mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kodak (Australasia) Pty Ltd v Cochran (unreported Supreme Court of New South Wales, Equity Division, Brownie J, 4 April 1996)
Outcome: cited
As a primary position, Mr Carey argued that the Court should not be required to look beyond the affidavits which he had filed. It was submitted that cross-examination of a deponent of a disclosure affidavit will not normally be ordered. An order for cross-examination should only be made when such an order is the only just and convenient way of ensuring the deponent would not deal with his assets so as to deprive a plaintiff of the fruits of a judgment. Reference was made to Kodak (Australasia) Pty Ltd v Cochran (unreported Supreme Court of New South Wales, Equity Division, Brownie J, 4 April 1996); House of Spring Gardens v Waite (1985) FSR 173. It was also submitted that it may not be appropriate to make an order for cross-examination when a deponent is prepared to provide a further affidavit. He cited Planet International Ltd v Garcia (No 2) [1991] 1 Qd R 426.
Case: House of Spring Gardens v Waite (1985) FSR 173
Outcome: cited
As a primary position, Mr Carey argued that the Court should not be required to look beyond the affidavits which he had filed. It was submitted that cross-examination of a deponent of a disclosure affidavit will not normally be ordered. An order for cross-examination should only be made when such an order is the only just and convenient way of ensuring the deponent would not deal with his assets so as to deprive a plaintiff of the fruits of a judgment. Reference was made to Kodak (Australasia) Pty Ltd v Cochran (unreported Supreme Court of New South Wales, Equity Division, Brownie J, 4 April 1996); House of Spring Gardens v Waite (1985) FSR 173. It was also submitted that it may not be appropriate to make an order for cross-examination when a deponent is prepared to provide a further affidavit. He cited Planet International Ltd v Garcia (No 2) [1991] 1 Qd R 426.
Case: Planet International Ltd v Garcia (No 2) [1991] 1 QD R 426
Outcome: cited
As a primary position, Mr Carey argued that the Court should not be required to look beyond the affidavits which he had filed. It was submitted that cross-examination of a deponent of a disclosure affidavit will not normally be ordered. An order for cross-examination should only be made when such an order is the only just and convenient way of ensuring the deponent would not deal with his assets so as to deprive a plaintiff of the fruits of a judgment. Reference was made to Kodak (Australasia) Pty Ltd v Cochran (unreported Supreme Court of New South Wales, Equity Division, Brownie J, 4 April 1996); House of Spring Gardens v Waite (1985) FSR 173. It was also submitted that it may not be appropriate to make an order for cross-examination when a deponent is prepared to provide a further affidavit. He cited Planet International Ltd v Garcia (No 2) [1991] 1 Qd R 426.
Case: General Steel Industries Ltd v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
Under s 31A of the Federal Court of Australia Act 1976 (Cth), the Court can give summary judgment when satisfied that the unsuccessful party has no reasonable prospect of successfully prosecuting or defending the proceeding (or part of the proceeding), with the consequence that the proceeding is thereby at an end. This is a lower threshold than was previously endorsed by the High Court in General Steel Industries Ltd v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125. In addition, O 11 r 16 of the Federal Court Rules provides that a pleading may be struck out in whole or part where it discloses no reasonable cause of action, has a tendency to cause prejudice, embarrassment or delay, or is otherwise an abuse of process. If the Court accepts for the purpose of the application that the pleaded facts are established but finds that they do not contain the elements of the asserted cause of action, the Court may receive evidence to determine whether a genuine triable issue exists. 6 In order to establish liability on the ground of conspiracy by unlawful means, it is necessary to show that the alleged conspirators agreed to do an act which is independently unlawful apart from the conspiracy itself or to use unlawful means to attain their object. The expression "unlawful act" for the purposes of the tort includes crimes, torts, and breaches of statutory provisions. Frequently, conspiracy claims have arisen in the context of industrial action. In the present case there is an allegation that certain acts (referred to in [39] of the FASC) were unlawful because they constituted conduct which was false and misleading under the Patents Act 1990 (Cth) and the Criminal Code Act 1995 (Cth), or which breached the Corporations Act 2001 (Cth) or the Australian Securities and Investments Commission Act 2001 (Cth).
Case: Jodast Pty Ltd v A&amp; J Blattner Pty Ltd (1991) 104 ALR 248
Outcome: cited
In relation to claims for security, the Court observed in Jodast Pty Ltd v A &amp; J Blattner Pty Ltd (1991) 104 ALR 248 that it is not appropriate for the Court to embark on an investigation of prospects of success in a proceeding at a very early stage and even less so where substantial evidence has been filed. 27 In my view, having regard to the complexity and serious nature of the allegations made in the FASC, the long period over which the dispute has run and the number of parties involved, the hearing of the present case is likely to be lengthy and the process of discovery and other preliminary steps is likely to be extensive. In these circumstances, I consider that there should be an order for security for costs in the sum of $50,000 in respect of the Novapharm parties and additional security for costs in the sum of $50,000 in respect of Shelston. In fixing these figures, I have taken into account the evidence before me as to the way in which those amounts were selected and I consider them to be reasonable and conservative. 28 I refuse the application for summary judgment made by Shelston. I strike out the FASC in relation to the conspiracy and trade practices claims. I grant liberty to Sheiman to re-plead within 28 days from the date of these reasons. I order Sheiman to pay the costs of the strike out application and the application for security for costs, and I order Shelston to pay the costs in relation to its unsuccessful application for summary judgment. I order that the applicants pay the costs thrown away as the result of amendments to the Statement of Claim and Amended Statement of Claim. Finally, I order that Sheiman provide security for costs in the amount of $50,000 in respect of the Novapharm parties and security for costs in the amount of $50,000 in respect of Shelston. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 28 May 2008 Counsel for the Applicants: Ms G. Preston Solicitor for the Applicants: Leitch Hasson and Dent Counsel for the First to Eighth Respondents: Mr J. Cooke Solicitor for the First to Eighth Respondents: Spruson &amp; Ferguson Lawyers Counsel for the Ninth Respondent: Ms K. Howard SC and Mr M. Darke Solicitor for the Ninth Respondent: Shelston IP Lawyers Date of Hearing: 24 April 2008 Date of Judgment: 28 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/770.html
Case: O'Brien v Dawson (1941) 41 SR(NSW) 295
Outcome: considered
In support of this submission Shelston refers to the observations of Jordan CJ in O'Brien v Dawson (1941) 41 SR(NSW) 295 at 307-308, where his Honour said: 'The next question is whether, if an ordinary limited liability company is a party to a contract, and its directors acting as such, and in the course of conducting the company's business at a Board meeting, resolve that the company shall refuse to perform a contract to which it is a party, the directors knowing that the refusal cannot be legally justified, and effect is given to this resolution, the directors concerned are guilty of the tort and presumably also of the crime of conspiracy. I am of opinion that in such a case it is entirely artificial to speak of the directors as "procuring" the company to break its contract in the sense in which the word is used in the Lumley v. Gye ... type of case. An incorporated company is a figment of the law. It is incapable of acting except through agents. Its directors are persons who have been authorised by the constituent members of the corporation to cause acts to be done on its behalf. They are its agents who have power to control its acts. It cannot act at all except through them or through some other authorised agents. They are not in the position of outsiders who are influencing the independent volition of a contracting party who is capable of exercising volition for himself.'
Case: Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231
Outcome: considered
In Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 , Finkelstein J, after a detailed consideration of the relevant authorities, said at 263: 'In the face of these authorities it would be quite wrong for me not to apply Said v Butt. Presently, that case represents the law in this country and I will follow it. I should say that even if Said v Butt were not the authority in Australia I should still be inclined to apply this case because it appears to me to be good law.'
Case: Said v Butt [1920] 3 KB 497
Outcome: considered
His Honour applied the principles expressed by McCardie J in Said v Butt [1920] 3 KB 497 at 505-506, where his Lordship said: 'But the servant who causes a breach of his master's contract with a third person seems to stand in a wholly different position. He is not a stranger. He is the alter ego of his master. His acts are in law the acts of his employer. In such a case it is the master himself, by his agent, breaking the contract he has made, and in my view an action against the agent under the Lunley v Gye ... principle must therefore fail, just as it would fail if brought against the master himself for wrongfully procuring a breach of his own contract.' 13 In Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 , Finkelstein J, after a detailed consideration of the relevant authorities, said at 263: 'In the face of these authorities it would be quite wrong for me not to apply Said v Butt. Presently, that case represents the law in this country and I will follow it. I should say that even if Said v Butt were not the authority in Australia I should still be inclined to apply this case because it appears to me to be good law.'
Case: Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637
Outcome: cited
To succeed in a cause of action for conspiracy, it is necessary not only to allege an independently unlawful act, but also to allege an intention to cause injury to the applicant. Establishing the mere existence of a conspiracy is insufficient without the associated intention to injure. Where the alleged conspiracy involves unlawful means or acts, then it is sufficient if only one of several of the purposes of the conspiracy was to injure the aggrieved party. It is not necessary to show that the purpose was the sole or predominant purpose of the conspiracy: see Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637.
Case: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4 ) (2006) ATPR |P42-101
Outcome: cited
In Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at [57] Merkel J (with whom Black CJ and Sackville J relevantly agreed) accepted that the parity principle applies to pecuniary penalties imposed under s 76 of the TPA. His Honour referred to two earlier decisions of the Full Court in support of that proposition, namely NW Frozen Foods at 295, and Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR |P41-851 at 44,539. See also Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR |P41-937 at [57] [58] per Goldberg J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4 ) (2006) ATPR |P42-101 at [71] [74] per Goldberg J; and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 at [11] per Tracey J.
Case: Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) (2002) ATPR |P41-905
Outcome: cited
It is also worth noting that the fact that a company has ceased trading and has no assets are not circumstances which ought to prevent the imposition of a penalty: Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) (2002) ATPR |P41-905 at 45,441 per Heerey J. As O'Loughlin J stated in Australian Competition and Consumer Commission v The Vales Wine Company Pty Ltd (1996) ATPR |P41-528 at 42,776: "Even though [the penalties] may not be recovered, they will serve as a warning throughout the wine industry and elsewhere of the attitude of the Court to offences of this nature."
Case: Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144
Outcome: cited
In Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at [57] Merkel J (with whom Black CJ and Sackville J relevantly agreed) accepted that the parity principle applies to pecuniary penalties imposed under s 76 of the TPA. His Honour referred to two earlier decisions of the Full Court in support of that proposition, namely NW Frozen Foods at 295, and Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR |P41-851 at 44,539. See also Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR |P41-937 at [57] [58] per Goldberg J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4 ) (2006) ATPR |P42-101 at [71] [74] per Goldberg J; and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 at [11] per Tracey J.
Case: Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR |P41-851
Outcome: cited
In Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at [57] Merkel J (with whom Black CJ and Sackville J relevantly agreed) accepted that the parity principle applies to pecuniary penalties imposed under s 76 of the TPA. His Honour referred to two earlier decisions of the Full Court in support of that proposition, namely NW Frozen Foods at 295, and Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR |P41-851 at 44,539. See also Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR |P41-937 at [57] [58] per Goldberg J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4 ) (2006) ATPR |P42-101 at [71] [74] per Goldberg J; and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 at [11] per Tracey J.
Case: Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR |P41-937
Outcome: cited
In Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at [57] Merkel J (with whom Black CJ and Sackville J relevantly agreed) accepted that the parity principle applies to pecuniary penalties imposed under s 76 of the TPA. His Honour referred to two earlier decisions of the Full Court in support of that proposition, namely NW Frozen Foods at 295, and Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR |P41-851 at 44,539. See also Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR |P41-937 at [57] [58] per Goldberg J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4 ) (2006) ATPR |P42-101 at [71] [74] per Goldberg J; and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 at [11] per Tracey J.
Case: Australian Competition and Consumer Commission v The Vales Wine Company Pty Ltd (1996) ATPR |P41-528
Outcome: cited
It is also worth noting that the fact that a company has ceased trading and has no assets are not circumstances which ought to prevent the imposition of a penalty: Australian Competition and Consumer Commission v Commercial and General Publications Pty Ltd (No 2) (2002) ATPR |P41-905 at 45,441 per Heerey J. As O'Loughlin J stated in Australian Competition and Consumer Commission v The Vales Wine Company Pty Ltd (1996) ATPR |P41-528 at 42,776: "Even though [the penalties] may not be recovered, they will serve as a warning throughout the wine industry and elsewhere of the attitude of the Court to offences of this nature."
Case: Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) [2007] FCA 1617
Outcome: discussed
The pecuniary penalties that are sought, and agreed, are for the most part well within what I would regard as the "permissible range". Cartel conduct can take many different forms. On the one hand, it may be so grave as to warrant massive pecuniary penalties on the scale of those recently imposed by Heerey J in Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) [2007] FCA 1617. 126 Cartel behaviour of the kind with which Heerey J was concerned can, as his Honour noted (at [306]) be extremely damaging to the prosperity of a free market economy. Often the profits to be made can be immense, and the risk of detection slight. That explains, in part, why the legislature has progressively increased the maximum penalties available in relation to this type of conduct. 127 Heerey J went on to observe (at [309]) that many countries with free market economies have enacted laws which make cartel conduct by individuals subject to criminal sanctions, including imprisonment. I note that in April 2003 the Dawson Committee recommended the introduction of criminal sanctions for serious cartel behaviour. I also note that on 2 February 2005 the Treasurer announced proposals for the criminalisation of serious cartel conduct. He stated that the maximum penalties for the new cartel offence would be a term of imprisonment of five years and a fine of $220,000 for individuals, and a fine for corporations that would be the greater of $10 million or three times the value of the benefit from the cartel. Where the value could not be determined the fine would be 10% of annual turnover. 128 Although not all cartel conduct should be viewed as warranting the imposition of criminal sanctions, including imprisonment, plainly that option should be available in relation to serious cases of such conduct. See generally B Fisse, "The Cartel Offence: Dishonesty?" (2007) 35 Australian Business Law Review 235 at 236. I interpolate that in the event such conduct is criminalised in Australia, problems may arise in formulating a cartel offence in terms that would be comprehensible to ordinary jurors. Section 45 is complex enough. The idea, which has been mooted, of simply adding the notion of "dishonesty" to what is already a daunting provision may be counterproductive. As Fisse notes, no country other than the United Kingdom (the Enterprise Act 2002 (UK)) has made dishonesty an element of a cartel offence, and perhaps for good reason. 129 It ought to be possible to define serious cartel conduct in relatively simply terms. Fisse (at 237) makes several useful suggestions as to how this might be done. Whatever else might be said, in appropriate cases imprisonment should be available as a sentencing option. Pecuniary penalties may be seen as simply part of the price of doing business.
Case: Lowe v The Queen [1984] HCA 46 ; (1984) 154 CLR 606
Outcome: discussed
In Lowe v The Queen [1984] HCA 46 ; (1984) 154 CLR 606 Mason J, as his Honour then was, underlined the importance of the parity principle. His Honour said (at 610 611): "Just as consistency in punishment -- a reflection of the notion of equal justice -- is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 146 In Postiglione v The Queen [1997] HCA 26 ; (1997) 189 CLR 295 the principle was further explained. Dawson and Gaudron JJ stated (at 301): "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options." (Footnotes omitted.)
Case: Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd (2004) ATPR |P41-993
Outcome: cited
The real question is whether the pecuniary penalties which are now sought, and which have been agreed by the respondents, should be approved. In answering that question it must be emphasised that, in the final analysis, it is for the Court, and not the parties, to determine the amount of any pecuniary penalty. The Court is not to be regarded as a "rubber stamp". See generally NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; and Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd (2004) ATPR |P41-993.