mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hartford Fire Insurance Co v California [1993] USSC 100 ; 509 US 764 (1993)
Outcome: cited
a prefatory matter, a few words must be directed to the question of the reach of the Act. Initially, it appeared that these proceedings were going to concern the extent to which the Act extended to extraterritorial conduct. It has long been accepted in the United States that a court may assert jurisdiction under the Sherman Act 15 USC &#167; 1 for anticompetitive conduct occurring wholly outside the territory of the United States, provided that the conduct has effects felt in the United States: see F Hoffmann-La Roche Ltd v Empagran S.A. [2004] USSC 2381 ; 542 US 155 (2004); Hartford Fire Insurance Co v California [1993] USSC 100 ; 509 US 764 (1993). That s 45 of the Act should be read similarly, at least with respect to corporations carrying on business in Australia, was considered by Merkel J in Bray v F Hoffmann-La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1 , at 15-16, and affirmed by the Full Court in Bray v F Hoffmann-La Roche Ltd (2003) 130 FCR 317.
Case: Korean Air Lines v Australian Competition and Consumer Commission (No 3) [2008] FCA 701
Outcome: cited
was no direct evidence from Mr Samuel that he had regard to the burden imposed on the applicants when deciding to issue the Notices. In proceedings of this nature I would not expect Mr Samuel to provide direct evidence: see eg Korean Air Lines v Australian Competition and Consumer Commission (No 3) [2008] FCA 701 at [116] per Jacobsen J. The only available evidence suggesting that Mr Samuel might have taken into account the effect of issuing the Notices on the applicants is derived from the Reason to Believe papers, and the objective matters available to Mr Samuel at the time of the issuing of the Notices, including the Notices themselves. Many identical s 155 notices were issued at the same time to many airlines. The Reason to Believe papers seemed to be prepared in standard form for each such notice. This also applied to the 'burden' of the Notices. No allowance seems to have been made for the different burden that may have been imposed on different airlines by reason of the fact that their operations differed in scale and geographic scope.
Case: Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94 ; (1980) 47 FLR 163
Outcome: cited
is important to recall that the Notices should not be read in an overly-technical way: they are to be 'reasonably, not preciously, construed': see Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94 ; (1980) 47 FLR 163 at 175-76 (per Brennan, Keely and Fisher JJ), and S A Brewing 23 FCR 357 at 369 (per Fisher and French JJ). In addition, regard may be had to the identity of, and the knowledge available to, the recipient of the notice: see Seven Network [2004] FCAFC 267 ; 140 FCR 170 , 189 at [75] (per Sackville and Emmett JJ). It is important to keep in mind that it is an investigative power which is under consideration in these proceedings. As stated by the Full Court in Melbourne Home of Ford Pty Ltd [1980] FCA 94 ; 47 FLR 163 (at 174): The investigative power may properly be exercised by inquiring into the existence of facts which do not themselves constitute a contravention or deny the possibility of a contravention. The power may properly be exercised to ascertain facts which may merely indicate a further line of inquiry, or which may tend to prove circumstances from which an inference can be drawn as to the existence of other facts which have a more immediate and proximate relationship to the matter under investigation. The applicants are involved in international activities, and decisions and discussions concerning the matter under investigation may readily be accepted as having occurred overseas, as well as in Australia. The conduct of the applicants wherever occurring could be relevant to the investigation of the matter as defined in the Notices. It is not for this Court to confine or restrict the course of an investigation if the powers conferred by s 155 have not been exceeded. In relation to the interpretation of the Notices, the applicants allege that the definition of 'Fuel Surcharge' is wide and unclear. However, to the extent that the applicants have responded to the Notices, they appear to have had no difficulty at all in understanding the meaning of the term. It seems to me that the applicants should be, and in fact are, well versed in the concept of 'Fuel Surcharge'.
Case: Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69 ; (1912) 15 CLR 333
Outcome: cited
the Notices were properly framed and only referred to services in relation to outbound routes, then on the applicants' case, the fact that there may be acquirers of those services outside Australia would not affect the validity of the Notices on this primary ground of attack. It would be accepted there is a market in Australia. No suggestion would be made that the Notices are enquiring into a matter not the subject of the Notice in reliance of the principles outlined in Bannerman [1984] FCA 156 ; 2 FCR 581 , Pyneboard [1983] HCA 9 ; 57 FLR 368 and Melbourne Steamship Co Ltd [1912] HCA 69 ; 15 CLR 333.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
principles relevant to this aspect of the proceedings can be simply stated: (a) The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is an abuse of discretion entitling a party with sufficient standing to seek judicial review of the decision. (b) This ground of review can only be made out if the decision-maker fails to take into account a consideration that they are bound to take into account in making the decision. (c) The factors a decision-maker is bound to take into account in making a decision are determined by construction of the statute conferring the power. Where the matters to be taken into account are not expressly stated in the statute, they must be determined by implication from the subject matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 per Mason J. (d) A decision-maker may not have had proper regard to a relevant consideration if they merely make a formalistic reference to the consideration: see Azriel v NSW Land &amp; Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with whom Santow and Ipp JJA agreed at [1] and [3]). (e) A decision-maker is required to give proper, genuine and realistic consideration to a relevant consideration: see Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468 (per Lindgren J); Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ and the authorities cited therein. (f) The mere failure to refer expressly to a matter will not necessarily give rise to the inference that it was not taken into account: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 (per Burchett J). However, it is open to the Court to infer that a matter was not taken into account where no reference is made to it: see, eg, Sullivan v Department of Transport (1978) 20 ALR 323 at 349 (per Deane J). (g) In Deloitte Touche Tohmatsu 136 ALR 453 , Lindgren J said (at 468): It is for an applicant to make out its case of "failure to take into account", but the circumstances may be such that the applicant will be aided in this task by an absence of evidence from the decision-maker on a particular matter, such as an absence of evidence giving rise to an inference of a failure to make further inquiries when a genuine taking into account would have called for them. Similarly, Mason J in Peko Wallsend [1986] HCA 40 ; 162 CLR 24 said (at 40): The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: ( Wednesbury Corporation , at 228).
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
seems to me that the 'burden' sections of the Reason to Believe papers were pro-forma statements. This is not necessarily to be unexpected. The use of such standard paragraphs is not fatal in itself. However, if a verbal formula is used 'to cloak the decision with the appearance of conformity with the law', the use of that formula will not save the decision from invalidity: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 266 per Brennan CJ, Toohey, McHugh and Gummow JJ. The 'burden' sections of the Rason to Believe papers in dealing with the time for compliance specifically refer to the magnitude of the burden imposed and to the time in which the recipient could provide the information and documents. Consideration was then given to the burden generally and, specifically, to the time in which a recipient would need to make the necessary searches and enquiries, collate the material necessary and obtain legal advice. Significantly, Mr Samuel was reminded that he needed to consider the magnitude of the burden. This indicates that the Reason to Believe papers did not contain the only information relied upon by Mr Samuel, although they contained recommendations. I am not satisfied that the requirement to comply within a certain limited time was imposed without regard to the ultimate burden which it would impose on the recipient, even on the facts as I have found as to the burden objectively imposed.
Case: NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90
Outcome: cited
the operation of s 45 of the Act, a key concept is 'market'. There is a plethora of case law regarding the meaning of that term, but the High Court has warned that attempts to define 'market' too precisely are dangerous. In NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 , the High Court advocated a broader approach, stating (at 117): The Act is seeking to advance the broad goal of promoting competition. Certain provisions of the Act, particularly in Pt IV, necessarily turn to a significant degree on expressions which are not precise or formally exact. One example is "market": there can be overlapping markets with blurred limits and disagreements between bona fide and reasonable experts about their definition, as in this case. Other examples are "substantial", "competition", "arrangement", "understanding", "purpose" and "reason" (which need only be a "substantial" purpose or reason: s 4F). It is not appropriate to subject the application of this type of legislation to a process of anatomising, filleting and dissecting... . (Emphasis added; citations omitted.)
Case: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460
Outcome: cited
observed by Gibbs CJ in Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460 , '[t]he power [under s 155] is a drastic power and is capable of abuse and must be exercised with care' (at 468). The time for compliance has statutory significance. The recipient is obliged to furnish the information sought within the time specified in the notice, and must produce the documents sought in accordance with the notice: subs 155(1). It is an offence to fail to comply: subs 155(5) and (6A). These are matters that needed to be considered by Mr Samuel, as they undoubtedly were, as part of the statutory context of issuing the Notices and as part of the consequences of non-compliance. Once one reaches the conclusion that the decision to issue the Notices was exercised with care, took into account the relevant considerations, and was not to be impugned on the basis of the principles in Pyneboard [1983] HCA 9 ; 57 FLR 368 , then the reference to the statutory significance of compliance takes the argument no further.
Case: Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177
Outcome: cited
addition Dawson J observed in Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1989) 167 CLR 177 (at 198-99): Lying behind both of those questions is the concept of the market, a concept which is sometimes dealt with in a more complex manner than is necessary. A market is an area in which the exchange of goods or services between buyer and seller is negotiated. It is sometimes referred to as the sphere within which price is determined and that serves to focus attention upon the way in which the market facilitates exchange by employing price as the mechanism to reconcile competing demands for resources: see Stigler and Sherwin, "The Extent of the Market", (1985) 28 Journal of Law and Economics vol 28 (1985) 555 at p. 555. In setting the limits of a market the emphasis has historically been placed upon what is referred to as the "demand side", but more recently the "supply side" has also come to be regarded as significant. The basic test involves the ascertainment of the cross-elasticities of both supply and demand, that is to say, the extent to which the supply of or demand for a product responds to a change in the price of another product. Cross-elasticities of supply and demand reveal the degree to which one product may be substituted for another, an important consideration in any definition of a market. This is reflected in s 4E of the Trade Practices Act which provides: "For the purposes of this Act, 'market' means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with , the first-mentioned goods or services" (My emphasis.) Important as they are, elasticities and the notion of substitution provide no complete solution to the definition of a market. A question of degree is involved &#8212; at what point do different goods become closely enough linked in supply or demand to be included in the one market &#8212; which precludes any dogmatic answer. See Times-Picayune v United States . (Citations omitted.)
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 [2003] HCA 30 ; (2003) 198 ALR 59
Outcome: cited
separate allegation of unreasonableness, particularly in the statutory context of s 155 of the Act, needs to be approached with caution. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [5] : ... to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.
Case: Re Tooth &amp; Co Ltd [1978] FCA 9 ; (1978) 31 FLR 314
Outcome: followed
my view, the Court does have a discretion to refuse relief in such circumstances, even to the extent the application is brought under s 163A of the Act: see, eg, Re Tooth &amp; Co Ltd [1978] FCA 9 ; (1978) 31 FLR 314. As I have said, time for compliance has been extended. This time frame is not in dispute. Documents have been delivered by the applicants to the ACCC by reason of some or all of the Notices. The applicants did not challenge the decision to issue the Notices or the Notices before supplying those documents. Some delay occurred before the applicants brought their applications in this Court. There is no suggestion that any prosecution is intended based upon the Notices and the original time frame for compliance. These would all be reasons for refusing as a matter of discretion the substantive relief sought by the applicants. In view of the above reasons, the applications should be dismissed. I will make orders to facilitate the parties reaching an agreement as to costs. In the event that no agreement is reached, then orders will be made as to the exchange of submissions on the issue of costs. I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 2 April 2009 Counsel for the Applicant in VID 252 of 2008: Mr C Caleo SC and Mr D Batt Solicitor for the Applicant in VID 252 of 2008: Allens Arthur Robinson Counsel for the Respondents in VID 252 of 2008: Mr N O'Bryan SC and Mr M Hoyne Solicitor for the Respondents in VID 252 of 2008: Australian Government Solicitor Counsel for the Applicants in VID 234 of 2008: Mr M O'Bryan Solicitor for the Applicants in VID 234 of 2008: Minter Ellison Counsel for the Respondent in VID 234 of 2008: Mr N O'Bryan SC and Mr M Hoyne Solicitor for the Respondent in VID 234 of 2008: Australian Government Solicitor Dates of Hearing: 8, 9, 11, 14 and 15 July 2008 Date of Judgment: 2 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/312.html
Case: Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Limited [2002] FCA 1608
Outcome: approved
notion of a 'market in Australia' was recently referred to by Lindgren J in Australian Competition and Consumer Commission v Qantas Airways Limited [2008] FCA 1976 , where his Honour stated (at [33]-[34]): Although the notion of a "market in Australia" in s 4E has been referred to in two cases ( Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Ltd [2002] FCA 1608 at [21] per Hill J and Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd (2008) ATPR 42-256 at [19] per Tracey J), the concept has not been the subject of extensive judicial consideration. In Riverstone , Hill J rejected the proposition that in order to be a "market in Australia" a market must be wholly within Australia. His Honour said (at [21]) that the fact that a market was global did not signify that there could not be a market in Australia for the same products. As the Commission points out, a contrary view would considerably reduce the efficacy and utility of the competition law provisions of the Act, especially in the modern telecommunications era. In my opinion, Hill J in Riverstone Computer Services Pty Ltd v IBM Global Financing Australia Limited [2002] FCA 1608 was correct in concluding that the fact that a market was global did not signify that there could not be a market in Australia for the same products (or services). However, I do not take the reference by Hill J to a global market which includes Australia as arguably a market in Australia 'if sales are made [in Australia]' ([2002] FCA 1608 at [22] ) as making it a requirement that the contract under which services are supplied in Australia must be entered into in Australia or that the transactions themselves must be entered into in Australia. In my view, Hill J was simply proffering an example of how one might identify the possible location of competition, and was not providing a definitive statement that buyers and sellers of services must enter into transactions in Australia.
Case: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: cited
Lindgren went on to conclude that the definition of "market in Australia" in s 4E excludes a market that is wholly outside Australia, a conclusion with which I respectfully agree. As other aspects of the decision in Qantas [2008] FCA 1976 proceeded upon agreed facts, however, that case provides little assistance in determining the other issues raised before me which involved 'a concrete dispute reached after contest in argument': see Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at [62] (per Gummow, Hayne and Heydon JJ).
Case: S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357
Outcome: cited
the outset I indicate that 'as a matter of logic and without the necessity to have all of the facts' it may be concluded in any given case that particular conduct is not capable of constituting a contravention of the Act: see S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 377 per Wilcox J. Evidence may be admitted to show conclusively that, even without all of the facts, the particular conduct as described in a s 155 notice would not be capable of constituting a contravention of the Act. However, evidence could not be led to show that there is in fact no contravention, assuming the particular conduct as described in a s 155 notice was capable of constituting a contravention of the Act. It is important to recall that the Notices should not be read in an overly-technical way: they are to be 'reasonably, not preciously, construed': see Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94 ; (1980) 47 FLR 163 at 175-76 (per Brennan, Keely and Fisher JJ), and S A Brewing 23 FCR 357 at 369 (per Fisher and French JJ). In addition, regard may be had to the identity of, and the knowledge available to, the recipient of the notice: see Seven Network [2004] FCAFC 267 ; 140 FCR 170 , 189 at [75] (per Sackville and Emmett JJ). The applicants' evidence does not eliminate (as it must) any reasonable hypothesis which is inconsistent with the contention that the market is wholly outside Australia even if one focuses on the inbound services in isolation: see S A Brewing 23 FCR 357 at 370 and Seven Network [2004] FCAFC 267 ; 140 FCR 170 at [9] and [52]. There are many reasons for this, but I provide a non-exhaustive list:
Case: SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397
Outcome: cited
faith normally involves a lack of an honest or genuine attempt to undertake the statutory function allocated to the decision-maker: see, eg, SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19] per Heerey, Moore and Kiefel JJ. There is a very heavy burden upon any applicant seeking to demonstrate bad faith.
Case: Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd [1991] FCA 621 ; (1991) 33 FCR 158
Outcome: cited
Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd [1991] FCA 621 ; (1991) 33 FCR 158 French J (Spender and O'Loughlin JJ agreeing) said in relation to market identification (at 174): In competition law it has a descriptive and a purposive role. It involves fact finding together with evaluative and purposive selection. In any given application it describes a range of economic activities defined by reference to particular economic functions (eg manufacturing, wholesale or retail sales), the class or classes of products, be they goods or services, which are the subject of those activities and the geographic area within which those activities occur. In its statutory setting the market designation imposes, on the activities which it encompasses, limits set by the law for the protection of competition. It involves a choice of the relevant range of activity by reference to economic and commercial realities and the policy of the statute. To the extent that it must serve statutory policy, the identification will be evaluative and purposive as well as descriptive.
Case: South Sydney District Rugby League Football Club v News Limited [2000] FCA 1541 ; (2000) 177 ALR 611
Outcome: cited
services the subject of the unlawful provision must be the services supplied by the relevant party to the arrangement in competition with the other party in any market in Australia. Put another way, the area of competition has to coincide with the area of restriction imposed by the unlawful provision: see ss 45A(8), 4D(1)(a) and 4D(2); Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385 at 419-20 per Wilcox J; and South Sydney District Rugby League Football Club v News Limited [2000] FCA 1541 ; (2000) 177 ALR 611 at 657 per Finn J.