the shortest time frame that is consistent with justice being done between the parties, freeing the ACCC to deal with other matters and reducing the public cost of a lengthy hearing in the Court. Consequently, the Court has encouraged negotiated resolution of proceedings by the ACCC, provided that their terms recognise that the ultimate responsibility for determining the existence of a contravention or contraventions, and as to the proper orders to resolve the proceedings lies with the Court (see Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285). 72 I must of course be mindful that the respondents are individuals carrying on business, rather than corporate entities, so the penalty factors set out above must be adapted, where possible, to the circumstances of the respondents . I also bear in mind, as Burchett J pointed out in Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 at 40,169, that the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct involved (the 'totality principle' as known in the criminal law).
Case: Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 256
Outcome: discussed
The principles governing whether a Court should accept a penalty that has been agreed between the ACCC and a respondent were considered in Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 256 by Sheppard J, who stated at 259: It is, of course, true that the penalty has been suggested to me by the agreement of the parties. Uninformed of their agreement, I may have selected a different figure, but I am satisfied that it would not have been very different from theirs. There is from time to time, amongst members of the profession and amongst the public, discussion concerning plea bargaining. Sometimes it is suggested that it involves disreputable conduct. It is my opinion that that is so if it at all implicates the court in private discussions as to what the court's attitude will or would be likely to be if a particular course is taken. In this case nothing of that kind has occurred. The parties have made their own agreement and put it to the court for approval, not knowing what its attitude was likely to be. ... This, of course, is not a criminal case; the liability is civil only. But, even in the most serious criminal cases, it is not unusual for the prosecution to accept a plea to a lesser charge, subject always to the approval of the court. I have said what I have only to explain that the course which the parties have adopted is both proper and not uncommon, even though perhaps novel in the comparatively new field of trade practices.
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993
Outcome: cited
The decision of the Full Court in NW Frozen Foods 71 FCR 285 was followed by a later Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993. In that case, the Full Court at 48,626 also said that it considered that the following proposition emerged from NW Frozen Foods 71 FCR 285: ...the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more 'subjective' matters.
Case: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79
Outcome: discussed
Further, in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 at 86, at [18], French J said: The question whether an undertaking is to be accepted or a consent order made is not concluded by a finding that it is within the power of the court to do so. The power of the court to make the orders sought is "defined and conferred by public law not by private agreement": Fiss, "Against Settlement" (1984) 93 Yale Law Journal 1073. In the exercise of that power the court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so. This principle applies to the resolution of private litigation by consent orders or undertakings. A fortiori it applies to proceedings brought by the Crown or public or statutory authorities to enforce the law in the public interest. The court has a responsibility to be satisfied that what is proposed is not contrary to the public interest and is at least consistent with it ... Consideration of the public interest, however, must also weigh the desirability of non-litigious resolution of enforcement proceedings . (emphasis added). 13 There have been many other decisions of the Court applying those general principles. 14 As I indicated at the close of submissions, I am satisfied that each of the declarations proposed is appropriate and is within power. I am also satisfied that the amount of the proposed pecuniary penalties in each instance and the further proposed order for each of Mr Knight and Mr Ross to attend a trade practices compliance program is appropriate and within power.
Case: Trade Practices Commission v Santos Limited (1993) ATPR 41-221
Outcome: cited
The Court has a wide discretion under section 21 of the Federal Court of Australia Act 1976 (Cth) to make binding declarations of right (see, for example: Trade Practices Commission v Santos Limited (1993) ATPR 41-221; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89; RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164; Australian Competition &amp; Consumer Commission v Target (2001) ATPR 41-840 at [14]). The proposed declarations go to the legal controversy between the parties ( Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 596) and the ACCC has a "real interest", as that expression was used in Forster v Jododex Aust Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437 438, in seeking declaratory relief as the public body charged with enforcing the TPA and the Code (see Australian Competition &amp; Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801 at [30]).
Case: Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89
Outcome: cited
The Court has a wide discretion under section 21 of the Federal Court of Australia Act 1976 (Cth) to make binding declarations of right (see, for example: Trade Practices Commission v Santos Limited (1993) ATPR 41-221; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89; RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164; Australian Competition &amp; Consumer Commission v Target (2001) ATPR 41-840 at [14]). The proposed declarations go to the legal controversy between the parties ( Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 596) and the ACCC has a "real interest", as that expression was used in Forster v Jododex Aust Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437 438, in seeking declaratory relief as the public body charged with enforcing the TPA and the Code (see Australian Competition &amp; Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801 at [30]).
Case: RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164
Outcome: cited
The Court has a wide discretion under section 21 of the Federal Court of Australia Act 1976 (Cth) to make binding declarations of right (see, for example: Trade Practices Commission v Santos Limited (1993) ATPR 41-221; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89; RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164; Australian Competition &amp; Consumer Commission v Target (2001) ATPR 41-840 at [14]). The proposed declarations go to the legal controversy between the parties ( Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 596) and the ACCC has a "real interest", as that expression was used in Forster v Jododex Aust Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437 438, in seeking declaratory relief as the public body charged with enforcing the TPA and the Code (see Australian Competition &amp; Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801 at [30]).
Case: Australian Competition &amp; Consumer Commission v Target (2001) ATPR 41-840
Outcome: cited
The Court has a wide discretion under section 21 of the Federal Court of Australia Act 1976 (Cth) to make binding declarations of right (see, for example: Trade Practices Commission v Santos Limited (1993) ATPR 41-221; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89; RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164; Australian Competition &amp; Consumer Commission v Target (2001) ATPR 41-840 at [14]). The proposed declarations go to the legal controversy between the parties ( Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 596) and the ACCC has a "real interest", as that expression was used in Forster v Jododex Aust Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437 438, in seeking declaratory relief as the public body charged with enforcing the TPA and the Code (see Australian Competition &amp; Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801 at [30]).
Case: Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
The Court has a wide discretion under section 21 of the Federal Court of Australia Act 1976 (Cth) to make binding declarations of right (see, for example: Trade Practices Commission v Santos Limited (1993) ATPR 41-221; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89; RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164; Australian Competition &amp; Consumer Commission v Target (2001) ATPR 41-840 at [14]). The proposed declarations go to the legal controversy between the parties ( Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 596) and the ACCC has a "real interest", as that expression was used in Forster v Jododex Aust Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437 438, in seeking declaratory relief as the public body charged with enforcing the TPA and the Code (see Australian Competition &amp; Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801 at [30]).
Case: Forster v Jododex Aust Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421
Outcome: cited
The Court has a wide discretion under section 21 of the Federal Court of Australia Act 1976 (Cth) to make binding declarations of right (see, for example: Trade Practices Commission v Santos Limited (1993) ATPR 41-221; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89; RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164; Australian Competition &amp; Consumer Commission v Target (2001) ATPR 41-840 at [14]). The proposed declarations go to the legal controversy between the parties ( Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 596) and the ACCC has a "real interest", as that expression was used in Forster v Jododex Aust Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437 438, in seeking declaratory relief as the public body charged with enforcing the TPA and the Code (see Australian Competition &amp; Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801 at [30]).