INSURANCE – financial services errors and omissions policy – whether error or omission of the insureds in the performance of professional services, defined relevantly to mean financial planning encompassing advice on approved investment products and life insurance products – whether the products were approved investment products – whether an approved product was required to be on an Approved Products List – whether loss arising out of or in any way connected with any involvement of the insureds in selling as principal for their own account – whether guarantee or warranty given in relation to the performance of any investment – whether variation to the policy – whether consideration given for variation – whether Insurance Contracts Act 1984 (Cth) s 54 operated to prevent insurer from refusing to pay claim
INDUSTRIAL LAW – where an enterprise agreement provides for payment of accrued but untaken annual leave at the end of employment – where rate of payment of untaken annual leave is referrable to ordinary hours worked rather than amount payable if leave was actually taken – whether s 90(2) of the Fair Work Act 2009 (Cth) requires payment be equivalent to the amount that the employee would have been paid if the employee had taken the annual leave
INDUSTRIAL LAW – where enterprise agreement provides for retrenchment pay if employee retrenched before the age of 60 but not after – whether retrenchment provision in respect of employees aged over 60 is discriminatory on the basis of age and an unlawful term within the meaning of s 194 of the Fair Work Act 2009 (Cth) – whether, if unlawful, entire scheme for retrenchment pay must be severed from the enterprise agreement
ELECTRICITY – contraventions of cl 4.9.8(a) of National Electricity Rules – scheduled generator not complying with dispatch instructions of Australian Energy Market Operator – claims for pecuniary penalties – proceedings brought by Australian Energy Regulator under s 44AAG of Competition and Consumer Act 2010 (Cth) – National Electricity (Victoria) Law – National Electricity (NSW) Law
INDUSTRIAL LAW – Adverse action – whether respondent took adverse action against applicant employee – whether the adverse action was taken for the reason of the applicant’s political opinion – whether respondent breached employment contract with applicant – whether respondent’s conduct contravened Australian Consumer Law – respondent found to have taken adverse action for the prohibited reason of the applicant’s political opinion
TRADE AND COMMERCE – contraventions of Australian Consumer Law – whether conduct unconscionable
TRADE AND COMMERCE – contraventions of Australian Consumer Law – false or misleading representations – false or misleading representations about the profitability, risk or other material aspect of a business – representations as to future matters
TRADE AND COMMERCE – contraventions of Competition and Consumer Act – failure to adhere to applicable industry code – failure to adhere to prescribed disclosure requirements in the Franchising Code
PRACTICE AND PROCEDURE – relief by consent – appropriateness of agreed orders and declarations
SUPERANNUATION – whether the Court should make declarations and impose civil pecuniary penalties upon the directors of the trustee of a regulated superannuation fund in respect of admitted contraventions of ss 62(1), 84(1) and 109(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) in order to give effect to an agreed resolution of enforcement proceedings brought by the Deputy Commissioner of Taxation (Superannuation) as the relevant regulator
ENVIRONMENT LAW – consideration of the appropriate penalty to be imposed upon a corporation for an admitted contravention of s 354(1)(f) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) being the carrying out by that corporation’s agent inadvertently of commercial fishing activities in a Commonwealth Marine Reserve in circumstances where the carrying out of any such activities in the relevant Reserve was absolutely prohibited
INDUSTRIAL LAW – admitted contraventions of s 500 of the Fair Work Act 2009 (Cth) – determination of appropriate penalties
CONSUMER LAW – unconscionable conduct – admitted contraventions of Australian Consumer Law – unconscionable conduct in business transactions – dealings with suppliers – threats of commercial consequences if demands not met – demanding payments – refusing to pay or repay money – enforcement and remedies – s 87B undertaking – orders sought by consent – appropriate relief in the circumstances
COMPETITION – misleading or deceptive conduct – admitted contraventions of the Australian Securities and Investments Commission Act 2001 (Cth) – orders sought by consent – whether declarations, injunctions, non-punitive orders and pecuniary penalties sought appropriate – relevant principles
CRIMINAL LAW – SENTENCE APPEAL – young offender – intellectual disability – ADHD – relevance to sentence – whether judge erred in failing to take into account in assessing moral culpability – absence of direct evidence before District Court – whether judge erred in drawing inferences from agreed facts
TAXATION – decision of a delegate of the Chief Executive Officer of Customs to assess customs duty and GST – importation of polyethylene products – where assessment of the gravity of imported polyethylene products required for customs classification – whether assessment of gravity of polyethylene products includes additives
MIGRATION – application for review of the Minister’s decision not to revoke a visa cancellation under s 501C of the Migration Act – subpoena issued to the Minister for all material before him at the time of the decision – whether the documents that would otherwise have been required to be produced are protected from production under s 503A of the Migration Act – whether the evidence of the Minister satisfies the preconditions for protection under s 503A
PRACTICE AND PROCEDURE – subpoena – whether the subpoena has a legitimate forensic purpose – whether documents sought by the subpoena in relation to a particular issue cease to have apparent relevance because of a concession or admission, or because other evidence is already available in relation to that issue
CONSUMER LAW – Penalty hearing – admitted contraventions – orders sought by consent – appropriate relief in the circumstances – declaratory relief – pecuniary penalties – injunctions – probation order – disqualification order – Competition and Consumer Act 2010 (Cth), ss 21, 44ZZRD, 44ZZRK, 45, 76, 80, 86C, 86E
INDUSTRIAL LAW – Inquiry into election in registered organisation – alleged irregularity in accepting nominations – rules of organisation – whether person employed or usually employed within the industry – whether person member of registered organisation having been struck from register of members
CRIMINAL LAW – murder – joint criminal enterprise – whether manslaughter should have been left open to the jury – whether not open to jury to find mental state other than participation in joint criminal enterprise to cause grievous bodily harm – appeal dismissed
CONSUMER LAW – admitted contraventions of Australian Consumer Law (Cth) ss 18(1), 29(1)(g), 29(1)(h), 78(2), 79(b)(i), 79(b)(ii), 79(c)(i), 79(d)(iv), 86(1)(a) – joint submissions and statement of agreed facts and admissions – whether orders sought by consent appropriate in the circumstances – declaratory relief, injunctions, pecuniary penalties, compliance program, publication orders, costs
PRACTICE AND PROCEDURE – application for summary dismissal and/or strike out of applicant’s summons – summons failed to disclose any reasonable cause of action – summons was manifestly groundless
TRADE PRACTICES – misleading or deceptive conduct – agreement between the parties as to the relief to be granted – agreement as to quantum of penalty – deterrence
PRACTICE AND PROCEDURE – declaratory relief – need for caution in drafting
COMPETITION – consideration of conduct admitted by the respondent to be conduct in contravention of ss 18, 29(1)(g), 29(1)(i) and 29(1)(m) of the Australian Consumer Law, Schedule 2, Competition and Consumer Act 2010 (Cth) – consideration of the scope of relief to be granted to the applicant in respect of that conduct comprising declarations, injunctions, the imposition of a pecuniary penalty, the establishment of a compliance program, a community service program and the payment of costs
ADMINISTRATIVE LAW – Application under Administrative Decisions (Judicial Review) Act 1977 (Cth) and Judiciary Act 1903 (Cth) for review of recommendations and decisions in relation to the issue of dumping and countervailing duty notices against Chinese importers pursuant to Customs Act 1901 (Cth) – construction of phrase “like goods” – whether denials of procedural fairness – construction of the statutory terms “normal value”, “material injury”, “public body” and “adequate remuneration” – construction of “selected” or “residual” exporters – no failure to afford procedural fairness – misconstruction of “investigated” resulted in misunderstanding and misconstruction by CEO and Minister of the terms “selected exporters” and “residual exporters” – reviewable decisions of CEO and Minister affected by jurisdictional error – application allowed in part.
CORPORATIONS LAW – continuous disclosure – penalty hearing – admitted contraventions – role of Court in imposing penalty – appropriateness of agreed facts – whether agreed facts sufficient
CONSUMER LAW – Australian Consumer Law ss 18(1), 29(1)(a), 33 – Misleading or deceptive conduct or conduct likely to mislead or deceive, false or misleading representations, conduct liable to mislead the public – Whether the use of the phrases “baked today, sold today”, “freshly baked”, “baked fresh” and “freshly baked in-store” is misleading where the complete baking process is not undertaken in-store on the day – Whether the relevant context for assessing misleading or deceptive conduct includes a cynical consumer culture
PRACTICE AND PROCEDURE – Admissibility of evidence – relevance – whether evidence of third party conduct is relevant – hearsay – whether statements made by third parties serve a non-hearsay purpose
THE COURT DECLARES THAT:
By failing to follow the process set out in cl 38 of the Health Services Union of Australia — Health and Allied Services, Administrative Officers — Victorian Public Sector — Multi Employer Certified Agreement 2006-2009 in respect of the sequence of verbal and written warnings to be given to the applicant prior to any decision to terminate the applicant’s employment, the second respondent has contravened that Agreement.
CONSUMER LAW – retailer refused customer refund for a refrigerator and two replacement refrigerators – retailer told customer that their refund policy does not apply to large appliances – retailer told customer that customer’s remedy is only with manufacturer – retailer told customer that customer will not get a refund until retailer gets money from the manufacturer – orders sought by consent – appropriateness of penalty
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 ss 44ZZRJ and 44ZZRK 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
CONSUMER LAW – penalty hearing – misleading or deceptive conduct – consumer guarantee provisions – representations concerning the existence, exclusion or effect of a warranty, guarantee, right or remedy – admitted contraventions – whether orders sought by consent appropriate in the circumstances – whether proposed pecuniary penalty within appropriate range
CONSTITUTIONAL LAW – Legislation purporting to validate decision to impose a levy on tobacco products in Victorian prisons – whether contravenes a limit arising by implication from Ch III of the Constitution – whether imposes a tax in the nature of an excise, contrary to s 90 of the Constitution – no contravention of Ch III – tobacco levy not a tax and therefore not contrary to s 90 – applicant’s constitutional challenges fail.
CRIMINAL LAW – Sentence – Aggravated burglary – False imprisonment – Two accused – Confrontational aggravated burglary in the context of dispute concerning stolen property – Serious example of the offence of aggravated burglary – Young offenders – Remorse and prospects for rehabilitation high – Offer to plead guilty made at early stage by one of the accused – Impact of general deterrence, denunciation and punishment softened by mitigating features – First accused sentenced to three years’ imprisonment with a minimum period before parole eligibility of two years – Second accused sentenced to two years nine months’ imprisonment with a minimum period before parole eligibility of one year nine months.
CONSUMER LAW – contraventions of Part 3-1 and Part 3-2 of the Australian Consumer Law – Joint Submissions and Statement of Agreed Facts and Admissions provided – respondent telecommunications company entered unsolicited consumer agreements to supply mobile services and bundled mobile services – customers mislead as to cooling off period – statutory termination rights ostensibly modified – agreement documents deficient – agreement documents not provided in time required – goods and services supplied and payment accepted in cooling off period – agreed remedies and punitive penalties proposed – terms of orders made within discretion of Court – agreed position of parties relevant – whether orders sought appropriate in circumstances
INDUSTRIAL LAW – Applicant’s employment terminated for poor performance by second respondent – applicant seeks judicial review of decisions of Commissioner at first instance and Full Bench of the Fair Work Commission – whether decision of Full Bench affected by jurisdictional error – whether Full Bench should have found it was in the public interest to grant permission to appeal – whether second respondent contravened warnings provisions of certified agreement – whether breach of implied contractual term of mutual trust and confidence – whether breach of disciplinary procedure incorporated into employment contract – breach of agreement claim only successful – reinstatement not appropriate in circumstances of case – applicant seeks penalties to be paid to her – no penalties imposed – compensation awarded.
INDUSTRIAL LAW – appeal from the Federal Circuit Court of Australia – contravention of s 50 of the Fair Work Act 2009 (Cth) by an employer – contravention of a term of an enterprise agreement by an employer – direction to employees to take annual leave at specified times – antecedents of an enterprise agreement in construing a provision
CONSUMER LAW – misleading or deceptive conduct –consumer guarantee provisions – representations about the existence, exclusion or effect of a guarantee, right or remedy – admitted contraventions – agreed orders –whether proposed orders appropriate – whether proposed penalty within appropriate range – relevance of errors in statement of agreed facts
EVIDENCE – admissibility – judicial discretion to exclude or limit the use of evidence – where evidence sought to be lead seeks to contradict expert evidence
CRIMINAL LAW – appeal against conviction – three counts of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900 – one count of aggravated sexual assault pursuant to s 61J(1) of the Crimes Act 1900 – convicted of four counts of aggravated indecent assault – alleged that the jury verdicts are unreasonable and could not be supported by the evidence – all relevant matters were left open to the jury – upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged – alleged failure by the trial judge to adequately warn the jury that the prosecution case relied wholly on the evidence of the complainant – failure by trial counsel to seek directions – application of Rule 4 of the Criminal Appeal Rules – trial judge gave strong and clear directions as to the importance of not returning a guilty verdict unless the jury was satisfied beyond reasonable doubt of the evidence given by the complainant – jury accepted the complainant as a truthful and reliable witness – benefit of the jury seeing the complainant give evidence – no miscarriage of justice arising from the absence of good character evidence and directions on good character – failure by trial counsel to seek directions on good character – application of Rule 4 of the Criminal Appeal Rules – proper consideration was given by trial counsel to the question of calling good character evidence and a tactical decision was made – appeal dismissed
EVIDENCE — Legal professional privilege — documents produced on subpoena included privileged communications between respondent’s solicitors and suppliers — whether privilege waived by respondent providing some information in correspondence between parties during negotiation for agreed statement of facts — whether maintenance of claim of privilege inconsistent with disclosure — claim of privilege upheld — no inconsistency found — application to inspect documents refused.
CONSUMER LAW – misleading and deceptive conduct – false or misleading representations purporting to be testimonials and concerning place of origin of goods – penalty – where respondents admitted engaging in contravening conduct – where parties submitted draft consent orders, joint submissions and statement of agreed facts – whether declarations, orders and pecuniary penalties proposed by parties appropriate.
Held: Declarations, injunctions, publication and other orders made and pecuniary penalties of $50,000 for first and second respondents, $25,000 for third respondent and $20,000 for fourth respondent imposed.
ADMINISTRATIVE LAW — Contraventions of reporting requirements under s 46A of Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (Cth) — no pecuniary penalties sought — whether declaratory relief should be granted when compliance subsequently achieved after proceedings commenced but prior to hearing — declarations granted — order made for reduced costs.
INDUSTRIAL LAW – penalty hearing – admitted contraventions of the Fair Work Act 2009 (Cth) – contraventions of the North Goonyella Underground Mine Collective Enterprise Agreement 2012 – other relevant factors in determining penalty – relevance of history of trade unionism – adverse action against employees on the basis of trade union activity or exercise of workplace right
COMPETITION LAW – resale price maintenance – contraventions admitted – pecuniary penalties imposed
CONSUMER LAW – penalty hearing – admitted contraventions – whether orders sought by consent appropriate in circumstances
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