mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617
Outcome: cited
The operation of s 80(1) of the TPA was canvassed by the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 (" ICI "). Lockhart J described s 80(1) as a public interest provision which attracts special considerations; it represents a primary means of ensuring compliance with commercial regulation legislation: at 254-255. After referring to subss 80(4) and (5), Lockhart J said: "Injunctions are traditionally employed to restrain repetition of conduct. A statutory provision that enables an injunction to be granted to prevent the commission of conduct that has never been done before and is not likely to be done again is a statutory enlargement of traditional equitable principles. But this is because traditional doctrine surrounding the grant of injunctive relief was developed primarily for the protection of private proprietary rights. Public interest injunctions are different. Parts IV and V of the Act involve matters of high public policy. Parts IV and V relate to practices and conduct that legislatures throughout the world in different forms and to different degrees, have decided are contrary to the public interest (contracts, arrangements or understandings affecting competition adversely (s 45)), the misuse of market power (s 46) , the practice of exclusive dealing (s 47) , resale price maintenance (s 48) , price discrimination (s 49) , anti-competitive mergers (s 50) and unfair practices with respect to consumers (Pt V). These are legislative enactments of matters vital to the presence of free competition and enterprise and a just society." In his Honour's view, the section would in an appropriate case authorise the Court to grant an injunction against a respondent preventing him in engaging in conduct which is similar to the conduct which constituted, or would constitute, a contravention of the Act : at 261. Lockhart J also agreed (at 261) with the reasoning of Barwick CJ in Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69 ; (1972) 127 CLR 617 at 632 that in an appropriate case the court may grant an injunction to restrain the respondent from engaging in the practice of resale price maintenance notwithstanding that only some of the acts falling within s 96(3) were found to have been so committed.
Case: ACCC v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 at 202
Outcome: cited
In ACCC v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 at 202 at [D]-[E], after referring to these passages in ICI , Merkel J said: "The width of the power conferred by s 80 and its public interest character obviously give the Court great amplitude in determining appropriate injunctive orders in a particular case. However there are limitations on the Court's power under the section. Confinement of the power by reference to the scope and purpose of the TPA, and in particular s 80 , is one limitation on the power. However, there are at least two further limitations. The power to make orders under s 80 is only enlivened in a proceeding which alleges that there has been a contravention of a provision of Pt IV , IVA or V of the TPA. As was said by Gummow J in ICI at 267, the terms of an injunction granted under s 80 must, on their face, operate upon a range of conduct which has 'the relationship required by s 80 with contravention of the Act . Irrespective of whether the injunction is sought or granted under s 80(1) or 80 (1AA) there must be a nexus between the conduct alleged or found to constitute the relevant contraventions and the injunctions granted."
Case: ACCC v Real Estate Institute (WA) [1999] FCA 1387 ; (1999) 95 FCR 114
Outcome: cited
It is implicit in Merkel J's judgment that an injunction under s 80 may extend beyond the specific conduct proven to constitute a contravention by s 80 and may, in appropriate cases, extend to conduct of the same kind or class. There must, however, be a sufficient nexus or relationship between the conduct that is the subject of the restraint and the conduct that was alleged to constitute a contravention of the Act . As French J pointed out in ACCC v Real Estate Institute (WA) [1999] FCA 1387 ; (1999) 95 FCR 114 at 131, the question whether there is a sufficient nexus between the orders sought and the contraventions alleged involves an evaluative judgment by the Court which will depend heavily upon the circumstances of the particular case.
Case: Australian Securities and Investments Commission v Takaran Pty Ltd (No 2) (2003) 194 ALR 743
Outcome: cited
In ASIC v Takaran Pty Ltd (No 2) (2003) 194 ALR 743 at 747-748, at [15], Barrett J made the following observation, with which I agree: "The fact that a scheme is being operated by its existing operators in contravention of statute activates a public interest in favour of not only its being wound up under s 601EE ( Australian Securities and Investments Commission v McNamara (2002) 42 ACSR 488) but also 'ensuring the transparency of the winding up process and the safeguarding of the rights of the contributories' by committing the winding up to an independent party ( Bells Securities Pty Ltd v LPG Mourant [2002] QSC 156 ; BC200202989 per Wilson J; see also Australian Securities and Investments Commission v Product Management Group Pty Ltd (2002) 42 ACSR 343)."
Case: Australian Securities and Investment Commission v Chase Capital Management Pty Ltd (2001) 36 ACSR 778
Outcome: cited
ASIC does not seek an order that BTS be wound up, even though there is some evidence that it might be insolvent. In many cases, it may be appropriate, and it may further investor protection, to make winding up orders in respect of both the unregistered managed investment scheme and the company which administered the scheme: see Pegasus at 579-580, at [95] [98]. Indeed, in Australian Securities and Investment Commission v Chase Capital Management Pty Ltd (2001) 36 ACSR 778 at 796, Owen J said at [93] that if an unregistered scheme is to be wound up, the case for a liquidation of the company that conducted it is compelling.
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720
Outcome: referred to
It has been said that s 31A lowers the bar in terms of summary judgment applications. The operation of s 31A was considered by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720. I do not think it necessary to enter into the interesting questions of what the particular standard imposed by the new version of s 31A might be. This is because whatever the bar is, the current applications pass well beneath it. That is, I find that they are, despite their creativity, devoid of merit. It follows, in my opinion, that there should be orders under s 31A. That makes it unnecessary for me to consider the operation of Order 20 rule 5 or to consider the operation of Order 11 rule 16 in so far as the statement of claim is concerned. 40 Mr Gargan argued that s 31A was constitutionally invalid. Normally s 78B of the Judiciary Act 1903 (Cth) would impose upon this Court an obligation not to proceed to deal with Mr Gargan's constitutional argument without adjourning the proceeding in order to allow the various Attorneys-General for the States and of the Commonwealth a chance to intervene. However, s 78B operates on constitutional matters. I do not think that a constitutional argument which is completely devoid of merit amounts to a constitutional matter within the meaning of those provisions. To make good that point, it is necessary to take account of what the argument is. 41 The argument is that s 31A operates to "dictate" to the Federal Court what the outcome of the case is. There may well have been an issue if s 31A had commanded the Court to dismiss a proceeding which had any of the qualities described in s 31A(1)(a) or (b). However, the plain text of s 31A is that the Court "may" give judgment. There is simply no room to argue whatever that s 31A operates as a dictation. Accordingly I reject that argument. The necessary consequence is that there must, on both notices of motion, be judgment for the first and second respondents under s 31A(2) of the Federal Court of Australia Act 1976 (Cth).
Case: Commonwealth Bank of Australia v Gargan [2004] FCA 707 ; (2004) 140 FCR 1
Outcome: applied
Insofar as the argument is advanced based upon s 13 of the Crimes Act 1914 (Cth), that is, on the common informer provisions, I respectfully adopt what was said by Hely J in Commonwealth Bank of Australia v Gargan [2004] FCA 707 ; (2004) 140 FCR 1 , where his Honour dismissed the same argument. I should note for completeness that at [11] Hely J relied upon what Adams J had said in Gargan v Scott (unreported, Supreme Court of New South Wales, 27 October 2003) and I respectfully adopt what Adams J said at [4]. I do not think that the argument based upon s 13 has any substance whatsoever.
Case: Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45
Outcome: cited
Mr Gargan also argued that he had an entitlement to the issue of orders in the nature of mandamus against the Official Trustee. There may be a question in my mind as to whether that kind of right is a right which would vest, or would be property which is capable of vesting, in the Official Trustee. There are decisions of the New South Wales Court of Appeal which indicate that the right to seek mandamus may be a right which vests in the trustee: cf. Daemer v Industrial Commission (NSW) (1988) 12 NSWLR 45 at 54. However, for present purposes, it is not necessary to explore that proposition. On any view, the duties which are capable of being litigated in a mandamus application are duties of a public kind. I do not think that even if the difficulties in s 86 could be overcome by Mr Gargan that the duty thereby created could be described as public duty. Accordingly, I do not think that a case for issue of orders in the nature of mandamus has any prospects of success. 38 It is then necessary to say a little bit about the nature of the applications which are currently before the court. The first is an application pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) . Section 31A of that Act provides: Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section.
Case: Gargan v Scott (unreported, NSWSC, 27 October 2003)
Outcome: referred to
Insofar as the argument is advanced based upon s 13 of the Crimes Act 1914 (Cth), that is, on the common informer provisions, I respectfully adopt what was said by Hely J in Commonwealth Bank of Australia v Gargan [2004] FCA 707 ; (2004) 140 FCR 1 , where his Honour dismissed the same argument. I should note for completeness that at [11] Hely J relied upon what Adams J had said in Gargan v Scott (unreported, Supreme Court of New South Wales, 27 October 2003) and I respectfully adopt what Adams J said at [4]. I do not think that the argument based upon s 13 has any substance whatsoever.
Case: Gye v McIntyre [1991] HCA 60 ; (1991) 171 CLR 609
Outcome: considered
However, if authority were needed, the Full Court of this Court has decided in Heinrich v Commonwealth Bank of Australia [2001] FCA 661 that Mr Gargan's argument was unsound. I note that Mr Gargan had some involvement in that case. I refer particularly to [7], [8] and [19]. Nothing in Gye v McIntyre [1991] HCA 60 ; (1991) 171 CLR 609 , in my opinion, provides any succour whatsoever to the notion that s 86 imposes affirmative duties. For that reason, I do not think that such a negligence claim, even if articulated, has prospects. In any event, the only real way the claim could currently be formulated would be pursuant to ss 178 and 179 of the Bankruptcy Act 1966 (Cth).
Case: Heinrich v Commonwealth Bank of Australia [2001] FCA 661
Outcome: considered
However, if authority were needed, the Full Court of this Court has decided in Heinrich v Commonwealth Bank of Australia [2001] FCA 661 that Mr Gargan's argument was unsound. I note that Mr Gargan had some involvement in that case. I refer particularly to [7], [8] and [19]. Nothing in Gye v McIntyre [1991] HCA 60 ; (1991) 171 CLR 609 , in my opinion, provides any succour whatsoever to the notion that s 86 imposes affirmative duties. For that reason, I do not think that such a negligence claim, even if articulated, has prospects. In any event, the only real way the claim could currently be formulated would be pursuant to ss 178 and 179 of the Bankruptcy Act 1966 (Cth).
Case: Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315
Outcome: applied
That operation of s 153B was confirmed by Flick J in this Court in Samootin v Wagner [2008] FCA 1066 at [32] and [33]. His Honour applied what had fallen from Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315 at [20] : The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCA 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law.
Case: Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 ; (1996) 189 CLR 51
Outcome: referred to
Fourthly, Mr Gargan relied upon the proposition that the Australian Capital Territory Local Court was a State court and that through various procedural alterations to the jurisdictions of State courts over the last 20 years, they had become unfit receptacles for federal jurisdiction within the meaning of the High Court's decision in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 ; (1996) 189 CLR 51 . This argument is without merit. The Local Court of the Australian Capital Territory is not a State court for the purposes of the doctrine in Kable . Even if it were, Mr Gargan did not point to any provisions of the kind at suit in Kable itself which might give rise to the suggested incompatibility. 24 Fifthly, Mr Gargan placed some reliance upon the Common Law Procedure Act 1899 (NSW) which, outside consent matters, gave a right to trial by jury. The short answer is that that Act has been replaced by the Supreme Court Act 1970 (NSW). In any event, any application that Act may have had to Local Court proceedings in Canberra or to Federal Court proceedings before Hely J, remains even now, elusive. 25 Finally Mr Gargan relied upon the notion that he was pursuing a civil penalty within the meaning of the Evidence Act 1995 (Cth). I do not think that argument has any substance. It follows that I do not think that any of the arguments launched against Hely's J sequestration order have any prospects of success.
Case: Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172
Outcome: referred to
As to the annulment of the 1994 bankruptcy, this Court has vested in it, by s 27 of the Bankruptcy Act 1966 (Cth), exclusive jurisdiction in bankruptcy. The meaning of that expression has recently been considered by a Full Court of this Court in the decision of Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172. It is unnecessary for present purposes to determine the precise boundaries of the nature of jurisdiction in bankruptcy. It suffices to observe that an application to annul a bankruptcy pursuant to s 153B lies squarely within the heartland of that jurisdiction. 9 Section 153B provides: Annulment by Court (1) If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy. (2) In the case of a debtor's petition, the order may be made whether or not the bankrupt was insolvent when the petition was presented. 10 It is apparent from a cursory reading of s 153B that there are two elements to it. The first is the satisfaction in the Court of the fact that a sequestration order ought not to have been made. The second is an exercise by the court of a discretionary power if that condition precedent is satisfied.
Case: Samootin v Wagner [2008] FCA 1066
Outcome: referred to
That operation of s 153B was confirmed by Flick J in this Court in Samootin v Wagner [2008] FCA 1066 at [32] and [33]. His Honour applied what had fallen from Carr, Finn and Sundberg JJ in Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315 at [20] : The Court must first consider whether the sequestration order ought not to have been made. If it so finds, then the Court must consider whether, in the exercise of its discretion, the bankruptcy should be annulled: Re Deriu (1970) 16 FLR 420. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not to have been made. That is, the Court is entitled to consider not only the case as disclosed at the time when the sequestration order was made, but also those facts now known then to have existed. The Court excludes those facts which have occurred since the order was made. Later evidence of previously unknown facts may disclose matters which show that the sequestration order ought not have been made: Re Frank; Ex parte Piliszky (1987) 16 FCR 396 ; Stankiewicz v Plata [2000] FCA 1185 at [19] ; Re Williams (1968) 13 FLR 10 at 23; Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCA 347. These authorities, all of which were cited by the learned primary judge in his judgment, were accepted at first instance as reflecting the relevant law.
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: considered
On this basis, the response of the respondent to the letters of Ms Nicholson-Brown's solicitors was appropriate and adequate. The respondent replied to the complaints of Ms Nicholson-Brown by reference to the policy decision, and did not bring into consideration the specific conduct of Ms Nicholson-Brown as this was not a matter for consideration. It cannot be said, in these circumstances, that the response was inadequate, because on my analysis the matters raised that were not adequately responded to from Ms Nicholson-Brown's point of view, could not have affected the outcome of the decision; see generally Dennis Willcox Pty Ltd v Commissioner of Taxation (1988) 79 ALR 267 at 276-277. There was no material which was relevantly taken into account which was not made available to each applicant, as was the case in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88. In view of the opportunity provided to and availed by each applicant to respond to the respondent after the suspension decision, the decision-making process, including the respondent's response to Ms Nicholson-Brown's solicitors letter, viewed in its entirety and in the circumstances of the implementation of a policy decision, did accord natural justice and procedural fairness.
Case: Barton v Croner Trading Pty Ltd (1984) 3 FCR 95
Outcome: cited
My own view is that s 21R confers a power to appoint, not a power to make, grant or issue any instrument. Section 21R does not talk in terms of the relevant act (the appointment) being made "by" or "pursuant to" any form of writing, but confers a power to make a decision to appoint, which incidentally to that decision, is to be in writing: see discussion in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 172; affirmed by the Full Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 at 110; and Edenmead Pty Ltd v Commonwealth (1984) 4 FCR 348 at 352-353.
Case: Bond v WorkCover Corporation (SA) (2005) 93 SASR 315
Outcome: cited
I should indicate that even if I came to the conclusion that there was a failure to adhere to a requirement of consultation with a local Aboriginal community prior to suspension or removal, I would not consider that such failure would vitiate the decision to remove or suspend. I readily accept that the Act has given express and considerable prominence to the role of the local Aboriginal communities, and that the Act envisages that consultation with such communities be undertaken in defined circumstances. However, I must look at the power here being exercised, which is not one of appointment, but of suspension and removal. Such powers may need to be exercised in a variety of circumstances, without there necessarily being any relevance in seeking the views of local Aboriginal communities, such as for instance if a particular inspector was considered no longer to be a fit and proper person. I do not accept that the input of the local Aboriginal community is of the same significance in circumstances of suspension or removal, or that consultation would be regarded as an essential or mandatory requirement to effect a suspension or removal. If necessary to decide, I would take the view that if there was a requirement of consultation with a local Aboriginal community prior to suspension or removal, breach of that requirement would not lead to the invalidity of such a suspension or removal: see generally Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 388-391; and Bond v WorkCover Corporation (SA) (2005) 93 SASR 315 at 331-336.