mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231
Outcome: cited
to the claims against Dr Keung, it is asserted in the alternative that he owed a duty of confidence directly to Hamilton in virtue of the disclosure actually being made to him and breached that duty by the disclosure he made, or that he knowingly participated in AMC's breach of confidence in that he directed or procured AMC's breach and was liable therefore. I am prepared, for present purposes, to assume that Dr Keung owed a duty of confidence directly to Hamilton. He was the actual recipient of information which he had reason to know was to be kept confidential, albeit he received it for AMC which in turn owed a duty of confidence directly to Hamilton. If, for example, he used such information for his own private purposes which resulted in a gain for him or a loss to Hamilton, he would have been liable therefore at the suit of Hamilton: see Saltman Engineering Co Ltd v Campbell Engineering Co Ltd , at 213; and without the need for any circularity of action by joining AMC as a party. I need not consider AMC's liability in such a case for present purposes: cf Coulthard v South Australia [1995] SASC 4927 ; (1995) 63 SASR 531 at 535. Equally, I am prepared to assume that he would be liable to Hamilton on an accessorial liability basis for his intentional procurement of AMC's breach of confidence to Hamilton. In this I recognise that there is a significant body of discordant case law across the common law world on the question of the liability of directors who are participants in the wrongs of their company, whether that wrong be a breach of contract, a tort, or an equitable wrong: see the helpful discussion of this in relation to tortious liability in Anderson, "The theory of the corporation and its relevance to directors' tortious liability to creditors" (2004) 16 Aust Jo Corp Law 73; on the small company problem for directors, see Finn, "Opening Remarks" (1999) 27 Fed L Rev 171 at 177-180; see the discussion in Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 at [113] - [147] ; and see Mortimore QC Company Directors Ch 27 (2009 OUP).
Case: CMS Dolphin Ltd v Simonet [2001] 2 BCLC 704
Outcome: cited
have already indicated the only claim made against Dr Keung is for an account of profits. The evidence before me is that to the extent that confidential information has been misused to generate profit, that has been done by and for the benefit of AMC. If profit has been made, it was AMC's profit. No form of proprietary relief has been sought against Dr Keung or AMC in respect of the breach of confidence. There is no evidence of Dr Keung, as distinct from AMC, deriving profits which are attributable to the information misused. I can see no basis at common law or in equity for an order requiring Dr Keung to account for profit he has not made. I do not consider that Dr Keung's position in this matter can properly be analogised to that of a director of a company diverting a profit making opportunity to his own company such as would render him liable to account for profits derived by that company from the exploitation of that opportunity: cf CMS Dolphin Ltd v Simonet [2001] 2 BCLC 704 ; Premium Real Estate Ltd v Stevens [2009] 1 NZLR 148 at [89]-[91].
Case: Premium Real Estate Ltd v Stevens [2009] 1 NZLR 148
Outcome: cited
have already indicated the only claim made against Dr Keung is for an account of profits. The evidence before me is that to the extent that confidential information has been misused to generate profit, that has been done by and for the benefit of AMC. If profit has been made, it was AMC's profit. No form of proprietary relief has been sought against Dr Keung or AMC in respect of the breach of confidence. There is no evidence of Dr Keung, as distinct from AMC, deriving profits which are attributable to the information misused. I can see no basis at common law or in equity for an order requiring Dr Keung to account for profit he has not made. I do not consider that Dr Keung's position in this matter can properly be analogised to that of a director of a company diverting a profit making opportunity to his own company such as would render him liable to account for profits derived by that company from the exploitation of that opportunity: cf CMS Dolphin Ltd v Simonet [2001] 2 BCLC 704 ; Premium Real Estate Ltd v Stevens [2009] 1 NZLR 148 at [89]-[91].
Case: Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433
Outcome: cited
respect of Bowesco, it should be noted that on 20 April 2006 freezing orders were made in respect of its assets pursuant to s 1323 of the Act Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 3) [2006] FCA 433. The orders were varied on 30 June 2006. They were expressed so as to permit the Bowesco receivers to exercise their powers pursuant to their appointment by Sunway-Metcorp, including their powers under s 420 of the Act. On 11 August 2006 Ms Karen Carey-Hazell, a director of both Lanepoint and Bowesco, filed a motion in each of the proceedings seeking leave '... to take responsibility on behalf of the respondent in these proceedings'. Argument on her motion was heard on 16 August 2006 and reserved until today. Section 459A lists the categories of persons who may apply to the Court for a company to be wound up in insolvency. They include the company itself, a creditor, a director and ASIC. An application by a director or by ASIC may only be made with the leave of the Court (s 459P(2)). The Court may give leave if satisfied that there is a prima facie case that the company is insolvent but not otherwise (s 459P(3)). Except as permitted by s 459P a person cannot apply for a company to be wound up in insolvency (s 459P(5)).
Case: George Barker (Transport) Ltd v Eynon [1973] 3 All ER 374
Outcome: cited
appointment of a receiver under a charge over its property does not end the life of the company to which the receiver has been appointed. It has been said that the company in such a case is 'anaesthetised' but may be restored to 'full conscious activity when the anaesthetic is no longer applied after the debts owing to the debenture holders have been paid' George Barker (Transport) Ltd v Eynon [1973] 3 All ER 374 at 380 (Mocatta J). Moreover, while receivers may effectively control a company's dealings with the outside world, receivership does not change the company's internal structure Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd [1969] 2 NSW 782 (Street J). Street J there said (at 790): structure continues to exist notwithstanding that the directors no longer have authority to exercise their ordinary business management functions. A valid receivership and management will ordinarily supersede, but not destroy, the company's own organs through which it conducts its affairs. The capacity of those organs to function bears a direct inverse relationship to the validity and scope of the receivership and management.'
Case: Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd [1969] 2 NSW 782
Outcome: cited
appointment of a receiver under a charge over its property does not end the life of the company to which the receiver has been appointed. It has been said that the company in such a case is 'anaesthetised' but may be restored to 'full conscious activity when the anaesthetic is no longer applied after the debts owing to the debenture holders have been paid' George Barker (Transport) Ltd v Eynon [1973] 3 All ER 374 at 380 (Mocatta J). Moreover, while receivers may effectively control a company's dealings with the outside world, receivership does not change the company's internal structure Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd [1969] 2 NSW 782 (Street J). Street J there said (at 790): structure continues to exist notwithstanding that the directors no longer have authority to exercise their ordinary business management functions. A valid receivership and management will ordinarily supersede, but not destroy, the company's own organs through which it conducts its affairs. The capacity of those organs to function bears a direct inverse relationship to the validity and scope of the receivership and management.'
Case: Deangrove Pty Ltd v Commonwealth Bank of Australia [2001] FCA 173 ; (2001) 19 ACLC 595
Outcome: cited
may be a question whether the power conferred upon a receiver can displace all of a director's powers and functions for the duration of the receivership. Given that a receiver's powers must be exercised for the purposes of the appointment and the enforcement of the security under which appointment is made, it may be doubtful whether such a situation could arise even in theory. In Deangrove Pty Ltd v Commonwealth Bank of Australia [2001] FCA 173 ; (2001) 19 ACLC 595, Sackville J said (at 600): general principle, at least so far as the usual form of debenture or charge is concerned, is that the appointment of receivers does not entirely displace the powers and authority of the directors.'
Case: Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512
Outcome: cited
Section 46 is found in Pt IV TPA. However the extended application only operates if the Crown in right of the relevant State or Territory is carrying on a business, either directly or by an authority of the State of Territory. As is clear from such cases as NT Power 219 CLR (particularly at 116) and Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512 (particularly at 526-527), this condition is strictly applied. 158 Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13). "Section 46 aims to promote competition, not the private interests of particular persons or corporations." (cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139] , Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne &amp; Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia , its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market. 160 First, while I accept that, as a result of the respondent's proposal, the applicant will not be able to continue to provide services to its customers which include the Excluded Data, and that this may impact upon the business of the applicant as claimed in para 9(b) of the amended statement of claim, the applicant must demonstrate more than this effect to show that the purpose of the respondent's conduct was in breach of s 46(1)(c). As pointed out by Lee J in NT Power Generation v Power &amp; Water Authority [2002] FCAFC 302 at [17] , although the effect of conduct may, in some circumstances, explain or reveal the purpose of the conduct, the inference may be negated by other material relevant to the issue of purpose (cf Photo-Continental Pty Ltd v Sony (Australia) Pty Ltd (1995) ATPR 41-372 at 40,122-40,123). It is the purposeful conduct of the contravening corporation that attracts the operation of s 46(1)(c): Baxter Healthcare 237 ALR at 519.
Case: Australian Competition and Consumer Commission v Boral Ltd (1999) 166 ALR 410
Outcome: applied
However as was pointed by the High Court in Queensland Wire [1989] HCA 6 ; 167 CLR 177, and subsequently reiterated by the majority of the High Court in Melway 205 CLR at 17, "take advantage of" does not mean anything materially different from "use" and does not require conduct which is predatory or morally blameworthy: per Mason CJ and Wilson J at 191, Deane J at 194, Dawson J at 198, Toohey J at 212-214 (cf also the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 at [137] ). In terms of s 46 it does, however, entail an analysis of actions in the context of a competitive environment, and identification of a determinative approach in the entity with the substantial market power to achieve an outcome proscribed by s 46. So, as Heerey J said in ACCC v Boral Ltd (1999) 166 ALR 410 (at 440), subsequently approved by the majority of the High Court in Boral Besser [2003] HCA 5 ; 215 CLR 374 (at 434): "If the impugned conduct has a business rationale, that is a factor pointing against any finding that conduct constitutes a taking advantage of market power. If a firm with no substantial degree of market power would engage in certain conduct as a matter of commercial judgment, it would ordinarily follow that a firm with market power which engages in the same conduct is not taking advantage of its power." 113 So, to paraphrase Heerey J in ACCC v Boral 166 ALR 410 as adopted by the majority of the High Court in Boral Besser [2003] HCA 5 ; 215 CLR 374, was the conduct of the respondent taking advantage of its market power in withdrawing the supply of the Excluded Data, such that an entity with no substantial degree of market power in the Wholesale Market would not, as a matter of commercial judgment, engage in that conduct?
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [2003] FCAFC 149 ; (2003) 129 FCR 339
Outcome: cited
However, notwithstanding the submissions of the applicant, I am not persuaded that the purpose of the respondent was to deter or prevent the applicant from engaging in conduct which was competitive with the conduct of the respondent when it discharged its statutory function of providing names and addresses in response to statutory searches in the Retail Market. Similarly, it cannot be said that the proposal of the respondent had the purpose of deterring or preventing the applicant from engaging in competitive conduct in the Retail Market to the benefit of other licensees the proposal to exclude the Excluded Data from the data supplied by the respondent was identical in respect of all licensees. So, for example, in my view the purpose of the respondent in this case was not to gain a competitive advantage in the Retail Market over the applicant in relation to the Excluded Data or to deter the applicant from discounting prices of its product to competitors of the respondent (cf Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [2003] FCAFC 149 ; (2003) 129 FCR 339 at 355-356. I form this view for the following reasons.
Case: Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43
Outcome: cited
The reference in s 46(1) to a "substantial degree" of market power was considered by the Full Court in Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43 at 63 where Lockhart and Gummow JJ said: "For a corporation to have a substantial degree of market power it must have a considerable or large degree of such power. The difficulty lies not in defining the word 'substantial' but in applying the concept of a substantial degree of market power to the circumstances of each case and in identifying whether the requisite degree of market power exists. This is a relative concept." (cf Wilcox, French and Gyles JJ in Universal Music Australia Pty Ltd v Australian Competition &amp; Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at 564-565. 80 Finally, as was explained in the Trade Practices Amendment Bill 1985 Explanatory Memorandum: &#8226; "Market power" is a recognised economic concept which has been subject to considerable analysis in economic literature (at [40]). &#8226; The use of the word "degree" in the expression "degree of power in a market" reflects the fact that "market power" is a relative concept. All participants in a market possess a degree of market power which may range from negligible to very great (at [41]). &#8226; The circumstances which give rise to absence of competitive constraint upon a corporation are diverse. They are not confined to size or market share in relation to competitors, or to those matters combined with technical knowledge, raw materials or capital. Other matters such as easier access to supplies or government controls on the market are relevant if they bear upon the extent to which the corporation can act without being constrained by competition (at [45]). 81 In the Wholesale Market in the case before me, it is not in contention that the respondent has not only market power, but a substantial degree of market power. Both the applicant and the respondent, and their respective experts, are in agreement on this point. I accept that the respondent has a substantial degree of market power in this market. It is therefore appropriate to consider the claim of the applicant that the respondent has taken advantage of that power for a purpose proscribed by s 46 TPA.
Case: Eastman Kodak Co v Image Technical Services Inc (1992) 504 US 451
Outcome: cited
So for example, in Queensland Wire [1989] HCA 6 ; 167 CLR 177 Deane J held that the identification of the proscribed purpose in that case led directly to the conclusion that BHP was taking advantage of its market power, because the nature of the purpose was such that, in the circumstances of that case, it could not have been achieved by the conduct impugned had it not been for the existence of the market power ( Queensland Wire 167 CLR at 197-198, Melway 205 CLR at 17). The majority in Melway at 18 also noted comments of Scalia J in the Supreme Court of the United States when his Honour said: "Where a defendant maintains substantial market power, his activities are examined through a special lens: Behavior that might otherwise not be of concern to the antitrust laws or that might even be viewed as procompetitive can take on exclusionary connotations when practiced by a monopolist." ( Eastman Kodak Co v Image Technical Services Inc (1992) 504 US 451 at 488)
Case: General Newspapers Pty Ltd v Telstra (1993) 45 FCR 164
Outcome: cited
The applicant submits that purpose is not motive, but rather is the object in view or sought to be achieved by the conduct whereas the motive may be no more than the spur for it. Authority for this proposition derives from comments of the Full Court in General Newspapers Pty Ltd v Telstra (1993) 45 FCR 164 at 187.
Case: John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318
Outcome: cited
The onus of proof is on the applicant to show that the impugned conduct of the respondent had the proscribed anti-competitive effect: Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381 at [13] . 90 I make this point particularly in light of the onus of proof which rests on the applicant to demonstrate that the impugned conduct breaches s 46 ( Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour [2000] FCA 1381 at [13] .)
Case: Photo-Continental Pty Ltd v Sony (Australia) Pty Ltd (1995) ATPR 41-372
Outcome: cited
First, while I accept that, as a result of the respondent's proposal, the applicant will not be able to continue to provide services to its customers which include the Excluded Data, and that this may impact upon the business of the applicant as claimed in para 9(b) of the amended statement of claim, the applicant must demonstrate more than this effect to show that the purpose of the respondent's conduct was in breach of s 46(1)(c). As pointed out by Lee J in NT Power Generation v Power &amp; Water Authority [2002] FCAFC 302 at [17] , although the effect of conduct may, in some circumstances, explain or reveal the purpose of the conduct, the inference may be negated by other material relevant to the issue of purpose (cf Photo-Continental Pty Ltd v Sony (Australia) Pty Ltd (1995) ATPR 41-372 at 40,122-40,123). It is the purposeful conduct of the contravening corporation that attracts the operation of s 46(1)(c): Baxter Healthcare 237 ALR at 519.
Case: Plume v Federal Airports Corporation [1997] 1019 FCA
Outcome: distinguished
Finally, in my view the power used by the respondent in withdrawing the Excluded Data from supply was not regulatory power, but market power. I have already found that, although the collection of data by the respondent was pursuant to statutory obligations, the supply of Collected Data by the respondent to the applicant and the other licensees was in the course of carrying on a business by the respondent. In my view this case is distinguishable from Stirling Harbour [2000] FCA 1381 and Plume v Federal Airports Corporation [1997] 1019 FCA where the Court found that relevant entity was exercising regulatory authority rather than market power: &#8226; In Stirling Harbour [2007] FCA 1381 , the function of the port authority under the relevant statute was to arrange for port services to be provided, including towage, and did so by tender. The Full Court in that case was satisfied that the port authority had assumed the role of a market regulator. &#8226; Similarly in Plume [1997] 1019 FCA, the court was satisfied that the conduct of the Federal Airports Corporation was properly characterised as use of a regulatory power designed for the benefit of the members of the public who had occasion to use the facilities of the airport at Alice Springs. 120 The role of the port authority in Stirling Harbour [2007] FCA 1381and the Federal Airports Corporation in Plume [1997] 1019 FCA can be contrasted with the role of the respondent in its supply of Collected Data to the applicant and the other licensees, namely that of a wholesaler of information on commercial terms dictated by the respondent, in an environment where the respondent was also a supplier of data in the Retail Market. While the regulatory power of the respondent to collect data and enter licence agreements clearly assisted its commercial position in entering such agreements (cf comments of the majority in NT Power 219 CLR at 142) the conduct of the respondent in withdrawing the Excluded Data but continuing to supply other data on commercial terms was a market, rather than a regulatory, issue.