mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167 ; (2004) 207 ALR 452
Outcome: cited
I note in passing that there is a body of opinion in decisions of this Court which questions both whether there is legislative authority for the Court acting under s 86C of the TP Act to order a respondent to instruct an expert to audit a compliance program and to deliver to the ACCC audit reports: see BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167 ; (2004) 207 ALR 452 at [42] - [52] ; Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693 ; (2004) 207 ALR 329 at [50] ; or, if there be some other source of power so to do: see BMW Australia at [51]; whether it would ordinarily be appropriate to make such orders: see Visy Paper (No 2) at [56]. I share these doubts. 25 It is well accepted that an injunction is a discretionary remedy and will not be awarded as of course on proof of a contravention of the TP Act: BMW Australia at [35]-[36]. As the Full Court observed in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007) 161 FCR 513 at [111]: Many contraventions simply will not justify injunctive relief. We doubt whether unintentional misconduct in contravention of s 52 would lead to such relief. It is necessary for a claimant "to demonstrate that the injunction will serve a purpose": ibid; though it is unnecessary to that end to show that commission, continuance, or repetition of contravening conduct is threatened or apprehended: see s 80(4) and BMW Australia at [36].
Case: Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693 ; (2004) 207 ALR 329
Outcome: cited
I note in passing that there is a body of opinion in decisions of this Court which questions both whether there is legislative authority for the Court acting under s 86C of the TP Act to order a respondent to instruct an expert to audit a compliance program and to deliver to the ACCC audit reports: see BMW Australia Ltd v Australian Competition and Consumer Commission [2004] FCAFC 167 ; (2004) 207 ALR 452 at [42] - [52] ; Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693 ; (2004) 207 ALR 329 at [50] ; or, if there be some other source of power so to do: see BMW Australia at [51]; whether it would ordinarily be appropriate to make such orders: see Visy Paper (No 2) at [56]. I share these doubts.
Case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007) 161 FCR 513
Outcome: cited
It is well accepted that an injunction is a discretionary remedy and will not be awarded as of course on proof of a contravention of the TP Act: BMW Australia at [35]-[36]. As the Full Court observed in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007) 161 FCR 513 at [111]: Many contraventions simply will not justify injunctive relief. We doubt whether unintentional misconduct in contravention of s 52 would lead to such relief. It is necessary for a claimant "to demonstrate that the injunction will serve a purpose": ibid; though it is unnecessary to that end to show that commission, continuance, or repetition of contravening conduct is threatened or apprehended: see s 80(4) and BMW Australia at [36].
Case: Australian Competition and Consumer Commission v Prouds Jewellers Pty Ltd (No 2) (2008) ATPR 42-230
Outcome: cited
In the present matter the ACCC seeks to find justification for the grant of an injunction (albeit in appropriately limited terms that can be clearly understood and practically complied with: cf Australian Competition and Consumer Commission v Prouds Jewellers Pty Ltd (No 2) (2008) ATPR 42-230) in the following considerations (i) there is a need to prevent recurrence of contraventions given the inadequate procedures Harbin had in place at the time; (ii) inadequate investigations of the circumstances were made; (iii) Harbin has indicated it intends to continue to engage in two price advertising; (iv) Harbin has not provided documentary reassurance to the ACCC; and (v) the contravention occurred while Harbin had a compliance program in place. 27 For my own part, I am not satisfied that it is appropriate in the circumstances to sanction Harbin's single and unintentional contravention of the Act with the imposition of an injunction. If it be the case that Harbin needs further to be sensitised to the seriousness of breaching the TP Act and to be made more attentive to the purposes of its compliance program, this can be achieved by other more appropriate means which can be adapted to Harbin's particular circumstances, as I will indicate. Harbin has already demonstrated preparedness to change its procedures. I should add, I do not accept that its conduct after the contravention reflects so adversely upon it as to provide some justification for the award of injunctive relief.
Case: Australian Competition and Consumer Commission v Telstra Corporation Ltd (2007) ATPR 42-207
Outcome: cited
Section 86C of the Act empowers the Court to make an order for corrective advertising: on which see generally Australian Competition and Consumer Commission v Telstra Corporation Ltd (2007) ATPR 42-207 at 48,428 where the purposes informing such an order are helpfully collected. One such purpose, I would note, is to "aid in the enforcement of the primary orders and the prevention of repetition of the contravening conduct": Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 1387 ; (1999) 95 FCR 114 at 133.
Case: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 1387 ; (1999) 95 FCR 114
Outcome: cited
Section 86C of the Act empowers the Court to make an order for corrective advertising: on which see generally Australian Competition and Consumer Commission v Telstra Corporation Ltd (2007) ATPR 42-207 at 48,428 where the purposes informing such an order are helpfully collected. One such purpose, I would note, is to "aid in the enforcement of the primary orders and the prevention of repetition of the contravening conduct": Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 1387 ; (1999) 95 FCR 114 at 133.
Case: Australian Competition and Consumer Commission v Target Australia Pty Ltd (2001) ATPR 41-840
Outcome: cited
It has been recognised on a number of occasions that this remedy can be a peculiarly apt one where the contravening conduct occurred in the course of a company's routine business advertising: see eg Australian Competition and Consumer Commission v Target Australia Pty Ltd (2001) ATPR 41-840 at 43,382. In such cases, particularly where no injunction is to be granted, a corrective advertising order can assist in making an advertiser "more assiduous in ensuring that it does not repeat the contravening conduct": Prouds Jewellers (No 2) at [13]. The making of such an order would, in my view, be salutary in the present matter. 30 I acknowledge that a considerable period has passed since the offending publication was made. While this may in a given instance be a factor telling against ordering corrective advertising, here it is not. Such an order, coupled with declaratory relief rather than an injunction, provides an appropriate coercive incentive to Harbin. 31 The form of corrective advertisement I will order to be published will be in the terms of that annexed to these reasons. With one necessary modification to reflect my refusal to award injunctive relief, it follows the form proposed by the ACCC.
Case: Bryant v Commonwealth Bank of Australia [1995] FCA 971 
Outcome: cited
There is, however, one further difficulty with this ground of appeal. A petition is not an affidavit. A petition which is amended is not required to be re-verified: Thai v Deputy Commissioner of Taxation (1994) 53 FCR 252 at 274 and Bryant v Commonwealth Bank of Australia [1995] FCA 971.
Case: Cottrell v Nicholls (as trustee in the estate of Cottrell) [2004] FCA 102 
Outcome: cited
This ground of appeal proceeds upon a misunderstanding of the nature of the review provided for in s 104(2) of the FM Act . The review is a hearing de novo. Section 104(3) of the FM Act provides that upon the hearing, the Court " may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised" . Consistent with it being a hearing de novo, the appropriate form of order is to affirm the Registrar's orders: see Cottrell v Nicholls (as trustee in the estate of Cottrell) [2004] FCA 102 at [16] (per Allsop J) citing Meehan v Alfaro [1999] FCA 832 ; (1999) 93 FCR 201 at 212 and Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 at [19].
Case: MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72 
Outcome: cited
Secondly, the fact that the Registrar granted leave for the Petition to be amended was consistent with s 33(1)(b) of the Bankruptcy Act . In MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72 at [25] , the Full Court stated: "There is extensive authority for the proposition that the power of amendment in s 33(1)(b) extends to authorising the amendment of petitions to cure omissions of allegations made mandatory by the various provisions of the Bankruptcy Act and Bankruptcy Rules, that is, to cure what can be accepted to be more serious deficiencies in petitions than "formal defects or irregularities" within s 306." 32 The date of the commission of the act of bankruptcy is an allegation made mandatory in a petition: s 47(1A) of the Bankruptcy Act and Form 150 in Sch 1 to the Federal Court Rules 1979 (Cth). The discretion to amend in s 33(1)(b) is exercisable in all cases according to the circumstances of the particular case: MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72 at [24] . In the present case, the appellant could not have been left in any doubt by what was stated in the Petition - the appellant had committed an act of bankruptcy within six months before presentation of the Petition by failing to comply with a bankruptcy notice dated 23 September 2005 (personally served on him on 29 September 2005), by failing to pay or secure the amount specified in the bankruptcy notice or by failing to satisfy the court that there was a valid ground for dismissing the notice: MacDonald v Official Trustee in Bankruptcy [2001] FCA 140 ; (2001) 107 FCR 72 at 82. Unsurprisingly, the appellant did not suggest that he was left in any doubt that he had committed an act of bankruptcy and the Petition had been issued on that basis. 33 This ground of appeal should be dismissed. 34 Ground (c) is that " [a]s a hearing De novo, Riley FM failed to rule that re-verification and re-service be dispensed with ." This ground of appeal substantially overlaps with ground (b) and should be dismissed on those bases.
Case: Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 
Outcome: cited
This ground of appeal proceeds upon a misunderstanding of the nature of the review provided for in s 104(2) of the FM Act . The review is a hearing de novo. Section 104(3) of the FM Act provides that upon the hearing, the Court " may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised" . Consistent with it being a hearing de novo, the appropriate form of order is to affirm the Registrar's orders: see Cottrell v Nicholls (as trustee in the estate of Cottrell) [2004] FCA 102 at [16] (per Allsop J) citing Meehan v Alfaro [1999] FCA 832 ; (1999) 93 FCR 201 at 212 and Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 at [19].
Case: Meehan v Alfaro [1999] FCA 832 ; (1999) 93 FCR 201 
Outcome: cited
This ground of appeal proceeds upon a misunderstanding of the nature of the review provided for in s 104(2) of the FM Act . The review is a hearing de novo. Section 104(3) of the FM Act provides that upon the hearing, the Court " may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised" . Consistent with it being a hearing de novo, the appropriate form of order is to affirm the Registrar's orders: see Cottrell v Nicholls (as trustee in the estate of Cottrell) [2004] FCA 102 at [16] (per Allsop J) citing Meehan v Alfaro [1999] FCA 832 ; (1999) 93 FCR 201 at 212 and Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 at [19].
Case: Moran v Lydiard Financial Services Pty Ltd (previously Cuthberts Nominees Pty Ltd) [2006] FMCA 1341 
Outcome: affirmed
On 4 July 2006, the appellant filed an application for review against the Sequestration Order ("the Review Application"). The Review Application was heard by Riley FM on 28 August and 8 September 2006. On 19 October 2006, Riley FM dismissed the Review Application. Her Honour's reasons for decision are to be found in Moran v Lydiard Financial Services Pty Ltd (previously Cuthberts Nominees Pty Ltd) [2006] FMCA 1341. After setting out the affidavit material filed in support of the Petition, Riley FM described the course the Review Application took before her in the following terms: "11. The present application for review was filed on 4 July 2006 and was supported with an affidavit affirmed by Mr Moran on that date, a further affidavit affirmed by Mr Moran on 31 July 2006 and a notice of the grounds of opposition to the petition dated 31 July 2006. When the application for review was being heard, Mr Moran indicated that he had mistakenly understood that an affidavit that he had filed in relation to his application to set aside the bankruptcy notice was before the court. He was given leave to file in this proceeding an affidavit dealing with the material that he had understood was already before the court, as well as material indicating that he was a beneficiary of his mother's estate. That material was included in an affidavit affirmed by Mr Moran on 30 August 2006. 12. Mr Moran also handed up late in the hearing a photocopy of an order of the District Court of Queensland dated 1 December 1995 which provided that a debt of $80,000 owing to Mr Moran's uncle's estate by Mr Moran's mother ("Mrs Moran") be transferred to Mr Moran, Mrs Moran and two other relatives in equal shares. The provenance of that document was not established before this court. [Nor] was any evidence given about whether the debt mentioned in the order had been discharged in the 10 years or so since the order was apparently made. Mr Moran did not satisfactorily explain how the order had a bearing on the present review. Accordingly, I am unable to take it into account." 14 On 8 November 2006, the appellant filed this appeal against the orders made by Riley FM dismissing the Review Application. 15 Finally, on 8 February 2007, the High Court dismissed the appellant's application for special leave to appeal from the orders made by Sundberg J on 26 May 2006.
Case: Thai v Deputy Commissioner of Taxation (1994) 53 FCR 252 
Outcome: cited
There is, however, one further difficulty with this ground of appeal. A petition is not an affidavit. A petition which is amended is not required to be re-verified: Thai v Deputy Commissioner of Taxation (1994) 53 FCR 252 at 274 and Bryant v Commonwealth Bank of Australia [1995] FCA 971.
Case: Banque Commerciale SA (In Liquidation) v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: referred to
Without providing an exhaustive list of defects, it is sufficient to state that the challenged portions of the respondent's Defence and Cross-Claim do not comply with the Rules. For example, paragraphs 6, 7, 9 and 21 all allege that AAB acted "falsely and recklessly" in some regard. This allegation appears akin to one of fraud, and as such must be further particularised pursuant to O 12 r 2: see Banque Commerciale SA (In Liquidation) v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 285 per Mason CJ and Gaudron J. Even if it is not intended as an allegation of fraud (or misrepresentation or wilful default), O 12 r 3 obliges the respondent to particularise the facts relied upon for his allegations that AAB had such a condition of mind.
Case: Johnson Tiles Pty Ltd v Esso Australia [2000] FCA 1572 ; (2001) ATPR 41-794
Outcome: referred to
Also, the respondent must provide particulars of AAB's alleged breach of s 52 of the Trade Practices Act 1974 (Cth): see Johnson Tiles Pty Ltd v Esso Australia [2000] FCA 1572 ; (2001) ATPR 41-794 at 42,547-42,548, [63] - [66] per French J with whom Beaumont and Finkelstein JJ agreed (outlining the detailed requirements for pleading a claim under s 52 of the TPA). 8 Furthermore, pursuant to O 11 r 10 the respondent must plead specifically the provisions of the TMA he claims AAB has violated. Amongst other things, O 11 r 10 requires a party to plead specifically any matter of fact or point of law that, if not specifically pleaded, might take the other party by surprise. It is insufficient to specify provisions in the prayer for relief. It must be borne in mind that no relief can be granted unless justified by what has been pleaded in the body of the pleadings. 9 If the deficiencies in the pleading could be cured by the provision of further and better particulars, I would order that such particulars be provided. There is, however, a basic problem that the provision of particulars will not overcome. It is a fundamental rule of pleading that a respondent must state in his defence the material facts essential to any affirmative case he wants to make in answer to the applicant's claim. These facts (and not the evidence for them) are to be stated in a summary form according to the pleading rules. As far as convenient, each material fact or other matter is to be put into a separate paragraph, with paragraphs numbered consecutively (O 11, r 1 and r 2). Proper particulars are required of the relevant allegations (see, e.g., [6]-[8] above). Paragraphs 6, 7, 9 and 21 of the defence and cross-claim do not comply with these requirements.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Outcome: cited
By its notice of motion, the applicant sought its costs of the motion on an indemnity basis. Counsel properly did not press this application today. It is true that the applicant sough to put the respondent on notice that there were problems with his pleading late last year when it wrote its letter of 22 December 2005. Ordinarily, however, costs in this court are awarded on a party and party basis. The respondent has made a good faith effort to respond to the allegations against him. In Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 (" Re Wilcox ") at 156-157, Cooper and Merkel JJ said that: (a) the court ought not to depart from the usual party and party basis for costs unless this was warranted by the circumstances of the case; and (b) these circumstances arise "as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course". I do not find that the circumstances of this case warrant a departure from the usual course. 12 Nevertheless, the applicant has been successful in its motion and, notwithstanding the respondent's opposition, costs should follow the event. I propose to order that the respondent pay the costs of the motion on a party and party basis. 13 I also propose to direct that the parties file and serve submissions on the following two questions: whether or not the proceeding should be transferred to the Queensland District Registry; and (2) whether or not the proceeding should be referred to mediation under O 72 of the Federal Court Rules. I have already raised these matters with the parties in the course of the recent directions hearing. I would also make a further direction in the terms discussed in court today in relation to matters presently the subject of a confidentiality order.
Case: Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591
Outcome: cited
Despite the narrower scope of pre-action discovery and the different questions to which it relates, an estimation of the strength of a prospective case including consideration of possible defences may be material. Pre-action discovery is only directed to provide evidence sufficient to enable an applicant to decide whether to commence the proceedings . The sufficiency of this evidence need not go so far as to enable the applicant to decide there is a prima facie case or to evaluate the prospects of success on the ultimate hearing at any high level of probability. Pre-action discovery is not designed to enhance or justify a decision which has already been taken to commence proceedings: see Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591. The focus of this form of discovery is on the question whether the requirements of O 15A r 6(a), (b) and (c) have been made out and, if so, whether the Court should exercise its discretion to require production. In discovery after an action has been commenced, the question is whether there are documents relevant to the matters and issues raised on the pleadings, including but not limited to those referred to in O 15 r 2(3). Any determination of an application for pre-action discovery must be made having regard to these considerations.
Case: Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd (2005) 142 FCR 429
Outcome: cited
There is now no doubt that the Court has power to make an order that a Notice to Produce be issued in a pre-action discovery application if directed to the questions set out in O 15A r 6. However, notwithstanding this power, the Court retains its broad discretion whether to allow a Notice to Produce to stand in whole or in part: see Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428. In that case, as pointed out by Hill J at 438, although the issues in pre-action discovery are very limited, they can give rise to contestable issues of fact which can be the subject of cross-examination. Accordingly, before making a determination, the Court must consider whether the relevant Notice to Produce is limited to the establishment of those matters necessary to be satisfied under the requirements of O 15A r 6. A Notice to Produce like any other litigious measure must not be an abuse of process.