mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285
Outcome: cited
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 ( NW Frozen Foods ) and J McPhee &amp; Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 , the Full Court of this Court approved French J's list and added further relevant considerations, including whether the conduct was systematic, deliberate or covert. The Court's role, as the parties accepted, is not simply to accept and adopt the position agreed between the parties. In NW Frozen Foods [1996] FCA 1134 ; (1996) 71 FCR 285 , concerning the imposition of a civil penalty under the TP Act, a single judge declined to give effect to the civil penalty proposed in the minute of consent orders and the joint submissions of the parties, and imposed a more severe penalty. On appeal, Burchett and Kiefel JJ observed at 290-1: Since the decision in Trade Practices Commission v Allied Mills Industries Pty Ltd , it has been accepted that both the facts, and also views about their effect, may be presented to the Court in agreed statements, together with joint submissions by both the Commission and a respondent as to the appropriate level of penalty. Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount. There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case. These observations are capable of applying to the making of orders reflecting negotiated outcomes in respect of civil penalty provisions of enactments other than the TP Act: Warne; Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72.
Case: J McPhee &amp; Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532
Outcome: cited
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 ( NW Frozen Foods ) and J McPhee &amp; Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 , the Full Court of this Court approved French J's list and added further relevant considerations, including whether the conduct was systematic, deliberate or covert.
Case: Minister for the Environment and Heritage v Wilson [2004] FCA 6
Outcome: discussed
other two cases to which my attention was drawn are not so directly relevant. They relate to different offences. In Minister for the Environment and Heritage v Wilson [2004] FCA 6 ( Wilson ), the respondent set a net in the Great Australian Bight Marine Park and caught a shark, contrary to s 354(1) of the EPBC Act. The Minister and the Respondent jointly submitted that the appropriate pecuniary penalty to be imposed was $12,500 (the maximum civil penalty for an individual was $55,000). Selway J decided that level of penalty was appropriate. On the facts put by the respondent and not disputed by the applicant, the respondent knew that he was close to the border of the Park and knew there was a risk that his vessel might drift into the Park, but did not know that in fact his vessel had done so. Further, it was a first offence, was not deliberate and was the result of negligence, bordering on recklessness. In Minister for Environment and Heritage v Warne [2007] FCA 599 ( Warne ), the respondent was the skipper of a vessel which carried out commercial fishing within the boundaries of a reserve contrary to s 354(1)(a) and (f) of the EPBC Act. Whilst inside the boundaries, the vessel took a species of fish classified as a native species under the EPBC Act. The parties filed an agreed statement of facts and made joint submissions in support of a pecuniary penalty of $25,000 (the maximum civil penalty for an individual was $55,000). The parties characterised the respondent's incursions into the wildlife park as "reckless". Siopis J ordered that the respondent pay the agreed penalty. The parties jointly submit that the Court should consider the first respondent's conduct as more serious than the relevant conduct in Wilson and Warne , but less serious than that in Greentree . Whilst that analysis may reflect the comparative degrees of culpability, it is not clear how the comparison leads to the proposed and agreed penalty.
Case: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375
Outcome: cited
Court generally looks favourably upon negotiated settlements: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375. It is in the public interest for the Court to make orders in litigation concerning the EPBC Act on the terms that have been agreed between parties so as to encourage parties to assist the applicant in investigations and achieve negotiated settlements. The Court has recognised that, in addition to savings in time and costs, there is a public benefit in imposing agreed pecuniary penalties where appropriate as parties would not be disposed to reach such agreements where there are unpredictable risks involved.
Case: Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Outcome: cited
Court's role, as the parties accepted, is not simply to accept and adopt the position agreed between the parties. In NW Frozen Foods [1996] FCA 1134 ; (1996) 71 FCR 285 , concerning the imposition of a civil penalty under the TP Act, a single judge declined to give effect to the civil penalty proposed in the minute of consent orders and the joint submissions of the parties, and imposed a more severe penalty. On appeal, Burchett and Kiefel JJ observed at 290-1: Since the decision in Trade Practices Commission v Allied Mills Industries Pty Ltd , it has been accepted that both the facts, and also views about their effect, may be presented to the Court in agreed statements, together with joint submissions by both the Commission and a respondent as to the appropriate level of penalty. Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount. There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case. These observations are capable of applying to the making of orders reflecting negotiated outcomes in respect of civil penalty provisions of enactments other than the TP Act: Warne; Minister for Industry, Tourism &amp; Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72.
Case: Foster v ACCC [2006] FCAFC 21 ; (2006) 149 FCR 135
Outcome: cited
for IPS does not dispute, for the purpose of this application, the finding made by his Honour that there is a serious question to be tried or the finding on balance of convenience. However, Mr Arthur contends that orders 2 and 3 were made in breach of the principles which govern the grant of injunctive relief under s 80 of the Trade Practices Act 1974 (Cth) as recently considered and explained by a Full Court in Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 ; (2006) 149 FCR 135. In particular, Mr Arthur submits that it was not appropriate to make orders 2 and 3 because there was no sufficient nexus demonstrated between the contravention of s 52 of the Trade Practices Act and the conduct which is the subject of orders 2 and 3. Mr Arthur concedes that the grant of interlocutory injunctive relief was an exercise of his Honour's discretion and that it is necessary for him to point to an error of principle in the making of orders of 2 and 3. He submits that whilst it would have been open to his Honour to find a nexus, his Honour failed to do so. Alternatively he submits that there was no evidence from which his Honour could draw that conclusion. It seems to me that the learned Federal Magistrate must be taken in [24] and [25] of his reasons to have found that there was a threat to continue to make the implied representation which his Honour found to have been made in [11] and which gave rise to the exercise of the learned Federal Magistrate's discretion to grant injunctive relief. I'm satisfied that there was evidence, in particular in the affidavit of Ms Klitogiannis, to support that finding. Whilst it would certainly have been open to the learned Federal Magistrate to decline to make orders 2 and 3; see for example Australian Rugby Union Ltd v Hospitality Group Pty Ltd (2000) 173 ALR 702 at [152] to [153], I can see no error of principle by the learned Federal Magistrate in deciding upon the evidence before him that orders 2 and 3 were appropriate within the principles referred to by the Full Court in Foster . Accordingly, the order I will make is that leave to appeal be refused. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J. Associate: Dated: 18 October 2006 Counsel for the Applicant: R J Arthur Solicitor for the Applicant: Bradley Allen Lawyers Counsel for the Respondent: B J Salmon QC with C Besemeres Solicitor for the Respondent: J S O'Connor Harris &amp; Co Date of Hearing: 18 October 2006 Date of Judgment: 18 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1392.html
Case: Australian Rugby Union Limited v Hospitality Group Pty Limited (2000) 173 ALR 702
Outcome: cited
it would certainly have been open to the learned Federal Magistrate to decline to make orders 2 and 3; see for example Australian Rugby Union Ltd v Hospitality Group Pty Ltd (2000) 173 ALR 702 at [152] to [153], I can see no error of principle by the learned Federal Magistrate in deciding upon the evidence before him that orders 2 and 3 were appropriate within the principles referred to by the Full Court in Foster . Accordingly, the order I will make is that leave to appeal be refused. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J. Associate: Dated: 18 October 2006 Counsel for the Applicant: R J Arthur Solicitor for the Applicant: Bradley Allen Lawyers Counsel for the Respondent: B J Salmon QC with C Besemeres Solicitor for the Respondent: J S O'Connor Harris &amp; Co Date of Hearing: 18 October 2006 Date of Judgment: 18 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1392.html
Case: Morlea Professional Services Pty Ltd v Richard Walter Pty Ltd (in liq) [1999] FCA 1820 ; (1999) 96 FCR 217
Outcome: cited
somewhat similar point is made in respect of GSS' claim against the third parties. It is said that there may be claims at the suit of GSS that are different from any claim that could be prosecuted by a trustee whose claims against third parties would ordinarily be confined to allegations of procuring a breach of trust or knowingly being in receipt of trust property. Mr Porch says that GSS makes claims in law other than for breach of trust. Reference was made to Morlea Professional Services Pty Ltd v Richard Walter Pty Ltd (in liq) [1999] FCA 1820 ; (1999) 96 FCR 217. Although the conditions in s 237(2) have been satisfied, I feel some disquiet about allowing the action by GSS to proceed. This is not because I have formed any view about the merits of its case. I am satisfied that Mr Porch genuinely believes that GSS has claims that ought to proceed. However, I am troubled by whether there is any utility in allowing the action to proceed with GSS as a plaintiff. My concern is that GSS may add nothing to the case. By this I mean that if the allegations against the Deans and their co-defendants are made good, the claim by Landmark will succeed and there is little, if anything, additional that GSS could recover in a separate action. Conversely if the claim by Landmark fails, it is difficult to see how the action by GSS could succeed having regard to the almost complete overlap of the allegations against the defendants. My concern is heightened by the fact that when at the hearing I identified my concern, counsel for Mr Porch did not explain how the GSS Unit Trust would be better off in a financial sense if the action by GSS goes ahead.
Case: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
In Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Court (Sheppard, Burchett and Heerey JJ) indicated at p 398 that the tests normally to be applied in determining whether leave for interlocutory decisions should be granted are whether the decision at first instance was attended with sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong. 25 For the above reasons, I granted leave, being of the view that both of the tests set out in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR had application in the circumstances of the present matter. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender J. Associate: Dated: 30 May 2006 Counsel for the Applicants, (the Respondents to the application for leave): Mr Richard Perry SC Solicitor for the Applicant: Lynch &amp; Co Counsel for the Respondents, (the Applicants to the application for leave): Mr David Jackson QC Mr Paul McQuade Solicitor for the Respondent: McCullough Robertson Date of Hearing: 24 May 2006 Date of Judgment: 30 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/661.html
Case: Staff Development &amp; Training Centre Pty Ltd v The Commonwealth of Australia [2005] FCA 1643
Outcome: distinguished
As far as I can see from the evidence, there was no suggestion that the ordering of security in this case would stifle the litigation, a circumstance which distinguishes it from the factual position in Staff Development &amp; Training Centre Pty Ltd v The Commonwealth of Australia [2005] FCA 1643 , a case referred to in the course of submissions to the primary judge.
Case: Frigo v Culhaci , unreported, New South Wales Court of Appeal, 17 July 1998
Outcome: considered
In Frigo v Culhaci , an unreported judgment of the Court of Appeal of New South Wales, (Mason P, Sheller JA and Sheppard AJA) of 17 July 1998 set aside the grant of a Mareva injunction by a District Court judge, in part because of the failure to give adequate reasons. The Court said: 'The orders made below must be set aside for a number of reasons: 1 Absence of Reasons It is the practice of the Supreme Court for reasons to be given, albeit sometimes in short form, after the hearing of a contested motion for an interlocutory injunction. S46(2)(c) of the District Court requires no less. More importantly, the general duty to give reasons, and its rationale as including proper exercise of rights of appeal, is well established: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office (NSW) (1997) 25 MVR 373.'
Case: Sharp Corporation of Australia Pty Ltd v Collector of Customs (1994) 59 FCR 6
Outcome: cited
The first qualification arises where a statute uses a word whose meaning is clear but the word is inherently capable of more than one application or outcome in the circumstances of the case. In such a case, the question whether the statutory description is satisfied will often be simply a question of fact: see, for example, the discussion of Brutus v Cozens [1972] UKHL 6 ; [1973] AC 854 by Mason J in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7-8; and see also Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 14-15.
Case: Markwell v Wollaston [1906] HCA 91 ; (1906) 4 CLR 141
Outcome: cited
The Tribunal placed some reliance upon the following observations of Griffith CJ in Markwell v Wollaston [1906] HCA 91 ; (1906) 4 CLR 141 (" Markwell v Wollaston ") at 148: "In my opinion, the term insecticide, as commonly used in English, means, or at any rate includes, any preparation in the nature of a drug or chemical adapted solely or mainly to the destruction of insect life, and the effect of which is produced either by immediate contact with the insect or by some influence fatal to insect life inherent in or emanating from the preparation." It is noteworthy that Griffiths CJ did not confine the common meaning of insecticide to preparations aimed solely or mainly at the destruction of insect life. He expressly recognised that in common usage the term insecticide might be broader than the meaning he was concerned to address. 36 What is of much greater significance is that heading 3808 and its sub-headings contain other indications that the word 'insecticide' is used in a way that embraces products that are designed to exterminate, reduce, repel or control targeted insect populations. Sub-heading 3808.10, 'Insecticides', is elaborated by sub-headings 3808.10.10 and 3808.10.90. Sub-heading 3808.10.10 provides that certain types of insecticides, namely camphor, fly papers and mosquito spirals and coils, are to be free of duty, whereas other insecticides attract duty at the rate of 5 per cent. We know from Markwell v Wollaston that the mixture of oil and resin that is smeared on fly paper is a preparation that falls within the ordinary meaning of the term 'insecticide'. The terms 'camphor' and 'mosquito coils' are defined in the Macquarie Dictionary (3 rd Ed) as follows: "Camphor 1. a bicyclic, aliphatic, terpenoid ketone, C 10 H 16 O, obtained chiefly from the camphor laurel or by synthesis, and used in medicine, the manufacture of celluloid, etc. 2. any of various similar substances, for household use as an insect deterrent. Mosquito coil a stiff coil of insect-repellent material, which, when set on a stand and ignited, burns slowly and releases insect-repellent smoke." By treating camphor and mosquito coils as insecticides, it is apparent that heading 3808 and its sub-headings use the term 'insecticide' so as to include chemicals or products which repel or deter insects. The term is not used in a way which is confined to chemicals which directly or indirectly kill or exterminate insects. 37 The examples given in parentheses in heading 3808, namely sulphur treated bands, wicks and candles and fly papers, provide another indicator that points in the same direction. The first two examples suggest that the word 'insecticides' in heading 3808 is intended to include products that repel insects or that in some way modify the behaviour or physiology of insects so as to render them less pestilent. 38 The Tribunal failed to take these contextual indications into account. Both sets of indications support a wider meaning of 'insecticide' than that adopted by the Tribunal.
Case: Gardner Smith v Collector of Customs Victoria (1986) 66 ALR 377
Outcome: cited
At the very least, the examples in heading 3808 and the references to camphor and mosquito spirals and coils in sub-heading 3808.10.10 suggest that there is some ambiguity about the way in which the term insecticide is used in the heading. To adapt the language used by Burchett J in Baxter Healthcare , a legal choice must be made about possible concepts conveyed by the statutory expression, and in making that choice it is appropriate to take account of the intent and purpose of the Customs Tariff Act . In my opinion, it would have been permissible for the Tribunal to have regard to the Harmonised System Notes as an extrinsic aid to the interpretation of heading 3808. Where the language of a heading is ambiguous or susceptible to different interpretations, the Harmonised System Notes are an appropriate extrinsic aid to interpretation: Gardner Smith v Collector of Customs Victoria (1986) 66 ALR 377 at 383-384; Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 103 ALR 565 at 571-573; and Toyota Tsusho Australia Pty Ltd v Collector of Customs [1992] FCA 282 at [22] - [30] .
Case: Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 103 ALR 565
Outcome: cited
At the very least, the examples in heading 3808 and the references to camphor and mosquito spirals and coils in sub-heading 3808.10.10 suggest that there is some ambiguity about the way in which the term insecticide is used in the heading. To adapt the language used by Burchett J in Baxter Healthcare , a legal choice must be made about possible concepts conveyed by the statutory expression, and in making that choice it is appropriate to take account of the intent and purpose of the Customs Tariff Act . In my opinion, it would have been permissible for the Tribunal to have regard to the Harmonised System Notes as an extrinsic aid to the interpretation of heading 3808. Where the language of a heading is ambiguous or susceptible to different interpretations, the Harmonised System Notes are an appropriate extrinsic aid to interpretation: Gardner Smith v Collector of Customs Victoria (1986) 66 ALR 377 at 383-384; Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 103 ALR 565 at 571-573; and Toyota Tsusho Australia Pty Ltd v Collector of Customs [1992] FCA 282 at [22] - [30] .