mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Kadian v Richards [2004] NSWSC 382
Outcome: cited
is a conflict in the evidence. The mere fact that Mr Buchan was not cross-examined on his version is not determinative: Sullman v Sullman [2002] NSWSC 169 ; Kadian v Richards [2004] NSWSC 382 at [127] .
Case: Labor Council of New South Wales v Axis Metal Roofing (2004) 131 IR 272
Outcome: considered
Labor Council of New South Wales v Axis Metal Roofing (2004) 131 IR 272 , Vice President Justice Walton considered whether, under s 143(5) of the Industrial Relations Act 1996 (NSW), a strike was based on a reasonable concern for health and safety of employees. There was no requirement for the concern for health and safety to be an imminent risk. Nonetheless his Honour considered the concepts of "imminence", "seriousness", "proportionality" and "justification" which would be relevant to the exercise of the Court's discretion: (a) Whether it is a "reasonable" concern involves an objective assessment of the nature of that concern; (b) A concern may be reasonable so long as it is not fanciful, illogical or irrational at the time the concern arises, without the benefit of hindsight and the knowledge of whether a real risk does in fact exist; (c) There is no need to establish that an actual risk existed at the time; (d) The reasonableness must be assessed from the perspective of an ordinary and reasonable person in the position of the employees involved at the relevant time; (e) The reasonable concern must continue during all times that the relevant industrial action is occurring; and (f) Previous incidents, occurrences or beliefs may be relevant to a basis for a concern for health or safety in the circumstances. Accordingly the issue is not whether certain matters did in fact constitute a risk to health or safety, but rather whether any employee reasonably held a concern about an imminent risk to their health or safety. The applicant accepts, correctly in my view, that an employee may have a concern even though his or her concern arose only from something communicated by a union official. However, such a concern must still be objectively reasonable. It will not be reasonable merely because it was raised by a union official. Imminent
Case: Leighton Contractors Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375
Outcome: distinguished
respondents point to the fact that they are not the employees in question and did not fail or refuse to attend for building work and are therefore not capable of engaging in building industrial action. They rely on Leighton Contractors Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at [26] . It follows, they submit, that there is no cause of action against the respondents for engaging in building industrial action and, therefore, unlawful industrial action, in the manner alleged in paragraphs 1(a) and (b) of the Details of Claim in the application, and therefore no serious question to be tried in relation to those allegations. The respondents further contend that the application does not contain any reference to the accessorial provisions found in s 48(2) which treats persons involved in a contravention of a civil penalty provision as having contravened the provision. Le Miere J in Leighton Contractors Ltd 164 IR 375 at [26] correctly stated that a defendant who was not a relevant employee and who did not fail or refuse to attend for building work is not capable of engaging in building industrial action with the definition in s 36(1)(d). However, his Honour was not there considering accessorial liability under s 48(2). This case does not assist the respondents.
Case: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299
Outcome: cited
49(3) confers power to grant an interim injunction without reaching a final decision that a contravention has occurred: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 at [7], [8]; Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 at [52].
Case: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306
Outcome: cited
49(3) confers power to grant an interim injunction without reaching a final decision that a contravention has occurred: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 at [7], [8]; Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 at [52].
Case: Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365
Outcome: cited
apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more dubious claim, which nevertheless raises a serious question to be tried, may still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 at [20] per Weinberg J, citing Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. The threshold for a serious question to be tried is not particularly onerous: Cahill v Construction, Forestry, Mining and Energy Union (2006) 151 IR 41, at [22].
Case: Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers' Union of Australia (1987) 54 NTR 6
Outcome: referred to
Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers' Union Of Australia (1987) 54 NTR 6 at 9, Nader J of the Supreme Court of the Northern Territory outlined the following factors relevant to a determination of whether action taken by the respondent Union was justified. Ranger had sued for alleged economic torts. The union said its conduct was justified because its motivating purpose was the protection and promotion of the safety of the workers. His Honour outlined the following factors: (a) How seriously did the situation threaten health and safety? (b) What efforts had been made in the past by the workers (or others to their knowledge) to eliminate that risk? (c) What response has the employer made to reduce the risk? (d) Is the issue genuine or is it a pretext to further a less worthy objective? (e) What other methods, if any, were available to the defendants to achieve such "less worthy objective?"
Case: Sullman v Sullman [2002] NSWSC 169
Outcome: cited
is a conflict in the evidence. The mere fact that Mr Buchan was not cross-examined on his version is not determinative: Sullman v Sullman [2002] NSWSC 169 ; Kadian v Richards [2004] NSWSC 382 at [127] .
Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: cited
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 , the Court said that an applicant for review before a Refugee Review Tribunal could ordinarily expect that the issues under review were those which had been issues before the original decision maker which were determinative against the applicant unless the Tribunal raised for consideration some other additional issues. In those circumstances, it was incumbent upon the Tribunal, if it intended to rely upon some other issues to reject the applicant's review, to give notice of those issues to comply with s 425. 56 In this case, the issues which were raised by the Tribunal related to the circumstances in which the appellant had received either money or value from Mr Nassif and Mr Jarjo. 57 That issue raised squarely for determination the question of the accuracy of the financial statements. If, for example, Mr Nassif and Mr Jarjo were lenders to the business or to the company then the sum lent would be shown as an asset and the amount owing would be shown as a liability. The financial statements which were presented did not show liabilities owing to Mr Nassif and Mr Jarjo. 58 As the Tribunal had notified the appellant that the source of funds was an issue under review, then the appellant should have understood that the accuracy of the financial statements which he had presented in support of his claim to be entitled to a visa was also an issue. This is not the type of case that the High Court considered in SZBEL [2006] HCA 63 ; 231 ALR 592 . The Tribunal was not under any obligation to provide some sort of running commentary as to the view that it takes on the evidence as it unfolds before it. In SZBEL [2006] HCA 63 ; 231 ALR 592 the High Court said at [48]: Secondly, as Lord Diplock said in F Hoffmann La Roche &amp; Co AG v Secretary of State for Trade &amp; Industry : "... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice, only the most talkative of judges would satisfy it and trial by jury would have to be abolished." Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence it has given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. 59 In my opinion, nothing has been shown which would indicate that the Tribunal failed to comply with s 360. Ground 2 has not been made out. 60 In those circumstances, it is not necessary for me to have further regard to the affidavit of Harry Mavrelefterou.
Case: Australian Competition and Consumer Commission v Auspine Ltd (2006) 235 ALR 95
Outcome: cited
discussed the limitations on the Court's power to accept an undertaking in Australian Competition and Consumer Commission v Auspine Ltd (2006) 235 ALR 95 at 104-109 [24]-[35]. Although the undertaking is expressed in somewhat general terms, I considered that I had both the power to accept it and that it was appropriate for me to do so. In reaching that conclusion, I had regard to the decisions of the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 and Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) [2007] FCAFC 146 ; (2007) 161 FCR 513 (" Dataline ").
Case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) [2007] FCAFC 146 ; (2007) 161 FCR 513
Outcome: cited
discussed the limitations on the Court's power to accept an undertaking in Australian Competition and Consumer Commission v Auspine Ltd (2006) 235 ALR 95 at 104-109 [24]-[35]. Although the undertaking is expressed in somewhat general terms, I considered that I had both the power to accept it and that it was appropriate for me to do so. In reaching that conclusion, I had regard to the decisions of the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 and Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) [2007] FCAFC 146 ; (2007) 161 FCR 513 (" Dataline "). The principal object of the penalties imposed by s 76 of the Act is deterrence, and, in particular, general deterrence: Trade Practices Commission v CSR at 52,152 per French J; NW Frozen Foods at 292 per Burchett and Kiefel JJ ; Dataline at 527-528 [60], [62]; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] ATPR 42-031 per Selway J. Application of principles
Case: Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd [2008] ATPR 42-225
Outcome: cited
Commission sought an order that Skins provide a letter on its letterhead to each of its current retailers, agents and/or distributors. The terms and size of the letter were to be in accordance with a document annexed to the draft consent orders. The letter advises the addressee of the results of this proceeding, including the pecuniary penalties imposed, and of the fact that Skins may only recommend a retail price, and is not allowed to specify to retailers a minimum price below which goods or services are not to be resold or advertised for sale. Skins consented to such an order. I considered that it was appropriate to make such an order (see s 86C(2); Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd [2008] ATPR 42-225). The Commission proposed that Skins pay to the Commonwealth of Australia a pecuniary penalty of $120,000 and that Mr Warhurst pay to the Commonwealth of Australia a pecuniary penalty of $14,000.
Case: Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] ATPR 42-031
Outcome: cited
principal object of the penalties imposed by s 76 of the Act is deterrence, and, in particular, general deterrence: Trade Practices Commission v CSR at 52,152 per French J; NW Frozen Foods at 292 per Burchett and Kiefel JJ ; Dataline at 527-528 [60], [62]; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] ATPR 42-031 per Selway J. Application of principles
Case: Australian Competition &amp; Consumer Commission v NW Frozen Foods [1996] ATPR 41-515
Outcome: referred to
addition to the above matters, the trial judge (Heerey J; see Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd [1996] ATPR 41-515) considered (at 42,444-42,445) the financial position of the respondents and the deterrent effect of the proposed penalty.
Case: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79
Outcome: cited
addition to being satisfied by evidence that it is appropriate to make the declarations sought, I must be satisfied that I have the power to make the declarations and that they are appropriate: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 (" Real Estate Institute "). The power to make orders for corrective advertising is contained in s 86C of the Act and the power to accept undertakings of the nature proffered is part of the power to grant injunctions in s 80 of the Act. Again, as with the declarations, the Court must be satisfied that it has the power to accept the undertakings and that they are appropriate, although the Court will not substitute its own view for that of the parties if the undertakings fall within an appropriate disposition of the case: Real Estate Institute at 87, 89 [21], [26] per French J. Skins admits that, on a number of occasions, it engaged in conduct, in trade and commerce, that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 52 of the Act. At the heart of the contravening conduct were three representations. The first representation was that Skins did not pay money to sports stars, or their representatives, clubs, teams or governing bodies, for the sports stars to wear Skins products. The parties referred to this as the "no payment to wear" representation, and it is convenient to adopt that shorthand way of referring to the representation. The second representation was that Skins did not provide Skins products to sports stars, or their representatives, clubs, teams or governing bodies, unless the Skins products were paid for with money. The parties referred to this representation as the "always paid for" representation and again it is convenient for me to do likewise. The third representation was that Skins did not pay money to sports stars, or their representatives, clubs, teams or governing bodies, for sports stars to endorse Skins products. The parties referred to this representation as the "no payment to endorse" representation, and again it is convenient for me to do likewise.
Case: ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248
Outcome: referred to
discussed the limitations on the Court's power to accept an undertaking in Australian Competition and Consumer Commission v Auspine Ltd (2006) 235 ALR 95 at 104-109 [24]-[35]. Although the undertaking is expressed in somewhat general terms, I considered that I had both the power to accept it and that it was appropriate for me to do so. In reaching that conclusion, I had regard to the decisions of the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 and Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) [2007] FCAFC 146 ; (2007) 161 FCR 513 (" Dataline ").
Case: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: referred to
Court was asked to make declarations that Skins contravened s 48 of the Act by an act of inducement in July 2005, an act of attempting to induce in September 2005 and a second act of attempting to induce in May 2006. The Court was also asked to make a declaration that on each occasion Mr Warhurst was, directly or indirectly, knowingly concerned in, or party to, the contravention. Clearly there was power to make the declarations and, having regard to the agreed facts and submissions, I considered that it was appropriate to make the declarations. The declarations I made sufficiently described the conduct which contravened s 48 (cf Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91 [89] - [90] per Gummow, Hayne and Heydon JJ). The Court was also asked to accept an undertaking by Skins in the following terms: "Skins undertakes to the Court that Skins shall not, by itself, its servants, agents or otherwise howsoever, for a period of 3 years from the date of this undertaking, induce or attempt to induce, any person or corporation not to sell or advertise Skins products supplied to it by Skins for sale at a price less than a price specified by Skins."
Case: Trade Practices Commission v CSR Ltd [1991] ATPR 41-076
Outcome: discussed
Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 (" Trade Practices Commission v CSR ") at 52,152-52,153, French J identified relevant factors additional to those in the section and they are the following: (1) the size of the contravening company; (2) the degree of power it has, as evidenced by its market share and ease of entry into the market; (3) the deliberateness of the contravention and the period over which it extended; (4) whether the contravention arose out of the conduct of senior management or at a lower level; (5) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and (6) whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention. The principal object of the penalties imposed by s 76 of the Act is deterrence, and, in particular, general deterrence: Trade Practices Commission v CSR at 52,152 per French J; NW Frozen Foods at 292 per Burchett and Kiefel JJ ; Dataline at 527-528 [60], [62]; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] ATPR 42-031 per Selway J. Application of principles
Case: Alister v The Queen [1984] HCA 85 ; (1984) 154 CLR 404 
Outcome: applied
The principles of public interest immunity to be gleaned from the decisions of the High Court in Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 and Alister v The Queen [1984] HCA 85 ; (1984) 154 CLR 404 , were set out by Lockhart J in Zarro at 44-46.
Case: AWB Ltd v Cole [2006] FCA 571 ; (2005) 152 FCR 382 
Outcome: applied
In short, attachment 2 was not prepared by a legal practitioner and there is no relevant legal context. Accordingly, it does not attract client legal privilege or litigation privilege: see AWB Ltd v Cole [2006] FCA 571 ; (2005) 152 FCR 382 at [144] - [145] .
Case: Australian Competition and Consumer Commission v Rural Press Limited [2000] FCA 66 ; (2000) 96 FCR 389 
Outcome: referred to
This approach is consistent with that which was adopted by Mansfield J in Australian Competition and Consumer Commission v Rural Press Limited [2000] FCA 66 ; (2000) 96 FCR 389 at [37] [38]. His Honour accepted that the effect of the decision by the judges in Kotan is that the question of whether the exercise of the power is for an improper purpose is to be determined by a consideration of all the circumstances.
Case: Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
Outcome: referred to
Mr Gageler SC referred me to the line of authorities commencing with Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 , referred to by Gibbs CJ in O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11. Gibbs CJ there said that the authorities establish that when a Minister is entrusted with administrative functions he or she may in general act through a duly authorised officer of the department.
Case: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 
Outcome: applied
In Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 , a Full Court, after referring to Mann v Carnell and other authorities said at [52]: [52] These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication.
Case: DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499
Outcome: applied
Their Honours referred with approval to the statement of Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499 at [58] . His Honour there referred to waiver coming about when a party entitled to the privilege makes an assertion which is either about the contents of the confidential communication or which necessarily lays it open to scrutiny. Privilege is lost because an inconsistency arises between the act and the maintenance of the confidence, informed partly by forensic unfairness. 73 It is true that Mr Pearson has deployed the existence of the separate settlement team and the fact that the team developed a proposed settlement regime for consideration by the Enforcement Committee. However, I do not consider that the assertions in Mr Pearson's affidavit at [8] and [10] [15] fall within the principles referred to above. 74 In particular, I do not consider that the assertions in the affidavit are about the contents of the redacted portions of attachment 1.
Case: Hudson v Branir Pty Limited (2005) 148 NTR 1 
Outcome: referred to
The parties agreed that I should follow the course adopted in Hudson v Branir Pty Limited (2005) 148 NTR 1 by having regard to the context of evidence proposed to be adduced at the final hearing so as to be able to determine the context in which the dispute over the Notice to Produce arises. Some of that material, though not yet formally in evidence, was read out and referred to in open Court and I will refer to the salient parts in my reasons for judgment. 18 Mr Mark Pearson is the Executive General Manager of the Enforcement and Compliance Division of the ACCC. At all times since about July 2006, Mr Pearson has been the most senior staff member of the ACCC with overall responsibility for the investigation of air cargo price fixing. 19 Mr Paul Taylor, Director, Coordination Branch, has been responsible for conducting the investigation on a day-to-day basis since about July 2006.