mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition &amp; Consumer Commission v Construction, Forestry, Mining &amp; Energy Union [2008] FCA 678
Outcome: cited
Proceedings to recover a civil penalty under s 42Y of the Therapeutic Goods Act , like proceedings under s 76 of the Trade Practices Act , are civil proceedings (s 42Y(4)) and by virtue of s 140 of the Evidence Act 1995 (Cth) attract the civil standard of proof, including for present purposes the principles in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361 3. Section 140 provides as follows: Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject matter of the proceeding; and (c) the gravity of the matters alleged. It has been said by the Full Court of this Court that the discussion by Dixon J in Briginshaw v Briginshaw " of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account ": Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 at [31] , [2007] FCAFC 132 ; 162 FCR 466 at 480 per Weinberg, Bennett and Rares JJ. See also: Employment Advocate v Williamson [2001] FCA 1164 at [65] , [2001] FCA 1164 ; 111 FCR 20 at 40 1 per Branson J; Australian Competition &amp; Consumer Commission v Construction, Forestry, Mining &amp; Energy Union [2008] FCA 678 at [13] per Finn J.
Case: Australian Competition &amp; Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666
Outcome: cited
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: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427 , 236 ALR 665
Outcome: followed
But there has been a departure from such a confined view, at least in a statutory context where declaratory relief is sought as an adjunct to an order imposing a pecuniary penalty or involving a matter of public interest. In the context of the Trade Practices Act , in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427 , 236 ALR 665 Kiefel J reviewed the earlier authorities and relevantly concluded as follows: [58] The power to grant declarations (s 21 of the Federal Court Act 1976 (Cth)) is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long-standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2). [59] It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. Millett J made declaratory orders in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541; [1991] 2 All ER 821 where justice to the plaintiff required it. The order, however, operated principally inter partes and it might be doubted whether it would be of interest to other persons. Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made: "upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the court". An appeal has been dismissed: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 , 244 ALR 300. Her Honour's views as to the ability of the Court to grant declaratory relief upon the basis of deemed admissions has since been followed and applied by Mansfield J in Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem" (No 2) [2007] FCA 815 at [7] [16], [2007] FCA 815 ; 240 ALR 120 at 122 5.
Case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 , 244 ALR 300
Outcome: cited
But there has been a departure from such a confined view, at least in a statutory context where declaratory relief is sought as an adjunct to an order imposing a pecuniary penalty or involving a matter of public interest. In the context of the Trade Practices Act , in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427 , 236 ALR 665 Kiefel J reviewed the earlier authorities and relevantly concluded as follows: [58] The power to grant declarations (s 21 of the Federal Court Act 1976 (Cth)) is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long-standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2). [59] It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. Millett J made declaratory orders in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541; [1991] 2 All ER 821 where justice to the plaintiff required it. The order, however, operated principally inter partes and it might be doubted whether it would be of interest to other persons. Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made: "upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the court". An appeal has been dismissed: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 , 244 ALR 300. Her Honour's views as to the ability of the Court to grant declaratory relief upon the basis of deemed admissions has since been followed and applied by Mansfield J in Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem" (No 2) [2007] FCA 815 at [7] [16], [2007] FCA 815 ; 240 ALR 120 at 122 5.
Case: Australian Competition &amp; Consumer Commission v EDirect Pty Ltd [2008] FCA 65
Outcome: followed
Declarations have thus been made by consent by this Court in the context of a party admitting a contravention of the Trade Practices Act : eg, Australian Competition &amp; Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J. The authorities and the approach of this Court to the making of declarations by consent have also recently been usefully summarised by Reeves J in Australian Competition &amp; Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20] [30], ATPR 42-216. See also: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30] , [34], ATPR 41-801.
Case: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 , ATPR 41-801
Outcome: followed
Declarations have thus been made by consent by this Court in the context of a party admitting a contravention of the Trade Practices Act : eg, Australian Competition &amp; Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J. The authorities and the approach of this Court to the making of declarations by consent have also recently been usefully summarised by Reeves J in Australian Competition &amp; Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20] [30], ATPR 42-216. See also: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30] , [34], ATPR 41-801.
Case: Australian Competition &amp; Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727
Outcome: cited
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: Australian Competition &amp; Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247
Outcome: followed
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: Australian Competition &amp; Consumer Commission v Hobie Cat Australasia Pty Ltd [2008] FCA 402
Outcome: followed
The requirement for the Court itself to be satisfied as to the appropriateness of a penalty is a responsibility which ultimately derives from s 71 of the Commonwealth of Australia Constitution Act and is not a responsibility which can be circumscribed by private agreement: cf Australian Competition &amp; Consumer Commission v Hobie Cat Australasia Pty Ltd [2008] FCA 402 at [19] per Finn J. And in discharging that responsibility in the context of the Therapeutic Goods Act the Court, as it is in the context of the Trade Practices Act when considering whether to make an order by consent, " 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 ": cf Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 at [18] , [1999] FCA 18 ; 161 ALR 79 at 86 per French J. The Court is not to be regarded as a " rubber stamp ": Australian Competition &amp; Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 at [121] per Weinberg J
Case: Australian Competition &amp; Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534
Outcome: cited
Declarations have thus been made by consent by this Court in the context of a party admitting a contravention of the Trade Practices Act : eg, Australian Competition &amp; Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J. The authorities and the approach of this Court to the making of declarations by consent have also recently been usefully summarised by Reeves J in Australian Competition &amp; Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20] [30], ATPR 42-216. See also: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30] , [34], ATPR 41-801.
Case: Australian Competition &amp; Consumer Commission v Ithaca Ice Works Pty Ltd [2001] FCA 1716
Outcome: followed
Given the written submissions previously filed on behalf of the Secretary as to the penalties then being propounded, some reservation was expressed during the hearing as to whether the then proposed combined penalty of $100,000 was indeed " appropriate ". As was observed by Wilcox, Hill and Carr JJ in Australian Competition &amp; Consumer Commission v Ithaca Ice Works Pty Ltd [2001] FCA 1716 (and as approved by the Full Court in Mobil Oil [2004] FCAFC 72 at [56] [57]): [56] ... [W]here the Commission proposes to the Court an agreed penalty which is calculated taking into account a substantial discount from what would otherwise be considered the appropriate penalty so as to reflect a degree of co-operation, it would be desirable that the Commission disclose the process by which the discounted penalty has been arrived at. In particular, it would be of assistance to the Court, particularly where there are other proceedings pending, to hear submissions on the range of appropriate penalties and the discount which it is proposed should be allowed to take into account the level of co-operation afforded by the offender. ... The figure of $100,000 was such that submissions were sought from both Counsel. The caution previously expressed by Lockhart J, and other judges of this Court, as to the Court refraining from stating whether the penalty to which the parties have agreed was the same as that which the Court would have imposed, is nevertheless heeded.
Case: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 , 161 ALR 79
Outcome: followed
The requirement for the Court itself to be satisfied as to the appropriateness of a penalty is a responsibility which ultimately derives from s 71 of the Commonwealth of Australia Constitution Act and is not a responsibility which can be circumscribed by private agreement: cf Australian Competition &amp; Consumer Commission v Hobie Cat Australasia Pty Ltd [2008] FCA 402 at [19] per Finn J. And in discharging that responsibility in the context of the Therapeutic Goods Act the Court, as it is in the context of the Trade Practices Act when considering whether to make an order by consent, " 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 ": cf Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 at [18] , [1999] FCA 18 ; 161 ALR 79 at 86 per French J. The Court is not to be regarded as a " rubber stamp ": Australian Competition &amp; Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 at [121] per Weinberg J
Case: Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 , 60 ATR 518
Outcome: cited
Thus, in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 French J made the following observations in the context of assessing the penalty to be imposed pursuant to s 76(1) of the Trade Practices Act (at 52,152 52,153). The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following: 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. Those observations are both an elaboration of the terms of s 76(1) itself and directed to the legislative context set forth in the 1974 Act. Comparable principles have also been applied when assessing penalties under the Superannuation Industry (Supervision) Act : Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 , 60 ATR 518 ; Australian Prudential Regulation Authority v Holloway [2000] FCA 1245 , 45 ATR 278.
Case: Australian Prudential Regulation Authority v Holloway [2000] FCA 1245 , 45 ATR 278
Outcome: cited
Thus, in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 French J made the following observations in the context of assessing the penalty to be imposed pursuant to s 76(1) of the Trade Practices Act (at 52,152 52,153). The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following: 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. Those observations are both an elaboration of the terms of s 76(1) itself and directed to the legislative context set forth in the 1974 Act. Comparable principles have also been applied when assessing penalties under the Superannuation Industry (Supervision) Act : Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 , 60 ATR 518 ; Australian Prudential Regulation Authority v Holloway [2000] FCA 1245 , 45 ATR 278.