mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Outcome: cited
The real question is whether the pecuniary penalties which are now sought, and which have been agreed by the respondents, should be approved. In answering that question it must be emphasised that, in the final analysis, it is for the Court, and not the parties, to determine the amount of any pecuniary penalty. The Court is not to be regarded as a "rubber stamp". See generally NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; and Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd (2004) ATPR |P41-993. 144 In Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at [57] Merkel J (with whom Black CJ and Sackville J relevantly agreed) accepted that the parity principle applies to pecuniary penalties imposed under s 76 of the TPA. His Honour referred to two earlier decisions of the Full Court in support of that proposition, namely NW Frozen Foods at 295, and Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR |P41-851 at 44,539. See also Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR |P41-937 at [57] [58] per Goldberg J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4 ) (2006) ATPR |P42-101 at [71] [74] per Goldberg J; and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 at [11] per Tracey J.
Case: Postiglione v The Queen [1997] HCA 26 ; (1997) 189 CLR 295
Outcome: discussed
In Postiglione v The Queen [1997] HCA 26 ; (1997) 189 CLR 295 the principle was further explained. Dawson and Gaudron JJ stated (at 301): "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options." (Footnotes omitted.)
Case: Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333
Outcome: cited
As is well known, Pt IV of the TPA is directed at restrictive trade practices. It contains a number of provisions which proscribe and regulate agreements and conduct, and which are aimed at maintaining competition in trade and commerce: see Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 at 340 per Deane J. 6 The Competition Policy Reform Act 1995 (Vic), which introduced the Code, applies the "Schedule Version of Part IV" of the TPA to all "persons" in Victoria. 7 Section 45 of the TPA, which falls within Pt IV, deals with contracts, arrangements or understandings that restrict dealings or affect competition. Section 45(2) is in the following terms: "A corporation shall not: (a) make a contract or arrangement, or arrive at an understanding, if: (i) the proposed contract, arrangement or understanding contains an exclusionary provision; or (ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or (b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision: (i) is an exclusionary provision; or (ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition."
Case: Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170
Outcome: cited
In Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at [57] Merkel J (with whom Black CJ and Sackville J relevantly agreed) accepted that the parity principle applies to pecuniary penalties imposed under s 76 of the TPA. His Honour referred to two earlier decisions of the Full Court in support of that proposition, namely NW Frozen Foods at 295, and Australian Competition and Consumer Commission v Ithaca Iceworks Pty Ltd (2002) ATPR |P41-851 at 44,539. See also Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR |P41-937 at [57] [58] per Goldberg J; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 4 ) (2006) ATPR |P42-101 at [71] [74] per Goldberg J; and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 3) [2007] FCA 144 at [11] per Tracey J.
Case: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150
Outcome: cited
The parties have jointly submitted, and I accept, that the Court is entitled to treat the respondents' consent to these orders as involving an admission of all facts necessary or appropriate to the grant of the relief sought. See Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 at 164.
Case: Trade Practices Commission v CSR Ltd (1991) ATPR |P41-076
Outcome: cited
Plainly, the matters to be considered include: &#8226; the nature and extent of the contravening conduct; &#8226; the amount of loss or damage caused, if any; &#8226; the circumstances in which the conduct took place; &#8226; the size of the contravening company; &#8226; the deliberateness of the contravention; &#8226; the period over which the contravention extended; and &#8226; whether the respondents have shown a disposition to cooperate with the regulatory authorities. See generally Trade Practices Commission v CSR Ltd (1991) ATPR |P41-076 per French J at 52,152 52,153. 116 A pecuniary penalty is intended to achieve various goals. These include punishment, proportionate to the gravity of the contravening conduct, and deterrence, both specific and general. 117 At the same time, any penalty that is imposed should not be so high as to be oppressive. Among the factors that may be taken into account by way of mitigation are a blameless prior history, genuine contrition, and a willingness to settle any proceeding so as to avoid unnecessary expense.
Case: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529
Outcome: distinguished
In Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at [308] [309] the Full Court regarded the fact that legal advice had been obtained as being of little consequence and not as a discounting factor. In that case it was said merely to illustrate that the risk was appreciated. 140 I would regard the principle formulated in Universal Music as being inapplicable to this case. Here it is not so much that legal advice was obtained that is relevant. Rather it is the fact that not one of a bevy of lawyers who were involved in structuring and documenting the arrangement considered for a moment that there might be a breach of s 45. It is that which lends support to the respondents' claim, accepted by the ACCC, that they did not act dishonestly and had no idea that they were contravening that section. In no sense did they "appreciate" the risk, and choose to run it. 141 I am satisfied that all but two of the pecuniary penalties that are agreed are within the permissible range, and that they should be imposed. These penalties are appropriate because they may deter others from engaging in similar conduct. They are not insubstantial, totalling, for example, in the case of Mr North's clients $765,000. 142 The two exceptions are the penalties agreed in relation to Ronda, $65,000, and Mr Bramley, $20,000. Try as I might, and despite the fact that neither of these respondents wished to make any further submissions after discovering what penalties had been agreed between the ACCC and the other respondents, I can see no reason why penalties as severe as these should be imposed upon these two respondents.
Case: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Outcome: cited
The applicable principles are fairly clear. They are discussed at some length by Hill J in Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201; see also 7-Eleven Stores Pty Ltd v Australian Competition and Consumer Commission (1998) ATPR 41-622 (' 7 Eleven' ) at 4821 per Heerey J; Essendon Health Care Pty Ltd v Moylan (1998) 50 ALD 421 per Merkel J.
Case: 7-Eleven Stores Pty Ltd v Australian Competition and Consumer Commission (1998) ATPR 41622
Outcome: cited
The applicable principles are fairly clear. They are discussed at some length by Hill J in Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201; see also 7-Eleven Stores Pty Ltd v Australian Competition and Consumer Commission (1998) ATPR 41-622 (' 7 Eleven' ) at 4821 per Heerey J; Essendon Health Care Pty Ltd v Moylan (1998) 50 ALD 421 per Merkel J.
Case: Essendon Health Care Pty Ltd v Moylan (1998) 50 ALD 421
Outcome: cited
The applicable principles are fairly clear. They are discussed at some length by Hill J in Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201; see also 7-Eleven Stores Pty Ltd v Australian Competition and Consumer Commission (1998) ATPR 41-622 (' 7 Eleven' ) at 4821 per Heerey J; Essendon Health Care Pty Ltd v Moylan (1998) 50 ALD 421 per Merkel J.
Case: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622
Outcome: discussed
In Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622, McHugh J observed at 624-625: In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation... 7 His Honour went on to state at 625: If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.'
Case: Howard v Australian Electoral Commission [2000] FCA 1767
Outcome: applied
where special reasons can be identified, the Court has a discretion to grant or refuse to grant the extension of time sought (per Branson J in Howard v Australian Electoral Commission [2000] FCA 1767 at [7] . In Howard [2000] FCA 1767 at [7] , Branson J also said: Factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed ground of appeal ( Jess v Scott at 188). The applicant has not complied with O 52 r 15(3) of the Federal Court Rules . The affidavit sworn by him and filed in support of the present application does not address the matters required to be addressed by subrules (3)(c)(i) to (iii) of O 52 r 15. This non-compliance is a matter of substance not merely a matter of form. There are good reasons why the Court needs evidence going to the matters referred to in that subsection. Generally speaking, the Court should insist upon such evidence being tendered at the hearing of applications of this sort. There are suggestions in the affidavit filed by the applicant in support of the present application that, at least from 17 December 2008, he was endeavouring to make an application for leave to file a Notice of Appeal out of time but was having difficulty ascertaining precisely how to do this. It must be remembered that he did not make an appropriate application until the middle of February 2009.
Case: McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118
Outcome: cited
reviewing the authorities of McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118 and Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 ; (2008) 166 FCR 108 , his Honour declined to entertain the applicant's Application and dismissed it summarily on discretionary grounds. His Honour did so in the exercise of this Court's undoubted discretion to decline to entertain such an application in circumstances where there were ample alternative avenues available to the applicant for a full merits review of the respondent's decision to reject his claim for Austudy and where the applicant had not yet pursued any of those avenues. Doing the best I can to understand the document, the applicant seems to want to agitate five grounds of appeal, namely that: (a) His Honour's discretion miscarried because his Honour misunderstood and misapplied the principles articulated in McGowan [2003] FCA 482 ; 129 FCR 118 and in Transport Workers' Union of New South Wales [2008] FCAFC 26 ; 166 FCR 108 ; (b) The decision to reject his claim for Austudy was not made by the Secretary of the Department personally, as was required by the relevant legislative provisions; (c) The respondent had no power to investigate the applicant's claim for Austudy or to gather information from third party sources in respect of that claim; (d) His Honour erred in failing to require the respondent to answer more fully than it had a subpoena issued by the applicant; and (e) His Honour was actually biased against the applicant. I think that his Honour correctly encapsulated the principles from McGowan [2003] FCA 482 ; 129 FCR 118 and Transport Workers' Union of New South Wales [2008] FCAFC 26 ; 166 FCR 108 and that it was plainly open to his Honour to exercise his discretion in the manner in which he did. Unless it could be established that his Honour applied the wrong principles or invoked the correct principles but applied them in an obviously incorrect way, his Honour's exercise of discretion could not be overturned on appeal. The decision which his Honour made was clearly open to him especially as the gravamen of the applicant's complaint against the respondent concerned the valuation of his assets made by the respondent. This was a matter apt for merits review. His Honour correctly identified the merits review pathways open to the applicant. Further, the approach which his Honour took was advocated to his Honour by the respondent both in the written submissions made on behalf of the respondent to his Honour and in oral submissions made during the hearing which took place before his Honour. Notice of that approach was fairly given to the applicant. For these reasons, in this case, the applicant has failed to demonstrate that he has any prospect of establishing that Cowdroy J committed error of the relevant kind. This ground is hopeless.
Case: Parker v The Queen [2002] FCAFC 133
Outcome: applied
Parker v The Queen [2002] FCAFC 133 , at [6] in the reasons of the Court, a Full Court of this Court said: In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 , a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour's attention were set out at 348-349: applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time; action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; however, the mere absence of prejudice is not enough to justify the grant of an extension; and the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. In the same case, their Honours reviewed a number of other authorities which explained the basis upon which the Court will exercise its discretion to extend time for a litigant to appeal from a judgment of a single judge of the Court. Their Honours made clear that the overriding consideration is the interests of justice. The prima facie strength of the proposed appeal needs to be considered. However, I will assume, for the moment, in favour of the applicant that, at all times since 14 December 2008, he has been genuinely and diligently trying to make application to the Court for leave to file a Notice of Appeal from the judgment of Cowdroy J out of time. He did not, in fact, file the necessary application until 16 February 2009. I will make the assumption to which I have referred in order to give full consideration to the remaining factors referred to in Parker [2002] FCAFC 133 and to the interests of justice in the present case.
Case: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9
Outcome: applied
must also be an acceptable explanation for the delay ( QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7] ).
Case: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Outcome: applied
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 , after reviewing a number of relevant authorities, von Doussa J said (at [38]): In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing ( Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224) , or a failure to enquire into and to obtain readily available and important information relating to central matters for determination ( Sun Zhan Qui , and SBAN v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.
Case: Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 ; (2008) 166 FCR 108
Outcome: cited
reviewing the authorities of McGowan v Migration Agents Registration Authority [2003] FCA 482 ; (2003) 129 FCR 118 and Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 ; (2008) 166 FCR 108 , his Honour declined to entertain the applicant's Application and dismissed it summarily on discretionary grounds. His Honour did so in the exercise of this Court's undoubted discretion to decline to entertain such an application in circumstances where there were ample alternative avenues available to the applicant for a full merits review of the respondent's decision to reject his claim for Austudy and where the applicant had not yet pursued any of those avenues. Doing the best I can to understand the document, the applicant seems to want to agitate five grounds of appeal, namely that: (a) His Honour's discretion miscarried because his Honour misunderstood and misapplied the principles articulated in McGowan [2003] FCA 482 ; 129 FCR 118 and in Transport Workers' Union of New South Wales [2008] FCAFC 26 ; 166 FCR 108 ; (b) The decision to reject his claim for Austudy was not made by the Secretary of the Department personally, as was required by the relevant legislative provisions; (c) The respondent had no power to investigate the applicant's claim for Austudy or to gather information from third party sources in respect of that claim; (d) His Honour erred in failing to require the respondent to answer more fully than it had a subpoena issued by the applicant; and (e) His Honour was actually biased against the applicant. I think that his Honour correctly encapsulated the principles from McGowan [2003] FCA 482 ; 129 FCR 118 and Transport Workers' Union of New South Wales [2008] FCAFC 26 ; 166 FCR 108 and that it was plainly open to his Honour to exercise his discretion in the manner in which he did. Unless it could be established that his Honour applied the wrong principles or invoked the correct principles but applied them in an obviously incorrect way, his Honour's exercise of discretion could not be overturned on appeal. The decision which his Honour made was clearly open to him especially as the gravamen of the applicant's complaint against the respondent concerned the valuation of his assets made by the respondent. This was a matter apt for merits review. His Honour correctly identified the merits review pathways open to the applicant. Further, the approach which his Honour took was advocated to his Honour by the respondent both in the written submissions made on behalf of the respondent to his Honour and in oral submissions made during the hearing which took place before his Honour. Notice of that approach was fairly given to the applicant. For these reasons, in this case, the applicant has failed to demonstrate that he has any prospect of establishing that Cowdroy J committed error of the relevant kind. This ground is hopeless.