mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd [2009] FCA 54
Outcome: referred to
5 February 2009, I gave judgment in this matter: Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd [2009] FCA 54 (the primary judgment). I made certain declaratory and injunctive orders, and reserved for the parties the question of costs. I have now heard submissions on the question of costs. These reasons follow from, and should be read with, the primary judgment. I do not propose to repeat what is said there. The ACCC seeks an order to recover 85% of its costs on a party and party basis, as it contends that it succeeded to a substantial degree on the claims which it made. Harris Scarfe submits that each party should be ordered to pay its own costs up to 2 May 2008, or alternatively up to 29 May 2008, on the basis that the ACCC succeeded only in about 50% of its claims and that the appropriate order, therefore, is that each party should pay its own costs of the proceedings to that date, and thereafter (from one or other of those dates) the ACCC should pay its costs on an indemnity basis because from one or other of those dates it unreasonably refused to engage in negotiations to resolve the matter.
Case: Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 1580
Outcome: referred to
relevant principles for the exercise of the Court's discretion as to costs, in the light of a Calderbank offer, are well-known. The public interest is in the sensible and just compromise of disputes where that is appropriate. That is so whether the parties in dispute are private citizens or governmental instrumentalities. There may be circumstances where compromise is not appropriate, having regard to the nature of the allegations made. For instance, in the face of an allegation of serious fraud or dishonesty, a party may properly seek the vindication which a favourable court determination will recognise. Much depends on the particular circumstances. There may be circumstances, in the case of a public regulator such as the ACCC, where the particular issues are of such importance that it is proper to seek a judicial determination of them. Such cases will necessarily not be common. The ACCC is, like any other party, obliged to seek sensible resolution of disputes: see eg per Dowsett J in Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 1580 at [6] - [9] . Within the framework of that public interest, a Calderbank offer will be a relevant consideration. It draws the offeree's attention to the need to consider the offer carefully and the possible consequences of rejecting it. If the outcome of a proceeding is that the successful party has obtained judgment on less favourable terms than the offer made, generally costs and not uncommonly indemnity costs may be awarded against the successful party from a point in time after the making of the offer, fixed by reference to the time the offeree party might reasonably have considered and responded to the offer (compare O 23 r 5(3) of the Federal Court Rules ). Such an outcome is not a necessary one. The Court has the discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) as is just in all the circumstances.
Case: Inspector-General in Bankruptcy v Bradshaw (No 2) [2006] FCA 383
Outcome: referred to
party seeking indemnity costs on the basis of a Calderbank offer must generally show that the rejection of the offer was so unreasonable as to justify such an order: Inspector-General in Bankruptcy v Bradshaw (No 2) [2006] FCA 383.
Case: Australian Competition and Consumer Commission v Black on White Pty Ltd [2002] FCA 1605
Outcome: referred to
Scarfe has pointed out that such orders have been made against the ACCC in Australian Competition and Consumer Commission v Black on White Pty Ltd [2002] FCA 1605 from the point when it unreasonably rejected an offer in relation to the claims made under s 87(1A) of the TP Act. The letter of offer of 2 May 2008 from solicitors for Harris Scarfe was not one, in my view, which was constructed so as to constitute a reasonable basis for compromising or proposing to settle the proceeding. It was a letter which denied any contravention of the TP Act by Harris Scarfe in respect of the television advertisements or the sale catalogue complained of, and asserted that there was a significant risk of the ACCC's claim not succeeding and its claim being dismissed with costs. The ensuing offer was without any admission of a contravention of ss 52 or 53(e) of the TP Act. The letter then recorded the steps Harris Scarfe had already taken to refine its trade practices compliance program, and proffered a further undertaking under s 87B of the TP Act which involved its best endeavours to ensure adherence to that refined program for a period of three years, and to undertake certain corrective advertising. The proposed undertaking in its recitals went no further than acknowledging the ACCC's concerns that the television advertisement and the sale catalogue may have mislead consumers, and the proposed corrective advertising was to the same general effect. The letter of 2 May 2008 then went on to point out, correctly, in the light of my ultimate conclusions, that it was unlikely in any event that the Court would impose injunctive relief of indefinite duration, corrective advertising or detailed third party supervision of its trade practices compliance program in the particular circumstances. It made no offer for costs towards the ACCC's costs. Apart from the undertaking, and importantly, it proposed the proceeding be dismissed with no order as to costs. That is, there would have been no public adjudication as to the lawfulness of the conduct alleged, and at least ostensibly the ACCC would have been seen not to have pursued the proceeding.
Case: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1980) 148 CLR 150
Outcome: referred to
unless the ACCC were confident that a satisfactory negotiated outcome could have been reached, the hearing may have needed to have been adjourned for discussions with the risk that it would not be resumed in a satisfactory time frame. Allied with that consideration is that, as is customary, in any event any proposed consent orders (once negotiated) would have required the presentation to the Court of an agreed statement of facts (or admissions by Harris Scarfe) and submissions to satisfy the Court that the proposed orders should be made: see Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1980) 148 CLR 150. It is not at all clear that, ultimately, there would have been any costs savings to either party by them adopting the course of further discussions and then, assuming agreement, of seeking consent orders, having regard to the timing of the letter of 29 May 2008 in relation to the hearing which took place on 2 and 3 June 2008. It is apparent from the above that I do not accept that the terms of the letter of 29 May 2009 proposed declaratory relief in essentially the same terms as the declaration which was made. The relevant part of the proposal was that the catalogue was misleading and deceptive because it contained statements that Harris Scarfe was offering for sale certain categories of goods at specified discounts whilst depicting, adjacent to the statements, other goods (not the subject of such discounts), being the goods set out in the table annexed to the orders made in the primary judgment. The declaration made relevantly reads that the catalogue was misleading and deceptive because it contained representations that Harris Scarfe was offering for sale the goods set out in the table annexed to the orders made in the primary judgment at the specified percentage discounts off the regular prices when, contrary to such representations, those goods were not discounted at all or not discounted by the specified percentage.
Case: Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97
Outcome: referred to
the letter of 29 May 2008 dealt with the question of costs in a general way only by offering to make "an appropriate contribution to the ACCC's costs to date", it probably does not fall strictly within the description of a "Calderbank offer": cf Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 ; Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602. It was not an offer which, in its terms, was capable of acceptance so as to give rise to an enforceable agreement.
Case: Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602
Outcome: referred to
the letter of 29 May 2008 dealt with the question of costs in a general way only by offering to make "an appropriate contribution to the ACCC's costs to date", it probably does not fall strictly within the description of a "Calderbank offer": cf Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97 ; Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602. It was not an offer which, in its terms, was capable of acceptance so as to give rise to an enforceable agreement.
Case: BT Australasia Pty Ltd v New South Wales (No 8) (1998) 154 ALR 202
Outcome: referred to
For the purposes of subsection (2), the applicant must establish that the client "knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made [in one of the four specified circumstances]". None of the specified circumstances obtain. Moreover, it is clear that there was disclosure "to another person" (the applicant himself) of the entirety of the evidence, such that no question as to what amounts to "the substance of the evidence" arises. The point turned upon whether the disclosure was made "knowingly and voluntarily". The relationship between mistaken or inadvertent disclosure and voluntary disclosure cannot be expressed definitively. It has been held that disclosure by mistake is not, for that reason alone, involuntary, at least where the disclosure is made in the course of formal discovery: Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 145 ALR 391 at 406 per Goldberg J. The relevant disclosure in the present case occurred when written submissions were served upon the applicant by the respondents. In fact, in the formal discovery process, that is, when the respondents' list of documents was filed, privilege was claimed over those parts of the memorandum dealing with the legal advice from the AGS. Even if some mistaken disclosures can nonetheless be made knowingly and voluntarily within the meaning of subsection (2), I was not satisfied that there was such a disclosure in this case. This is a case "where everything indicates an intention to claim privilege in respect of the document and what has gone wrong is attributable to sheer inadvertence or carelessness": Sovereign at [23] per Austin J; see also BT Australasia Pty Ltd v New South Wales (No 8) (1998) 154 ALR 202 at 208-209 per Sackville J. In Sovereign , Austin J placed weight upon the fact that the solicitor in receipt of the privileged letter mistakenly disclosed must have realised that it was privileged. That is equally true in the present case in light of the respondents' solicitors' letter to the applicant of 7 February 2007 which asserted the privilege. Moreover, the written submissions (to which the unedited copy of the memorandum was attached) referred to the memorandum as "document 49 in the List of Documents", in respect of which privilege was claimed, and claimed to the knowledge of the applicant. This fact militates against the view that the respondents intended to change their position in respect of the privilege and that it was voluntarily waived when the written submissions were served.
Case: Bennett v Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101
Outcome: referred to
The starting point is the Evidence Act 1995 (Cth) ("Evidence Act"), the provisions of which, at least insofar as legal professional privilege (or, more accurately, "client legal privilege") is concerned, apply where, as here, evidence is sought to be adduced. The respondents did not address directly the operation of the Evidence Act and I was taken, in argument, to cases where the common law was the applicable law either because of the jurisdiction or because of the pre-trial (discovery and production) context in which the issue of privilege arose ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Bennett v Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101; Secretary to the Department of Justice v Osland [2007] VSCA 96 ; GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123). Whatever assistance I may derive from those cases, it is clear that my starting point must be the provisions of the Evidence Act . Equally, the applicant did not articulate precisely the legal basis for his submission that the privilege had been waived, although I understood his submission to be based upon the disclosure to him of the unedited copy of the memorandum by the respondents' solicitors.
Case: Carnell v Mann (1998) 89 FCR 247
Outcome: referred to
It is unclear on the authorities whether subsections (2) and (4) have exclusive spheres of operation, or whether they overlap to some degree. On one view, subsection (2) applies when the disclosure is made by the client (including the client's solicitor: s 117(1)(b)) and subsection (4) applies when the disclosure is made by some other person. This interpretation has its genesis in Telstra Corp Ltd v Australis Media Holdings Pty Ltd (1997) 41 NSWLR 346 at 350-351 per McClelland CJ in Eq and was described by the Full Court of this Court as "cogent and persuasive": Carnell v Mann (1998) 89 FCR 247 at 261 per Higgins, Lehane and Weinberg JJ. Carnell v Mann was overruled by the High Court (on a different point) ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1) so the Full Court's decision is not binding on me, although it is a persuasive authority (see also J D Heydon Cross on Evidence (7 th Australian ed, 2004) [25300] 838-839). An alternative view is that the subsections operate together, the relevant distinction between the two being knowing and voluntary disclosure (subsection (2)) as opposed to express or implied consent to the disclosure (subsection (4)): see S Odgers Uniform Evidence Law (6 th ed, 2004) [1.3.11100] 474-475. In Sovereign Motor Inns Pty Ltd v Bevillesta [2000] NSWSC 521 , Austin J expressly doubted the interpretation according each subsection an exclusive sphere of operation, but left open the question because his Honour had not had the benefit of argument on the point. I am in a similar position in the present case. Given the doubt attending the question, it would not be appropriate to attempt to resolve the conflicting views without the benefit of full argument where the resolution is unnecessary to the decision. In my opinion, the applicant was unable to establish waiver under either subsection and I was content to proceed on the assumption, without deciding the point, that the applicant may rely prima facie on either subsection.
Case: Dunstan v Farr (1999) 60 ALD 192
Outcome: referred to
The applicant's dispute with the ATO, its officers and others has a long history. A good deal of the history is summarised in other judgments of this Court and I refer in particular to Dunstan v Farr (1999) 60 ALD 192; Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885. 96 These are the general principles to which I was referred. Counsel for the respondents also referred to two authorities which discussed the provisions in the PSA which provisions I must consider. First, he referred to an earlier case involving the applicant, Dunstan v Farr (1999) 60 ALD 192, and a decision said to have been made on 7 July 1999 and submitted that it was authority for the proposition that a decision to suspend an officer under s 63B of the PSA was not a decision to which the ADJR Act applied. He referred to the reasons of Weinberg J and particularly what his Honour said at 199 [41]. It is true that a decision in issue in that case was a decision to suspend from duty and an invitation to make submissions as to a hardship payment. However, the focus of the case was the hardship payment of salary and the decision to suspend from duty does not appear so far as I can tell from the report to have been an issue. Weinberg J did not elaborate on his conclusion that the decision "plainly" lacked the characteristics of a decision which may be the subject of a review under the ADJR Act . In the circumstances, I would not treat the decision as authority for the proposition that a decision to suspend from duty under s 63B of the PSA is not a reviewable decision under the ADJR Act .
Case: Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885
Outcome: referred to
The applicant's dispute with the ATO, its officers and others has a long history. A good deal of the history is summarised in other judgments of this Court and I refer in particular to Dunstan v Farr (1999) 60 ALD 192; Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885.
Case: Edelsten v Health Insurance Commission (1990) 27 FCR 56
Outcome: applied
In Edelsten v Health Insurance Commission (1990) 27 FCR 56, Northrop and Lockhart JJ referred to the reasons of Mason CJ in Bond and said (at 68): Bond is authority for the principle that generally, for a decision to be reviewable under the Judicial Review Act it must have a quality of finality, not being merely a step taken on the way to the possible making of an ultimate decision; it must have the essential quality of being substantive as distinct from a procedural determination. The rationale underlying Bond is that Parliament could not have intended the Judicial Review Act to be a vehicle for judicial review of every decision of a decision-maker under a Commonwealth enactment. Some decisions will have a real impact upon a person's rights, privileges or obligations; some will have no such impact, while others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person's position.
Case: GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123
Outcome: referred to
The starting point is the Evidence Act 1995 (Cth) ("Evidence Act"), the provisions of which, at least insofar as legal professional privilege (or, more accurately, "client legal privilege") is concerned, apply where, as here, evidence is sought to be adduced. The respondents did not address directly the operation of the Evidence Act and I was taken, in argument, to cases where the common law was the applicable law either because of the jurisdiction or because of the pre-trial (discovery and production) context in which the issue of privilege arose ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Bennett v Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101; Secretary to the Department of Justice v Osland [2007] VSCA 96 ; GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123). Whatever assistance I may derive from those cases, it is clear that my starting point must be the provisions of the Evidence Act . Equally, the applicant did not articulate precisely the legal basis for his submission that the privilege had been waived, although I understood his submission to be based upon the disclosure to him of the unedited copy of the memorandum by the respondents' solicitors.
Case: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222
Outcome: referred to
The relationship between s 5(1)(h) and s 5(3) has been the subject of a good deal of debate in the authorities: Bond at 355-358 per Mason CJ; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 (" Rajamanikkam "); SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422 (" SGFB ") at [17]-[21] per von Doussa, O'Loughlin and Selway JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1 ; (2002) 211 CLR 441 at 458 [35] - [36] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. Rajamanikkam and SGFB dealt with provisions in the then Migration Act 1958 (Cth) which were in similar terms to s 5(1)(h) and s 5(3) of the ADJR Act and, in Rajamanikkam , the Justices made it clear that their analysis also applied to the ADJR Act provisions: at 226 [1], 234 [32]-[34] per Gleeson CJ at 240 [54] per Gaudron and McHugh JJ and at 244 [74] and 255 [110] per Kirby J. An important question debated in those authorities is whether the ground in s 5(1)(h) is made out if one of the matters in s 5(3) is established, or the ground in s 5(1)(h) is made out only if there was no evidence or other material to justify the making of the decision and one of the matters in s 5(3) is established.
Case: Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex Parte Applicants S134/2002 [2003] HCA 1 ; (2002) 211 CLR 441
Outcome: referred to
The relationship between s 5(1)(h) and s 5(3) has been the subject of a good deal of debate in the authorities: Bond at 355-358 per Mason CJ; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 (" Rajamanikkam "); SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422 (" SGFB ") at [17]-[21] per von Doussa, O'Loughlin and Selway JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1 ; (2002) 211 CLR 441 at 458 [35] - [36] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. Rajamanikkam and SGFB dealt with provisions in the then Migration Act 1958 (Cth) which were in similar terms to s 5(1)(h) and s 5(3) of the ADJR Act and, in Rajamanikkam , the Justices made it clear that their analysis also applied to the ADJR Act provisions: at 226 [1], 234 [32]-[34] per Gleeson CJ at 240 [54] per Gaudron and McHugh JJ and at 244 [74] and 255 [110] per Kirby J. An important question debated in those authorities is whether the ground in s 5(1)(h) is made out if one of the matters in s 5(3) is established, or the ground in s 5(1)(h) is made out only if there was no evidence or other material to justify the making of the decision and one of the matters in s 5(3) is established.
Case: Secretary to the Department of Justice v Osland [2007] VSCA 96
Outcome: referred to
The starting point is the Evidence Act 1995 (Cth) ("Evidence Act"), the provisions of which, at least insofar as legal professional privilege (or, more accurately, "client legal privilege") is concerned, apply where, as here, evidence is sought to be adduced. The respondents did not address directly the operation of the Evidence Act and I was taken, in argument, to cases where the common law was the applicable law either because of the jurisdiction or because of the pre-trial (discovery and production) context in which the issue of privilege arose ( Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1; Bennett v Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101; Secretary to the Department of Justice v Osland [2007] VSCA 96 ; GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123). Whatever assistance I may derive from those cases, it is clear that my starting point must be the provisions of the Evidence Act . Equally, the applicant did not articulate precisely the legal basis for his submission that the privilege had been waived, although I understood his submission to be based upon the disclosure to him of the unedited copy of the memorandum by the respondents' solicitors.