mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344
Outcome: cited
The concepts in these various provisions have not been defined. However, they have been the subject of judicial illumination. For present purposes I need refer only to the following, presently uncontroversial, propositions. First , for an "arrangement or understanding" to be found, there must be a "meeting of the minds" of the parties under which one or both of them committed to a particular course of action: CEPU at [15] and [175]; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [75]. As Smithers J observed in Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291: Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of ... the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act. Secondly , a mere expectation, as a matter of fact, or a hope that something might be done or happen or that a party will act in a particular way, is not of itself sufficient to found an arrangement or understanding: see Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45]; IPM Operation at [104]-[112]. Thirdly , the necessary consensus or meeting of minds need not involve, though it commonly will in fact embody, a reciprocity of obligation: Amcor Printing Papers at [75]. Fourthly , as to the requirement that the provision be included in the arrangement or understanding for the proscribed purpose or for purposes which include that purpose, the test of purpose is a subjective one and the proscribed subjective purpose is to be had by each party to the arrangement or understanding: CEPU at [182]. Fifthly , the purpose of conduct for present purposes is the end sought to be accomplished by the conduct and is to be distinguished from the motive for such conduct which is the reason for seeking that end: CEPU at [181] and the cases there cited. Sixthly , the term "hindering" in s 45E(3) has been given a broad construction and encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of supplying or acquiring an article or service: IPM Operations at [127]; Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited [1993] FCA 266 ; (1993) 42 FCR 452 at 459-460.
Case: Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286
Outcome: cited
The concepts in these various provisions have not been defined. However, they have been the subject of judicial illumination. For present purposes I need refer only to the following, presently uncontroversial, propositions. First , for an "arrangement or understanding" to be found, there must be a "meeting of the minds" of the parties under which one or both of them committed to a particular course of action: CEPU at [15] and [175]; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [75]. As Smithers J observed in Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291: Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of ... the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act. Secondly , a mere expectation, as a matter of fact, or a hope that something might be done or happen or that a party will act in a particular way, is not of itself sufficient to found an arrangement or understanding: see Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45]; IPM Operation at [104]-[112]. Thirdly , the necessary consensus or meeting of minds need not involve, though it commonly will in fact embody, a reciprocity of obligation: Amcor Printing Papers at [75]. Fourthly , as to the requirement that the provision be included in the arrangement or understanding for the proscribed purpose or for purposes which include that purpose, the test of purpose is a subjective one and the proscribed subjective purpose is to be had by each party to the arrangement or understanding: CEPU at [182]. Fifthly , the purpose of conduct for present purposes is the end sought to be accomplished by the conduct and is to be distinguished from the motive for such conduct which is the reason for seeking that end: CEPU at [181] and the cases there cited. Sixthly , the term "hindering" in s 45E(3) has been given a broad construction and encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of supplying or acquiring an article or service: IPM Operations at [127]; Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited [1993] FCA 266 ; (1993) 42 FCR 452 at 459-460.
Case: Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452
Outcome: cited
The concepts in these various provisions have not been defined. However, they have been the subject of judicial illumination. For present purposes I need refer only to the following, presently uncontroversial, propositions. First , for an "arrangement or understanding" to be found, there must be a "meeting of the minds" of the parties under which one or both of them committed to a particular course of action: CEPU at [15] and [175]; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [75]. As Smithers J observed in Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291: Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of ... the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act. Secondly , a mere expectation, as a matter of fact, or a hope that something might be done or happen or that a party will act in a particular way, is not of itself sufficient to found an arrangement or understanding: see Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45]; IPM Operation at [104]-[112]. Thirdly , the necessary consensus or meeting of minds need not involve, though it commonly will in fact embody, a reciprocity of obligation: Amcor Printing Papers at [75]. Fourthly , as to the requirement that the provision be included in the arrangement or understanding for the proscribed purpose or for purposes which include that purpose, the test of purpose is a subjective one and the proscribed subjective purpose is to be had by each party to the arrangement or understanding: CEPU at [182]. Fifthly , the purpose of conduct for present purposes is the end sought to be accomplished by the conduct and is to be distinguished from the motive for such conduct which is the reason for seeking that end: CEPU at [181] and the cases there cited. Sixthly , the term "hindering" in s 45E(3) has been given a broad construction and encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of supplying or acquiring an article or service: IPM Operations at [127]; Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited [1993] FCA 266 ; (1993) 42 FCR 452 at 459-460.
Case: Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited [1993] FCA 266 ; (1993) 42 FCR 452
Outcome: cited
The concepts in these various provisions have not been defined. However, they have been the subject of judicial illumination. For present purposes I need refer only to the following, presently uncontroversial, propositions. First , for an "arrangement or understanding" to be found, there must be a "meeting of the minds" of the parties under which one or both of them committed to a particular course of action: CEPU at [15] and [175]; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [75]. As Smithers J observed in Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291: Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of ... the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act. Secondly , a mere expectation, as a matter of fact, or a hope that something might be done or happen or that a party will act in a particular way, is not of itself sufficient to found an arrangement or understanding: see Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45]; IPM Operation at [104]-[112]. Thirdly , the necessary consensus or meeting of minds need not involve, though it commonly will in fact embody, a reciprocity of obligation: Amcor Printing Papers at [75]. Fourthly , as to the requirement that the provision be included in the arrangement or understanding for the proscribed purpose or for purposes which include that purpose, the test of purpose is a subjective one and the proscribed subjective purpose is to be had by each party to the arrangement or understanding: CEPU at [182]. Fifthly , the purpose of conduct for present purposes is the end sought to be accomplished by the conduct and is to be distinguished from the motive for such conduct which is the reason for seeking that end: CEPU at [181] and the cases there cited. Sixthly , the term "hindering" in s 45E(3) has been given a broad construction and encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of supplying or acquiring an article or service: IPM Operations at [127]; Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited [1993] FCA 266 ; (1993) 42 FCR 452 at 459-460.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
The substantive requirements to be satisfied to constitute a union (s 76(1)(c)-(f)) or a person (s 75B(1)(a)-(d)) an accessory to a contravention of s 45E are, for present purposes, substantially identical. What is required is that the Court be satisfied (in the language of s 76(1)) that the union or the person concerned: (c) has aided, abetted, counselled or procured a person to contravene such a provision; or (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision; or (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) has conspired with others to contravene such a provision Common to these alternatives is the requirement that the alleged accessory acted with knowledge of the essential matters which went to make up the contravention whether or not the accessory knew that those matters amounted to a contravention of s 45E: CEPU at [188]; Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 667. 13 I need only refer briefly to this matter and then only for s 76 civil penalty proceedings purposes. This matter has been considered at length in CEPU at [29]-[38]. Section 76 proceedings are civil proceedings. As such, by virtue of s 140 of the Evidence Act 1995 (Cth), it attracts the civil standard of proof on the balance of probabilities. Accordingly, I must be satisfied that the ACCC has established that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability, that BLL and the CFMEU, an officer of the CFMEU, or an agent of the CFMEU or of an officer thereof, made one or more arrangements or arrived at one or more understandings within the meaning of s 45E: CEPU at [38]. 14 I will later in these reasons make a number of rulings on evidentiary matters. For ease in exposition I will here refer to evidence which may be in issue, but without prejudice to what I have to say later.
Case: Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88
Outcome: applied
The case law in this country is discordant on whether one party to a proceedings can seek to tender admissions made in a witness statement or affidavit filed and served by another party in that proceeding pursuant to rule of court or court order, but who does not call the maker of that statement or read that affidavit. On one view, the statement or affidavit remains subject to legal professional privilege; on the other, filing and service operates, without more, as a full or limited waiver: see generally Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 at [12] - [19] where the case law has been helpfully reviewed by Gordon J. 125 I am prepared to assume for present purposes that Sutton and Noonan's communications with the CFMEU's and Noonan's solicitors for the purpose of preparing their statements were confidential communications: cf Cadbury at [11]. The statements themselves were filed and served for the purposes of the proceedings pursuant to a number of directions made by Gyles J. Their service on the ACCC was subject to the implied undertaking given by the parties to the Court not to use any document produced to them in the course of the proceeding otherwise than in relation to the proceeding: see Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10. The use proposed by the ACCC in this case raises no issue in relation to the implied undertaking: cf Cadbury at [20]-[22]. The only question arising from that use is one of privilege. Assuming the statements to be privileged prior to service, whether or not it subsists after their service falls to be determined by the common law and not by the Evidence Act , the provisions of that Act having no applications to a disclosure so made: cf s 122. 127 The reasoning of the Full Court, as Gordon J noted in Cadbury at [16], is persuasive and sensible and it leads to the conclusion that, save where a disclosure is made for a particular and limited purpose, the filing and service operates as a complete, and not simply limited, waiver of privilege: at [16]-[18]; for the reason that the uses that may be made of the served document in the proceedings are "inconsistent with the maintenance of the confidentiality which the privilege is intended to protect": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] .
Case: Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283
Outcome: applied
As I am in entire agreement with the conclusions reached by her Honour on the proper approach to be taken to the question in a case such as the present particularly in light of observations made by the Full Court of this Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [25] my comments will be brief. 126 As the Full Court observed in Liberty Funding in endorsing the approach of Barrett J in Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 that a party could tender, as an admission, parts of an affidavit sworn by the opposing party (at [25]): Thus, it is necessary to posit a limited waiver, within a broad framework of the conduct of proceedings, which may bring about the result (as in Austress) that it is in the other side's power to destroy the privilege entirely by putting the statement or affidavit into evidence or examining or cross-examining on its contents. Their Honours went on to point out (at [26]): This so-called "limited waiver" by service such that the privilege is waived only for the purpose of the legal proceedings in question might be seen to be no more than the operation of the implied undertaking dealt with in Harman [and Esso]. 128 I agree with her Honour's view of the approach that Liberty Funding mandates. It is the implied undertaking, not privilege, which in this case limits the use the ACCC can make of the statements, but that use is not inconsistent with, or precluded by, the undertaking. The tender is in the proceedings in which the statements were served. 129 I should add the following. First, I am satisfied having regard both to his stated position and responsibilities in 2003 and to the manner of his participation in events in this matter, that it is reasonably open to find that Sutton had authority to make representations on behalf of the CFMEU in relation to the matters the subject of his statement: see Evidence Act , s 87(1)(a) and (b). I should emphasise that to the extent that his statement contains admissions, they can only be used against the CFMEU: Evidence Act , s 83. 130 Secondly, I also am satisfied that Hensley's statement can be used against the CFMEU to the extent that it contains admissions. It is reasonably open to find that he had authority to act for the CFMEU in relation to the matters in which he participated and that the representations he made were within the scope of that authority: s 87(1)(b). Such admissions as he made are also able to be used in the case against him personally.
Case: Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10
Outcome: cited
I am prepared to assume for present purposes that Sutton and Noonan's communications with the CFMEU's and Noonan's solicitors for the purpose of preparing their statements were confidential communications: cf Cadbury at [11]. The statements themselves were filed and served for the purposes of the proceedings pursuant to a number of directions made by Gyles J. Their service on the ACCC was subject to the implied undertaking given by the parties to the Court not to use any document produced to them in the course of the proceeding otherwise than in relation to the proceeding: see Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10. The use proposed by the ACCC in this case raises no issue in relation to the implied undertaking: cf Cadbury at [20]-[22]. The only question arising from that use is one of privilege. Assuming the statements to be privileged prior to service, whether or not it subsists after their service falls to be determined by the common law and not by the Evidence Act , the provisions of that Act having no applications to a disclosure so made: cf s 122.
Case: Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958
Outcome: cited
As the Full Court observed in Liberty Funding in endorsing the approach of Barrett J in Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958 that a party could tender, as an admission, parts of an affidavit sworn by the opposing party (at [25]): Thus, it is necessary to posit a limited waiver, within a broad framework of the conduct of proceedings, which may bring about the result (as in Austress) that it is in the other side's power to destroy the privilege entirely by putting the statement or affidavit into evidence or examining or cross-examining on its contents. Their Honours went on to point out (at [26]): This so-called "limited waiver" by service such that the privilege is waived only for the purpose of the legal proceedings in question might be seen to be no more than the operation of the implied undertaking dealt with in Harman [and Esso].
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: cited
The reasoning of the Full Court, as Gordon J noted in Cadbury at [16], is persuasive and sensible and it leads to the conclusion that, save where a disclosure is made for a particular and limited purpose, the filing and service operates as a complete, and not simply limited, waiver of privilege: at [16]-[18]; for the reason that the uses that may be made of the served document in the proceedings are "inconsistent with the maintenance of the confidentiality which the privilege is intended to protect": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [29] .
Case: Smith Kline &amp; French Laboratories (Aust) Ltd v Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73
Outcome: cited
I will assume the answers given to the ACCC by Sutton and Lancsar were confidential in the sense that they were given (a) in relation to one of the limited matters specified in s 155(1) of the TP Act and (b) in furtherance of the performance of the ACCC's functions under the TP Act in relation to those matters, but not otherwise: cf Smith Kline &amp; French Laboratories (Aust) Ltd v Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 110. This said, the use proposed to be made of the information so provided falls squarely within the scope of the purpose for which the answers were given, ie the ACCC's enforcement of the Act in respect of an alleged contravention of it. The information was not said to be the subject of any privilege. And while the answers were given under compulsion of law: ss 155(5) and (6A); there is no statutory preclusion of their use in civil as distinct from criminal: s 155(7) proceedings. Accordingly, to the extent that they contain admissions of a party to these proceedings, they are admissible against that party in accordance with the provisions of the Evidence Act : see ss 81 , 83 and 87 . 132 As I am not satisfied that the ACCC has established any of the contraventions of s 45E which it has alleged, no question of the accessorial liability of the first, third and fourth respondents arises. Accordingly I will order that the application be dismissed as it relates to those respondents. I also will order that the ACCC pay the costs of those respondents. I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 16 May 2008 Counsel for the Applicant: Mr N J O'Bryan SC with Mr C A Moore Solicitor for the Applicant: Australian Government Solicitor Counsel for the First and Third Respondents: Mr G Inatey SC with Mr J Pearce Solicitor for the First and Third Respondents: Taylor &amp; Scott Solicitors Counsel for the Fourth Respondent: Mr M Gibian Solicitor for the Fourth Respondent: Paul Murphy and Associates Lawyers Date of Hearing: 3, 4, 5 and 13 September 2007 Date of Judgment: 16 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/678.html
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24
Outcome: cited
I note that the original respondent to this appeal is the Minister for Immigration and Multicultural Affairs. Following the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24 , I order that the Refugee Review Tribunal be joined as second respondent to these proceedings. No specific Refugees Convention claims were made by or on behalf of the appellant wife who relied on membership of the appellant husband's family unit. In the protection visa application and before the Tribunal the appellant husband claimed a well-founded fear of persecution on grounds of religion and political opinion. He claimed that he was a member of the Bharatiya Janata Party ('BJP'), that he supported victims of the Gujarat train massacre and due to such support was persecuted by Muslim political parties and extremist Muslims. The appellant husband claimed to have suffered property damage, to have been attacked resulting in hospitalisation and to have received threats. On 23 December 2003 the Tribunal invited the appellants to a hearing and on 13 February 2004 the Tribunal was advised in writing that the appellants did not wish to attend. The appellants did not attend the hearing and the Tribunal proceeded to determine the matter on the evidence available to it in their absence as permitted by s 426A Migration Act 1958 (Cth) ('the Act').