mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sammy Russo Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641
Outcome: cited
law on what constitutes a "market in Australia" is far from settled. One thing that is clear is that a market which is wholly outside Australia is not comprehended by the statutory definition: see Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244 at 254; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976 ; (2008) 253 ALR 89 at 112. The existence of a global market which extends into the geographic boundaries of Australia does not, on the other hand, preclude a finding that there exists a "market in Australia". There can, therefore, be no objection to the applicant pleading, as it has done, that there is a global market for air freight services and that part of that market is a "market in Australia", provided that material facts are pleaded which establish the existence of those markets: see Sammy Rosso Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641 at 41-094 per Goldberg J.
Case: Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244
Outcome: referred to
law on what constitutes a "market in Australia" is far from settled. One thing that is clear is that a market which is wholly outside Australia is not comprehended by the statutory definition: see Singapore Airlines Ltd v Australian Competition and Consumer Commission (2009) 260 ALR 244 at 254; Australian Competition and Consumer Commission v Qantas Airways Ltd [2008] FCA 1976 ; (2008) 253 ALR 89 at 112. The existence of a global market which extends into the geographic boundaries of Australia does not, on the other hand, preclude a finding that there exists a "market in Australia". There can, therefore, be no objection to the applicant pleading, as it has done, that there is a global market for air freight services and that part of that market is a "market in Australia", provided that material facts are pleaded which establish the existence of those markets: see Sammy Rosso Supplies Pty Ltd v Australian Safeway Stores Pty Ltd (1998) ATPR 41-641 at 41-094 per Goldberg J.
Case: State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499
Outcome: referred to
retention, within the group definition, of persons who indirectly pay the costs of moving goods by air again raises the "passing on" issue to which I referred at [41] [43] of my previous reasons. The extent of any resultant difficulty is much reduced by the narrowing of the definition to exclude many down-stream members. If the definition is further refined to remove the remaining difficulties, any pleading issue relating to a possible "passing on" defence will be avoided. The applicant will then be able to identify the amounts which it alleges it has paid for air freight services, directly or indirectly, to one or more of the respondents. If need be, further clarification of the amounts allegedly overpaid by reason of the cartel arrangements can be sought by the respondents. The Court would be able to direct the applicant to file a statement setting out how it intends to prove the losses which it and group members are said to have suffered: see Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499. The respondents will then be in a position to determine whether they may plead a "passing on" defence. Whether or not such a defence is available will be a matter to be determined at trial. The applicant continues to plead that it and the represented group members suffered loss and damage because the impugned agreements caused prices for international air freight services to be "higher than [they] otherwise would have been" (paragraphs 133 and 134). The applicant has sought to meet the shortcomings which I identified in my previous reasons at [38] by asserting, in particulars subjoined to paragraph 137, that the extent of the loss and damage suffered by the applicant and group members, in part, comprised the fuel and security overcharges paid by each of them. Despite this, the problems to which I referred in my previous reasons remain. In particular, the allegations in paragraphs 133 and 134 are conclusionary without material facts to support them. The amendments to the particulars subjoined to paragraph 137 are not confined to overcharging in the course of transactions which occurred in a market in Australia. As currently framed, the particulars suggest that the applicant and the group members' loss and damage is to be calculated by reference to any occasion anywhere on which they paid surcharges which were imposed pursuant to the cartel arrangements.
Case: Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 26 ALR 609
Outcome: cited
attempt to define a "market" with absolute precision confronts serious obstacles. The term "is a metaphor used to describe a range of competitive activities by reference to function, product and geography": see Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at 545. The concept was succinctly explained by Fisher J in Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 26 ALR 609 at 647 where he quoted with approval a passage from a decision of the Trade Practices Tribunal: "The Trade Practices Tribunal considered the concept of market in some detail in Re Queensland Co-operative Milling Association Ltd (1975-6) 8 ALR 481 at 517, where the members said: "A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them ... Within the bounds of a market there is substitution substitution between one product and another, and between one source of supply and another, in response to changing prices. So a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive"...".
Case: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2009) 131 FCR 529
Outcome: cited
attempt to define a "market" with absolute precision confronts serious obstacles. The term "is a metaphor used to describe a range of competitive activities by reference to function, product and geography": see Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at 545. The concept was succinctly explained by Fisher J in Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 26 ALR 609 at 647 where he quoted with approval a passage from a decision of the Trade Practices Tribunal: "The Trade Practices Tribunal considered the concept of market in some detail in Re Queensland Co-operative Milling Association Ltd (1975-6) 8 ALR 481 at 517, where the members said: "A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them ... Within the bounds of a market there is substitution substitution between one product and another, and between one source of supply and another, in response to changing prices. So a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive"...".
Case: Anderson v State of Western Australia [2002] FCA 1558
Outcome: cited
On 15 April 2002 a motion was filed seeking the removal of RY (now deceased) as a named applicant. The motion was purportedly brought on behalf of the applicants. It was heard on 10 December 2002 and dismissed on 13 December 2002. That dismissal was based on the inadequacy of the authorisation process in relation to the proposed replacement applicants: Anderson v State of Western Australia [2002] FCA 1558.
Case: Anderson v State of Western Australia [2003] FCA 1058
Outcome: cited
A subsequent judgment delivered on 2 October 2003 made detailed directions relating to timetabling for meeting dates and venues and negotiation protocols for the Ballardong application and other south west applications: Anderson v State of Western Australia [2003] FCA 1058.
Case: Anderson v Western Australia [2003] FCA 1423 ; (2003) 134 FCR 1
Outcome: cited
On 4 December 2003, the Court decided a motion which sought amendments to the Ballardong application by contracting its boundaries so that the balance of the area covered by it would fall outside the area of the Single Noongar Claim. The contracted application was to be called the Nulla Nulla application. The motion also sought an order replacing the 16 named applicants (two of whom were then deceased) with four applicants who would be the authorised applicants for the reduced claim. There were then two dissenters within the ranks of the applicants. Serious inadequacies existed in the evidence going to the important question whether the replacement proposal had been authorised by the native title claim group. The motion to amend was dismissed: Anderson v Western Australia [2003] FCA 1423 ; (2003) 134 FCR 1. Because of the ongoing stalemate a springing order was made which would have dismissed the application on or before 31 March 2004 unless one of the following events occurred: (a) a motion was filed, agreed to by all named applicants, to amend the application or to seek further programming orders in relation to it; (b) an application was filed by members of the native title claim group pursuant to s 66B of the NT Act seeking replacement of the applicants. The springing order was averted by the filing of a new motion.
Case: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: referred to
Moreover, it is well established that it is no part of the decision maker's duty to make out an applicant's case for him or her; see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. The procedure is inquisitorial. It is for an applicant to advance whatever evidence or argument he or she wishes to advance in support of the contention of the well founded fear of persecution for a Convention reason; see Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ.
Case: Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876
Outcome: referred to
In Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 (" Al-Mehdawi "), the House of Lords held that a litigant who had been deprived of the opportunity of having his case heard because of the default of his own advisers had no ground of complaint in law, or that he had been a victim of procedural impropriety, or that natural justice had been denied. Their Lordships also held that the principle applied equally to a case where the issue was one of public law and where the decision was of an administrative character. 23 Dowsett J went on to refer to the observation of Gleeson CJ in Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 (" Hot Holdings ") at [22] that procedural unfairness can occur without any personal fault on the part of the decision maker. Dowsett J stated at [25] that the Chief Justice's observations in Hot Holdings and the apparent approval by a Full Court in Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 (" Barrett ") at 133 of an extract from the Court of Appeal decision in Al-Mehdawi may suggest that the decision of the House of Lords should be treated with caution. Nevertheless, Dowsett J noted that the decision of the House of Lords is consistent with general principles and good policy.
Case: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359
Outcome: discussed
The Full Court in SCAR gave as an example of the circumstances in which it had been held that the obligations imposed by s 425 have been breached as those where an invitation was given but the applicant was unable to attend because of ill health, citing Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359 (" NAHF ") . 18 In NAHF at [26] to [27], Hely J considered the authorities on the current form of s 425. The effect of the authorities he referred to is that the requirements of the section are essentially formal. 19 However, Hely J went on to say at [35] that the invitation must not be a hollow shell or an empty gesture. His Honour said at [36] that to invite the applicant to a hearing which she was unable to attend because of ill health would have been an empty gesture and a denial of procedural fairness. His Honour found at [39] that, in the particular circumstances of the case, the failure on the part of the RRT to postpone the applicant's hearing until a date on which she would be available to attend the hearing constituted denial of natural justice. 20 It is clear from Hely J's reasons for judgment in NAHF that his Honour decided the matter upon the basis of a denial of procedural fairness rather than the content of the statutory obligation under s 425. Thus, it may be that the Full Court in SCAR misconstrued his Honour's decision; see NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34] . However, it is not necessary for me to decide that question, even assuming that it is open to me to do so. Nor is it necessary for me to decide whether the effect of the authorities to which Hely J referred in NAHF establish that the requirements of s 425 are, as was contended by the appellant, substantive rather than formal. 31 There was nothing in the facts of the present case to enliven an obligation of procedural fairness as was found by Hely J in NAHF . Nor can it be said that the invitation provided anything other than a real and meaningful opportunity to appear. The appellant declined the invitation to attend a hearing without providing any information to the RRT as to his reasons for doing so. 32 The appellant submitted that there are widespread complaints about migration agents but there was nothing to point to any complaint about the appellant's own migration agent.
Case: B41 of 2003 in the matter of an application for a writ of mandamus prohibition and certiorari v Refugee Review Tribunal (2004) FCA 30
Outcome: referred to
The learned magistrate observed that the appellant cannot complain that his actions, taken in reliance on advice received from the migration agent, led to his being denied procedural fairness: B41 of 2003 in the matter of an application for a writ of mandamus prohibition and certiorari v Refugee Review Tribunal (2004) FCA 30 (" B41 ") at [25]. 11 The second ground in the application was that the RRT erred in failing to require the appellant to appear and give evidence, pursuant to s 427(3) of the Act . The appellant submitted that he made serious allegations of harm and the RRT should have made further enquiries before making its decision. 22 In B41, Dowsett J referred at [23] to two Victorian decisions to the same effect; see SBA Foods Pty Limited v Victorian WorkCover Authority &amp; Anor [2001] VSC 276 at [274] [283] per Gillard J; see also Stefanovski v County Court of Victoria &amp; Anor [2000] VSC 417 at [175] [190] per Gillard J. 24 Dowsett J's observations in B41 as to the approach to be taken in such matters is consistent with the remarks of Sundberg and Hely JJ in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 (" VNAA ") at [15] [16]. Their Honours there pointed out that the scheme of Part 7 of the Act expressly contemplates that in particular circumstances an applicant will not attend a hearing including cases involving no fault of the applicant. They said that, notwithstanding this, the RRT is authorised to proceed to decide the review in the applicant's absence. 30 It seems to me therefore that, subject to the caveat expressed by Dowsett J in B41 as to the remarks of the Chief Justice in Hot Holdings, and the remarks of the Full Court in Barrett, the learned Federal Magistrate was correct in holding at [28] of her reasons that an appellant cannot complain that his actions, taken in reliance upon the advice received from his migration agent, led to his being denied procedural fairness. Indeed, it should be noted that the Chief Justice's observations in Hot Holdings addressed the question of actual or reasonable apprehension of bias resulting from the conduct of persons other than the decision maker and the role played by those persons.
Case: Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129
Outcome: cited
Dowsett J went on to refer to the observation of Gleeson CJ in Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 (" Hot Holdings ") at [22] that procedural unfairness can occur without any personal fault on the part of the decision maker. Dowsett J stated at [25] that the Chief Justice's observations in Hot Holdings and the apparent approval by a Full Court in Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 (" Barrett ") at 133 of an extract from the Court of Appeal decision in Al-Mehdawi may suggest that the decision of the House of Lords should be treated with caution. Nevertheless, Dowsett J noted that the decision of the House of Lords is consistent with general principles and good policy. 30 It seems to me therefore that, subject to the caveat expressed by Dowsett J in B41 as to the remarks of the Chief Justice in Hot Holdings, and the remarks of the Full Court in Barrett, the learned Federal Magistrate was correct in holding at [28] of her reasons that an appellant cannot complain that his actions, taken in reliance upon the advice received from his migration agent, led to his being denied procedural fairness. Indeed, it should be noted that the Chief Justice's observations in Hot Holdings addressed the question of actual or reasonable apprehension of bias resulting from the conduct of persons other than the decision maker and the role played by those persons.
Case: Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438
Outcome: referred to
Dowsett J went on to refer to the observation of Gleeson CJ in Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 (" Hot Holdings ") at [22] that procedural unfairness can occur without any personal fault on the part of the decision maker. Dowsett J stated at [25] that the Chief Justice's observations in Hot Holdings and the apparent approval by a Full Court in Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 (" Barrett ") at 133 of an extract from the Court of Appeal decision in Al-Mehdawi may suggest that the decision of the House of Lords should be treated with caution. Nevertheless, Dowsett J noted that the decision of the House of Lords is consistent with general principles and good policy. 26 In O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2004) 74 ALD 407 at [49] , Sackville J pointed out that it is true that in the typical case of denial of procedural fairness the decision maker is responsible for the breach. His Honour observed that this does not mean that the decision maker must be personally at fault before there can be a denial of procedural fairness. He referred to the observation of Gleeson CJ in Hot Holdings. 28 Indeed, in STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [19] , Selway J was of the view that Ex parte A does not reflect the law in Australia. His Honour considered that there may be some limited circumstances where it might be arguable that acts by Departmental officers or others could invalidate a Tribunal decision even though the Tribunal was unaware of them; see at [22] citing, inter alia, Hot Holdings at 455-456 per Gaudron, Gummow and Hayne JJ. 30 It seems to me therefore that, subject to the caveat expressed by Dowsett J in B41 as to the remarks of the Chief Justice in Hot Holdings, and the remarks of the Full Court in Barrett, the learned Federal Magistrate was correct in holding at [28] of her reasons that an appellant cannot complain that his actions, taken in reliance upon the advice received from his migration agent, led to his being denied procedural fairness. Indeed, it should be noted that the Chief Justice's observations in Hot Holdings addressed the question of actual or reasonable apprehension of bias resulting from the conduct of persons other than the decision maker and the role played by those persons.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: referred to
The appellant submitted that refugees are vulnerable people and that this gave rise to a duty of fairness upon the RRT to notify the appellant that the application was doomed to failure if he did not come to a hearing. He relied upon the oft quoted passage from the judgment of Mason J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 585 that procedural fairness is a flexible concept which must be adapted to the circumstances of the particular case. 34 However, in my opinion, the notice sent to the appellant on 10 November 2003 made it plain that the application would not be decided favourably to the appellant "on the papers".
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
Emmett FM noted that the RRT has power to summon a person to give evidence, but there is no obligation or duty to do so: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 (" SGLB") . 13 The magistrate concluded that the RRT's decision was not affected by jurisdictional error and the application was dismissed. 14 The notice of appeal filed on 26 September 2005 contains the same grounds as were pursued before the Federal Magistrate in the application for review. 39 In SGLB at [43], Gummow and Hayne JJ held that, although s 427 of the Act confers power on the RRT to obtain a medical report, the Act does not impose any duty or obligation to do so. The same principle must apply to the power to summons a person to give evidence under s 427(3).
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553
Outcome: discussed
In written submissions in support of the appeal, the appellant relied upon the following statement of principle in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 (" SCAR ") at [37]:- "...it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a `real and meaningful&#180; invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation." 17 The Full Court in SCAR gave as an example of the circumstances in which it had been held that the obligations imposed by s 425 have been breached as those where an invitation was given but the applicant was unable to attend because of ill health, citing Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359 (" NAHF ") . 20 It is clear from Hely J's reasons for judgment in NAHF that his Honour decided the matter upon the basis of a denial of procedural fairness rather than the content of the statutory obligation under s 425. Thus, it may be that the Full Court in SCAR misconstrued his Honour's decision; see NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34] . However, it is not necessary for me to decide that question, even assuming that it is open to me to do so. Nor is it necessary for me to decide whether the effect of the authorities to which Hely J referred in NAHF establish that the requirements of s 425 are, as was contended by the appellant, substantive rather than formal.