mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801
Outcome: cited
The Court has a wide discretion under section 21 of the Federal Court of Australia Act 1976 (Cth) to make binding declarations of right (see, for example: Trade Practices Commission v Santos Limited (1993) ATPR 41-221; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89; RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164; Australian Competition &amp; Consumer Commission v Target (2001) ATPR 41-840 at [14]). The proposed declarations go to the legal controversy between the parties ( Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 596) and the ACCC has a "real interest", as that expression was used in Forster v Jododex Aust Pty Limited [1972] HCA 61 ; (1972) 127 CLR 421 at 437 438, in seeking declaratory relief as the public body charged with enforcing the TPA and the Code (see Australian Competition &amp; Consumer Commission v Goldy Motors Pty Ltd (2001) ATPR 41-801 at [30]).
Case: Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: cited
In the light of those findings, I consider it appropriate to make declarations in the terms proposed by the parties. The matters they address are far from hypothetical, and the proposed declarations specifically address the particular contravening conduct on the part of Mr Knight and Mr Ross which has been established: see Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53. 67 Section 86C of the TPA contains the power to order a contravenor of a provision of the TPA to attend a compliance program. The text of the Code includes that (and other) provisions of the TPA which relate to the Schedule version of Part IV: see s 4(1)(b) of the Competition Policy Reform (South Australia) Act 1996 (SA). The proposed order that each of Mr Knight and Mr Ross attend a trade practices compliance program is therefore within power. As it is agreed that their contravening conduct was engaged in ignorance of the relevant provisions of the Code, it is appropriate that they should attend such a program provided it is relevant to the contraventions. The proposed order satisfies that proviso and is sufficiently clear and precise to enable the performance of it to be readily undertaken and assessed. 68 The proposed orders for costs are also clearly within the Court's power and are appropriate.
Case: Trade Practices Commission v CSR Limited (1991) ATPR 41-076
Outcome: considered
Section 76 of the Code and of the TPA sets out matters to which the Court must have regard in determining an appropriate level of penalty. The principles are generally equally relevant to the assessment of a pecuniary penalty under the Code. They were addressed by French J in Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52,152 - 52,153. French J, dealing with a corporation not an individual, formulated these as follows: (a) the nature and extent of the contravening conduct; (b) the amount of loss or damage caused; (c) the circumstances in which the conduct took place; (d) the size of the contravening company; (e) the degree of power it has, as evidenced by its market share and ease of entry into the market; (f) the deliberateness of the contravention and the period over which it extended; (g) whether the contravention arose out of the conduct of senior management or at a lower level; (h) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and (i) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. 73 It has long been accepted that a principal object of a penalty under s 76 is deterrence (see Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,896 per Smithers J). In Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152, French J stated: The principal, and I think probably the only, object of the penalties imposed by s. 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act. This approach was approved by the majority of the Full Federal Court in NW Frozen Foods 71 FCR 285 .
Case: Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd (1998) ATPR 41-628
Outcome: cited
Those considerations were approved and expanded upon by the Full Court of the Federal Court in NW Frozen Foods 71 FCR 285 and by Heerey J in Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd (1998) ATPR 41-628 to include: (a) whether the person has previously been found by the Court to have engaged in similar conduct (a matter required to be taken into account by section 76); (b) the effect on the functioning of the market and other economic effects of the conduct; (c) the financial position of the contravening company; and (d) whether the conduct was systematic, deliberate or covert.
Case: Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091
Outcome: cited
It has long been accepted that a principal object of a penalty under s 76 is deterrence (see Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,896 per Smithers J). In Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152, French J stated: The principal, and I think probably the only, object of the penalties imposed by s. 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act. This approach was approved by the majority of the Full Federal Court in NW Frozen Foods 71 FCR 285 .
Case: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296
Outcome: cited
Deterrence has two aspects: specific deterrence in respect of the actual contravener and general deterrence of others "who may be disposed to engage in prohibited conduct of a similar kind" ( Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 298, per Toohey J). The Full Court in NW Frozen Foods 71 FCR 285 made it clear (at 294-295) that: The Court should not leave room for any impression of weakness in its resolve to impose penalties sufficient to ensure the deterrence, not only of the parties actually before it, but also of others who might be tempted to think that contravention would pay ...
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301
Outcome: considered
In Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301, Goldberg J concluded at [39] that: The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention. 76 In applying the above principles to the conduct of each respondent, and having regard to all the factors and circumstances including those outlined below, the ACCC and Messrs Knight and Ross submit that penalties in the following amounts are appropriate, and are within the range of penalties a Court would order in the circumstances: Mr Knight: $55,000 Mr Ross: $55,000 I consider that those proposed penalties are within the range of penalties which might properly be imposed for the contraventions. 77 I will briefly set out my reasons for that conclusion, in the light of the matters discussed in the cases referred to.
Case: Nystrom v Minister for Immigration [2005] FCAFC 121 ; (2005) 143 FCR 420
Outcome: cited
On 14 November 2005, the applicant was released from immigration detention by reason of his status as an ' Absorbed Person ', in conformity with the decision of the Full Federal Court in Nystrom v Minister for Immigration [2005] FCAFC 121 ; (2005) 143 FCR 420.
Case: Minister for Immigration v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370
Outcome: cited
On 8 November 2006, the High Court allowed an appeal from the judgment of the Full Federal Court: Minister for Immigration v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370. In consequence of the High Court's decision, on 28 November 2006 the applicant was again taken into immigration detention. 18 On 1 December 2006, the applicant was interviewed by a Departmental officer while in detention at Villawood. On 20 December 2006, the Department of Immigration advised the applicant that the previous cancellation of his visa was being reviewed.
Case: Sales v Minister for Immigration [2006] FCA 1807
Outcome: cited
On 23 January 2006, the applicant was released from immigration detention following the decision in Sales v Minister for Immigration [2006] FCA 1807. This decision apparently was taken to suggest that there may have been a failure to accord the applicant procedural fairness in relation to the earlier cancellation of his visa. 20 On 3 April 2007, the Department wrote to the applicant (who was then not in custody) advising that it was giving fresh consideration as to whether his Transitional (Permanent) (BF-C) visa should be cancelled under s 501 of the Migration Act . The letter encouraged the applicant to provide the Department with all information that he wished the Minister, or a delegate, to consider in making the decision. 21 On 5 April 2007, the Department sent the applicant a ' NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR VISA UNDER SUB-SECTION 501(2) OF THE MIGRATION ACT 1958 '. The Notice informed the applicant that the information to be relied upon would include his convictions for murder and attempted murder, the sentences imposed in respect of those offences and the redetermination of the sentence for murder that was made on 13 August 1998. The letter advised that the information that might be taken into account included the transcript of proceedings of a number of criminal proceedings involving the applicant, as well as other material specified in the letter. The applicant was further advised that all information that he had previously provided would be taken into account in making the decision. However, he was invited to provide information and comments in relation to the application of the character test and to address any matters that he considered that the Minister should take into account when exercising the statutory discretion.
Case: Plaintiff S157/2002 v Commonwealth (2003) 162 CLR 476
Outcome: referred to
The decision by the Minister to cancel the applicant's visa was a ' privative clause decision ': Migration Act s 474(2) , (3)(b). Accordingly, the applicant is entitled to the relief he claims, or some variation thereof, only if he can establish that the Minister has committed jurisdictional error: Migration Act s 474(1) ; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In my opinion, none of the grounds identified by the applicant establishes jurisdictional error by the Minister in connection with the making of the visa cancellation decision. 39 The first ground merely asserts the existence of jurisdictional error, without providing particulars or any basis for the assertion. 40 The second ground seems to challenge the Minister's conclusion that the applicant had a substantial criminal record for the purposes of s 501(7) of the Migration Act . It is clear, however, that the applicant satisfied the definition. He was initially sentenced to life imprisonment following his conviction for murder and, subsequently, to a redetermined sentence of 21 years, with a minimum custodial term of 16 years.
Case: Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39 ; (1977) 137 CLR 487
Outcome: referred to
While the rules of natural justice (or procedural fairness) apply to the decision in this case, they do not necessarily mean that the Minister was bound to afford the appellant an oral hearing: Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39 ; (1977) 137 CLR 487 , at 516, per Aickin J; Chen v Minister for Immigration and Ethnic Affairs [1994] FCA 985 ; (1994) 48 FCR 591 , at 597, per curiam . Whether there is such an obligation will depend on the circumstances including the terms of the legislation, the nature of the decision, the characteristics of the decision-maker and the factual matters, if any, in dispute: cf M Aronson, B Dyer and M Groves, Judicial Review of Administrative Actions (3 rd ed 2004), at 493-494.
Case: Chen v Minister for Immigration and Ethnic Affairs [1994] FCA 985 ; (1994) 48 FCR 591
Outcome: referred to
While the rules of natural justice (or procedural fairness) apply to the decision in this case, they do not necessarily mean that the Minister was bound to afford the appellant an oral hearing: Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39 ; (1977) 137 CLR 487 , at 516, per Aickin J; Chen v Minister for Immigration and Ethnic Affairs [1994] FCA 985 ; (1994) 48 FCR 591 , at 597, per curiam . Whether there is such an obligation will depend on the circumstances including the terms of the legislation, the nature of the decision, the characteristics of the decision-maker and the factual matters, if any, in dispute: cf M Aronson, B Dyer and M Groves, Judicial Review of Administrative Actions (3 rd ed 2004), at 493-494.
Case: M238/2002 v Minister for Immigration, Multicultural &amp; Indigenous Affairs [2003] FCA 936
Outcome: discussed
In M238/2002 v Minister for Immigration, Multicultural &amp; Indigenous Affairs [2003] FCA 936 , Kenny J made some helpful observations on the requirements of procedural fairness in relation to a Ministerial visa cancellation decision under s 501(2). Her Honour noted (at [41]) that: 'Procedural fairness required that, before any decision was made, the Minister afford the applicant a fair opportunity to present information and argument against the cancellation of his visa. Precisely what constituted a fair opportunity depended on all the circumstances of the case, including the nature of the statutory power in question and the interests promoted by it, the interests of persons affected by the decision, and what was relevantly known by the decision-maker at the time the decision was made.' 45 Kenny J acknowledged (at [43]) that any visa cancellation decision made by the Minister has great importance to the person affected. However, her Honour also pointed out that: the power is conferred in order that the Minister can act in the public interest to protect of the Australian community. Under this provision, the legislature has entrusted to the Minister the responsibility for deciding whether the public interest should prevail over the private interest of a visa holder.' As Gleeson CJ and Gummow J stated in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2000) 205 CLR 507 , at 539, the statutory power in s 501 is reposed in a political official, who is a member of the Executive and accountable to Parliament and the electorate. It is therefore unlikely that Parliament contemplated that every visa cancellation decision would require the Minister, as a pre-condition to the exercise of his or her powers, to afford an oral hearing to the visa holder. 46 Of course, the requirements of procedural fairness may be onerous, even without an obligation to provide an oral hearing. Procedural fairness requires the visa holder to be given an opportunity to: 'rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.' Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 , at 592, per curiam , cited by Kenny J in M238/2002 v Minister , at [44].
Case: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2000) 205 CLR 507
Outcome: referred to
Kenny J acknowledged (at [43]) that any visa cancellation decision made by the Minister has great importance to the person affected. However, her Honour also pointed out that: the power is conferred in order that the Minister can act in the public interest to protect of the Australian community. Under this provision, the legislature has entrusted to the Minister the responsibility for deciding whether the public interest should prevail over the private interest of a visa holder.' As Gleeson CJ and Gummow J stated in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2000) 205 CLR 507 , at 539, the statutory power in s 501 is reposed in a political official, who is a member of the Executive and accountable to Parliament and the electorate. It is therefore unlikely that Parliament contemplated that every visa cancellation decision would require the Minister, as a pre-condition to the exercise of his or her powers, to afford an oral hearing to the visa holder.
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576
Outcome: cited
Of course, the requirements of procedural fairness may be onerous, even without an obligation to provide an oral hearing. Procedural fairness requires the visa holder to be given an opportunity to: 'rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.' Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 , at 592, per curiam , cited by Kenny J in M238/2002 v Minister , at [44].
Case: Oxford Funding Proprietary Limited v Oxford Asia Pacific Investments Proprietary Limited (No 2) [2006) FCA 1542 at [5]
Outcome: cited
The considerations which apply when a matter has otherwise been resolved but the parties seek an order for costs has recently been discussed by me in Oxford Funding Proprietary Limited v Oxford Asia Pacific Investments Proprietary Limited (No 2) [2006) FCA 1542 at par [5]. 6 In the present case the dispute arose in circumstances of great urgency. The parties are fierce trade rivals, and understandably concerned to protect their commercial interests. The Court should not be too ready to dictate in hindsight a particular course of conduct which the parties could or should have taken. 7 I think the applicant acted reasonably in initiating proceedings to forestall what was arguably, in its view, misleading and deceptive conduct by the respondent which could be seriously damaging. The respondent, on the other hand, proffered firm assurances which would meet the applicant's concerns. As events have turned out, those assurances have been substantiated. It is possible that the respondent might have offered more corroborating detail in its letter of today's date. However, that was a matter for judgment which had to be made quickly and under pressure. Given its legitimate concern about confidentiality of dealings with the Therapeutic Goods Administration, I do not think that the respondent acted unreasonably, although it might have acted differently. 8 In the circumstances, I do not propose to make any order as to costs. The substantive application will be dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 30 November 2006 Counsel for the Applicant: D Shavin QC and I Horak Solicitors for the Applicant: Clayton Utz Counsel for the Respondent: S McVicar Solicitors for the Respondent: Freehills Date of Hearing: 30 November 2006 Date of Judgment: 30 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1763.html
Case: Edelsten v Deputy Commissioner of Taxation (NSW) &amp; Ors (1989) 86 ALR 257
Outcome: applied
It is said that such a purpose on the part of the respondent, in giving an authority to Nicholas Eddy under s 188 of the Act, 'is foreign to the bankruptcy laws': Edelsten v Deputy Commissioner of Taxation (NSW) &amp; Ors (1989) 86 ALR 257 at 261. 13 The difficulty I have with this argument is that subs 188(1) of the Act is predicated on the following basis: 'A debtor who desires that his or her affairs be dealt with under this Part without his or her estate being sequestrated ...' 14 In other words, the outcome upon which the applicant relies as an abuse of process, namely, the avoidance of sequestration of the respondent's estate, is the very basis upon which an authority under subs 188(1) is predicated. If a debtor has a desire that his or her affairs be dealt with under Part X without his or her estate being sequestrated and that is his only purpose in giving an authority of the kind to which that section provides, that cannot be a purpose which is 'foreign to the bankruptcy laws'. Indeed, it is a purpose which is contemplated by such laws.