mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cleary v Australian Co-operative Foods (No.2) [1999] NSWSC 991 ; (1999) 32 ACSR 701
Outcome: discussed
The position of s 52 of the TPA is dealt with expressly by s 51AF(2)(a). It provides that s 52 does not apply to conduct engaged in "in relation to financial services". The scope of s 51AF(2) was considered by Austin J in Cleary v Australian Co-operative Foods (No.2) (1999) 32 ACSR 701 ; [1999] NSWSC 991. At [109] , his Honour said: The words "in relation to" are well recognised as words of expansive meaning (eg Tooheys Ltd v Commissioner of Stamp Duties (1960) 105 CLR 602). The fact that conduct is in relation to other matters does not prevent it from being in relation to financial services as well. Once it is so classified, the Trade Practices Act is inapplicable and the matter falls within legislation for which ASIC has sole responsibility, namely the ASIC Act and the Corporations Law. 107 His Honour was, in my respectful view, correct in the view that where the misleading conduct can fairly be characterised as being both in relation to financial services and otherwise, then the fact that it is so capable of that first characterisation is enough to produce the result that s 52 of the TPA does not apply to the conduct. 108 However, his Honour's observations do not provide guidance for answering the anterior question, namely, when can conduct be taken as being engaged in "in relation to financial services". 109 The extrinsic material to which I was referred suggests that the exemption in s 51AF of the TPA should be broadly construed. Section 51AF was inserted into the TPA by the Financial Sector Reform (Consequential Amendments) Act 1998 (Cth). In the second reading speech to the Bill which became that Act, the Treasurer said that the relevant amendment would "confer on ASIC sole responsibility for consumer protection in relation to financial services". The Treasurer also said that the amendment would remove regulatory overlap and that ASIC would become "the specialist regulator for consumer protection in the financial system". Comments such as these suggest that if there is a possibility of jurisdictional overlap, then the Parliament intended that the matter should more properly fall within the jurisdiction of ASIC and thus within the ambit of the ASIC Act rather than the TPA.
Case: Workers' Compensation Board of Queensland v Technical Products Proprietary Limited [1988] HCA 49 ; (1988) 165 CLR 642
Outcome: applied
While it is true that, in general, the words "in relation to" are words of expansive meaning, it is also the case, as the applicants submit, that words of that kind take colour from their particular statutory context. As Deane, Dawson and Toohey JJ said in relation to the similarly much-litigated term "in respect of" in Workers' Compensation Board of Queensland v Technical Products Proprietary Limited [1988] HCA 49 ; (1988) 165 CLR 642 at 653-654: Undoubtedly the words "in respect of" have a wide meaning, although it is going somewhat too far to say ... that "they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer". The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends. (Emphasis added.)
Case: Australian Securities &amp; Investment Commission v Citrofresh [2007] FCA 1873
Outcome: approved
I note that recently, in Australian Securities &amp; Investment Commission v Citrofresh [2007] FCA 1873 , Goldberg J (at [71]) expressed similar cautions about a too expansive approach to the phrase "in relation to". 122 The above analysis has focused upon the terms of s 51AF(2) of the TPA, which relates to s 52 of the TPA. No special provision is made within s 51AF as to s 53(g) of the TPA. Accordingly, to determine whether a matter should be pursued under s 53(g) of the TPA or its ASIC Act analogue requires recourse only to s 51AF(1) which provides: "This Part does not apply to the supply, or possible supply, of services that are financial services." 123 On one view, it could be said that the more specific provision in s 51AF(2) carves out a wider field of exemption from the TPA than does s 51AF(1) when read in isolation. However, I agree with the applicants that such a construction makes little sense, particularly given that the same conduct can often involve the closest of distinctions as to whether it contravenes s 52 or s 53(g). The requisite purposive construction requires that s 53(g) of the TPA be rendered inapplicable in the same circumstances as s 52 of the TPA.
Case: ICI Australia Operations Pty Ltd v Trade Practices Commission [1991] FCA 527 ; (1992) 38 FCR 248
Outcome: applied
Both personal respondents have experience in selling food preparation equipment to food retailers, and may be expected to wish to continue to do so. In any case s 80 has given the Court, as Lockhart J put it in ICI Australia Operations Pty Ltd v Trade Practices Commission [1991] FCA 527 ; (1992) 38 FCR 248 at 256: "the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly". 158 In the same case, French J pointed out, at 268: There is room within the statutory framework and the policy that underlies it for an injunction which is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court. 159 In my view, it is desirable in this case to have regard to such likely deterrent effect of injunctions. I will issue appropriate injunctions. 160 Section 83 of the TPA provides (and its ASIC Act analogue provides in substance): In a proceeding against a person under section 82 or in an application under subsection 87(1A) for an order against a person, a finding of any fact by a court made in proceedings under section 77, 80, 81, 86C or 86D, or for an offence against a provision of Part VC, in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of Part IV, IVA, IVB, V or VC is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.
Case: ACCC v Leahy Petroleum (No 2) [2005] FCA 254
Outcome: discussed
Section 83 is an evidentiary aid to the proof of facts. There are other proceedings on foot against the respondents and there may well be more to come. The applicants, however, appear to conceive that s 83 is the source of a positive remedy for the instant applicants , presumably for members of the public generally. They seek "findings of fact against [Mr Hilder and Mr Soo] pursuant to s 83 ... and under its ASIC analogue ..." (emphasis added). In ACCC v Leahy Petroleum (No 2) [2005] FCA 254 (at [74]) it appears from Merkel J's judgment that the ACCC "sought an order under s 83 ... that the findings of fact contained in my reasons of judgment be findings of fact for the purposes of s 83".
Case: Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2006] FCA 244
Outcome: discussed
In Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2006] FCA 244 Nicholson J, apparently following his line of thought, considered that the Court should formally record findings of fact in its orders.
Case: Australian Competition &amp; Consumer Commission v Emerald Ocean Distributors Pty Ltd [2004] FCA 303
Outcome: discussed
The applicants say that such a practice reduces the difficulty for other courts in deciding whether a passage in reasons for judgment amounts to or contains a finding of fact, cf Australian Competition &amp; Consumer Commission v Emerald Ocean Distributors Pty Ltd [2004] FCA 303 at [17] per Nicholson J. Merkel J had declined to do this. He thought it was enough (but, it seems, necessary) to order that a copy of the reasons "be under the seal of the Court and be held in the Melbourne Registry...". Nicholson J thought (and on this scope I agree with him) that such an order was unnecessary. 164 While s 83 occurs in Part VI of the TPA, entitled "Enforcement and Remedies", I do not see it as having been intended to provide a present applicant with a positive present remedy, even for other misled or deceived people, except insofar as that applicant might, like anyone else, wish to take advantage of the evidentiary help which the section provides of its own force to people at large against an erring respondent. It is to be contrasted with s 86C. In particular cases, it may indeed be generally helpful for the Court to collect and formalise its findings of fact. There is however no requirement for a busy court to do so. The suggested practice may also actually run up costs in some cases by causing debate (or even appeal) about the precise content of the proposed formal findings of fact. What degree of formality the findings of fact should take should be left to the good sense of the judge in the particular case. 165 I have, I hope, expressed myself with reasonable clarity. This case does not depend on fine distinctions. I do not intend to follow the course suggested. 166 The applicants seek orders under s 86C that Mr Hilder and Mr Soo each: (1) disclose the persons to whom they have supplied food preparation equipment; (2) tell all such persons of my judgment and orders and advise them of TPA or ASIC Act rights they may have; (3) publicly advertise the information referred to in (1) and (2); (4) identify financiers of such supplied equipment; (5) verify their compliance with the foregoing orders; (6) attend, and verify attendance at, seminars on Part V TPA and Part 2 Div 2 ASIC Act compliance. 167 I will make the requested orders referred to as (1) to (5) inclusive above. I will however allow liberty to the second and third respondents to apply in relation to any bona fide difficulty either of them may face in complying with the orders as framed.
Case: Re Diamond Press Australia Pty Ltd [2001] NSWSC 313
Outcome: referred to
of the orders sought in the application is an order that leave be granted to any person claiming to be interested to make an application to vary these orders. In Re Diamond Press Australia Pty Ltd [2001] NSWSC 313 at [12] , Barrett J observed that this is a sensible precaution. It was one which was followed by Lindgren J in Re Double V Marketing Pty Ltd [1995] FCA 1151 ; (1995) 16 ACSR 498.
Case: Re Double V Marketing Pty Ltd [1995] FCA 1151 ; (1995) 16 ACSR 498
Outcome: referred to
of the orders sought in the application is an order that leave be granted to any person claiming to be interested to make an application to vary these orders. In Re Diamond Press Australia Pty Ltd [2001] NSWSC 313 at [12] , Barrett J observed that this is a sensible precaution. It was one which was followed by Lindgren J in Re Double V Marketing Pty Ltd [1995] FCA 1151 ; (1995) 16 ACSR 498.
Case: Re Porter and Another as joint administrators of Priceright Construction Pty Limited (2006) 57 ACSR 206
Outcome: referred to
seems to me that the proper approach to this application is to permit the creditors to adjourn the date of the second meeting. I refer to [15] of Ex parte Vouris and to the observations of Barrett J in Re Porter and Another as joint administrators of Priceright Construction Pty Limited (2006) 57 ACSR 206, in which his Honour observed that it is now well recognised that the Court has power to extend the convening period under section 447A in a way that section 439A does not allow.
Case: Ex parte Vouris; in the matter of Marrickville Bowling &amp; Recreation Club Ltd (under administration [2008] FCA 622
Outcome: referred to
is an application under section 447A of the Corporations Act 2001 (Cth) ("the Act") to permit the creditors of the company to adjourn the date of the second meeting of creditors. I dealt with such an application in the matter of Ex parte Vouris; in the matter of Marrickville Bowling &amp; Recreation Club Ltd (under administration) [2008] FCA 622. However, the present application is not quite as straight forward as that with which I dealt in Ex parte Vouris . The circumstances in which the application is made are set out in an affidavit of Mr Geoffrey Philip Reidy, who is the administrator of Collective Olive Groves Limited ("COGL"). Mr Reidy was appointed administrator on 19 November 2008. COGL owns a substantial parcel of land at Speers Creek Road, Stonehenge, Queensland upon which olives are grown. The land forms part of the assets of a managed investment scheme. A company known as Australian Olives Limited ("AOL") was at one stage responsible for the management of the land. It seems to me that the proper approach to this application is to permit the creditors to adjourn the date of the second meeting. I refer to [15] of Ex parte Vouris and to the observations of Barrett J in Re Porter and Another as joint administrators of Priceright Construction Pty Limited (2006) 57 ACSR 206, in which his Honour observed that it is now well recognised that the Court has power to extend the convening period under section 447A in a way that section 439A does not allow. It seems to me that on the sketchy information which has been provided to me, this period is too long. I dealt with the authorities relating to the appropriate extension of time in [16] and [17] of Ex parte Vouris . In my view, the adjournment which should be permitted should be not more than 20 business days from Monday 23 February 2009. I have selected that date as the date from which to measure the time because that was the date to which the second meeting was adjourned. I will make orders in terms of the six orders that are set out in the Application, but inserting in the paragraph numbered 3 after the words "extend beyond" the words "20 March 2009". I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 19 February 2009 Counsel for the Plaintiffs: B. DeBuse Solicitor for the Plaintiffs: Truman Hoyle Date of Hearing: 19 February 2009 Date of Judgment: 19 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/177.html
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: followed
It has been said on behalf of the Applicants that whatever privilege may have attached to this advice has been waived. Reliance is placed by the Applicants upon Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at 13, where it was observed: Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege.... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality... 12 The " inconsistency " relied upon by the Applicants is said to arise from the following two paragraphs of an Affidavit sworn by Mr William Beilby on 9 January 2008, wherein the deponent said: On 8 January 2008 I forwarded an Advice from Naomi Sharp of counsel dated 20 December 2007 to my client who resides in The Netherlands for his further instruction. On 9 January 2008 I received instructions from my client to file an Appeal against the decision of Justice Flick dated 29 November 2008 [sic] which provides that the Respondent attend Australia to be cross-examined on 1 and 2 May 2008. 13 It is not considered that there is any inconsistency and that there has been no waiver of the privilege otherwise attaching to the advice of Naomi Sharp. Accordingly, production is not ordered of that advice.
Case: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79
Outcome: cited
I will revert to this matter specifically when dealing with the proposed pecuniary penalty, I should emphasise at the outset, and the parties themselves acknowledge, that the Court retains the responsibility for imposing penalties and for making orders, the parties' agreement notwithstanding. That responsibility derives ultimately from s 71 of the Constitution and cannot be circumscribed by private agreement: see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 at [18] . This said, the Court has long recognised the propriety of encouraging fair and appropriate settlements so reducing the burden of litigation on public and private resources: see eg Australian Competition and Consumer Commission v Econovite Pty Ltd [2003] FCA 964 at [11] ; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290-291. CONSIDERATION The Declarations Sought
Case: Australian Competition and Consumer Commission v Econovite Pty Ltd [2003] FCA 964
Outcome: cited
I will revert to this matter specifically when dealing with the proposed pecuniary penalty, I should emphasise at the outset, and the parties themselves acknowledge, that the Court retains the responsibility for imposing penalties and for making orders, the parties' agreement notwithstanding. That responsibility derives ultimately from s 71 of the Constitution and cannot be circumscribed by private agreement: see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 at [18] . This said, the Court has long recognised the propriety of encouraging fair and appropriate settlements so reducing the burden of litigation on public and private resources: see eg Australian Competition and Consumer Commission v Econovite Pty Ltd [2003] FCA 964 at [11] ; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290-291. CONSIDERATION The Declarations Sought As to the first of the above, I am with some hesitation prepared to make the orders proposed. On the material before me only Mr Fields has been shown to have been engaged in the conduct founding the contravention; the company has less than 10 employees; and there is no evidence as to the respective responsibilities of those employees such as to permit a judgment to be made as to the utility of making the relatively elaborate orders proposed. Nonetheless, because Hobie has consented to what is proposed; because the orders, in intent at least, have both preventative and educational purposes and this is reflected in their design: cf Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881 at [267] ; and because the programme is one to be tailored to Hobie's circumstances (notwithstanding the reference to the Australian Standard on Compliance Programs AS3806: cf Econovite at [17]), I am prepared to make the proposed compliance programme orders.
Case: Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329
Outcome: cited
is unnecessary for me to rehearse the principles governing the award of declaratory relief particularly in cases of public interest such as the present; see generally Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329. I am satisfied that there is utility in making the declarations both to publicise the types of conduct that can give rise to contravention of s 48 and also to provide the basis for the orders by way of injunction and pecuniary penalty. I equally am satisfied with the form in which the declaratory orders have been cast. Injunctive Relief
Case: ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248
Outcome: cited
injunctions sought clearly fall within the requirements of s 80 of the Act. They relate directly to the contraventions found to have occurred and against which injunctive relief can be granted: cf ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 at 267. Further they have been formulated with sufficient precision so as to be capable of being complied with without the continual supervision of the Court. I am satisfied they are consistent with the public interest in the matter. Notwithstanding that Hobie has ceased to engage in contravening conduct, it nonetheless continues to wholesale Hobie products within Australia. The three year duration of the injunction parallels the proposed order relating to the compliance programme and will assist in preventing a recurrence of contravening conduct notwithstanding that such a recurrence is not now reasonably to be anticipated: cf s 80(4)(a). The Proposed s 86C Orders Two distinct species of order are sought under this section. The first, which embodies a number of interlocking orders, requires the establishment and implementation of a trade practices compliance programme which is to be maintained for three years and relatedly imposes periodic reporting obligations to the ACCC. The second would require Hobie to provide information to all of its dealers in letter format concerning this proceeding and its outcome in terms annexed to the proposed consent order.
Case: Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881
Outcome: cited
to the first of the above, I am with some hesitation prepared to make the orders proposed. On the material before me only Mr Fields has been shown to have been engaged in the conduct founding the contravention; the company has less than 10 employees; and there is no evidence as to the respective responsibilities of those employees such as to permit a judgment to be made as to the utility of making the relatively elaborate orders proposed. Nonetheless, because Hobie has consented to what is proposed; because the orders, in intent at least, have both preventative and educational purposes and this is reflected in their design: cf Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881 at [267] ; and because the programme is one to be tailored to Hobie's circumstances (notwithstanding the reference to the Australian Standard on Compliance Programs AS3806: cf Econovite at [17]), I am prepared to make the proposed compliance programme orders.