mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339
Outcome: cited
I find it convenient to set out here paras 18 21 of the submissions of counsel for the ACCC: 18. In Siganto v The Queen [1998] HCA 74 ; (1998) 194 CLR 656 the High Court said at 663[-664]: A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. 19. In Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339, Gaudron, Gummow and Callinan JJ, after referring to this passage, said at 343: ... the rationale for that rule [that a plea of guilty should be taken into account in mitigation], so far as it depends on factors other than remorse and acceptance of responsibility, [should] be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing. 20. Their Honours went on to say (at 346) that a significant consideration on the issue of the extent to which a plea of guilty is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice is whether it was entered at the first available opportunity. 21. Although there appears to be a divergence of opinion in the High Court with respect to a "two stage" approach to sentencing as opposed to an "instinctive synthesis" (as discussed by Kirby J in Cameron v The Queen at 361[ff]) it is submitted that it is permissible for a sentencing judge to identify the measure of discount allowed for a plea of guilty.
Case: Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370
Outcome: cited
Section 16A(2) of the Crimes Act 1914 (Cth) (the Crimes Act ) lists matters that the court must take into account when passing sentence, to the extent that they are relevant and known to the court. However, the list is not exhaustive, and, in particular, a court must consider general deterrence although it is not listed in s 16A(2): see R v Paull (1990) 20 NSWLR 427 at 434C E; Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 at 377F 378G.
Case: R v Paull (1990) 20 NSWLR 427
Outcome: cited
Section 16A(2) of the Crimes Act 1914 (Cth) (the Crimes Act ) lists matters that the court must take into account when passing sentence, to the extent that they are relevant and known to the court. However, the list is not exhaustive, and, in particular, a court must consider general deterrence although it is not listed in s 16A(2): see R v Paull (1990) 20 NSWLR 427 at 434C E; Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 at 377F 378G.
Case: Siganto v The Queen [1998] HCA 74 ; (1998) 194 CLR 656
Outcome: cited
I find it convenient to set out here paras 18 21 of the submissions of counsel for the ACCC: 18. In Siganto v The Queen [1998] HCA 74 ; (1998) 194 CLR 656 the High Court said at 663[-664]: A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. 19. In Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339, Gaudron, Gummow and Callinan JJ, after referring to this passage, said at 343: ... the rationale for that rule [that a plea of guilty should be taken into account in mitigation], so far as it depends on factors other than remorse and acceptance of responsibility, [should] be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing. 20. Their Honours went on to say (at 346) that a significant consideration on the issue of the extent to which a plea of guilty is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice is whether it was entered at the first available opportunity. 21. Although there appears to be a divergence of opinion in the High Court with respect to a "two stage" approach to sentencing as opposed to an "instinctive synthesis" (as discussed by Kirby J in Cameron v The Queen at 361[ff]) it is submitted that it is permissible for a sentencing judge to identify the measure of discount allowed for a plea of guilty.
Case: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs (1998) 86 FCR 547
Outcome: considered
His Honour was clearly correct to say that findings of credit are matters for the Tribunal: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 at 417. Findings of fact based on an assessment of credit that is itself open on the material or has some rational basis are not reviewable by the court: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs (1998) 86 FCR 547 at 558-9.
Case: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405
Outcome: considered
His Honour was clearly correct to say that findings of credit are matters for the Tribunal: Re Minister for Immigration &amp; Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 at 417. Findings of fact based on an assessment of credit that is itself open on the material or has some rational basis are not reviewable by the court: Kopalapillai v Minister for Immigration &amp; Multicultural Affairs (1998) 86 FCR 547 at 558-9.
Case: ACCC v Signature Security Group Pty Ltd (2003) ATPR 41-908
Outcome: cited
The test whether an undertaking given under s 87B has been breached is objective in the sense that intent of the party who breaches the undertaking is not relevant: see ACCC v Signature Security Group Pty Ltd (2003) 25 ATPR 41-908 at [41]. 5 The ACCC submits that StoresOnline has breached certain terms of the undertaking it gave to the ACCC on 24 April 2006. The present application is said by the ACCC to be urgent because StoresOnline is likely to continue to breach the undertaking when its representatives arrive in Australia next Monday 22 October 2007 to give further presentations relating to the products it offers for sale. It argues that the power of the Court to grant interlocutory relief is grounded in s 23 of the Federal Court of Australia Act 1976 (Cth) ("FCA Act"), which gives the Court " power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders ... as the Court thinks appropriate ". It says that the jurisdiction of the Court to entertain the matter is not limited by the TPA. Finally, it submits that the balance of convenience falls in favour of the Court exercising its power to grant the relief, and thereby protects what it claims is the " very strong public interest " in ensuring StoresOnline complies with the terms of its undertaking.
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: considered
In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at 29 (" Patrick Stevedores "), Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said: 'Once the jurisdiction conferred on the Federal Court by the Act is invoked, that Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) ... to make "orders of such kinds, including interlocutory orders ... as the Court thinks appropriate". That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the Court in that class of proceeding. It cannot be invoked to grant an injunction where the Court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction .' (Emphasis added.) 9 An Act conferring jurisdiction upon the Federal Court may limit the scope of the Court's power under s 23 of the FCA Act by providing an exhaustive statement of the orders which the Court may make in relation to breaches of the conferring Act. The Act which conferred jurisdiction on the Federal Court in Patrick Stevedores was the Workplace Relations Act 1996 (Cth). No " exhaustive code " limiting the range of remedies which the Federal Court could grant was found in that Act by their Honours. 10 In the present case, s 87B(4) of the TPA gives the Court jurisdiction to make any order it deems appropriate in circumstances where a respondent has breached an undertaking given to the ACCC under s 87B(1). The ACCC has approached the Court for orders compelling compliance with the undertaking. More specifically, the ACCC seeks injunctions to restrain StoresOnline from committing further breaches. There is nothing in the language of s 87B which limits the jurisdiction of the Court to hear the ACCC's application and, if appropriate on the evidence, make the orders it sees fit. 11 StoresOnline disagrees with the proposition that the TPA does not exclusively set out the powers of this Court to make injunctions in respect of relief sought under the TPA. It refers to s 80 of the TPA, which set out circumstances in which injunctions may be granted for contravention or possible contravention of specified provisions in the TPA, and submits that there can be no other source of power for this Court to grant injunctions as relief in applications made under the TPA.
Case: Trade Practices Commission v Santos Ltd (1992) 38 FCR 382
Outcome: cited
Finally, I reject the submission by StoresOnline that it should have an undertaking as to damages from the ACCC. The giving of such an undertaking is not a condition of the granting of injunctions: see Trade Practices Commission v Santos Ltd (1992) 38 FCR 382 at 388 (per Davies J). In any event, having refused to grant the blanket injunctions sought by the ACCC in paragraph [19] of its Amended Application, no significant damage should accrue to StoresOnline as it is still entitled to conduct its presentations in Australia, provided it does so within the ambit of the undertaking and the injunctions granted in these reasons. 27 As to costs, I consider that the respondents should pay the costs of the applicant in this application. 28 In giving effect to these reasons, I am of the view that it is appropriate to make orders in the form sought by the ACCC in paragraph [20] of its Amended Application, until further order, with the respondents to pay the applicant's costs. However, given the unusual circumstances surrounding this application, I direct the parties to agree Short Minutes of Order giving effect to these reasons, and to provide them to my associate no later than 5.00 pm on Friday 26 October 2007. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 19 October 2007 Counsel for the Applicant: Mr S. White SC and Mr T. Brennan Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: Mr L. Foster SC and Mr E Hyde Solicitor for the Respondent: Deacons Date of Hearing: 16 October 2007 Date of Judgment: 19 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1597.html
Case: Re APN News &amp; Media Limited (2007) 62 ACSR 400
Outcome: followed
Lastly, he brought to my attention the provision in the agreement which deems the ordinary shareholder to have warranted to Bendigo Bank that their ordinary shares are fully paid and free from encumbrances. The purpose of the clause was adverted to by Lindgren J in Re APN News &amp; Media Limited (2007) 62 ACSR 400 at [59]-[60]: 59 In substance, the purpose of the deemed warranty is to prevent a shareholder whose shares are subject to encumbrances from receiving the same scheme consideration as that to be received by those whose shares are free from encumbrances, without any obligation, in effect, to refund to INMAL the amount required to discharge the encumbrance. It is not practicable for amounts secured by encumbrance to be deducted from the scheme consideration payable to the relevant scheme participants on the implementation date. 60 The warranty will be deemed to have been given, not only by those offeree shareholders who vote to agree to the scheme, and who, therefore, can be seen to be consenting to give it, but also those who do not vote at all or who vote against the scheme. However, I do not think that this matters. What is important, in my view, is that the deemed warranty is no more than a device directed to ensuring that a scheme participant whose shares are subject to an encumbrance is not unfairly advantaged. The amount of the damages payable for breach of the warranty is the amount required to discharge the encumbrance. 33 All three matters raised by Mr Bathurst QC were addressed by Lindgren J in this Court in Re APN News and Media Limited 62 ACSR 400. In all three instances, his Honour found that similar clauses in similar transactions were no bar to the implementation of the proposed transactions. I respectfully agree with his Honour's reasons. 34 I am further satisfied that the directors have unanimously recommended the schemes of arrangement to all three classes of members of the plaintiff and that in doing so they have not acted otherwise than in accordance with their duties. I am satisfied that an appropriate independent expert's report was obtained and that the opinion expressed is that held by the author. 35 I am also satisfied that the plaintiff put in place a due diligence committee which has rigorously examined the proposed merger.
Case: Re Arthur Yates &amp; Co Ltd (2001) 36 ACSR 758
Outcome: cited
On the hearing of this application today, Mr Bathurst QC, who led for the plaintiff, brought to my attention three particular aspects of the proposed schemes of arrangement. First, he drew my attention to the exclusivity transaction and the "no shop/no talk" provision of the proposed merger. He also drew my attention to the fiduciary carve-out provision within the merger implementation agreement. The "no shop/no talk" provision is an unremarkable term commercially. It satisfies the criteria Santow J adduced in Re Arthur Yates &amp; Co Ltd (2001) 36 ACSR 758. In my opinion, it is not a term which would make the proposed scheme of arrangement such that it ought not be submitted to its members. 31 Secondly, he brought to my attention the terms of the agreement relating to a break fee. In relation to the break fee, he emphasised that there was a break fee payable by both parties to the transaction. Both the plaintiff and the Bendigo Bank must pay a break fee in the sum of $15 million if the transaction does not go ahead for any of the reasons given in the proposed scheme. The break fee is less than 1% of the plaintiff's market capitalisation of $1.6 billion which is within the Australian Takeovers Panel's Guidance Notes: Guidance Note 7: Lock-up Devices (2 nd issue, 2005). In any event, the break fee is not payable in circumstances where the members vote not to implement the scheme. In those circumstances, the break fee is not a disincentive to the shareholders in their consideration of the proposed merger.
Case: Re Bank of Adelaide (1979) 22 SASR 481
Outcome: cited
I am satisfied that that criteria has been established. The plaintiff is a Part 5.1 body as defined in s 9 of the Corporations Act . A scheme of arrangement of the kind proposed is a compromise or arrangement within the meaning of s 411: Re Bank of Adelaide (1979) 22 SASR 481. Subject therefore to the other subsections of ss 411 and 412 , the plaintiff is entitled to seek the exercise of the Court's discretion and make the orders. 15 Two preconditions for the exercise of the power in s 411 are provided for in s 411(2). First, pursuant to s 411(2)(a) , the Court is not entitled to make an order under s 411(1) unless 14 days notice of the hearing of the application, or such lesser period of notice as the Court or ASIC permits, has been given to ASIC. I am satisfied on the evidence that 14 days notice of the application has been given to ASIC. 16 Secondly, s 411(2)(b) of the Corporations Act prevents the Court from making an order unless satisfied that ASIC has had a reasonable opportunity to examine the terms of the proposed compromise or arrangement and to make submissions to the Court in relation to the proposed compromise or arrangement, and the draft Explanatory Statement.
Case: Re Central Pacific Minerals N.L. [2002] FCA 239
Outcome: cited
The criteria referred to by Emmett J in Re Central Pacific Minerals N.L. [2002] FCA 239 and approved by Conti J in Re CSR Ltd (2003) 45 ACSR 34 at 36-37 have been met. The plaintiff has conformed with Santow J's test in Re NRMA Insurance Ltd (2003) 33 ACSR 523.
Case: Re CSR Ltd 45 ACSR 34
Outcome: followed
The criteria referred to by Emmett J in Re Central Pacific Minerals N.L. [2002] FCA 239 and approved by Conti J in Re CSR Ltd (2003) 45 ACSR 34 at 36-37 have been met. The plaintiff has conformed with Santow J's test in Re NRMA Insurance Ltd (2003) 33 ACSR 523. 41 I am satisfied, as Conti J was in Re CSR Ltd 45 ACSR 34, that the marginally different treatment of the ineligible foreign shareholders does not raise an issue as to the proper formation of classes of members affected by the scheme. 42 For those reasons, it would be appropriate to make the orders sought on the application and to appoint a further date for the consideration as to whether the Court should, if the members have so resolved, approve the schemes of arrangement. 43 For those reasons, I make the orders in the short minutes of order this day initialled by me. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 15 October 2007 Counsel for the Plaintiff: Mr T F Bathurst QC with Mr A J Payne Solicitor for the Plaintiff: Johnson Winter &amp; Slattery Date of Hearing: 5 October 2007 Date of Judgment: 5 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1582.html
Case: Re NRMA Insurance Ltd (2003) 33 ACSR 523
Outcome: cited
The criteria referred to by Emmett J in Re Central Pacific Minerals N.L. [2002] FCA 239 and approved by Conti J in Re CSR Ltd (2003) 45 ACSR 34 at 36-37 have been met. The plaintiff has conformed with Santow J's test in Re NRMA Insurance Ltd (2003) 33 ACSR 523.
Case: Attorney-General v Times Newspapers Ltd [1974] AC 273
Outcome: cited
then that the Court has jurisdiction to entertain the contempt argument against the Board, what are the relevant principles? Five propositions should, I think, be accepted. First , the existence of a parallel administrative inquiry is capable of constituting a contempt of criminal proceedings: McGuinness v Attorney-General (Vic) [1940] HCA 6 ; (1940) 63 CLR 73 at 85; Victoria v Australian Building Constructions Employees' and Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25 ("BLF") at 54 and 72; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 at 206. Secondly, whether it does so depends upon whether there is a real risk that the pursuit of the administrative investigation will prejudice, undermine or interfere with the conduct of those criminal proceedings: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299; BLF at 96. Thirdly , where the person facing prosecution is required to answer questions by such an inquiry this risk is particularly acute because of the capacity of such questions to undermine the accused person's right against self-incrimination. Fourthly , that risk will also be more pronounced where the identity of the prosecutor and the investigating body are the same or where they are connected in some way: Hammond at 207. Fifthly, a risk may well be shown where a person other than the accused is to be examined by the administrative inquiry: Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48 at 59-60 [54] - [56] .
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: referred to
second argument was that the Board had denied CAP procedural fairness by acting on the untested assertions of Midnight Seas. Reliance was placed upon a dictum of Deane J in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 367. I am by no means certain that the view of Deane J represents the current state of Australian administrative law. However, there is no need to decide that issue. The reasonableness, proportionality or arbitrary nature of the Board's decision is to be assessed in the context of its interim nature and the very limited co-operation provided to it by CAP. So viewed, the alleged want of procedural fairness is illusive. (d) The contempt issue I turn then to Sam's complaint. His concern is that the continuing investigation by the Board into the affairs of CAP has the capacity to prejudice his defence of the criminal proceedings against him. Those criminal proceedings are before the New South Wales Local Court. The charges arise solely under the Crimes Act 1900 (NSW). When hearing and disposing of those proceedings, the magistrate will not be exercising the judicial power of the Commonwealth. Further, the prosecutor is not a federal officer or a federal agency but is, instead, a detective in the New South Wales Police Force.
Case: Commissioner of Taxation v Australian and New Zealand Banking Group Ltd (1979) 143 CLR 499
Outcome: referred to
follows that these paragraphs are not supported by reg 168(2). Even if that were not so, however, the subparagraphs are ambiguous in that they leave the recipient unsure whether production of copies already existing is called for or whether copies of originals are to be made. The notice is, therefore, also bad for uncertainty: cf. Commissioner of Taxation v Australian and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 525 per Gibbs CJ; Fieldhouse at 193 per Lockhart J, 204 per Burchett J and 210 per Hill J. FAILURE TO SPECIFY MATTER