mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538
Outcome: applied
In the event that I am wrong in the views that I have expressed, I would decline to stay the Federal Court proceedings. This is because the appropriate test to apply in the circumstances is the test in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and not in Sterling Pharmaceuticals (see BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523 ('BHP Billiton') , the observations of Ormiston JA in Schmidt referred to above and Transport Workers' Union of Australia v Bentley [2001] FCA 671 ; (2001) 112 FCR 580). On the application of that test, it could not be said that the Western Australia District Registry of the Federal Court is a clearly inappropriate forum for Plantagenet to commence the Federal Court proceedings. Plantagenet's principal place of business is in Western Australia, the alleged breaches of the TP Act occurred in Western Australia and the alleged losses were suffered in Western Australia.
Case: BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523
Outcome: cited
In the event that I am wrong in the views that I have expressed, I would decline to stay the Federal Court proceedings. This is because the appropriate test to apply in the circumstances is the test in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and not in Sterling Pharmaceuticals (see BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523 ('BHP Billiton') , the observations of Ormiston JA in Schmidt referred to above and Transport Workers' Union of Australia v Bentley [2001] FCA 671 ; (2001) 112 FCR 580). On the application of that test, it could not be said that the Western Australia District Registry of the Federal Court is a clearly inappropriate forum for Plantagenet to commence the Federal Court proceedings. Plantagenet's principal place of business is in Western Australia, the alleged breaches of the TP Act occurred in Western Australia and the alleged losses were suffered in Western Australia. 51 In BHP Billiton , Gleeson CJ, McHugh and Heydon JJ said at 527, at [14]: 'In the context of the Cross-Vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-Vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.' 52 Gleeson CJ, McHugh and Heydon JJ in BHP Billiton at 527, at [13] quoted with approval the following observations by Street CJ in Bankinvest : 'The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice...It calls for what I might describe as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.'
Case: Anderson Formrite Pty Ltd v Baulderstone Hornibrook Pty Ltd (2003) 206 ALR 614
Outcome: cited
Counsel for Lion Nathan submits that considerable weight must be given to the fact that the distribution agreement contains a clause whereby the parties have submitted to the non exclusive jurisdiction of the courts of New South Wales. Counsel relies upon observations by Simmonds J in Anderson Formrite Pty Ltd v Baulderstone Hornibrook Pty Ltd ( 2004) 206 ALR 614 at 618 where his Honour observed that weight should be given to a clause where parties have agreed to submit to the jurisdiction of a particular court even if the submission was to the non exclusive jurisdiction of that court, but that greater weight should be given if the parties have submitted to the exclusive jurisdiction of the court. 57 Counsel for Plantagenet submitted that on the proper construction of the clause Plantagenet has not submitted its TP Act claims to the non exclusive jurisdiction of the courts of New South Wales. The submission to the non exclusive jurisdiction of the New South Wales Court was limited to claims relating to the construction and performance of the distribution agreement, and did not extend to claims of misrepresentation leading to the entry into the agreement. 58 Secondly, counsel argued that the words 'courts of [New South Wales]' in the clause were apt to include the Federal Court which is a court which, inter alia, sits in New South Wales.
Case: Cultivaust Pty Ltd v Grain Pool of WA [2000] FCA 974
Outcome: applied
In the case of Cultivaust Pty Ltd v Grain Pool of WA [2000] FCA 974 , Heerey J at [12] observed: 'Financial aspects loom large in this matter. Cultivaust is a small company with an annual income of less than $200 000. Grain Pool is a substantial statutory corporation with revenues in excess of $600 million. The objective of access to justice is just as applicable in the area of commercial litigation between corporations as it is when individuals are involved. The extra expense involved in a transfer would be a substantial burden on Cultivaust and would exacerbate the existing imbalance of financial resources between these two litigants.' 77 Although those observations were made in the context of an application to transfer proceedings in the South Australia District Registry of this Court, to the Western Australia District Registry, Heerey J's observations are, in my view, equally applicable to an application for the transfer of proceedings under the cross-vesting legislation. 78 I accept the submissions by counsel for Plantagenet that there is a large disparity in financial resources between Plantagenet and Lion Nathan, and that the effect of having to conduct interstate litigation would be substantially more onerous on the financial resources of Plantagenet than it would be on the financial resources of Lion Nathan. 79 It has been necessary for Plantagenet to engage an additional firm of solicitors to act as its solicitors in New South Wales on instructions from Plantagenet's firm of solicitors in Perth, and that Plantagenet has also been required to engage counsel in New South Wales as well. By contrast, Lion Nathan has used its Sydney based firm of solicitors and counsel both in the New South Wales proceedings and the Federal Court proceedings. Lion Nathan can continue to do so in the event that the Federal Court proceedings are not transferred to the New South Wales Supreme Court. No doubt if the Federal Court proceedings were to be tried in Perth, Lion Nathan may well have to incur the additional costs of transporting and accommodating its legal representatives in Perth for the trial, but those costs would be relatively minor, in comparison to the costs that Plantagenet would have to incur in having to retain for the duration of the proceedings a second firm of solicitors and a counsel in Sydney.
Case: Transport Workers' Union of Australia v Bentley [2001] FCA 671 ; (2001) 112 FCR 580
Outcome: cited
In the event that I am wrong in the views that I have expressed, I would decline to stay the Federal Court proceedings. This is because the appropriate test to apply in the circumstances is the test in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and not in Sterling Pharmaceuticals (see BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523 ('BHP Billiton') , the observations of Ormiston JA in Schmidt referred to above and Transport Workers' Union of Australia v Bentley [2001] FCA 671 ; (2001) 112 FCR 580). On the application of that test, it could not be said that the Western Australia District Registry of the Federal Court is a clearly inappropriate forum for Plantagenet to commence the Federal Court proceedings. Plantagenet's principal place of business is in Western Australia, the alleged breaches of the TP Act occurred in Western Australia and the alleged losses were suffered in Western Australia.
Case: ACCC v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665
Outcome: applied
is a public interest in knowing what conduct constitutes contravention and that it is considered to warrant an order recognising its seriousness. This may be done on the basis of admitted facts: ACCC v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665. Her Honour's approach in that case was expressly approved by a Full Federal Court upon appeal: ACCC v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 at [91] - [92] .
Case: BHP Steel (AIS) Pty Ltd v CFMEU [2000] FCA 1908
Outcome: referred to
BHP Steel (AIS) Pty Ltd v CFMEU [2000] FCA 1908 , a penalty of $2,200 was imposed on the CFMEU in what the Court described as a "serious" case (at [8]). The maximum was $10,000. The CFMEU defended the case.
Case: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No.2) (1999) 94 IR 231
Outcome: applied
leading cases concerning the factors that are relevant to the assessment of civil penalties are the judgments of French J in Trade Practices Commission v CSR Ltd (1991) ATPR p41-076 and Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231. The principles identified in those cases have been applied to determining penalties under the BCII Act.
Case: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317
Outcome: referred to
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 "(Mobil Oil") the Full Federal Court acknowledged that deterrence is "one of the principal justifications, if not the only justification for imposing civil penalties" at [53]. In Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 , which involved industrial action on the very project that is in issue in this case, Le Miere J, said putting it in a more limited way [74]: penalties should be sufficiently high to deter repetition by the contravener and by others who might be tempted to engage in contravening conduct. Deterrence is a primary objective of penalties."
Case: Mill v R [1988] HCA 70 ; (1988) 166 CLR 59
Outcome: cited
the contraventions in each case contain common elements, namely, unauthorised industrial action by involvement in the Strike. This is a relevant consideration in weighing the appropriate penalty to be imposed: The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228. To punish twice for conduct that contains an area of overlap "would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts": Pearce v R [1998] HCA 57 ; (1998) 156 ALR 684 at [40] . These matters therefore give rise to considerations of cumulation and concurrence, as well as totality: Pearce at [45]; Mill v R [1988] HCA 70 ; (1988) 166 CLR 59; Finance Sector Union v The Commonwealth Bank of Australia (2005) 224 ALR 467 at [25].
Case: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Outcome: referred to
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 "(Mobil Oil") the Full Federal Court acknowledged that deterrence is "one of the principal justifications, if not the only justification for imposing civil penalties" at [53]. In Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 , which involved industrial action on the very project that is in issue in this case, Le Miere J, said putting it in a more limited way [74]: penalties should be sufficiently high to deter repetition by the contravener and by others who might be tempted to engage in contravening conduct. Deterrence is a primary objective of penalties." I consider that the total penalties in each case, tempered by suspension of a significant part of each gives rise to the appropriate overall penalties. In my view, the penalties in each case give effect to the primacy of both specific and general deterrence and in that regard I have given reasonable weight to the submissions of the applicant: Mobil Oil at [53].
Case: Pearce v R [1998] HCA 57 ; (1998) 156 ALR 684
Outcome: applied
the contraventions in each case contain common elements, namely, unauthorised industrial action by involvement in the Strike. This is a relevant consideration in weighing the appropriate penalty to be imposed: The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228. To punish twice for conduct that contains an area of overlap "would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts": Pearce v R [1998] HCA 57 ; (1998) 156 ALR 684 at [40] . These matters therefore give rise to considerations of cumulation and concurrence, as well as totality: Pearce at [45]; Mill v R [1988] HCA 70 ; (1988) 166 CLR 59; Finance Sector Union v The Commonwealth Bank of Australia (2005) 224 ALR 467 at [25].
Case: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: applied
consider it appropriate that there be declarations as to the contraventions broadly in the terms sought by the applicant: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89. It is convenient and appropriate to do so in order to explain the basis for the penalties ordered: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53.
Case: The Community and Public Sector Union (CPSU) v Telstra Corporation Ltd (2001) 108 IR 228
Outcome: cited
the contraventions in each case contain common elements, namely, unauthorised industrial action by involvement in the Strike. This is a relevant consideration in weighing the appropriate penalty to be imposed: The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228. To punish twice for conduct that contains an area of overlap "would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts": Pearce v R [1998] HCA 57 ; (1998) 156 ALR 684 at [40] . These matters therefore give rise to considerations of cumulation and concurrence, as well as totality: Pearce at [45]; Mill v R [1988] HCA 70 ; (1988) 166 CLR 59; Finance Sector Union v The Commonwealth Bank of Australia (2005) 224 ALR 467 at [25].
Case: Trade Practices Commission v CSR Ltd (1991) ATPR p41-076
Outcome: applied
leading cases concerning the factors that are relevant to the assessment of civil penalties are the judgments of French J in Trade Practices Commission v CSR Ltd (1991) ATPR p41-076 and Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231. The principles identified in those cases have been applied to determining penalties under the BCII Act. This is a repetition of what was said by French J in Trade Practices Commission v CSR Ltd (1991) ATPR p41-076 at 52,152. See also Trade Practices Commission v Pye Industries Sales Pty Ltd (1978) ATPR p40-089 at 17,859; Ponzio v B &amp; P Caelli Constructions Pty Ltd (2007) 158 FCR 543 per Lander J at [93] and per Jessop J at [164].
Case: Trade Practices Commission v Pye Industries Sales Pty Ltd (1978) ATPR p40-089
Outcome: cited
is a repetition of what was said by French J in Trade Practices Commission v CSR Ltd (1991) ATPR p41-076 at 52,152. See also Trade Practices Commission v Pye Industries Sales Pty Ltd (1978) ATPR p40-089 at 17,859; Ponzio v B &amp; P Caelli Constructions Pty Ltd (2007) 158 FCR 543 per Lander J at [93] and per Jessop J at [164].
Case: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89
Outcome: applied
consider it appropriate that there be declarations as to the contraventions broadly in the terms sought by the applicant: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89. It is convenient and appropriate to do so in order to explain the basis for the penalties ordered: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: applied
I accept the evidence of Mr Mantach as to what he was told by Nicolas Robinson. Although as counsel for the Robinsons stressed, there was no contemporaneous note (other than the reference to 200 acres) and the conversation occurred some ten years ago, the fact that there was a conversation about the cropping area is corroborated by the valuation report itself made at the time, albeit that it creates a misleading impression. Although the Robinson brothers were present in the court for most of the hearing, they did not give evidence. I think the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 entitles me to infer that their evidence on this critical issue would not have assisted them. There is added significance in the fact that the absent witnesses are a party, and a person closely associated with that party in the matters the subject of the litigation: Australian Communications and Media Authority v Clarity 1 Pty Ltd [2006] FCA 410 ; (2006) 150 FCR 494 at [52] .
Case: Australian Communications and Media Authority v Clarity 1 Pty Ltd (2006) 150 FCR 49
Outcome: cited
I accept the evidence of Mr Mantach as to what he was told by Nicolas Robinson. Although as counsel for the Robinsons stressed, there was no contemporaneous note (other than the reference to 200 acres) and the conversation occurred some ten years ago, the fact that there was a conversation about the cropping area is corroborated by the valuation report itself made at the time, albeit that it creates a misleading impression. Although the Robinson brothers were present in the court for most of the hearing, they did not give evidence. I think the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 entitles me to infer that their evidence on this critical issue would not have assisted them. There is added significance in the fact that the absent witnesses are a party, and a person closely associated with that party in the matters the subject of the litigation: Australian Communications and Media Authority v Clarity 1 Pty Ltd [2006] FCA 410 ; (2006) 150 FCR 494 at [52] .
Case: Spencer v The Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418 at 432
Outcome: cited
The answer to this question is: yes. In any case, I note that the Mantach case was not put on the basis that the test of market value as laid down in Spencer v The Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418 at 432 would have been applied differently if Mr Mantach has known his valuation was for a purchaser rather than a mortgagee. The complaint against Mr Mantach was that his valuations were too high. Understandably, he did not put forward a case along these lines: valuations for mortgagees tend to be low, I thought these valuations were for mortgage purposes, had I known they were for a purchaser they would have been higher. 195 It was put on behalf of Mantach that Mr Macleod admitted in evidence that he expected the valuer would contact the owner to arrange inspections and have discussions and communications with the owners. Counsel also pointed out that Mr Wright was the sole director of the applicant from its incorporation on 5 December 2000 until he was joined by Messrs Cottrell and Andriske on 15 March 2001. Mr Wright remained a director until 23 January 2003. 196 As already mentioned, Mr Wright wrote a letter to Boyds on 25 January 2001 arguing the merits of the Robinson properties, criticising the valuations (particularly those of Cubbins) and asking for a higher price. On 1 February he wrote again answering queries by Boyds about the properties. On 15 February Boyds sent the Letter of Understanding to him.
Case: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459
Outcome: cited
The short answer is that it is only necessary to show that, if the Mantach valuations amounted to misleading and deceptive conduct, they were a cause of the applicant's loss in purchasing properties for more than their true value: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459, I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109. As Gleeson CJ said in I &amp; L Securities at [33]: In most business transactions resulting in financial loss there are multiple causes of the loss. The statutory purpose would be defeated if the remedy under s 82 [of the Trade Practices Act ] were restricted to loss of which the contravening conduct was the sole cause.
Case: I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109
Outcome: applied
The short answer is that it is only necessary to show that, if the Mantach valuations amounted to misleading and deceptive conduct, they were a cause of the applicant's loss in purchasing properties for more than their true value: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459, I &amp; L Securities Pty Limited v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109. As Gleeson CJ said in I &amp; L Securities at [33]: In most business transactions resulting in financial loss there are multiple causes of the loss. The statutory purpose would be defeated if the remedy under s 82 [of the Trade Practices Act ] were restricted to loss of which the contravening conduct was the sole cause. 366 Section 82(1B) of the Trade Practices Act , inserted by Schedule 3 item 5 of the Corporate Law Economic Reform (Audit and Corporate Disclosure) Act 2004 (Cth) is concerned with claims in relation to economic loss caused by conduct in contravention of s 52. It provides for reduction of damages to the extent that the Court thinks just and equitable having regard to the claimant's share in responsibility for the loss or damage. It altered the well-established law that contributory negligence is not available in reduction of damages for claims under Pt V of the Trade Practices Act : I &amp; L Securities.