CRIMINAL LAW – appeal against conviction – two counts of supply in contravention of the Drug Misuse and Trafficking Act 1985.
CONSTITUTIONAL LAW – inconsistency between State and Commonwealth laws – whether s 25 of the Drug Misuse and Trafficking Act 1985 is inconsistent with s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – gravity of impropriety or contravention – evidence gathered pursuant to authority under the Law Enforcement (Controlled Operations) Act 1997 – authority subsequently held to be invalid.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge correctly assessed the overall risk of harm of the controlled operation to the community.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge erred in considering the defence of reasonable excuse in relation to s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – whether desirability of admitting the illegally or improperly obtained evidence outweighed the undesirability.
EVIDENCE – witness – cross-examination on voir dire – privilege – self-incrimination – whether answers would tend to prove an offence against a law of a foreign country – proof of foreign law – whether the interests of justice required that the evidence be given over objection.
CRIMINAL LAW – sentencing – parity principle.
TRADE PRACTICES – contravention of ss 45(2)(a)(ii) and 45(2)(b)(ii) of Trade Practices Act 1974 (Cth), now Competition and Consumer Act 2010 (Cth), and s 45ZZRK of that Act – arrangements or understandings by respondent with certain competitors to increase prices of products – statement of agreed facts and admissions as to contraventions – parties agreed on orders – whether penalty proposed is within “permissible range” – pecuniary penalty imposed is appropriate
ENVIRONMENT LAW – Declaration of contravention sought –Failure to provide quarterly reports to Minister – Statement of agreed facts supplied by the parties
EVIDENCE – Declarations – Statement of agreed facts adduced as evidence – Evidence Act 1995 (Cth) s 191 – Whether agreed facts sufficient to support declarations
CONSUMER LAW – false, misleading and deceptive conduct in relation to charges for repair of damaged rental vehicles – admitted conduct in contravention of trade practices law – enforcement and remedies – assessment of pecuniary penalties – relevant factors – declarations – undertaking to pay customers known to have been overcharged – ancillary orders.
CRIMINAL LAW – appeal against conviction – charges of sexual assault – a number of potential witnesses not called in the Crown case – fresh material served on defence during course of the trial – suggested misconduct by juror – whether miscarriage of justice
PRACTICE AND PROCEDURE – application for summary dismissal under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) – principles applicable to summary judgment – whether summary dismissal involves a two-stage test that shifts the onus to the respondent on the application when the applicant has established a prima facie case
CORPORATIONS – where substantive proceedings allege contraventions of s 180(1) of the Corporations Act 2001 (Cth) (Corporations Act) by directors of a company for exposing the company to risk of various adverse legal outcomes – where adverse outcomes include proceedings arising out of contraventions of the Corporations Act because of the manner in which the company provided advice to 46 investors – whether ASIC has reasonable prospects of success of establishing that a reasonable director would have foreseen a risk of the adverse legal outcomes and concluded the risks were unacceptably high – whether affidavit evidence from the directors that contains general, unparticularised assertions establishes a prima facie case
CORPORATIONS – whether ASIC has reasonable prospects of success of establishing a breach of s 180(1) where: the respondents held all the shares in the company and were the only executive directors, the company was solvent and no allegation of bad faith – whether those circumstances are determinative – reliance on ASIC v Maxwell (2006) 59 ACSR 373;  NSWSC 1052 – whether identity of interest between shareholders and directors changes the content of the duty under s 180(1) –whether s 180(1) imposes a minimum standard of care and skill
TRADE PRACTICES – Misleading and deceptive conduct – False and misleading representations as to standard and quality of duck meat products offered for sale – Imposition of pecuniary penalty – discussion of guiding principles relevant to the imposition of a penalty pursuant to s 224 of the Australian Consumer Law – Agreed penalty – Relevant considerations in determining whether agreed penalty is appropriate – Declarations – Injunctions –
Corrective notices – Compliance Program.
PRACTICE AND PROCEDURE – application for summary judgment – decision of United States Bankruptcy Court – doctrine of res judicata
PRACTICE AND PROCEDURE – abuse of process
PROCEDURE – application for vexatious proceedings order pursuant to s 8 Vexatious Proceedings Act – whether proceedings are vexatious – meaning of “vexatious” – whether proceedings were conducted frequently – meaning of “frequently”
SUPPRESSION ORDERS – application by defendant to suppress identity in judgment and orders made under the Vexatious Proceedings Act 2008 – issue as to impact of publicity upon defendant’s mental health – powers of the Court to make a suppression order under the Court Suppression and Non-publication Orders Act 2010 not available to suppress judgment and orders under Vexatious Proceedings Act 2008, in particular having regard to the statutory scheme requiring public notification of any orders made under that Act
TRADE PRACTICES – agreed antitrust contraventions – agreed injunction, pecuniary penalty, and order for costs – principles appropriate to order for pecuniary penalty
CONSUMER PROTECTION – sale of children’s nightwear that did not meet relevant safety standards – admitted contraventions of s 65C(1) of the Trace Practices Act 1974 (Cth) – admitted contraventions of ss 52, 53 and 55 of the Trade Practices Act 1974 (Cth) – parties agreed as to facts, liability and penalties – whether declaratory relief available under circumstances – whether grant of injunctions appropriate – whether grant of probation order compliance program appropriate – whether agreed penalty should be imposed – mandatory considerations relevant to fixing of penalty – other considerations relevant to fixing of penalty
COMPETITION – price-fixing – collusive understandings – respondent admitted to contraventions of s 45(2) Trade Practices Act 1974 (Cth) – enforcement and remedies – application for pecuniary penalties and injunctions under ss 76 and 80 – agreed penalties and injunctions – whether contraventions occurred – whether the proposed penalties appropriate – matters relevant to imposition of penalty – admissions not made until first day of hearing – parity with penalties imposed in similar cases
PRACTICE AND PROCEDURE – Applications for leave to file cross-claims against other airlines – whether requirements of rule 15.05 of the Federal Court Rules 2011 (Cth) complied with – inappropriate to rule on applications where application to amend statement of claim foreshadowed
COMMUNICATIONS LAW – Commercial electronic messages – enforcement of undertakings made by nightclub promoter to regulator – application for enforcement orders to be made by consent
COMPETITION – Resale price maintenance – admitted contraventions of prohibition – director knowingly concerned in contraventions – contraventions in respect of online beauty product sales – appropriateness of relief sought by consent – pecuniary penalty – whether appropriate to order payment of penalty by instalments – declaratory relief – compliance program
TRADE PRACTICES – price-fixing – collusive understandings – respondent admitted to seven contraventions of s 45(2) Trade Practices Act 1974 (Cth) – enforcement and remedies – application for pecuniary penalties and injunctions under ss 76 and 80 – agreed penalties and injunctions – regulator and respondent filed joint submissions, statement of agreed facts and agreed short minutes of order –whether contraventions occurred – whether the proposed penalties should be imposed – whether quantum of proposed penalties in the appropriate range – matters relevant to imposition of penalty – admissions not made until pleadings had closed and most evidence served – parity with penalties imposed in similar cases
PRACTICE AND PROCEDURE – judgments and orders – default judgment –operation of O 35A r 3(2)(c) Federal Court Rules (now Rule 5.23(2)(c) Federal Court Rules 2011) in relation to declaratory orders – default by respondent – consideration of whether declaratory orders may be made on deemed admissions – Court not bound by decision in BMI – considerations in exercising discretion to make declaratory orders under s 21 Federal Court of Australia Act 1976 (Cth) – form of declaratory order – orders must clearly state the basis upon which they are made
PRACTICE AND PROCEDURE – judgments and orders – declarations – consideration of discretionary power to make declarations under s 21 Federal Court of Australia Act 1976 (Cth) – issue addressed by declaration must not be hypothetical – consideration of whether sufficient consequences flow from the making of declaratory orders –public interest in declarations in consumer protection litigation – declarations should clearly describe the conduct underlying the imposition of a pecuniary penalty
PRACTICE AND PROCEDURE – judgment and orders – proper contradictor – consideration of decision of Full Court in MSY Technology – a party with an interest in opposing proceedings is a proper contradictor – a decision by a proper contradictor not to contest proceedings does not alter their status as a proper contradictor
PRACTICE AND PROCEDURE – default judgment under O 35A r 3(2)(c) Federal Court Rules – principle that Court may not receive evidence in support of application for default judgment is based upon a practice of dubious origins, not a rule of law – evidence must not alter the case pleaded – Court empowered to make default judgments in the absence of evidence – matters not taken into account because not pleaded or not pleaded with sufficient particularity
TRADE PRACTICES – penalty – pecuniary penalty for contraventions – consideration of whether it is appropriate to impose a penalty on a company in liquidation – consideration of principles of general deterrence for companies or traders in a discrete industry
TRADE PRACTICES – penalty – application of pecuniary penalty under s 76E Trade Practices Act 1974 (Cth) – factors prescribed by s 76E(2) Trade Practices Act 1976 (Cth) are not exhaustive – consideration of factors relevant to fixing pecuniary penalty – penalties fixed should involve an element of general deterrence such that contraventions amount to “commercial suicide” – guidance on imposition of pecuniary penalty derived from recent, comparable cases – consideration of context, seriousness and frequency of contraventions – concurrent contraventions taken into account – relevance of prior conduct by respondent
TRADE PRACTICES – agreed contravention of Trade Practices Act 1974 (Cth) s 55 – consent to declaration, injunction and consequential orders – pecuniary penalty sought under s 76E – principles appropriate to order for pecuniary penalty – appropriate penalty
ENVIRONMENT LAW – consideration of appropriate pecuniary penalties to be imposed upon a corporation and the individual who controls that corporation for an admitted contravention of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) being the carrying out of commercial fishing activities in a highly protected sanctuary zone forming part of a declared Commonwealth Marine Reserve
PRACTICE AND PROCEDURE – whether the applicants had a reasonable prospect of success in pleading misleading or deceptive conduct by the bank’s reliance on allegedly inaccurate property valuations – application for summary judgment by respondent bank and valuers pursuant to s 31A Federal Court Act 1976 (Cth) and r 26.01 Federal Court Rules 2011 – what onus if any on a party when all relevant evidence is held by the other
CONTRACT – whether the applicants had a reasonable prospect of success in pleading breach of implied term of loan contract by the bank’s reliance on allegedly inaccurate property valuations
Held: applicants’ breach of implied contractual term pleading should be summarily dismissed because the loan contract had expired and no automatic right of renewal
TRADE PRACTICES – reliance and causation – consideration of applicants’ conduct in chain of causation causing loss and reliance on valuations – held the respondents’ causation argument (that the actions of the bank were unaffected by the valuations) could not be determined summarily because the question of what the bank would have done had the property valuations been higher could only be determined at trial by testing the evidence
Held: however that the respondents’ reliance argument should succeed insofar as the ‘indirect causation theory’ could not apply as there was no evidence that the applicants relied on the valuation at any time, they were not misled by the valuation and their own actions in selling the property were the cause of the loss
The Bank and the Valuers particularly rely upon a judgment of Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd  FCAFC 60; (2008) 167 FCR 372 where her Honour said (at ):
Thirdly, each case must be considered separately. No particular hard and fast rules can be set down, only general principles. One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success (see Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333). As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularised denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones (No 2)  FCA 1401 at . In other words, it is inappropriate in defence of a claim for judgment under s 31A of the [Act] to seek to defend by merely putting a claimant to formal proof: Vans Inc v Offprice.Com.Au Pty Ltd  FCA 137 at . This is not a new concept. It finds earlier reflection in ss 190(4) and 191 of the Evidence Act 1995 (Cth) and O 33, 34 and 34B of the Federal Court Rules 1979 (Cth).
INDUSTRIAL LAW – declaration that organisation has ceased to function effectively – no effective means under rules – scheme approved – terms and conditions of scheme – appointment of interim administrator – vacation of all offices – demerger
PRACTICE AND PROCEDURE – New South Wales Industrial Court proceeding – cross vested
PRACTICE AND PROCEDURE – agreed statement of facts – declarations
TRADE PRACTICES – Exclusive Dealing – Third line forcing – Telecommunication companies offered call credits to customers conditional upon them leasing equipment from one of a panel of finance companies – declarations and injunctions by consent – Power to grant declaratory relief by consent – Presence of a proper contradictor – Relief granted
TRADE PRACTICES – Misleading and deceptive conduct and false representations in relation to ‘free’ equipment when the customer had signed an equipment lease – declarations by consent
CORPORATIONS – whether a corporation which solicited clients to trade in options (including derivatives) contravened s 1041H of the Corporations Act 2001 (Cth) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) by making false or misleading representations about its investment strategies – whether that corporation also breached the terms of its Australian Financial Services Licence and failed to do all things necessary to ensure that the financial services covered by the licence were provided efficiently, honestly and fairly – whether the principal of the corporation should be held liable as an accessory to the contraventions on the part of the corporation
PRACTICE AND PROCEDURE – whether consent declarations agreed between the corporate regulator (ASIC) and the individual who caused a corporation to contravene the Corporations Act and the ASIC Act should be made – relevant principles discussed
PRACTICE & PROCEDURE – recusal application – interlocutory judgment – apprehended bias alleged – whether reasonable observer might consider that judge had committed to any findings of fact – no contested hearings –no contentious factual findings made – no embarrassment in relation to determining issues between parties – application refused
COPYRIGHT – whether the scope of the non-exclusive licence of the right to broadcast certain sound recordings granted by a copyright collection agency to radio stations included the right to play those recordings in radio programs transmitted by FM broadcast as a simulcast with transmission of the same program via the Internet
JUDGMENTS AND ORDERS – Civil penalty – imposition of civil penalty under the Therapeutic Goods Act 1989 (Cth) section 19D – discussion of relevant principles – agreed statement of facts
HEALTH LAW – Therapeutic goods – importation and supply of goods containing non-listed and non-registered substances – imposition of civil penalty – discussion of relevant principles
CONSUMER PROTECTION – contraventions of consumer protection legislation admitted – orders sought by consent – declaratory orders – injunctions – pecuniary penalties – publication orders – whether declaratory relief available under the circumstances – proper contradictor exists where contradictor consents to orders – orders made in terms sought
INDUSTRIAL LAW – breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) – liability admitted – question of pecuniary penalty to be imposed – assessment must take into account the particular circumstances of the incident – whether principles should be adopted from criminal law sentencing process – penalty should reflect objective seriousness of breach – assessment must also focus on the practical steps that could be taken to protect the health and safety of employees at the workplace – penalty imposed which differs from assessment offered by the parties
Evidence Act 1995 (Cth) ss 140, 141, 191
TRADE PRACTICES – price fixing – enforcement and remedies – application for imposition of pecuniary penalty and declarations pursuant to ss 76 and 80 Trade Practices Act 1974 (Cth) – contravention of s 45(2) admitted – joint submissions on proposed orders, including quantum of penalty – public interest in resolution of trade practices litigation – whether contravention of s 45(2) – whether quantum of penalty and declarations proposed appropriate – matters relevant to imposition of penalty – s 76 concerned with specific and general deterrence – not necessary to consider whether section also has punitive purpose – whether proposed penalty oppressive – whether proposed penalty within permissible range – likelihood of oppression slight in all the circumstances – Court satisfied orders sought should be made
Evidence Act 1995 (Cth) s 191
INDUSTRIAL LAW – labour supplied by respondent to sub-contractor – building employees of sub-contractor not regulated by industrial agreement governing respondent – whether discriminatory action taken by respondent against employees of sub-contractor – whether such action was taken on ground that employees not covered by particular kind of industrial instrument – ground must be a “substantial and operative reason” for taking action – no discriminatory action found to have occurred
PRACTICE AND PROCEDURE – standing to seek declaratory relief – whether application connected with Native Title Claim so as to be a matter arising under the Native Title Act – whether appellants, not being the applicant in the Native Title Claim, have standing to seek relief – s 62A Native Title Act 1993 (Cth) – standing to deal with matters arising under the Act granted exclusively to the “applicant” in a native title claim– whether trial judge erred in finding the appellants’ lacked standing.
PRACTICE AND PROCEDURE – consideration of principles concerning grant of declaratory relief – refusal to grant relief in exercise of discretion – no utility in making the declaration – no justiciable controversy
Evidence Act 1995(Cth) s 191
TRADE PRACTICES – non-compliance with consumer product safety standard – declarations – injunction – probation order – compliance program – publication orders – pecuniary penalty
11 The Court has the power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth). Any declaratory order made in the exercise of this power must be directed to quelling legal controversy between parties. The applicant must have a real interest in obtaining the relief sought: see Ainsworth v Criminal Justice Commission  HCA 10; (1992) 175 CLR 564 at 581-2. There must also be a proper contradictor: Forster v Jododex Australia Pty Ltd  HCA 61; (1972) 127 CLR 421 at 437-8.
12 Each of these requirements is satisfied in the present proceeding. A dispute has existed between the parties as to whether or not Ms Sampson had engaged in contraventions of s 52 of the Act. The ACCC is a public body which had power under the Act to bring enforcement proceedings. Declaratory orders of the kind proposed serve the public interest by making it plain that conduct such as that admitted by Ms Sampson contravenes the Act: see Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 at 333; Rural Press Limited v Australian Competition and Consumer Commission  HCA 75; (2003) 216 CLR 53 at 91.
13 In Forster Gibbs J (with whom McTiernan, Stephen and Mason JJ agreed) adopted Lord Dunedin’s description of a proper contradictor (in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited  2 AC 438 at 448) as “one presently existing who has a true interest to oppose the declaration sought”: see at 438. In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2)  FCA 382 Perram J added a requirement that the proper contradictor must not only be a party but must argue against the granting of relief: see at . In adding this requirement his Honour considered himself bound by the joint judgment of Keely and Beaumont JJ in BMI Limited v Federated Clerks Union of Australia (1983) 51 ALR 401.
14 More recently, Dodds-Streeton J has held that the true ratio of BMI is much narrower and that, in any event, the decision is distinguishable: see Australian Competition and Consumer Commission v Willesee Healthcare Pty Ltd (No 2)  FCA 752 at - .
15 I respectfully agree with her Honour’s analysis. In BMI the failure of the respondents actively to oppose the making of declarations was but one of a number of factors which led the Court, in the exercise of its discretion, to refuse relief. Forster, in my view, establishes that a person will be a “proper contradictor” provided that he or she has a genuine interest in resisting the grant of relief. Ms Sampson is a proper contradictor notwithstanding her agreement to the making of the proposed declarations. Despite her willingness to compromise her position in the litigation she retained a genuine interest in resisting the granting of the declarations.
16 One of the reasons for requiring that there be a proper contradictor is to ensure that the Court is supplied with a factual foundation for the making of orders. Some judges have expressed reservations about whether this requirement can be satisfied in circumstances where the parties have reached agreement as to the facts and the orders which should be made. These reservations can be traced to the statement of Keely and Beaumont JJ in BMI at 412-3, that declarations “ought not to be made merely on admissions of counsel or by consent, but only if the court is satisfied by evidence.” This statement of principle led Finkelstein J to hold, in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd  FCA 960 at , that the Court should “not grant a declaration involving a public right in the absence of evidence that supports the declaration.” Statements of agreed facts did not constitute “evidence” for relevant purposes. See also: Australian Competition and Consumer Commission v Cosic Holdings Pty Ltd  FCA 1579; Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd  FCA 1580 (per Barker J).
17 Other judges have, however, been prepared to grant declaratory relief on the evidentiary foundation provided by a statement of agreed facts which has been made in accordance with the requirements of s 191 of the Evidence Act 1995 (Cth): see Australian Competition and Consumer Commission v Skins Compression Garments Pty Ltd  FCA 710 (per Besanko J); Minister for Environment, Heritage and the Arts v PGP Developments Pty Ltd  FCA 58; (2010) 183 FCR 10 (per Stone J); MSY Technology at  (per Perram J). An ‘agreed fact’ is one which the parties to a proceeding have agreed will not be disputed in that proceeding: see s 191(1). Whilst agreement as to a fact will not necessarily be determinative of the truth of that fact, evidence need not be brought to prove its existence: see s 191(2)(a).
18 In my view the agreed statement of facts, when considered in light of s 191, provides a sufficient basis for the making of the declarations sought in the present proceeding. The agreed statement clearly identifies the impugned statements and the reasons that those statements are misleading and deceptive. The declarations which are sought accurately describe the contravening conduct.
TAXATION – non-resident for income tax purposes – definition of “trustee” – whether respondent entitled to assess non-resident individual as a trustee of the net income of a trust estate under s 98(3) of the Income Tax Assessment Act 1936 (Cth) – money held by appellant was not income of the trust estate – income had already been derived on an accruals basis as part of a share trading business – money was realisation of income already derived – appellant should not have been assessed as a trustee – appeal allowed
INDUSTRIAL LAW – penalty hearing – admitted contraventions of ss 38 and 43 of the Building and Construction Industry Improvement Act 2005 (Cth) – agreed penalty – relevant considerations in assessing appropriateness of agreed penalty
TRADE PRACTICES – contravention of s 65C(1) of the Trade Practices Act 1974 (Cth) – pecuniary penalties – declarations – injunctions
INTELLECTUAL PROPERTY – Plant Breeder’s Rights and Plant Variety Rights – scope of operation of transitional provisions in Part 9 of the Plant Breeder’s Rights Act 1994 (Cth) – effect of s 83 of the Plant Breeder’s Rights Act 1994 (Cth) – whether an application for plant variety rights made under the Plant Variety Rights Act 1987 (Cth) which has not been disposed of at the time of the enactment of the Plant Breeder’s Rights Act 1994 (Cth) is to be decided by reference to the Plant Variety Rights Act 1987 (Cth) or the Plant Breeder’s Rights Act 1994 (Cth) – whether the applicant acquired plant breeder’s rights under the Plant Breeder’s Rights Act 1994 (Cth) in respect of an application for plant variety rights made under the Plant Variety Rights Act 1987 (Cth) which had been accepted but not granted at the time the Plant Breeder’s Rights Act 1994 (Cth) came into force
INTELLECTUAL PROPERTY – Plant Breeder’s Rights and Plant Variety Rights – duration of a grant of plant variety rights – whether a grant of plant breeder’s rights under the Plant Breeder’s Rights Act 1994 (Cth) in respect of an application made under the Plant Variety Rights Act 1987 (Cth) enjoys a term of 20 years from the date of acceptance or 20 years from the date of grant
STATUTORY INTERPRETATION – power of the Court to interpret legislation as if additional words were included – whether the words “save that a successful applicant will be granted PBR pursuant to the provisions of the Act” should be added to end of s 83 of the Plant Breeder’s Rights Act 1994 (Cth)
Evidence Act 1995 (Cth) ss 191(2), 191(3)
JUDGMENTS AND ORDERS – Declarations – declarations by consent – power of court to make declarations by consent – proper contradictor – whether party who consents is a “proper contradictor” – principles relating to making declarations on evidence questioned – statement of agreed facts under s 191 Evidence Act 1995 (Cth)
TRADE PRACTICES – contravention of s 65C of the Trade Practices Act 1974 (Cth) – pecuniary penalties
12 As a general principle, a Court does not make declarations on matters relating to public rights by consent or on admissions, unless it is satisfied by evidence: Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd  FCA 960 at  – ; Australian Competition and Consumer Commission v Skins Compression Garments Pty Ltd  FCA 710 at ; Australian Securities & Investment Commission v Rich (No 2)  NSWSC 836; (2004) 50 ACSR 500 at ; Williams v Powell  WN (Eng) 141; Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221 at 225-227; Termijtelen v Van Arkel  1 NSWLR 525; Wallersteiner v Moir  3 All ER 217; Metzger v Department of Health and Social Security  3 All ER 444 at 451; BMI Ltd v Federated Clerks Union of Australia (NSW) Branch (1983) 51 ALR 401; Young P W, Declaratory Orders (2nd ed, 1984) . In the present case, that is not an issue. Fantastic Furniture has signed the Agreed Statement: see  and  above. That statement, to which s 191 of the Evidence Act 1995 (Cth) applies, is evidence.
TRADE PRACTICES – alleged price fixing arrangements made at overseas meetings – ACCC and certain respondents jointly seek proposed declarations, injunctions and penalties on basis of agreed facts and admissions – whether appropriate
Evidence Act 1995 (Cth) s 191(3)(a)
EVIDENCE – admissibility of interview with police – conducted while appellant intoxicated – no caution administered – discretion to exclude illegally obtained evidence
CRIMINAL LAW – reasonable hypothesis consistent with innocence open on evidence – unreasonable or unsafe and unsatisfactory conviction recorded – defence of sudden or extraordinary emergency – unavailable to appellant – appellant may have taken steps to obviate threat
Evidence Act 1995 (Cth) ss 60, 81, 84, 138, 191
INDUSTRIAL LAW – occupational health and safety – federal police officer unintentionally discharged pistol in office space – obligation of employees not to create risk or increase existing risk to persons at or near workplace – imposition of pecuniary penalty – agreed pecuniary penalty
INDUSTRIAL LAW – imposition of pecuniary penalty – factors relevant to determination of amount of penalty – agreed pecuniary penalty – significance of fact of agreement
1. The parties have reached agreement on the resolution of these proceedings initiated by the Australian Competition and Consumer Commission which concern contraventions by the respondents of ss 52 and 53(c) of the Trade Practices Act 1974 (Cth) (the Act). The parties have agreed to the terms of proposed orders to be made by consent.
2. The orders are proposed against a background of a statement of claim dated 4 November 2009, a defence dated 17 December 2009 as well as a statement of agreed facts dated 22 April 2010, signed by the parties’ solicitors and admitted into evidence. I have, in these reasons, employed much of the written submissions filed by the applicant and am grateful for this most valuable assistance.
3. An “agreed fact” pursuant to s 191 of the Evidence Act 1995 (Cth) means “a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding to be disputed”. This does not mean that the Court must necessarily accept it as a fact: Minister for the Environment, Heritage and the Arts v PGP Developments Pty Limited  FCA 58 at . Ordinarily however, it seems to me, a Court will treat agreed facts as facts for the purposes of the proceeding.
“1. The parties have reached agreement on the resolution of these proceedings instituted by the Australian Competition and Consumer Commission which concern contravention by the respondent of s 65C(1)(a) of the Trade Practices Act 1974 (Cth) (‘the Act’). The parties have agreed the terms of proposed orders to be made by consent.”
Evidence Act 1995 (Cth), s 191
STATUTES – Therapeutic Goods Act – civil penalty proceeding – respondents found to have supplied and manufactured or aided and abetted in the supply and manufacture of counterfeit therapeutic goods and goods that have not been registered pursuant to Therapeutic Goods Act – pecuniary penalties imposed – declarations of contravention made
EVIDENCE – agreed statement of facts – effect of section 191 Evidence Act
CORPORATIONS – applicant granted leave to proceed against company in liquidation on the condition that the applicant does not enforce an order for the payment of money by that respondent
Evidence Act 1995 (Cth) s 191
TRADE PRACTICES – cartel – penalties
EVIDENCE – declaration of public right – whether available on admissions
PRACTICE AND PROCEDURE – function of pleadings – Evidence Act 1995 , s 191 – effect of
ENVIRONMENT – pecuniary civil penalty sought – declaration of contravention sought – statement of agreed facts provided by parties
DECLARATIONS – statement of agreed facts adduced as evidence under s 191 Evidence Act – whether agreed facts are evidence sufficient to support declaration
Evidence Act 1995 (Cth) 191
PRACTICE AND PROCEDURE – trade practices – allegations of price fixing arrangements made at meetings involving the respondents and other participants – applicant and some respondents have reached settlement and make joint application proposing consent orders on the basis of agreed facts and admissions – docket judge is part-heard on the continuing respondents’ motion to set aside service outside of jurisdiction – continuing respondents apply to adjourn hearing of joint application – whether docket judge should hear joint application – findings to be made on the basis of facts agreed by consenting parties – agreed facts and admissions not admissible against continuing respondents
TRADE PRACTICES – alleged price fixing arrangements made at overseas meetings – ACCC and certain respondents jointly seek proposed declarations, injunctions and penalties on basis of agreed facts and admissions – whether jointly proposed penalties appropriate – no evidence of profits from contraventions, effect on market or loss caused – whether making of declarations should be deferred until after proceedings against continuing respondents completed – proposed declarations do not mention continuing respondents directly or by necessary implication
TRADE PRACTICES – misleading and deceptive conduct – penalty – where first respondent admitted engaging in misleading or deceptive conduct or conduct likely to mislead or deceive – where parties submitted draft consent orders and statement of agreed facts
Held: declarations made, undertakings given by first and second respondents accepted and orders for corrective advertising made.
TRADE PRACTICES – resale price maintenance – penalty – where first respondent admitted engaging in resale price maintenance – where third respondent admitted being directly or indirectly knowing concerned in or party to first respondent’s resale price maintenance – factors to be considered by Court in determining appropriate pecuniary penalties – where parties submitted draft consent orders, joint submissions and statement of agreed facts – whether figures for pecuniary penalties proposed by parties appropriate
Held: declarations made, undertaking given by first respondent accepted and orders for pecuniary penalties of $120,000 for first respondent and $14,000 for third respondent made.
Evidence Act 1995 (Cth) s 191