mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110
Outcome: cited
These are not in issue and can be stated shortly. First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 515-516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40] . Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at [19] . Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at [6] . Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534.
Case: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494
Outcome: cited
These are not in issue and can be stated shortly. First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 515-516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40] . Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at [19] . Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at [6] . Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534.
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: cited
These are not in issue and can be stated shortly. First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 515-516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40] . Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at [19] . Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at [6] . Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534.
Case: O'Sullivan v Lunnon [1986] HCA 57 ; (1986) 163 CLR 545
Outcome: cited
There is one additional matter relating to Order 3.5(c) to which I should refer which is the subject of the concession I earlier noted. This relates to what is signified by the concatenation of words "actively and deliberately operate in a manner calculated to ...". The applicants, accept that the word "calculated" when used in connection with conduct may be used in two senses, as meaning either "devised with forethought" or "likely": O'Sullivan v Lunnon [1986] HCA 57 ; (1986) 163 CLR 545 at 549; but that usually it is construed to mean having the described tendency irrespective of intention: R v Odhams Press Ltd; Ex parte Attorney-General [1957] 1 QB 73 at 80. Nonetheless, it is conceded for present purposes properly so in my view the composite formula used in the order and in particular the use of the words "actively and deliberately" in conjunction with the verb "operate", necessitates the construction that the applicants operate in the knowledge that their manner of operation is likely to prejudice etc the business of independent retailers with whom they deal. As I earlier noted, this construction is favourable to Mr Bunn.
Case: R v Odhams Press Ltd; Ex parte Attorney-General [1957] 1 QB 73
Outcome: cited
There is one additional matter relating to Order 3.5(c) to which I should refer which is the subject of the concession I earlier noted. This relates to what is signified by the concatenation of words "actively and deliberately operate in a manner calculated to ...". The applicants, accept that the word "calculated" when used in connection with conduct may be used in two senses, as meaning either "devised with forethought" or "likely": O'Sullivan v Lunnon [1986] HCA 57 ; (1986) 163 CLR 545 at 549; but that usually it is construed to mean having the described tendency irrespective of intention: R v Odhams Press Ltd; Ex parte Attorney-General [1957] 1 QB 73 at 80. Nonetheless, it is conceded for present purposes properly so in my view the composite formula used in the order and in particular the use of the words "actively and deliberately" in conjunction with the verb "operate", necessitates the construction that the applicants operate in the knowledge that their manner of operation is likely to prejudice etc the business of independent retailers with whom they deal. As I earlier noted, this construction is favourable to Mr Bunn.
Case: Health Insurance Commission and Ors v Grey [2002] FCAFC 130 ; (2002) 120 FCR 470
Outcome: cited
The Act and particularly Part VAA has been described as 'public protective' legislation which should not be narrowly interpreted as the legislation has as its object the 'protection of the public' ( Health Insurance Commission and Ors v Grey [2002] FCAFC 130 ; (2002) 120 FCR 470 [173] and [179]). 16 This is the third occasion on which the applicant's proposal to amend his proceeding has come before the Court. The applicant initially sought to challenge the decision of the Authority by filing the Notice of Appeal of 8 May 2007. The grounds raised were these: 4.1 The applicant appeals against the findings of the Determining Authority of 5 April 2007 on the following grounds: 4.2 As a matter of law erred in reaching the conclusion that they did in fact make. 4.3 As a matter of law the conclusions reached was in error by failing to take into account relevant considerations. 4.4 As a matter of law erred in failing to take into account relevant considerations. 4.5 As a matter of law the penalty that was imposed was manifestly excessive. 17 Sections 11(1)(c) and 11(3)(a) required Dr Mitchelson file an application for an order of review not later than 28 days after receipt by him of a decision setting out findings on material questions of fact, references to the evidence supporting those findings and reasons for the decision. Dr Mitchelson was served with the decision material on Wednesday 11 April, 2007 by courier delivery to Karen O'Mullane, a legal representative from United Medical Protection now known as Avant Mutual Group Limited. Ms O'Mullane represented Dr Mitchelson before the PSR Committee. Mr Royds is informed by Dr Mitchelson and swears to a belief that the material was received by Dr Mitchelson on 15 April 2007. Accordingly, the 28 days provided for by the ADJR Act expired on either 9 May 2007 or 13 May 2007. The Notice of Appeal filed on 8 May 2007 was within time although entirely devoid of any proper formulation of the grounds of review or any material facts in support of those grounds.
Case: State of Queensland and Anor v JL Holdings Pty Ltd [1997] HCA 1 ; (1996) 141 ALR 353
Outcome: cited
The overwhelming consideration however is whether the amended application as filed throws up, whether obfuscated or not, a basis for challenge to the decision of the Authority which ought fairly and properly to be entertained by the Court in the fulfilment of its ultimate aim of attaining justice between the parties to the controversy ( State of Queensland and Anor v JL Holdings Pty Ltd [1997] HCA 1 ; (1996) 141 ALR 353, per Dawson Gaudron and McHugh JJ). 26 What then does the proposed amendment contend for.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: cited
As to the composition of the Committee, the Director exercised a power conferred by the Act and constituted a committee made up of Dr Hirst, a medical practitioner and Deputy Director of Professional Services Review under the Act (s 85) and two general practitioners, Dr Marcela Cox and Dr Brian Morton appointed after consultation with the Australian Medical Association (s 84). There is no suggestion that there is a statutory obligation on the Director in exercising the power conferred by the Act in constituting a committee, to appoint a regional medical practitioner nor any want of power in constituting the committee as formed. There is no arguable denial of natural justice in these circumstances or a denial of procedural fairness made out ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-368 per Deane J and Plaintiff s 157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 489-490, per Gleeson CJ). Mr Royds says that Tisdall v Kelly [2005] FCA 365 is authority for the proposition that a PSR Committee must include a medical practitioner from a regional area or a practitioner familiar with patients from the class or catchment from which the medical practitioner under review draws his or her patients. It seems to me that Tisdall is not authority for that proposition. 34 There is no contention that the Committee acted beyond power in adopting a sampling methodology nor that in doing so, s 106K(2) does not operate to bring about the result that the person is taken for the purposes of part VAA to have engaged in inappropriate practice in the provision of that proportion of the services in the class from which the sample was chosen. Nor is there a contention that the Committee acted beyond power in relying upon the advise and recommendations of Professor Nicholls, who advised that the sampling methodology adopted by the Committee for item 23 services is a statistically valid method (s 106K(4)). In addition, there is no challenge to reliance by the Committee upon the Health Insurance (Professional Services Review Sampling Methodology) determination 2000 (no. 1) in accordance with s 106K(3). In this case, the Committee has relied upon an express statutory power and acted within the limits of the power. Plainly enough, the Committee must act judicially in the sense that it must act in accordance with the requirements of procedural fairness or natural justice and not act arbitrarily, irrationally or unreasonably. It cannot be contended that the Committee has acted arbitrarily, irrationally or unreasonably by expressly acting in conformity with the statutory instrument. No doubt, that is why Deane J observed in Bond that the precise content of an obligation upon a tribunal or statutory body to observe the requirements of natural justice or procedural fairness varies 'according to the statutory framework of the particular proceedings' and 'that being so, the content of the obligation is not susceptible of precise definition' (366-367).
Case: Plaintiff s 157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
As to the composition of the Committee, the Director exercised a power conferred by the Act and constituted a committee made up of Dr Hirst, a medical practitioner and Deputy Director of Professional Services Review under the Act (s 85) and two general practitioners, Dr Marcela Cox and Dr Brian Morton appointed after consultation with the Australian Medical Association (s 84). There is no suggestion that there is a statutory obligation on the Director in exercising the power conferred by the Act in constituting a committee, to appoint a regional medical practitioner nor any want of power in constituting the committee as formed. There is no arguable denial of natural justice in these circumstances or a denial of procedural fairness made out ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-368 per Deane J and Plaintiff s 157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 489-490, per Gleeson CJ). Mr Royds says that Tisdall v Kelly [2005] FCA 365 is authority for the proposition that a PSR Committee must include a medical practitioner from a regional area or a practitioner familiar with patients from the class or catchment from which the medical practitioner under review draws his or her patients. It seems to me that Tisdall is not authority for that proposition.
Case: Tisdall v Kelly [2005] FCA 365
Outcome: cited
As to the composition of the Committee, the Director exercised a power conferred by the Act and constituted a committee made up of Dr Hirst, a medical practitioner and Deputy Director of Professional Services Review under the Act (s 85) and two general practitioners, Dr Marcela Cox and Dr Brian Morton appointed after consultation with the Australian Medical Association (s 84). There is no suggestion that there is a statutory obligation on the Director in exercising the power conferred by the Act in constituting a committee, to appoint a regional medical practitioner nor any want of power in constituting the committee as formed. There is no arguable denial of natural justice in these circumstances or a denial of procedural fairness made out ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-368 per Deane J and Plaintiff s 157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 489-490, per Gleeson CJ). Mr Royds says that Tisdall v Kelly [2005] FCA 365 is authority for the proposition that a PSR Committee must include a medical practitioner from a regional area or a practitioner familiar with patients from the class or catchment from which the medical practitioner under review draws his or her patients. It seems to me that Tisdall is not authority for that proposition.
Case: Spotwire Pty Ltd v Visa International services Inc (2003) ATPR 41-949
Outcome: cited
I am satisfied that the claims made by the applicant as formulated by the proposed amended application cannot succeed and are bound to fail in the sense identified by Bennett J in Spotwire Pty Ltd v Visa International Services Inc (2003) ATPR 41-949 at 47, 410. Accordingly, it would be futile to grant leave to amend in terms of the proposed document. I refuse leave to amend and dismiss the applicant's notice of motion filed on 12 September 2007. 62 I have given consideration to this difficulty. I am not sure whether the failure to formulate a ground of challenge supported by material facts is a function of delay by Mr Royds or for that matter Mr Royds and Dr Mitchelson. I am satisfied that Mr Royds does not appreciate the need to comply with a time limitation contained in the principal legislation nor the need to file and serve a properly formulated document identifying arguable grounds supported by material facts rather than simply filing anything. Nor, apparently, is there an appreciation of a need to comply with orders of the court.
Case: Lamb v Moss (1983) 49 ALR 533, (1983) 76 FLR 296, (1983) 5 ALD 446
Outcome: cited
Having regard to the lengthy period of time afforded to Dr Mitchelson to properly formulate an application which raises an arguable ground of challenge to the Committee's decision supported by material facts, the failure to comply with Court orders and the statutory objective of the legislation to protect the public interest and the discretionary nature of the relief ( Lamb v Moss (1983) 49 ALR 533, (1983) 76 FLR 296, (1983) 5 ALD 446; Seymour v Attorney-General (Cth) (1984) 4 FCR 498; Kamba v Australian Prudential Regulation Authority [2007] FCA 1422 (13 September 2007) at [8]), I propose to refuse leave to amend and dismiss the notice of appeal filed by Dr Mitchelson on 8 May 2007.
Case: Seymour v Attorney-General (Cth) (1984) 4 FCR 498
Outcome: cited
Having regard to the lengthy period of time afforded to Dr Mitchelson to properly formulate an application which raises an arguable ground of challenge to the Committee's decision supported by material facts, the failure to comply with Court orders and the statutory objective of the legislation to protect the public interest and the discretionary nature of the relief ( Lamb v Moss (1983) 49 ALR 533, (1983) 76 FLR 296, (1983) 5 ALD 446; Seymour v Attorney-General (Cth) (1984) 4 FCR 498; Kamba v Australian Prudential Regulation Authority [2007] FCA 1422 (13 September 2007) at [8]), I propose to refuse leave to amend and dismiss the notice of appeal filed by Dr Mitchelson on 8 May 2007.
Case: Kamba v Australian Prudential Regulation Authority [2007] FCA 1422
Outcome: cited
Having regard to the lengthy period of time afforded to Dr Mitchelson to properly formulate an application which raises an arguable ground of challenge to the Committee's decision supported by material facts, the failure to comply with Court orders and the statutory objective of the legislation to protect the public interest and the discretionary nature of the relief ( Lamb v Moss (1983) 49 ALR 533, (1983) 76 FLR 296, (1983) 5 ALD 446; Seymour v Attorney-General (Cth) (1984) 4 FCR 498; Kamba v Australian Prudential Regulation Authority [2007] FCA 1422 (13 September 2007) at [8]), I propose to refuse leave to amend and dismiss the notice of appeal filed by Dr Mitchelson on 8 May 2007.
Case: District Council of Coober Pedy v Collector of Customs [1993] FCA 187 ; (1993) 42 FCR 127
Outcome: cited
It cannot, in my opinion, be the position that, where an applicant has multiple purposes for engaging in conduct in Australia, no matter how relatively unimportant the s 91R(3) purpose may be, its existence will prevent the decision-maker from having regard to it. In a different context, this result might be avoided by a familiar technique of statutory construction: construing "the purpose" to mean "the real and substantial purpose": see eg. District Council of Coober Pedy v Collector of Customs [1993] FCA 187 ; (1993) 42 FCR 127. However such a simple solution would still leave problems. 33 An example prompted by current events may make this clear. Suppose that a Tibetan claiming refugee status here is asked by a friend to participate in a public protest against China's alleged maltreatment of Tibetan dissidents who include friends of his. Suppose his main purpose is to express his genuine outrage and to try to send a message to the Chinese government; suppose that he has another purpose, namely to have his protest photographed and sent back to dissident elements in Tibet in order to encourage them; suppose further that he also intends to use photographs thus taken to support his application for a protection visa but that he already possesses abundant, incontrovertible evidence of participating in similar protests outside Australia, so that, as he perceives matters, the intended photographs will be, as it were, merely the icing on the cake. Nevertheless, assume that supporting his refugee claim is a real and substantial purpose of his, albeit a relatively quite minor one. Suppose finally that before he can deliver his other, incontrovertible evidence to the Tribunal he loses it and cannot replicate it. It would, in my view, clearly be unfair by ordinary standards to prevent him from using the sur place evidence, and absent the clearest statutory language such an unfair result should not be imputed to be Parliament's intention.
Case: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419
Outcome: cited
The Tribunal member was clearly alive to the distinction between religious activity (or conduct) and the belief which allegedly motivated it. The Tribunal spoke, for example, of whether, "leaving aside his conduct", the appellant had "a genuine and sustained interest" in higher order religious practice. (That is so despite what may be the Tribunal's slightly confusing or ambiguous use of the term "role" as distinguished from conduct I think the Tribunal was using "role" to indicate the perception of him that others would have.) The distinction between motivation or belief on the one hand and "conduct" on the other has been noticed in this Court: see Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 ; (2000) 105 FCR 548 at [16] per Gray J and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [91] - [96] per Young J.