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
TRADE PRACTICES – agreed antitrust contraventions – agreed injunction, pecuniary penalty, and order for costs – principles appropriate to order for pecuniary penalty
CONSUMER PROTECTION – sale of children’s nightwear that did not meet relevant safety standards – admitted contraventions of s 65C(1) of the Trace Practices Act 1974 (Cth) – admitted contraventions of ss 52, 53 and 55 of the Trade Practices Act 1974 (Cth) – parties agreed as to facts, liability and penalties – whether declaratory relief available under circumstances – whether grant of injunctions appropriate – whether grant of probation order compliance program appropriate – whether agreed penalty should be imposed – mandatory considerations relevant to fixing of penalty – other considerations relevant to fixing of penalty
COMPETITION – price-fixing – collusive understandings – respondent admitted to contraventions of s 45(2) Trade Practices Act 1974 (Cth) – enforcement and remedies – application for pecuniary penalties and injunctions under ss 76 and 80 – agreed penalties and injunctions – whether contraventions occurred – whether the proposed penalties appropriate – matters relevant to imposition of penalty – admissions not made until first day of hearing – parity with penalties imposed in similar cases
PRACTICE AND PROCEDURE – Applications for leave to file cross-claims against other airlines – whether requirements of rule 15.05 of the Federal Court Rules 2011 (Cth) complied with – inappropriate to rule on applications where application to amend statement of claim foreshadowed
COMMUNICATIONS LAW – Commercial electronic messages – enforcement of undertakings made by nightclub promoter to regulator – application for enforcement orders to be made by consent
COMPETITION – Resale price maintenance – admitted contraventions of prohibition – director knowingly concerned in contraventions – contraventions in respect of online beauty product sales – appropriateness of relief sought by consent – pecuniary penalty – whether appropriate to order payment of penalty by instalments – declaratory relief – compliance program
TRADE PRACTICES – price-fixing – collusive understandings – respondent admitted to seven contraventions of s 45(2) Trade Practices Act 1974 (Cth) – enforcement and remedies – application for pecuniary penalties and injunctions under ss 76 and 80 – agreed penalties and injunctions – regulator and respondent filed joint submissions, statement of agreed facts and agreed short minutes of order –whether contraventions occurred – whether the proposed penalties should be imposed – whether quantum of proposed penalties in the appropriate range – matters relevant to imposition of penalty – admissions not made until pleadings had closed and most evidence served – parity with penalties imposed in similar cases
PRACTICE AND PROCEDURE – judgments and orders – default judgment –operation of O 35A r 3(2)(c) Federal Court Rules (now Rule 5.23(2)(c) Federal Court Rules 2011) in relation to declaratory orders – default by respondent – consideration of whether declaratory orders may be made on deemed admissions – Court not bound by decision in BMI – considerations in exercising discretion to make declaratory orders under s 21 Federal Court of Australia Act 1976 (Cth) – form of declaratory order – orders must clearly state the basis upon which they are made
PRACTICE AND PROCEDURE – judgments and orders – declarations – consideration of discretionary power to make declarations under s 21 Federal Court of Australia Act 1976 (Cth) – issue addressed by declaration must not be hypothetical – consideration of whether sufficient consequences flow from the making of declaratory orders –public interest in declarations in consumer protection litigation – declarations should clearly describe the conduct underlying the imposition of a pecuniary penalty
PRACTICE AND PROCEDURE – judgment and orders – proper contradictor – consideration of decision of Full Court in MSY Technology – a party with an interest in opposing proceedings is a proper contradictor – a decision by a proper contradictor not to contest proceedings does not alter their status as a proper contradictor
PRACTICE AND PROCEDURE – default judgment under O 35A r 3(2)(c) Federal Court Rules – principle that Court may not receive evidence in support of application for default judgment is based upon a practice of dubious origins, not a rule of law – evidence must not alter the case pleaded – Court empowered to make default judgments in the absence of evidence – matters not taken into account because not pleaded or not pleaded with sufficient particularity
TRADE PRACTICES – penalty – pecuniary penalty for contraventions – consideration of whether it is appropriate to impose a penalty on a company in liquidation – consideration of principles of general deterrence for companies or traders in a discrete industry
TRADE PRACTICES – penalty – application of pecuniary penalty under s 76E Trade Practices Act 1974 (Cth) – factors prescribed by s 76E(2) Trade Practices Act 1976 (Cth) are not exhaustive – consideration of factors relevant to fixing pecuniary penalty – penalties fixed should involve an element of general deterrence such that contraventions amount to “commercial suicide” – guidance on imposition of pecuniary penalty derived from recent, comparable cases – consideration of context, seriousness and frequency of contraventions – concurrent contraventions taken into account – relevance of prior conduct by respondent
TRADE PRACTICES – agreed contravention of Trade Practices Act 1974 (Cth) s 55 – consent to declaration, injunction and consequential orders – pecuniary penalty sought under s 76E – principles appropriate to order for pecuniary penalty – appropriate penalty
ENVIRONMENT LAW – consideration of appropriate pecuniary penalties to be imposed upon a corporation and the individual who controls that corporation for an admitted contravention of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) being the carrying out of commercial fishing activities in a highly protected sanctuary zone forming part of a declared Commonwealth Marine Reserve
PRACTICE AND PROCEDURE – whether the applicants had a reasonable prospect of success in pleading misleading or deceptive conduct by the bank’s reliance on allegedly inaccurate property valuations – application for summary judgment by respondent bank and valuers pursuant to s 31A Federal Court Act 1976 (Cth) and r 26.01 Federal Court Rules 2011 – what onus if any on a party when all relevant evidence is held by the other
CONTRACT – whether the applicants had a reasonable prospect of success in pleading breach of implied term of loan contract by the bank’s reliance on allegedly inaccurate property valuations
Held: applicants’ breach of implied contractual term pleading should be summarily dismissed because the loan contract had expired and no automatic right of renewal
TRADE PRACTICES – reliance and causation – consideration of applicants’ conduct in chain of causation causing loss and reliance on valuations – held the respondents’ causation argument (that the actions of the bank were unaffected by the valuations) could not be determined summarily because the question of what the bank would have done had the property valuations been higher could only be determined at trial by testing the evidence
Held: however that the respondents’ reliance argument should succeed insofar as the ‘indirect causation theory’ could not apply as there was no evidence that the applicants relied on the valuation at any time, they were not misled by the valuation and their own actions in selling the property were the cause of the loss
The Bank and the Valuers particularly rely upon a judgment of Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd  FCAFC 60; (2008) 167 FCR 372 where her Honour said (at ):
Thirdly, each case must be considered separately. No particular hard and fast rules can be set down, only general principles. One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success (see Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333). As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularised denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones (No 2)  FCA 1401 at . In other words, it is inappropriate in defence of a claim for judgment under s 31A of the [Act] to seek to defend by merely putting a claimant to formal proof: Vans Inc v Offprice.Com.Au Pty Ltd  FCA 137 at . This is not a new concept. It finds earlier reflection in ss 190(4) and 191 of the Evidence Act 1995 (Cth) and O 33, 34 and 34B of the Federal Court Rules 1979 (Cth).
INDUSTRIAL LAW – declaration that organisation has ceased to function effectively – no effective means under rules – scheme approved – terms and conditions of scheme – appointment of interim administrator – vacation of all offices – demerger
PRACTICE AND PROCEDURE – New South Wales Industrial Court proceeding – cross vested
PRACTICE AND PROCEDURE – agreed statement of facts – declarations
TRADE PRACTICES – Exclusive Dealing – Third line forcing – Telecommunication companies offered call credits to customers conditional upon them leasing equipment from one of a panel of finance companies – declarations and injunctions by consent – Power to grant declaratory relief by consent – Presence of a proper contradictor – Relief granted
TRADE PRACTICES – Misleading and deceptive conduct and false representations in relation to ‘free’ equipment when the customer had signed an equipment lease – declarations by consent
CORPORATIONS – whether a corporation which solicited clients to trade in options (including derivatives) contravened s 1041H of the Corporations Act 2001 (Cth) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) by making false or misleading representations about its investment strategies – whether that corporation also breached the terms of its Australian Financial Services Licence and failed to do all things necessary to ensure that the financial services covered by the licence were provided efficiently, honestly and fairly – whether the principal of the corporation should be held liable as an accessory to the contraventions on the part of the corporation
PRACTICE AND PROCEDURE – whether consent declarations agreed between the corporate regulator (ASIC) and the individual who caused a corporation to contravene the Corporations Act and the ASIC Act should be made – relevant principles discussed
PRACTICE & PROCEDURE – recusal application – interlocutory judgment – apprehended bias alleged – whether reasonable observer might consider that judge had committed to any findings of fact – no contested hearings –no contentious factual findings made – no embarrassment in relation to determining issues between parties – application refused
COPYRIGHT – whether the scope of the non-exclusive licence of the right to broadcast certain sound recordings granted by a copyright collection agency to radio stations included the right to play those recordings in radio programs transmitted by FM broadcast as a simulcast with transmission of the same program via the Internet
JUDGMENTS AND ORDERS – Civil penalty – imposition of civil penalty under the Therapeutic Goods Act 1989 (Cth) section 19D – discussion of relevant principles – agreed statement of facts
HEALTH LAW – Therapeutic goods – importation and supply of goods containing non-listed and non-registered substances – imposition of civil penalty – discussion of relevant principles
CONSUMER PROTECTION – contraventions of consumer protection legislation admitted – orders sought by consent – declaratory orders – injunctions – pecuniary penalties – publication orders – whether declaratory relief available under the circumstances – proper contradictor exists where contradictor consents to orders – orders made in terms sought
INDUSTRIAL LAW – breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) – liability admitted – question of pecuniary penalty to be imposed – assessment must take into account the particular circumstances of the incident – whether principles should be adopted from criminal law sentencing process – penalty should reflect objective seriousness of breach – assessment must also focus on the practical steps that could be taken to protect the health and safety of employees at the workplace – penalty imposed which differs from assessment offered by the parties
Evidence Act 1995 (Cth) ss 140, 141, 191