Category Archives: s. 191

Australian Competition and Consumer Commission v Startel Communication Co Pty Ltd [2014] FCA 352 (8 April 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/352.html

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

Dafallah v Fair Work Commission [2014] FCA 328 (4 April 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/328.html

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.

United Voice v Valspar (WPC) Pty Ltd [2014] FCAFC 34 (27 March 2014)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/34.html

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

Australian Competition and Consumer Commission v Avitalb Pty Ltd [2014] FCA 222 (7 March 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/222.html

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

GIALLOMBARDO Peter v R [2014] NSWCCA 25 (12 March 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/25.html

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

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 45 (11 February 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/45.html

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.

Australian Competition and Consumer Commission v P & N Pty Ltd [2014] FCA 6 (17 January 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/6.html

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.

Minister for the Environment v Ayre Conditioning Pty Ltd [2013] FCA 1408 (20 December 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/1408.html

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.

Construction Forestry Mining and Energy Union v North Goonyella Coal Mine Pty Ltd [2013] FCA 1444 (10 December 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/1444.html

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

GEDEON Gilbert v R [2013] NSWCCA 257 (12 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/257.html

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.

Australian Competition and Consumer Commission v Koyo Australia Pty Ltd [2013] FCA 1051 (18 October 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/1051.html

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

Minister for Environment v Rothenberger Australia Pty Limited [2013] FCA 1023 (8 October 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/1023.html

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

Australian Competition and Consumer Commission v BAJV Pty Ltd [2013] FCA 666 (8 July 2013)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2013/666.html

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.

Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 (28 June 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/641.html

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; [2006] 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

Australian Competition and Consumer Commission v Pepe’s Ducks Ltd [2013] FCA 570 (14 June 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/570.html

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.

[See Annexure]

Attorney General v Budd [2013] NSWSC 155 (19 April 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/155.html

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

ACCC v Cotton On Kids Pty Ltd [2012] FCA 1428 (18 December 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1428.html

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

Australian Competition & Consumer Commission v Thai Airways International Public Company Limited [2012] FCA 1434 (14 December 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1434.html

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

Australian Competition and Consumer Commission v Eternal Beauty Products Pty Ltd [2012] FCA 1124 (17 October 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1124.html

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

Australian Competition and Consumer Commission v Emirates [2012] FCA 1108 (11 October 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1108.html

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

Australian Competition and Consumer Commission v EDirect Pty. Ltd. (in liq) [2012] FCA 976 (6 September 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/976.html

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

Minister for Sustainability, Environment, Water, Population and Communities v Woodley [2012] FCA 957 (4 September 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/957.html

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

Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 (13 July 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/751.html

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 [2008] FCAFC 60; (2008) 167 FCR 372 where her Honour said (at [127]):

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) [2006] FCA 1401 at [22]. 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 [2006] FCA 137 at [12]. 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).

Brown v Health Services Union [2012] FCA 644 (21 June 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/644.html

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

Australian Competition and Consumer Commission v Link Solutions Pty Limited (No 3) [2012] FCA 348 (5 April 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/348.html

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

Australian Securities and Investments Commission v Camelot Derivatives Pty Limited (In Liquidation); In the Matter of Camelot Derivatives Pty Limited (In Liquidation) [2012] FCA 414 (23 April 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/414.html

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

Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 3 ) [2012] FCA 198 (9 March 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/198.html

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

Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93 (15 February 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/93.html

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

Secretary, Department of Health and Ageing v Export Corporation (Australia) Pty Ltd [2012] FCA 42 (3 February 2012)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2012/42.html

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

Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 2) [2012] FCA 19 (23 January 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/19.html

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

Comcare v Post Logistics Australasia Pty Limited [2011] FCA 1422 (13 December 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1422.html

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

Australian Competition and Consumer Commission v Korean Air Lines Co Ltd [2011] FCA 1360 (30 November 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1360.html

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

Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No 3) [2011] FCA 1344 (25 November 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1344.html

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

Smith v Marapikurrinya Pty Ltd [2011] FCAFC 150 (25 November 2011)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/150.html

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

Australian Competition and Consumer Commission v Sampson [2011] FCA 1165 (17 October 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1165.html

Declarations

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 [1992] HCA 10; (1992) 175 CLR 564 at 581-2. There must also be a proper contradictor: Forster v Jododex Australia Pty Ltd [1972] 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 [2003] 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 [1921] 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) [2011] 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 [32]. 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) [2011] FCA 752 at [32]- [43].
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 [2009] FCA 960 at [19], 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 [2009] FCA 1579; Australian Competition and Consumer Commission v Wilson Parking 1992 Pty Ltd [2009] 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 [2009] FCA 710 (per Besanko J); Minister for Environment, Heritage and the Arts v PGP Developments Pty Ltd [2010] FCA 58; (2010) 183 FCR 10 (per Stone J); MSY Technology at [27] (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.

Leighton v Commissioner of Taxation [2011] FCAFC 96 (10 August 2011)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/96.html

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

Elders Rural Services Australia Limited v Registrar of Plant Breeder’s Rights [2011] FCA 384 (19 April 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/384.html

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)

Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) [2011] FCA 382 (15 April 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/382.html

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)