Category Archives: s. 191

Australian Competition & Consumer Commission v Renegade Gas Pty Ltd (trading as Supagas NSW) [2014] FCA 1135 (24 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1135.html

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

Asmar, in the matter of an election for office in the Victoria No 1 Branch of the Health Services Union (No 2) [2014] FCA 1113 (21 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1113.html

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

Australian Competition and Consumer Commission v Zen Telecom Pty Ltd [2014] FCA 1049 (30 September 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1049.html

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

Australian Competition and Consumer Commission v Scoopon Pty Ltd [2014] FCA 820 (8 August 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/820.html

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

GM Holden Limited v Commissioner of the Anti-Dumping Commission [2014] FCA 708 (4 July 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/708.html

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.

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] FCA 634 (18 June 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/634.html

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

Dafallah v Fair Work Commission (No 2) [2014] FCA 600 (6 June 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/600.html

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.

Australian Competition and Consumer Commission v Gordon Superstore Pty Ltd [2014] FCA 452 (13 May 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/452.html

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

Australian Competition and Consumer Commission v NSK Australia Pty Ltd [2014] FCA 453 (13 May 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/453.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 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

Australian Competition and Consumer Commission v Mandurvit Pty Ltd [2014] FCA 464 (12 May 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/464.html

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

Knight v State of Victoria [2014] FCA 369 (11 April 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/369.html

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.

The Queen v Ray & Anor [2014] VSC 165 (11 April 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/165.html

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.

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