mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285
Outcome: referred to
In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290-291, Burchett and Kiefel JJ (with whom Carr J generally agreed) discussed the question of the Court's role on fixing the quantum of penalty in circumstances where the parties had indicated a range within which a civil penalty ought to be imposed. That decision has been more recently considered in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; [2004] ATPR 41 and the Court distilled the proposition which emerged from the reasoning in NW Frozen Foods [1996] FCA 1134 ; 71 FCR 285 at [51] : The following propositions emerge from the reasoning in NW Frozen Foods: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range. 12 After discussing a number of authorities at first instance, the Court concluded that there was nothing to warrant a departure from the principles which had been identified in NW Frozen Foods [1996] FCA 1134 ; 71 FCR 285. 13 It was appropriate, therefore, for the parties to agree upon a range and submit that range to this Court for its consideration.
Case: Standen v Feehan [2008] FCA 1009
Outcome: referred to
I do not intend to recite the facts which I have found and which are contained in my reasons in Standen v Feehan [2008] FCA 1009. Those facts speak for themselves. 19 In considering what ought to be the appropriate penalty, one must have regard to the seriousness of the contravention. The more serious the contravention, the higher the penalty. 20 For the reasons which I have given, I consider that the conduct was serious. The conduct was premeditated and was designed to hinder the contractor and the subcontractor in the carrying out of their work on the day in question. The conduct continued over a relatively long period. The conduct had the consequence that Mr Zito and his employees had to work late into the evening to complete their concreting.
Case: Forbes Engineering (Asia) Pte Limited v Mark Forbes [2007] FCA 1598
Outcome: related
I note that: &#8226; One of the reasons I ordered the hearing dates vacated was because I accepted the view taken by the new solicitor for the respondents that, in light of developments following the hearing of 26 September 2007, a second further amended defence would need to be filed and served ( Forbes Engineering (Asia) Pte Limited v Mark Forbes [2007] FCA 1598 at [19] ). &#8226; The orders of 18 October 2007, which accepted that leave to amend the respondents' further amended defence had been given pursuant to O 13 r 3, and directed that a second further amended defence be filed within a short time frame, were made in light of those reasons. &#8226; I accept the submission of the respondents, and it is not in dispute, that the legal representatives for the applicants had been in possession of a copy of the proposed second further amended defence since the morning of 18 October 2007, but no objection was made by the legal representatives when I made the relevant orders, including the order of which complaint is now made, on the afternoon of 18 October 2007. 7 However, notwithstanding the absence of objection by the legal representatives of the applicants on 18 October 2007 when directions were being given, it is now clear that they had not had a proper opportunity to consider the contents of the proposed second further amended defence. Further, I accept that Mr Jones for the applicants had anticipated that he would have an opportunity at a later date to deal with this proposal and any application for leave to file. 8 In addition to this, the possibility that the second further amended defence contains withdrawals of admissions made in earlier versions of this pleading raises a different issue. Whereas the general position with respect to amendment of pleadings is dealt with in O 13 r 3 and O 22 r 4 Federal Court Rules specifically deals with withdrawals of admissions. In this case the applicants particularly rely on O 22 r 4(2), which provides: Sub-rule (1) does not enable a party to withdraw, without the consent of another party or the leave of the Court, an admission or any other matter operating for the benefit of that other party.
Case: Vawdon v South Sydney Junior R.L. Club [1975-1976] CLC p40-248
Outcome: referred to
passing, I note that in my view in determining for the purposes of ss 249D and 249E what "the directors" did, there is to be included anything that they did through the Company Secretary acting as their agent. Any suggestion that it is only what they did personally that is to be taken into account must be rejected. Accordingly, for present purposes, the directors notified the ASX on 17 April 2009 and the directors sent out the notices of meeting on 27 April 2009. It is not to the point that it can be said, for the different purpose of distinguishing between what the directors of a company and the company's secretary respectively did, that the directors "called" a meeting and the company secretary then sent out the notices of it: cf Vawdon v South Sydney Junior R.L. Club [1975-1976] CLC p40-248 at 28,499. The making of the distinction in such terms for that purpose does not, to my mind, indicate an underlying general assumption that notification does not form part of the calling of a meeting. Dictionaries The transitive verb "to call" in relation to a meeting, assembly or gathering is defined in The New Shorter Oxford English Dictionary as "[t]o convoke, summon", and in the online Oxford English Dictionary as "[t]o convoke, convene, summon (a meeting or assembly)." The transitive verb "to call" is defined in the Macquarie Dictionary , relevantly, as "to convoke or convene, as a meeting or assembly".
Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: applied
In order to establish practical unfairness, it must be shown that a person has been given an expectation by the Minister "as to a procedural step to be taken", which was not taken so that it may be said that a legitimate expectation held was disappointed (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [36] per Gleeson CJ). 18 Neither IFT or any of its members or, indeed, The Wilderness Society Inc., can show it or they were misled by the Minister. The subjective expectation held by opponents of the proposed action was generated by the RPDC process. While the Minister's predecessor agreed on assessment through the RPDC jointly with Tasmania, nothing the Minister did contributed to the demise of the RPDC. Further, the number and nature of the environmental matters relevant to the Minister's decision on approval are narrower than those dealt with by the RPDC. Even in that respect, the evidence of IFT is very general. There is no evidence of what precise material would have been put to the Minister had he decided on a longer period for "comment" than 20 business days. For example, Ms Christina Holmdahl referred to "detailed expert reports" on "flora and fauna and social and economic issues including but not only the impact on tourism". 19 The kind of material which IFT wished to put to the Minister, if there was more time, largely relates to matters which are relevant to Tasmania's assessment process, rather than the Minister's. The same can be said of the matters identified by Mr Paul Oosting at [59] of his affidavit dated 16 May 2007 in the TWS proceeding, with the exception of "marine impacts (including environmental impacts and particular species impacts)", "threatened species, as it relates to the site of the pulp mill", "social impacts" and "economic impacts". The limited nature of the matters which could be addressed with respect to the controlling provisions, combined with the limited nature of the evidence that could be put forward in respect of them, does not make it clear that the 20 business day time limit for comment amounts to a denial of procedural fairness in the circumstances. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 9 August 2007 Counsel for the Applicant: Dr K Hanscombe SC with Ms F Gordon Solicitors for the Applicant: Coadys Counsel for the First Respondent: Dr M Perry QC with Mr G Hill Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr G Uren QC with Mr T Walker Solicitors for the Second Respondent: Freehills Dates of Hearing: 4-6, 9-10 July 2007 Date of Judgment: 9 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1179.html
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: referred to
In the TWS proceeding, I held that s 131AA(7) of the EPBC Act is a complete statement of the Minister's obligation to provide procedural fairness in relation to his decision to approve, for the purposes of a controlling provision, the taking of an action and any conditions attaching to approval. If that is not correct and the obligation is wider, it is one that must be considered in the context of the EPBC Act and in the context of the facts and circumstances before the Minister (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at [26] ). 10 That the EPBC Act has provisions dealing with steps to be taken before a decision on approval is made suggests that the EPBC Act makes careful provision for when, and to what extent, comment from interested persons and/or the public is required. 11 Under s 74(3) of the EPBC Act, as soon as practicable after receiving a referral of a proposal to take an action, the Minister must cause to be published on the internet the referral and "an invitation for anyone to give the Minister comments within 10 business days" on whether the action is a controlled action. In making a controlled action decision under s 75, the Minister is required by s 75(1A) to consider the comments received in response to such an invitation, as long as they are received within the time specified. Under s 75(5), the Minister is obliged to make the controlled action decision within 20 business days after receiving the referral.
Case: The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178
Outcome: referred to
This proceeding was heard at the same time as The Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178 (TWS proceeding). These reasons for judgment are to be read together with the reasons for judgment published in the TWS proceeding. Terms defined in the reasons for judgment in the TWS proceeding have the same meaning in these reasons for judgment. 2 The grounds of review relied on in this proceeding overlap substantially with the grounds relied on in the TWS proceeding. There is a difference between the grounds in the applications dealing with the allegation that the Minister took into account Gunns' commercial imperatives in making the 2007 assessment approach decision. 3 Ground nine of the grounds of review in this proceeding states that the 2007 assessment approach decision is invalid or is not authorised by the EPBC Act because the Minister took into account an irrelevant consideration. Ground 10 in the TWS proceeding alleges that the 2007 assessment approach decision involved an improper exercise of power in that it was made for a purpose, or included a purpose, other than that for which the power was conferred. I rejected that submission in the TWS proceeding.
Case: Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404
Outcome: cited
In recent times applications to restrain solicitors from acting against clients or former clients have arisen not infrequently and have been the subject of detailed consideration in Australian courts, in particular in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 (Victorian Court of Appeal), Bureau Interprofessionnel des Vins de Bourgogne v Red Earth Nominees Pty Ltd [2002] FCA 588 (Ryan J), Photocure ASA v Queen's University at Kingston (2002) 56 IPR 86 (Goldberg J) and Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 (Young J). The leading English authority is the House of Lords' decision in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222.
Case: Photocure ASA v Queen's University at Kingston (2002) 56 IPR 86
Outcome: cited
In recent times applications to restrain solicitors from acting against clients or former clients have arisen not infrequently and have been the subject of detailed consideration in Australian courts, in particular in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 (Victorian Court of Appeal), Bureau Interprofessionnel des Vins de Bourgogne v Red Earth Nominees Pty Ltd [2002] FCA 588 (Ryan J), Photocure ASA v Queen's University at Kingston (2002) 56 IPR 86 (Goldberg J) and Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 (Young J). The leading English authority is the House of Lords' decision in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222.
Case: Bureau Interprofessionnel des Vins de Bourgogne v Red Earth Nominees Pty Ltd [2002] FCA 588
Outcome: applied
In recent times applications to restrain solicitors from acting against clients or former clients have arisen not infrequently and have been the subject of detailed consideration in Australian courts, in particular in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 (Victorian Court of Appeal), Bureau Interprofessionnel des Vins de Bourgogne v Red Earth Nominees Pty Ltd [2002] FCA 588 (Ryan J), Photocure ASA v Queen's University at Kingston (2002) 56 IPR 86 (Goldberg J) and Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 (Young J). The leading English authority is the House of Lords' decision in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222. 32 However, the critical question is whether the knowledge of Mr Lindwall and Ms Schweikert should be imputed to other lawyers at BDW. In Red Earth at [34] Ryan J said: "It is now well established that the knowledge of a solicitor joining a new firm should not automatically be imputed or attributed to other lawyers or employees at that firm (see Re a Firm of Solicitors [1992] QB 959 at 973, per Staughton LJ; Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98, per Ipp J at 110-111; Newman v Phillips Fox (1999) 21 WAR 309, per Steytler J; Bolkiah (supra) at 235). As Lord Millett said in Bolkiah , whether a particular individual is in possession of confidential information is a question of fact to be proved or inferred from the circumstances of the case: ( Bolkiah at 235. See also the observation of Steytler J in Newman v Phillips Fox (supra) at 317). 33 Applying that principle, and assuming the onus is on BDW, I am satisfied that no relevant information was passed on to anyone at BDW. The detailed evidence both from Mr Lindwall and Ms Schweirkert and from solicitors at BDW, the veracity of which was not challenged, enables that conclusion to be safely drawn. The circumstances point the same way. A large and reputable firm like BDW would be aware of the obvious potential conflict when a solicitor previously acting on the other side of litigation has joined them. This would be clear, notwithstanding that Corrs had ceased acting for Arkaroola some six months earlier. So there was all the more reason to take positive steps, such as notifying the former client of Mr Lindwall and going out of their way to ensure that he had nothing to do with any matters relating to that client. 34 As events have turned out, Mr Lindwall and Ms Schweikert left BDW before the present Federal Court litigation commenced so the risk of even accidental communication of relevant information hereafter can be ignored.
Case: Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501
Outcome: cited
In recent times applications to restrain solicitors from acting against clients or former clients have arisen not infrequently and have been the subject of detailed consideration in Australian courts, in particular in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 (Victorian Court of Appeal), Bureau Interprofessionnel des Vins de Bourgogne v Red Earth Nominees Pty Ltd [2002] FCA 588 (Ryan J), Photocure ASA v Queen's University at Kingston (2002) 56 IPR 86 (Goldberg J) and Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 (Young J). The leading English authority is the House of Lords' decision in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222.
Case: Mintel International Group Ltd v Mintel (Australia) Pty Ltd (2000) 181 ALR 78
Outcome: cited
I will assume for present purposes that Mr Salfinger has made out a case with sufficient particularity that confidential information concerning his affairs and those of Arkaroola passed into the possession of Mr Lindwall and Ms Schweirkert when they were at Corrs. Such confidential information would extend to what Gillard J in Yunghanns v Elfic Ltd (Supreme Court of Victoria, unreported, 3 July 1998) has characterised as the "getting to know you" factors. His Honour said at 10-11: "In some cases the circumstances of the retainer and the nature of the legal work will be sufficient to establish the nature of the confidential information. In this regard the relationship between solicitor and client may be such that the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics. These are factors which I would call the 'getting to know you' factors. The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client." See also Mintel International Group Ltd v Mintel (Australia) Pty Ltd (2000) 181 ALR 78 at [37]-[44].
Case: Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222
Outcome: cited
In recent times applications to restrain solicitors from acting against clients or former clients have arisen not infrequently and have been the subject of detailed consideration in Australian courts, in particular in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248 ; (2001) 4 VR 501 (Victorian Court of Appeal), Bureau Interprofessionnel des Vins de Bourgogne v Red Earth Nominees Pty Ltd [2002] FCA 588 (Ryan J), Photocure ASA v Queen's University at Kingston (2002) 56 IPR 86 (Goldberg J) and Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 (Young J). The leading English authority is the House of Lords' decision in Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222.
Case: Yunghanns v Elfic Ltd (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998)
Outcome: cited
I will assume for present purposes that Mr Salfinger has made out a case with sufficient particularity that confidential information concerning his affairs and those of Arkaroola passed into the possession of Mr Lindwall and Ms Schweirkert when they were at Corrs. Such confidential information would extend to what Gillard J in Yunghanns v Elfic Ltd (Supreme Court of Victoria, unreported, 3 July 1998) has characterised as the "getting to know you" factors. His Honour said at 10-11: "In some cases the circumstances of the retainer and the nature of the legal work will be sufficient to establish the nature of the confidential information. In this regard the relationship between solicitor and client may be such that the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics. These are factors which I would call the 'getting to know you' factors. The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client." See also Mintel International Group Ltd v Mintel (Australia) Pty Ltd (2000) 181 ALR 78 at [37]-[44].
Case: SZFIO v Minister for Immigration and Multicultural and Indigenous Affairs &amp; Anor [2005] FCA 1449
Outcome: referred to
On 7 October 2005 Bennett J dismissed the application for leave to appeal: SZFIO v Minister for Immigration and Multicultural and Indigenous Affairs &amp; Anor [2005] FCA 1449. 9. An application for review of the delegate's decision was lodged in the Federal Magistrates Court by the applicant on 26 October 2005. That is the application which is the subject of the second order made by the Magistrate. 10. On 1 December 2005 the respondent issued the notice of motion to which I have previously referred to have that proceeding dismissed.