case_text: In Elm Financial Services Pty Ltd v MacDougal [2004] NSWSC 560 at [7] , Barratt J, echoing comments he had previously made in Process Machinery Australia Pty Ltd (t/as DCL Engineering) v ACN 057 260 590 Pty Ltd [2002] NSWSC 45 at [21] - [22] , said of the " Graywinter principle": What it means is that the application ... and the affidavit in support of that application, both filed and served within the 21 day period stipulated in s 459G(3) , must fairly alert the claimant to the nature of the case the company will seek to make in seeking to have the statutory demand set aside. The content of the application and affidavit must convey, even if it be by necessary inference, a clear delineation of the area of controversy so that it is identifiable with one or more of the grounds made available by ss 459H and 459J for setting aside statutory demands. The process of delineation may not be extended after the end of the 21 day period although it is open to the plaintiff to supplement the initial affidavit by way of additional evidence relevant to the area of controversy identified within the period. 19 In Hansmar Investments Pty Ltd v Perpetual Trustee Co Ltd (2007) 61 ACSR 321, White J expressed the view that test enunciated by Barratt J in Process Machinery [2002] NSWSC 45 and Elm Financial Services [2004] NSWSC 560 , in so far as it requires the ground of challenge to be raised expressly or by necessary inference, is too strict. His Honour accepted the implication from the statute that the grounds for applying to set aside a statutory demand must be raised in the supporting affidavit but observed at 326: It is one thing to draw that implication from the requirement that an application be accompanied by a supporting affidavit. It is quite another to imply from the requirement that there be a supporting affidavit anything as to the precision with which such a ground must be expressed, other than that it be raised. Whether it is raised expressly, by necessary inference, or by a reasonably available inference, provided it is raised, in my view the requirements of s 459G are satisfied.


case_outcome: approved

case_text: Dr Chisholm attests in his first affidavit that he was required to travel to Indonesia in June 2005 to "supervise the thinning of the blue Anar dye", and "a number of times" in 2006 to discuss the revelation that the dye included Direct Blue 218. Mr DeBuse took issue with the costs claimed by the plaintiff for business class travel. As Mr Bova correctly argued, whilst this may be a question of mitigation, it cannot affect the existence of a genuine claim. The task of this Court is "to identify the genuine level of an offsetting claim (not the likely result of it)"; Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601 at 605. 46 As noted above, certain paragraphs of Dr Chisholm's first affidavit concern transactions with the defendant's predecessor partnership. I have rejected the plaintiff's assertion that these transactions can give rise to a genuine claim against the defendant. Dr Chisholm states that, in addition to his trip in June 2005, he made an earlier trip to Indonesia in August 2004 to deal with a similar problem of dye thickening. I am not prepared to assume that the second trip, following soon after the incorporation of the defendant, related to dye supplied by the defendant. Accordingly, I disregard the USD14,000 travel claim relating to the thickening. I accept the claim of USD19,000 for travel to Indonesia to address the problems caused by the presence of Direct Blue 218 as a genuine claim. 47 There is no evidence as to how the two amounts claimed for accommodation were calculated. Nevertheless, there is evidence that Dr Chisholm was required to travel to Indonesia, and such travel necessarily involves some accommodation expenses. Given that the nine nights of accommodation attributed to the thickening involves both of Dr Chisholm's trips, I can only accept that the USD2,400 which is related to the Direct Blue 218 is claimed in good faith.


case_outcome: followed

case_text: In Royal Premier Pty Ltd v Taleski [2001] WASCA 48 at [57] , Ipp J observed that it was not necessary for there to be evidence of damage "in meticulous detail" however his Honour insisted that "there must be at least some material upon which the court can conclude that some damage has been sustained and which will enable the court to make a reasonable assessment as to the amount thereof." Clearly, the plaintiff cannot be presently entitled to damages to compensate it for unquantified losses incurred in litigation that has not yet commenced. Accordingly, I do not accept the potential claims arising from the presence of Direct Blue 218 in the dye supplied by the plaintiff as "genuine claims" for the purposes of s 459H. I am fortified in this view by the decision of the Full Court in John Shearer Limited v Gehl Company (1995) 60 FCR 136, where claims that were inadequately particularised and that had not been pursued in the year since the dispute commenced were held not to be genuine claims.


case_outcome: discussed

case_text: While the defendant correctly states that the plaintiff has not identified a specific cause of action with which it pursues its claim, it is apparent from the circumstances described by the affidavit that the claim would be in the nature of breach of contract or of consumer protection legislation. Adopting the language of Emmett J in Sacon Constructions Pty Ltd v Concrite Quarries Pty Ltd (1997) 15 ACLC 1303 at 1305, the affidavit attempts both to explain the nature of the cross-claim and to quantify it. In Sacon , Emmett J held that the supporting affidavit was insufficient, although his Honour observed in obiter at 1305 that, had supplementary material been filed in time, it would have probably satisfied the requirements of s 459G. That material asserted the offsetting claim in that case with significantly less detail than is present in Dr Chisholm's first affidavit in the present application. 32 The next issue is raised by the plaintiff's decision not to read certain paragraphs of the affidavit that was filed and served on the defendant. As discussed above at [21], if the case that was notified to the defendant by the affidavit served upon it was materially different from the case put to the Court, then it would be arguable that there was no compliance with the subsection, in that the affidavit relied on to support the plaintiff's application had not been served on the defendant company. The paragraphs omitted from the affidavit as read at the hearing are relevant to the resolution of this question and therefore admissible when tendered by the defendant. 33 In the omitted paragraphs Dr Chisholm refers to specific orders for dyes including Direct Blue 290 that were placed with "Anar" in August 2003, March 2004 and June 2004. As, according to the affidavit of Mr Choksi, the defendant company was incorporated on 24 May 2004, the former order is likely to have been placed with the partnership and the latter with the defendant company. The orders were for direct shipment of the dyes to Indonesia; they arrived there in May and August 2004 respectively.


case_text: This brings me to consider the claim made in the application filed on 21 December 2006 and in the supporting affidavit of Dr Chisholm sworn and filed on that date (the "first affidavit"). In this process it is necessary to bear in mind the strict requirements imposed by s 459G(3)(a) and (b). Those requirements must be understood in the context of Division 3 of Part 5.4. As Beazley J noted in Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1993) 47 FCR 451 at 454, Part 5.4 has its origins in the Corporate Law Reform Bill 1992 (Cth). The explanatory memorandum to that Bill makes it clear at [689] that a key purpose of Division 3 of Part 5.4 is to avoid technical arguments and to facilitate speedy resolution of disputes "by requiring debtor companies to raise genuine disputes (about, for example, whether a debt is owed) at an early stage". 37 Although not established to the standard expected at final trial, it can reasonably be assumed, given the nature of this application, that the dye supplied by the defendant in early 2005 is the dye that generated problems from the middle of 2005. Given the difficulties that arose with this dye, I am thus satisfied that the plaintiff's claim to have an offsetting claim raises "a serious question to be tried"; Scanhill 47 FCR at 467. The threshold that the plaintiff must cross "is not a high one"; Federico's Restaurant Pty Ltd v Warwick Entertainment Centre Pty Ltd (1995) 18 ACSR 702 at 706. I am satisfied that the plaintiff has done more than simply assert a claim and some basis for it without more; Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 at 39. 51 In cross-examination of Dr Chisholm, Mr DeBuse made much of the fact that the only written correspondence describing the thickening problem is an email of 21 June 2004 from Dr Chisholm to Mr Choksi, a copy of which is annexed to Dr Chisholm's second affidavit, which describes the dye as "good except the layer of High viscosity which caused me big headache!" There is no record of any attempt made by Canpoint to recover the USD50,000 it lost through the thickening from the defendant, and it is not in dispute that the plaintiff continued to trade with the defendant following the incident. Dr Chisholm was quite emphatic that "many telephone conversations" had taken place in which the plaintiff had requested some discount from the defendant, but that the defendant refused, asserting it was prevented from offering such discounts by Indian law. Dr Chisholm further testified that he did not feel taking legal action to recover the debt was practical, and that the plaintiff refrained from doing so as it was attempting to "build up a relationship" with the defendant. Even if I were minded not to accept this evidence, "failure to complain at an earlier point of time, ... of itself is not sufficient to demonstrate that the claim made by the applicant is not genuine"; Scanhill 47 FCR at 468. 52 Dr Chisholm has attested that in his experience international companies require written confirmation that Direct Blue 218 is not used in paper production. It is his evidence that he was told that Pindo Delhi was making a claim against the plaintiff for USD350,000 for paper that had been returned because of the presence of Direct Blue 218. Annexed to his second affidavit is a letter dated 5 September 2006 on the letterhead of IndoAsia, the plaintiff's agents in Indonesia, asserting that they had been advised that Pindo Delhi planned a claim against the plaintiff for both the costs of the paper returned and loss of its export business. The plaintiff has not put forward any amount in relation to Pindo Delhi's anticipated claim for loss of business. 56 In his first affidavit, Dr Chisholm attests to a conversation with representatives of IndoAsia in which total sales to the Sinar Mas Group were said to be worth "USD500,000/year, with a potential for us to obtain sales of USD5 million". Although it is unclear from the affidavit whether these figures refer to sales of the plaintiff or of IndoAsia, it is clear from Dr Chisholm's report of the conversation in his second affidavit that the figures refer to IndoAsia. As noted above, annexure "F" to the first affidavit estimates the value of the plaintiff's business with the Sinar Mas Group as "USD1.0 million". Dr Chisholm also attests that he advised Mr Choksi that shipment of the wrong dye had damaged the plaintiff's reputation and endangered its business in Indonesia, which he valued at USD1.0 million/per year. Although this evidence was admitted only for a limited purpose, a strict approach to admissibility is not appropriate in these matters; see Scanhill 47 FCR at 460. Finally, annexure "O" to Dr Chisholm's second affidavit, a print-out from the plaintiff's book-keeping database, shows total sales to Pindo Mill of USD936,625.00 in 2004, and USD1,100,175.00 in 2005. 57 Accordingly, I am willing to accept that the plaintiff's business with Sinar Mas was worth approximately USD1 million per year. It is Dr Chisholm's evidence that Canpoint has not received any orders to supply dyes to Pindo Delhi in either 2006 or 2007, through IndoAsia or otherwise. There is no evidence relating to any sales to other parts of the Sinar Mas group. 63 Beazley J's observations in Scanhill 47 FCR at 464 are apposite: It must be remembered that s 459G requires that the supporting affidavit be filed and served within 21 days. This time period reflects the expeditious mode which the legislature has determined is to be the manner of staying the operation of a statutory demand. That is not to say, however, that the mere assertion of the amount of loss, or the amount of the claim, however based, is sufficient to satisfy the Court of the amount of the offsetting claim. One would normally expect that there would be reference to at least some primary material in the affidavit to enable the Court to have the requisite satisfaction for the purposes of s 459H. 64 It follows from the above that the plaintiff has a genuine claim against the defendant in the amount of USD404,400.00. 65 As noted above, the "admitted total" of the defendant company's debt for the purposes of s 459H is USD280,664.50. As I am satisfied that the plaintiff has an offsetting claim of USD404,400.00, there is an "offsetting total" in that amount. The offsetting total exceeds the admitted total by USD123,735.50 and accordingly the "substantiated amount" is less than the statutory minimum of $2,000 and the statutory demand must be set aside; s 459H(3).


case_text: The entitlement of the plaintiff to rely on affidavits filed outside the 21 day period is an issue in this case. In SMEC International Pty Ltd v CEMS Engineering Inc [2001] NSWSC 459 ; (2001) 38 ACSR 595 at 599, Austin J noted that the authorities accepting such an entitlement do so "provided that the application has otherwise been instituted validly". His Honour further commented that this proposition: ... must imply that later affidavits can expand and supplement the factual grounds upon which the plaintiff will rely at the hearing, subject perhaps to the qualification that the initial supporting affidavit must indicate the general nature of the plaintiff's case (eg that the plaintiff asserts a genuine dispute as to the existence or amount of the debt rather than (or as well as) an offsetting claim). 36 The plaintiff also relied on a supplementary affidavit of Dr Chisholm filed on 10 August 2007. Annexed to this affidavit are purchase orders, bills of lading and invoices relating to the dye supplied by the defendant in early 2005. The affidavit provides additional factual detail in support of the plaintiff's claim to have an offsetting debt. Given that the first affidavit had clearly indicated the general nature of its case it is entirely legitimate for the plaintiff to expand the factual grounds on which it relies in this way; SMEC International 38 ACSR at 599, Graywinter Properties 70 FCR at 460.


case_outcome: considered

case_title: Tito v Waddell (No 2) [1977] Ch 106

case_text: This submission is fatally flawed. Under Australian law, in the absence of any statutory provision to the contrary, the burden (as distinct from the benefit) of contractual obligations cannot be assigned. There are, of course, some well established exceptions as where the obligations run with an estate in land (as in a lease) or they "touch and concern" land (as in the case of covenants restricting the use of land) but no such exceptions are suggested to apply here. There are also two possible exceptions raised by Sir Robert Megarry V-C in Tito v Waddell (No 2) [1977] Ch 106 however they have attracted little if any support in England and none in Australia. In any event neither is relevant here. The fundamental principle of the non-assignability of contractual obligations is so well established that it should need no authority however, if authority is sought, the principles and the relevant authorities are discussed in Chapter 17 of Carter JW, Peden E and Tolhurst GJ, Contract Law in Australia (5 th ed, LexisNexis Butterworths, 2007) especially at [17-37]. 10 In the alternative, Mr Bova suggested that the defendant company became subject to the partnership obligations by an implied novation. While it would be possible for the defendant company, by contract, to assume obligations equivalent to those undertaken by the partnership, no evidence was adduced to show that this had occurred. Mr Bova referred to evidence given by Dr Allan Chisholm, a director of the plaintiff, to the effect that he was unaware of the change in the supplier of the dyes and that, in his purchase of dyes, he had not differentiated between the partnership and the company. Dr Chisholm said that he always dealt with the same persons, at the same email and business addresses and used the same telephone number to contact Mr Choksi.


case_text: As noted above, I consider that Dr Chisholm's first affidavit satisfies the requirements of s 459G(3)(a). Accordingly, it is entirely legitimate to supplement it with Dr Chisholm's second affidavit; Topfelt Pty Limited v State Bank of New South Wales Limited (1993) 47 FCR 226 at 242. In these two affidavits, and Dr Chisholm's oral testimony, the plaintiff adduces evidence relating to each of these components. It is convenient to address some of these components together.


case_outcome: referred to

case_text: Section 55 provides relevantly as follows: (1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of: (a) a decision refusing to grant access to a document in accordance with a request; or (aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or (ab) a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or (b) a decision to defer the provision of access to a document; or (c) a decision refusing to allow a further period for making an application under subsection 54(1) for a review of a decision; or (d) a decision under section 29 relating to imposition of a charge or the amount of a charge; or (e) a decision under section 30A relating to remission of an application fee; or (f) a decision to grant access to a document only to a qualified person under subsection 41(3); or (g) a decision refusing to amend a record of personal information in accordance with an application made under section 48 ; or (h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48. (2) Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review. 15 Section 56(1) provides: (1) Subject to this section, where: (a) a request has been made to an agency or Minister in accordance with section 15 ; and (b) the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and (c) notice of a decision on the request has not been received by the applicant; the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55 , be deemed to have made, on the last day of that period, a decision refusing to grant access to the document. 16 Section 58(1) of the FOI Act provides: Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister. 27 Applying the principles laid down in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (1998) 194 CLR 355, the Tribunal found that the failure to notify the applicant of the transfer in accordance with s 16(4) of the FOI Act did not invalidate the transfer. In the Tribunal's view, Parliament intended the notification requirement to be procedural. It intended that the person making the request be notified that the request was being handled by another agency. The requirement was for notification "where a request is transferred". In the Tribunal's view, this meant that the notification was to occur after the transfer had occurred. A failure to comply with s 16(4) did not affect the transfer, let alone render it invalid. 28 The Tribunal then dealt with the final question, whether the requests had been deemed to be refused while in the possession of the Attorney-General and the Justice Minister respectively. In the absence of any extension of time pursuant to s 15(6) of the FOI Act , the 30-day period for a decision on the request to the Attorney-General would have expired on 8 October 2003. The transfer occurred on 2 October 2003, within that 30-day period. Similarly, the request was received by the Justice Minister by 11 September 2003 and the date of the transfer was 25 September 2003. The transfer occurred within 30 days of the Justice Minister's receipt of the request. In each case, therefore, there was no deemed decision while the requests were in the possession of the recipients of them. No decision had been made by either recipient. The Tribunal only had jurisdiction if a decision had been made, or was deemed to have been made, so it did not have jurisdiction in either case. 29 At the heart of the applicant's case is the proposition that the transfer of a request pursuant to s 16(1)(b) does not absolve the original recipient of the request from the obligation to search its records for documents to which the request relates, and to respond to the request in an appropriate manner in relation to each relevant document in its possession. In other words, a transfer of the whole of a request, without regard to what documents the transferor has, or may have, that would answer the request is not a valid transfer under s 16(1)(b). The original recipient of the request retains an obligation to respond with a decision on the request within the time required, and can only transfer so much of the request as relates to identified documents that have a subject-matter more closely connected with the functions of another agency than with those of the recipient of the request.


case_text: Section 21 of the Federal Court of Australia Act 1976 (Cth) confers power upon this Court to grant declaratory relief. The power conferred is a discretionary power which is not to be limited by the laying down of rules as to the manner of its exercise: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581 2. Mason CJ, Dawson, Toohey and Gaudron JJ there observed: It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties" (citations omitted).


case_outcome: applied

case_title: Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2) [2006] FCA 1399 , 155 FCR 377

case_text: Also of general relevance to most (if not all) civil penalty provisions is the significance that a pecuniary penalty may have for deterrence upon both the current offender and others: cf Trade Practices Commission v CSR Ltd (1990) ATPR 41-076 ; Australian Competition & Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666 at [53] per Bennett J; Australian Competition & Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727 at [34] per Kiefel J; Australian Competition & Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 at [11] ; Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21 at [15] per Goldberg J. A " civil penalty ", it has been said, " needs to be sufficiently high to deter contravention by others, but not so high as to be oppressive ": Vivian v Fitzgeralds [2007] FCA 1602 at [29] per Logan J. An apparent limited capacity of a respondent to pay cannot mitigate against the need for an appropriate pecuniary penalty to be applied: Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2) [2006] FCA 1399 at [41] , [2006] FCA 1399 ; 155 FCR 377 at 386 7 per Nicholson J. See also: Beaton-Wells C, 'Recent corporate penalty assessment under the Trade Practices Act and the rise of general deterrence' (2006) 14 CCLJ 65; Yeung K, 'Quantifying Regulatory Penalties: Australian Competition Law Penalties in Perspective' (1999) 23 Melb Univ L Rev 440 (particularly at 468 74). 55 For the purposes of s 42Y(3)(b) , it may finally be noted, the Secretary does not maintain that there has been " any loss or damage suffered as a result of the contravention ". But, as was pointed out by Olney J in Trade Practices Commission v ICI Australia Operations Pty Ltd [1991] FCA 527 ; (1991) 105 ALR 115 in the context of pecuniary penalties being sought under s 76 of the Trade Practices Act for resale price maintenance, " an absence of loss or damage is not a mitigating factor ". His Honour observed at 118 19: ... The Act also requires that regard be had to any loss or damage suffered as a result of the act or omission. In the facts of the present case there appears to be no basis upon which any loss or damage can be identified. Whatever may have been the circumstances that induced all other Victorian distributors to agree to maintain retail prices at the levels nominated by ICI, it is the conduct in relation to MRW and Heinrich O'Loughlin which is the subject of these proceedings. Nothing has been said to indicate that either of these companies, nor indeed any of their customers, suffered loss or damage by the attempt to induce them to maintain a minimum price. However, I do not think that the absence of loss or damage is necessarily a mitigating factor. In a case where the breach of the Act is an attempt to induce a reseller to impose a minimum price for goods supplied to the reseller, the question of loss or damage will rarely, if ever, arise. The Act does not distinguish in terms of culpability between the various types of conduct which constitute the practice of resale price maintenance. The same conclusion was also reached by Nicholson J in Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2) [2006] FCA 1399 at [29] , [2006] FCA 1399 ; 155 FCR 377 at 384 when considering s 24(2) of the Spam Act 2003 (Cth) . The same conclusion should also be reached in respect to s 42Y(3) of the 1989 Act now under consideration.


case_outcome: cited

case_text: That question was answered: " No, but the reasons in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 disclose no error of principle ". The Full Court reviewed the authorities and observed: [51] The following propositions emerge from the reasoning in NW Frozen Foods: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range. Five further points were there made by their Honours, being: [53] First, the rationale for giving weight to a joint submission on penalty is said by the Court to be the savings in resources for the regulator and the Court, as well as the likelihood that a negotiated resolution will include measures designed to promote competition. As Jeremy Thorpe points out, a related advantage is that the savings in resources can be used by the regulator to increase the likelihood that other contraveners will be detected and brought before the courts. This has the effect of increasing deterrence which is one of the principal justifications, if not the only justification for imposing civil penalties under the TP Act or the Sites Act: J Thorpe, "Determining the Appropriate Role for Charge Bargaining in Pt IV of the Trade Practices Act" (1996) 4 Comp & Cons LJ 69, at 72 74. ... [54] Secondly, the sixth proposition drawn from the reasoning in NW Frozen Foods does not mean, in our opinion, that the Court must commence its reasoning with the proposed penalty and limit itself to considering whether that penalty is within the permissible range. A Court may wish to take that approach. However, it is open to a Court, consistently with the reasoning in NW Frozen Foods, first to address the appropriate range of penalties independently of the parties' proposed figure and then, having made that judgment, determine whether the prepared penalty falls within the range. [55] Thirdly, as has been noted, the appellant in NW Frozen Foods admitted contravening the TP Act and had reached agreement with the ACCC upon the facts to be put before the Court. There was no suggestion that the admissions or statement had been tailored or modified to reflect the difficulties faced by the ACCC in proving its case. The Full Court therefore acted on the basis of clear admissions and a detailed statement of agreed facts setting out how the contraventions had occurred. ... [56] Fourthly, as the Full Court in Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd [2002] ATPR 41-851 , has pointed out, the regulator should always explain to the Court the process of reasoning that justifies a discounted penalty. ... ... [58] Fifthly, there is nothing in NW Frozen Foods that is inconsistent with any of the following propositions: (i) The Court, if it considers that the evidence or information before it is inadequate to form a view as to whether the proposed penalty is appropriate, may request the parties to provide additional evidence or information or verify the information provided. If they do not provide the information or verification requested, the Court may well not be satisfied that the proposed penalty is within the range. (ii) If the absence of a contradictor inhibits the Court in the performance of its duties under s 76 of the TP Act, s 13 of the Sites Act, or similar legislation, it may seek the assistance of an amicus curiae or of an individual or body prepared to act as an intervenor under FCR, O 6 r 17. (iii) If the Court is disposed not to impose the penalty proposed by the parties, it may be appropriate, depending on the circumstances, for each of them to be given the opportunity to withdraw consent to the proposed orders and for the matter to proceed as a contested hearing. See: Australian Competition & Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085 at [13] [18] per Nicholson J. Most recently, it has been said that the " upshot of the authorities is that the Court should not depart lightly from a joint position put forward by the parties. The inquiry to be undertaken is not whether the Court would have arrived at the same figure as the parties, but whether the proposal fixes an appropriate amount 'within the permissible range' of penalties that might properly be imposed ": Australian Competition & Consumer Commission v Oobi Baby Pty Ltd [2008] FCA 1488 at [9] per Finkelstein J. See also: Beaton-Wells C, 'Judicial Scrutiny of Penalty Agreements to Increase' (2005) 13 TPLJ 59.


case_text: The requirement for the Court itself to be satisfied as to the appropriateness of a penalty is a responsibility which ultimately derives from s 71 of the Commonwealth of Australia Constitution Act and is not a responsibility which can be circumscribed by private agreement: cf Australian Competition & Consumer Commission v Hobie Cat Australasia Pty Ltd [2008] FCA 402 at [19] per Finn J. And in discharging that responsibility in the context of the Therapeutic Goods Act the Court, as it is in the context of the Trade Practices Act when considering whether to make an order by consent, " is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so ": cf Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 at [18] , [1999] FCA 18 ; 161 ALR 79 at 86 per French J. The Court is not to be regarded as a " rubber stamp ": Australian Competition & Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 at [121] per Weinberg J


case_text: Also of general relevance to most (if not all) civil penalty provisions is the significance that a pecuniary penalty may have for deterrence upon both the current offender and others: cf Trade Practices Commission v CSR Ltd (1990) ATPR 41-076 ; Australian Competition & Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666 at [53] per Bennett J; Australian Competition & Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727 at [34] per Kiefel J; Australian Competition & Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 at [11] ; Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21 at [15] per Goldberg J. A " civil penalty ", it has been said, " needs to be sufficiently high to deter contravention by others, but not so high as to be oppressive ": Vivian v Fitzgeralds [2007] FCA 1602 at [29] per Logan J. An apparent limited capacity of a respondent to pay cannot mitigate against the need for an appropriate pecuniary penalty to be applied: Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2) [2006] FCA 1399 at [41] , [2006] FCA 1399 ; 155 FCR 377 at 386 7 per Nicholson J. See also: Beaton-Wells C, 'Recent corporate penalty assessment under the Trade Practices Act and the rise of general deterrence' (2006) 14 CCLJ 65; Yeung K, 'Quantifying Regulatory Penalties: Australian Competition Law Penalties in Perspective' (1999) 23 Melb Univ L Rev 440 (particularly at 468 74).


case_text: Proceedings to recover a civil penalty under s 42Y of the Therapeutic Goods Act , like proceedings under s 76 of the Trade Practices Act , are civil proceedings (s 42Y(4)) and by virtue of s 140 of the Evidence Act 1995 (Cth) attract the civil standard of proof, including for present purposes the principles in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361 3. Section 140 provides as follows: Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject matter of the proceeding; and (c) the gravity of the matters alleged. It has been said by the Full Court of this Court that the discussion by Dixon J in Briginshaw v Briginshaw " of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account ": Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 at [31] , [2007] FCAFC 132 ; 162 FCR 466 at 480 per Weinberg, Bennett and Rares JJ. See also: Employment Advocate v Williamson [2001] FCA 1164 at [65] , [2001] FCA 1164 ; 111 FCR 20 at 40 1 per Branson J; Australian Competition & Consumer Commission v Construction, Forestry, Mining & Energy Union [2008] FCA 678 at [13] per Finn J.


case_title: Australian Competition & Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666


case_text: But there has been a departure from such a confined view, at least in a statutory context where declaratory relief is sought as an adjunct to an order imposing a pecuniary penalty or involving a matter of public interest. In the context of the Trade Practices Act , in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427 , 236 ALR 665 Kiefel J reviewed the earlier authorities and relevantly concluded as follows: [58] The power to grant declarations (s 21 of the Federal Court Act 1976 (Cth)) is unconfined. Order 35A itself imposes no constraints upon the relief sought. Refusals to make declarations in cases of default are based upon a practice, not a rule of law. The practice is one of long-standing and might be seen as derived from views about litigation which pre-date more recent concerns expressed by the courts as to the costs of unnecessary litigation, the management of cases and efficiency overall. Views expressed in older cases may not take account of the increase in the use made of declaratory orders in developing areas of law which may involve matters of public interest. A caution with respect to the use of older authority is made in the White Book Service 2003 to the English Civil Procedure Rules 1998 (40.20.2). [59] It may no longer be correct to have a practice which operates as a prohibition in every case of default and preferable to consider the circumstances pertaining to the particular case and the purpose and effect of the declaration. Millett J made declaratory orders in Patten v Burke Publishing Co Ltd [1991] 1 WLR 541; [1991] 2 All ER 821 where justice to the plaintiff required it. The order, however, operated principally inter partes and it might be doubted whether it would be of interest to other persons. Cases such as this, involving the protection of consumers, are of public interest. Declarations are often utilised in such cases to identify for the public what conduct contributes a contravention and to make apparent that it is considered to warrant an order recognising its seriousness. It is however important that there be no misunderstanding as to the basis upon which they are made. This could be overcome by a statement, preceding the declarations, that orders are made: "upon admissions which [the respondent in question] is taken to have made, consequent upon non-compliance with orders of the court". An appeal has been dismissed: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 , 244 ALR 300. Her Honour's views as to the ability of the Court to grant declaratory relief upon the basis of deemed admissions has since been followed and applied by Mansfield J in Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem" (No 2) [2007] FCA 815 at [7] [16], [2007] FCA 815 ; 240 ALR 120 at 122 5.


case_title: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 , 244 ALR 300


case_text: In addressing the role that agreement between the parties may have when addressing penalties to be imposed under the Trade Practices Act in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 , Burchett and Kiefel JJ observed: The Act places on the shoulders of the Court the responsibility to determine the "appropriate" penalty in each particular case, having regard to "all relevant matters" including the matters specified in the section. But effects upon the functioning of markets, and other economic effects, will generally be among the most significant matters to be considered as relevant, so that the Court is likely to be assisted greatly by views put forward by the Australian Competition and Consumer Commission, or by economists called on behalf of the parties. Since the decision in Trade Practices Commission v Allied Mills Industries Pty Ltd [(1981) 60 FLR 38], it has been accepted that both the facts, and also views about their effect, may be presented to the Court in agreed statements, together with joint submissions by both the Commission and a respondent as to the appropriate level of penalty. Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount. There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case. It appears to us that the authorities in both Australia and New Zealand have provided unanimous support for the approach we have outlined... They approved the general acceptance of a "negotiated settlement", reserving for further consideration only the case where a compromise was based, not on considerations bearing on the quantum of the penalty, but on doubts or difficulties attending the proof of the contravention. In Simsmetal [Trade Practices Commission v Simsmetal Ltd [1996] ATPR 41 ,510], Lee J, in approving agreed penalties, said (at 41,512) that "the approach adopted by the parties in fixing (the figures put to the Court) is not dissimilar to the approach that would have been adopted by the Court had it been necessary for the Court to undertake the penalty fixing exercise itself", and that he agreed with the approach of Lockhart J in another case of refraining from "stating whether the penalties to which the parties have agreed are the size of [those] which the Court itself would have imposed". In Pioneer [Australian Competition and Consumer Commission v Pioneer Concrete (Qld) Pty Ltd [1996] ATPR 41 ,579] Lockhart J said (at 41,582): "I am of the view that the agreement that has been reached, subject to the Court's concurrence, is broadly in accord with what the Court would have done itself based upon the facts as I have read them from the affidavits, and I think the result is a sensible one. I propose to endorse it." In TNT [Trade Practices Commission v TNT Australia Pty Ltd [1995] HCA 4 ; [1995] ATPR 40 ,161] Burchett J said (at 40,165): "[I]t cannot be denied that the fixing of the quantum of a penalty is not an exact science. It is not done by the application of a formula, and, within a certain range, courts have always recognised that one precise figure cannot be incontestably said to be preferable to another." When the Court approaches the task of assessing a penalty under s 76, or of determining whether an agreed penalty is appropriate, there are certain principles which must be kept steadily in mind. The section itself lays down that the penalty is to be "appropriate having regard to all relevant matters", and then indicates certain matters which the legislature regarded as relevant... Reference may also be made to Australian Competition & Consumer Commission v Econovite Pty Ltd [2003] FCA 964 at [11] where French J stated that the " Court has, over many years, accepted as a general principle that it should encourage fair and appropriate settlements to reduce the burdens of litigation on public and private resources ". See also: Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693 at [15] [18], [2004] FCA 693 ; 207 ALR 329 at 332 3 per Lee J; Australian Competition & Consumer Commission v FChem (Aust) Ltd [2008] FCA 344 at [22] [27] per Cowdroy J. These comments were obviously directed to the specific statutory provisions and objectives of the 1974 Act.


case_text: Declarations have thus been made by consent by this Court in the context of a party admitting a contravention of the Trade Practices Act : eg, Australian Competition & Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J. The authorities and the approach of this Court to the making of declarations by consent have also recently been usefully summarised by Reeves J in Australian Competition & Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20] [30], ATPR 42-216. See also: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30] , [34], ATPR 41-801.


case_title: Australian Competition & Consumer Commission v FChem (Aust) Ltd [2008] FCA 344


case_title: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 , ATPR 41-801


case_title: Australian Competition & Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727


case_title: Australian Competition & Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247


case_title: Australian Competition & Consumer Commission v Hobie Cat Australasia Pty Ltd [2008] FCA 402


case_title: Australian Competition & Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534


case_text: Given the written submissions previously filed on behalf of the Secretary as to the penalties then being propounded, some reservation was expressed during the hearing as to whether the then proposed combined penalty of $100,000 was indeed " appropriate ". As was observed by Wilcox, Hill and Carr JJ in Australian Competition & Consumer Commission v Ithaca Ice Works Pty Ltd [2001] FCA 1716 (and as approved by the Full Court in Mobil Oil [2004] FCAFC 72 at [56] [57]): [56] ... [W]here the Commission proposes to the Court an agreed penalty which is calculated taking into account a substantial discount from what would otherwise be considered the appropriate penalty so as to reflect a degree of co-operation, it would be desirable that the Commission disclose the process by which the discounted penalty has been arrived at. In particular, it would be of assistance to the Court, particularly where there are other proceedings pending, to hear submissions on the range of appropriate penalties and the discount which it is proposed should be allowed to take into account the level of co-operation afforded by the offender. ... The figure of $100,000 was such that submissions were sought from both Counsel. The caution previously expressed by Lockhart J, and other judges of this Court, as to the Court refraining from stating whether the penalty to which the parties have agreed was the same as that which the Court would have imposed, is nevertheless heeded.


case_title: Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693 , 207 ALR 329


case_title: Australian Competition & Consumer Commission v Oobi Baby Pty Ltd [2008] FCA 1488


case_title: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 , 161 ALR 79


case_text: Thus, in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 French J made the following observations in the context of assessing the penalty to be imposed pursuant to s 76(1) of the Trade Practices Act (at 52,152 52,153). The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following: 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. Those observations are both an elaboration of the terms of s 76(1) itself and directed to the legislative context set forth in the 1974 Act. Comparable principles have also been applied when assessing penalties under the Superannuation Industry (Supervision) Act : Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 , 60 ATR 518 ; Australian Prudential Regulation Authority v Holloway [2000] FCA 1245 , 45 ATR 278.


case_title: Australian Prudential Regulation Authority v Holloway [2000] FCA 1245 , 45 ATR 278


case_title: Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem' (No 2) [2007] FCA 815 , 240 ALR 120


case_title: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336


case_text: Statutory provisions operating so as to effect an " automatic forfeiture " may be " draconian " and may be a reason for construing such provisions in a strict manner: Murphy v Farmer [1988] HCA 31 ; (1988) 165 CLR 19. In the course of importing a motor vehicle into Australia an answer to a question on a customs form was there provided by the Respondent which was wrong, but not deliberately or intentionally so. The majority, Deane, Dawson and Gaudron JJ, construed the term " false " so as to mean purposely, deliberately or intentionally untrue. In doing so Their Honours observed (at 28): ... [I]t seems to us to be more strongly arguable that clear words should be required before there is attributed to the Parliament an intention to take the draconian step of imposing automatic forfeiture as a penalty for "any" wrong "entry invoice declaration answer statement or representation" regardless of whether the wrong information was provided as the result of an innocent mistake or excusable ignorance. The effect of the penalty of automatic forfeiture under s 229(1)(i) can be devastating and quite disproportionate in that it applies regardless of the value of the goods or the importance or effect of the wrong statement which was made. ... Also in the context of s 229 of the Customs Act , it has been said that: ... [I]n the history of English and Australian Customs legislation forfeiture provisions are common, drastic and far-reaching ... they have been considered a necessary measure to vindicate the right of the Crown and to ensure the strict and complete observance of the Customs laws, which are notoriously difficult of complete enforcement in the absence of strong provisions supporting their administration: Burton v Honan [1952] HCA 30 ; (1952) 86 CLR 169 at 178 9 per Dixon CJ.


case_title: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 , 162 FCR 466


case_text: The conferral of a discretion by s 54(3) stands in contrast to other statutory regimes which more simply provide that identified categories of goods " shall be forfeited to the Crown ": eg, Customs Act 1901 (Cth), s 229(1) ; Excise Act 1901 (Cth), s 116(1). Section 229, it has been said, " gives rise to an immediate forfeiture of affected goods, without the need for any specific act on the part of Customs or the courts ": Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17 at [63] , 243 ALR 556 at 571 per Basten JA (Hidden and Barr JJ agreeing). See also: Judiciary Act 1903 (Cth), s 85. Some provisions, such as s 261A of the Migration Act 1958 (Cth), provide that goods " are forfeited to the Commonwealth ". That section is contained within Part 2 Division 13A to the 1958 Act, a Division headed " Automatic forfeiture of things used in certain offences ". Forfeiture effected by s 261A nevertheless remains " contestable ": Tran v Commonwealth [2008] FCA 901 , 103 ALD 290. Many other instances can also be provided of Commonwealth and State legislatures authorising forfeiture of goods: eg, Proceeds of Crimes Act 2002 (Cth); Confiscation of Proceeds of Crime Act 1989 (NSW); Confiscation Act 1997 (Vic). See also: Director of Public Prosecutions (Cth) v Mylecharane [2007] NSWSC 1174 , 215 FLR 18; Director of Public Prosecutions (Vic) v Nikolaou [2008] VSC 111 at [24] .


case_title: Director of Public Prosecutions (Vic) v Nikolaou [2008] VSC 111


case_title: Employment Advocate v Williamson [2001] FCA 1164 , 111 FCR 20


case_text: In Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 , 136 LGERA 89 Sackville J reviewed the authorities and likewise concluded that the specific legislative context in which a penalty is being sought must obviously prevail. His Honour was there considering the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Reference was made to the checklist provided by French J in the CSR case and His Honour continued: [58] The principles formulated in the context of s 76(1) of the TP Act provide guidance in proceedings for pecuniary penalties under the EPBC Act, although they cannot be transferred uncritically into the rather different context of proceedings seeking the imposition of penalties for environmental damage to protected sites. Obviously enough, for example, the degree of market power is a consideration likely to be highly relevant to a penalty for a contravention of Pt IV of the TP Act, but is not likely to be relevant to the imposition of a penalty under the EPBC Act. Similarly, the question of a corporate culture may not necessarily have relevance to proceedings under the EPBC Act, although whether a contravener has taken remedial action to minimise environmental damage may be significant on the question of penalty. On the other hand, there may be circumstances relevant to proceedings under the EPBC Act that have no relevance to proceedings under the TP Act. In the end, while the statutory criteria must of course be taken into account, each case must depend upon its own unique circumstances. His Honour's decision was affirmed on appeal: Greentree v Minister for Environment and Heritage [2005] FCAFC 128 , 144 FCR 388. The application by the trial judge of the " principles " he identified does not appear to have been the subject of debate on appeal: [2005] FCAFC 128 at [51] [57].


case_text: The objects of the Therapeutic Goods Act include the establishment and maintenance of a national system of controls relating to the quality, safety, efficacy and timely availability of therapeutic goods: s 4(1)(a). A useful overview of some of the provisions of the Act has been provided by Emmett J in McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2 , 165 FCR 230. 6 For present purposes it is sufficient to make reference to but a few provisions. 7 Chapter 2 of the Act provides for the maintenance of a register known as the Australian Register of Therapeutic Goods. Part 3 - 2 of Chapter 3 further provides for the registration and listing of therapeutic goods and provides for exemptions to be granted in respect to certain therapeutic goods which are not registered. Contained within that Part is s 19D which relevantly provides as follows: Civil penalties relating to registration or listing etc. of imported, exported, manufactured and supplied therapeutic goods Civil penalty relating to importing, exporting, manufacturing or supplying goods for use in humans (1) A person contravenes this subsection if: (a) the person does any of the following: (i) imports into Australia therapeutic goods for use in humans; ... and (b) none of the following subparagraphs applies in relation to the goods: (i) the goods are registered goods or listed goods in relation to the person; (ii) the goods are exempt goods; (iii) the goods are exempt under section 18A ; (iv) the goods are the subject of an approval or authority under section 19 ; (v) the goods are the subject of an approval under section 19A. Maximum civil penalty: (a) for an individual--5,000 penalty units; and (b) for a body corporate--50,000 penalty units.


case_title: Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 , 136 LGERA 89


case_text: But, and as noted by the Full Court in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [59] [79] by Branson, Sackville and Gyles JJ, there have been decisions which " have expressed reservations about the approach taken in NW Frozen Foods ". In Mobil Oil a pecuniary penalty was sought in respect to a contravention of s 10 of the Petroleum Retail Marketing Sites Act 1980 (Cth). The resolution of those reservations was there effected by a direction given by the Chief Justice pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the jurisdiction of the Court should be exercised by a Full Court in respect to the following question: Where the parties propose an agreed amount to be imposed as a penalty pursuant to s 13 of the Petroleum Retail Marketing Sites Act 1980 (Cth), is the Court bound by the decision in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 to consider whether the proposed amount is within the permissible range in all of the circumstances and, if so, impose a penalty of that amount? 37 In the present proceeding it is considered that the principles expressed in NW Frozen Foods and Mobil Oil are equally applicable to a proceeding in which a civil penalty is sought under the Therapeutic Goods Act and where an agreement has been reached as between the Regulator and those against whom the penalty is sought. 48 Given the written submissions previously filed on behalf of the Secretary as to the penalties then being propounded, some reservation was expressed during the hearing as to whether the then proposed combined penalty of $100,000 was indeed " appropriate ". As was observed by Wilcox, Hill and Carr JJ in Australian Competition & Consumer Commission v Ithaca Ice Works Pty Ltd [2001] FCA 1716 (and as approved by the Full Court in Mobil Oil [2004] FCAFC 72 at [56] [57]): [56] ... [W]here the Commission proposes to the Court an agreed penalty which is calculated taking into account a substantial discount from what would otherwise be considered the appropriate penalty so as to reflect a degree of co-operation, it would be desirable that the Commission disclose the process by which the discounted penalty has been arrived at. In particular, it would be of assistance to the Court, particularly where there are other proceedings pending, to hear submissions on the range of appropriate penalties and the discount which it is proposed should be allowed to take into account the level of co-operation afforded by the offender. ... The figure of $100,000 was such that submissions were sought from both Counsel. The caution previously expressed by Lockhart J, and other judges of this Court, as to the Court refraining from stating whether the penalty to which the parties have agreed was the same as that which the Court would have imposed, is nevertheless heeded.


case_text: In addressing the role that agreement between the parties may have when addressing penalties to be imposed under the Trade Practices Act in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 , Burchett and Kiefel JJ observed: The Act places on the shoulders of the Court the responsibility to determine the "appropriate" penalty in each particular case, having regard to "all relevant matters" including the matters specified in the section. But effects upon the functioning of markets, and other economic effects, will generally be among the most significant matters to be considered as relevant, so that the Court is likely to be assisted greatly by views put forward by the Australian Competition and Consumer Commission, or by economists called on behalf of the parties. Since the decision in Trade Practices Commission v Allied Mills Industries Pty Ltd [(1981) 60 FLR 38], it has been accepted that both the facts, and also views about their effect, may be presented to the Court in agreed statements, together with joint submissions by both the Commission and a respondent as to the appropriate level of penalty. Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount. There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case. It appears to us that the authorities in both Australia and New Zealand have provided unanimous support for the approach we have outlined... They approved the general acceptance of a "negotiated settlement", reserving for further consideration only the case where a compromise was based, not on considerations bearing on the quantum of the penalty, but on doubts or difficulties attending the proof of the contravention. In Simsmetal [Trade Practices Commission v Simsmetal Ltd [1996] ATPR 41 ,510], Lee J, in approving agreed penalties, said (at 41,512) that "the approach adopted by the parties in fixing (the figures put to the Court) is not dissimilar to the approach that would have been adopted by the Court had it been necessary for the Court to undertake the penalty fixing exercise itself", and that he agreed with the approach of Lockhart J in another case of refraining from "stating whether the penalties to which the parties have agreed are the size of [those] which the Court itself would have imposed". In Pioneer [Australian Competition and Consumer Commission v Pioneer Concrete (Qld) Pty Ltd [1996] ATPR 41 ,579] Lockhart J said (at 41,582): "I am of the view that the agreement that has been reached, subject to the Court's concurrence, is broadly in accord with what the Court would have done itself based upon the facts as I have read them from the affidavits, and I think the result is a sensible one. I propose to endorse it." In TNT [Trade Practices Commission v TNT Australia Pty Ltd [1995] HCA 4 ; [1995] ATPR 40 ,161] Burchett J said (at 40,165): "[I]t cannot be denied that the fixing of the quantum of a penalty is not an exact science. It is not done by the application of a formula, and, within a certain range, courts have always recognised that one precise figure cannot be incontestably said to be preferable to another." When the Court approaches the task of assessing a penalty under s 76, or of determining whether an agreed penalty is appropriate, there are certain principles which must be kept steadily in mind. The section itself lays down that the penalty is to be "appropriate having regard to all relevant matters", and then indicates certain matters which the legislature regarded as relevant... Reference may also be made to Australian Competition & Consumer Commission v Econovite Pty Ltd [2003] FCA 964 at [11] where French J stated that the " Court has, over many years, accepted as a general principle that it should encourage fair and appropriate settlements to reduce the burdens of litigation on public and private resources ". See also: Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd [2004] FCA 693 at [15] [18], [2004] FCA 693 ; 207 ALR 329 at 332 3 per Lee J; Australian Competition & Consumer Commission v FChem (Aust) Ltd [2008] FCA 344 at [22] [27] per Cowdroy J. These comments were obviously directed to the specific statutory provisions and objectives of the 1974 Act. 35 But, and as noted by the Full Court in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [59] [79] by Branson, Sackville and Gyles JJ, there have been decisions which " have expressed reservations about the approach taken in NW Frozen Foods ". In Mobil Oil a pecuniary penalty was sought in respect to a contravention of s 10 of the Petroleum Retail Marketing Sites Act 1980 (Cth). The resolution of those reservations was there effected by a direction given by the Chief Justice pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the jurisdiction of the Court should be exercised by a Full Court in respect to the following question: Where the parties propose an agreed amount to be imposed as a penalty pursuant to s 13 of the Petroleum Retail Marketing Sites Act 1980 (Cth), is the Court bound by the decision in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 to consider whether the proposed amount is within the permissible range in all of the circumstances and, if so, impose a penalty of that amount? 36 That question was answered: " No, but the reasons in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 disclose no error of principle ". The Full Court reviewed the authorities and observed: [51] The following propositions emerge from the reasoning in NW Frozen Foods: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range. Five further points were there made by their Honours, being: [53] First, the rationale for giving weight to a joint submission on penalty is said by the Court to be the savings in resources for the regulator and the Court, as well as the likelihood that a negotiated resolution will include measures designed to promote competition. As Jeremy Thorpe points out, a related advantage is that the savings in resources can be used by the regulator to increase the likelihood that other contraveners will be detected and brought before the courts. This has the effect of increasing deterrence which is one of the principal justifications, if not the only justification for imposing civil penalties under the TP Act or the Sites Act: J Thorpe, "Determining the Appropriate Role for Charge Bargaining in Pt IV of the Trade Practices Act" (1996) 4 Comp & Cons LJ 69, at 72 74. ... [54] Secondly, the sixth proposition drawn from the reasoning in NW Frozen Foods does not mean, in our opinion, that the Court must commence its reasoning with the proposed penalty and limit itself to considering whether that penalty is within the permissible range. A Court may wish to take that approach. However, it is open to a Court, consistently with the reasoning in NW Frozen Foods, first to address the appropriate range of penalties independently of the parties' proposed figure and then, having made that judgment, determine whether the prepared penalty falls within the range. [55] Thirdly, as has been noted, the appellant in NW Frozen Foods admitted contravening the TP Act and had reached agreement with the ACCC upon the facts to be put before the Court. There was no suggestion that the admissions or statement had been tailored or modified to reflect the difficulties faced by the ACCC in proving its case. The Full Court therefore acted on the basis of clear admissions and a detailed statement of agreed facts setting out how the contraventions had occurred. ... [56] Fourthly, as the Full Court in Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd [2002] ATPR 41-851 , has pointed out, the regulator should always explain to the Court the process of reasoning that justifies a discounted penalty. ... ... [58] Fifthly, there is nothing in NW Frozen Foods that is inconsistent with any of the following propositions: (i) The Court, if it considers that the evidence or information before it is inadequate to form a view as to whether the proposed penalty is appropriate, may request the parties to provide additional evidence or information or verify the information provided. If they do not provide the information or verification requested, the Court may well not be satisfied that the proposed penalty is within the range. (ii) If the absence of a contradictor inhibits the Court in the performance of its duties under s 76 of the TP Act, s 13 of the Sites Act, or similar legislation, it may seek the assistance of an amicus curiae or of an individual or body prepared to act as an intervenor under FCR, O 6 r 17. (iii) If the Court is disposed not to impose the penalty proposed by the parties, it may be appropriate, depending on the circumstances, for each of them to be given the opportunity to withdraw consent to the proposed orders and for the matter to proceed as a contested hearing. See: Australian Competition & Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085 at [13] [18] per Nicholson J. Most recently, it has been said that the " upshot of the authorities is that the Court should not depart lightly from a joint position put forward by the parties. The inquiry to be undertaken is not whether the Court would have arrived at the same figure as the parties, but whether the proposal fixes an appropriate amount 'within the permissible range' of penalties that might properly be imposed ": Australian Competition & Consumer Commission v Oobi Baby Pty Ltd [2008] FCA 1488 at [9] per Finkelstein J. See also: Beaton-Wells C, 'Judicial Scrutiny of Penalty Agreements to Increase' (2005) 13 TPLJ 59. 37 In the present proceeding it is considered that the principles expressed in NW Frozen Foods and Mobil Oil are equally applicable to a proceeding in which a civil penalty is sought under the Therapeutic Goods Act and where an agreement has been reached as between the Regulator and those against whom the penalty is sought. 41 Part of the agreement in the present proceeding, which has avoided potential difficulties and complexities, is that the First and/or Second Respondent pay a penalty in the revised sum of $130,000. The question remains as to whether the Court considers that such a sum is " appropriate " within the meaning of s 42Y(2). As was recognised by Burchett and Kiefel JJ in NW Frozen Foods , " the quantum of a penalty cannot be an exact science ": [1996] FCA 1134 ; (1996) 71 FCR 285 at 290.


case_title: Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17 , 243 ALR 556


case_text: Thus, in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 French J made the following observations in the context of assessing the penalty to be imposed pursuant to s 76(1) of the Trade Practices Act (at 52,152 52,153). The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following: 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. Those observations are both an elaboration of the terms of s 76(1) itself and directed to the legislative context set forth in the 1974 Act. Comparable principles have also been applied when assessing penalties under the Superannuation Industry (Supervision) Act : Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 , 60 ATR 518 ; Australian Prudential Regulation Authority v Holloway [2000] FCA 1245 , 45 ATR 278. 25 In Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 , 136 LGERA 89 Sackville J reviewed the authorities and likewise concluded that the specific legislative context in which a penalty is being sought must obviously prevail. His Honour was there considering the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Reference was made to the checklist provided by French J in the CSR case and His Honour continued: [58] The principles formulated in the context of s 76(1) of the TP Act provide guidance in proceedings for pecuniary penalties under the EPBC Act, although they cannot be transferred uncritically into the rather different context of proceedings seeking the imposition of penalties for environmental damage to protected sites. Obviously enough, for example, the degree of market power is a consideration likely to be highly relevant to a penalty for a contravention of Pt IV of the TP Act, but is not likely to be relevant to the imposition of a penalty under the EPBC Act. Similarly, the question of a corporate culture may not necessarily have relevance to proceedings under the EPBC Act, although whether a contravener has taken remedial action to minimise environmental damage may be significant on the question of penalty. On the other hand, there may be circumstances relevant to proceedings under the EPBC Act that have no relevance to proceedings under the TP Act. In the end, while the statutory criteria must of course be taken into account, each case must depend upon its own unique circumstances. His Honour's decision was affirmed on appeal: Greentree v Minister for Environment and Heritage [2005] FCAFC 128 , 144 FCR 388. The application by the trial judge of the " principles " he identified does not appear to have been the subject of debate on appeal: [2005] FCAFC 128 at [51] [57]. 26 Also of general relevance to most (if not all) civil penalty provisions is the significance that a pecuniary penalty may have for deterrence upon both the current offender and others: cf Trade Practices Commission v CSR Ltd (1990) ATPR 41-076 ; Australian Competition & Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666 at [53] per Bennett J; Australian Competition & Consumer Commission v Gullyside Pty Ltd [2005] FCA 1727 at [34] per Kiefel J; Australian Competition & Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 at [11] ; Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (No 4) [2006] FCA 21 at [15] per Goldberg J. A " civil penalty ", it has been said, " needs to be sufficiently high to deter contravention by others, but not so high as to be oppressive ": Vivian v Fitzgeralds [2007] FCA 1602 at [29] per Logan J. An apparent limited capacity of a respondent to pay cannot mitigate against the need for an appropriate pecuniary penalty to be applied: Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2) [2006] FCA 1399 at [41] , [2006] FCA 1399 ; 155 FCR 377 at 386 7 per Nicholson J. See also: Beaton-Wells C, 'Recent corporate penalty assessment under the Trade Practices Act and the rise of general deterrence' (2006) 14 CCLJ 65; Yeung K, 'Quantifying Regulatory Penalties: Australian Competition Law Penalties in Perspective' (1999) 23 Melb Univ L Rev 440 (particularly at 468 74). 28 In addition to the more general factors referred to in CSR , and in the specific context of the Therapeutic Goods Act , there was agreement between the parties that further " relevant matters " within the meaning of s 42Y(3) also included (in particular) the following: (i) the object of maintaining a national system of controls relating to the quality, safety, efficacy and timely availability of therapeutic goods; (ii) the object of creating a national Register; (iii) the fact that the Act creates both civil and criminal offences, the latter being punishable by imprisonment; (iv) the particular difficulties that may be encountered in detecting a contravention of the 1989 legislation; and (v) the particular difficulties that may be confronted if an application was to be defended and the Secretary put to proof. All of these matters place emphasis upon an important public interest in maintaining the integrity of the legislative regime in respect to therapeutic products. Further matters of relevance in the present statutory context, as in many (if not all) civil penalty cases are: (vi) whether or not there has been co-operation by a respondent in the conduct of a proceeding; and (vii) whether or not there has been agreement as to the relief to be granted. 29 These matters, it is considered, emerge from a proper construction of the Act itself. They are only reinforced by a recognition that s 42Y was inserted by way of an amendment effected by the Therapeutic Goods Amendment Act (No 1) 2006 (Cth). During the course of the Second Reading Speech in the House of Representatives on 17 August 2005 of the Therapeutic Goods Amendment Bill 2005 (Cth), the then Minister for Health and Ageing said: The bill introduces a parallel civil penalty regime for breaches of the act. The inclusion in the act of civil penalties, alongside criminal penalties, will allow for an alternative and quicker process for dealing with a wide range of legislative breaches. Civil penalties are expected to be more effective in deterring and preventing non-compliance with regulatory requirements by body corporates, who represent the bulk of those regulated under the Therapeutic Goods Act 1989 and regulations. Higher penalty levels attach to civil penalties because they are designed to provide adequate incentives, especially in relation to well-resourced corporate entities, for deterring breaches of regulatory requirements under the act. The inclusion of alternative civil penalties and criminal offences is an effective strategy that has worked well under other Commonwealth legislation. 30 Prior to the commencement of the hearing on 7 October 2008, there was agreement between the parties as to the facts; but there was no agreement as to the relief to be granted. At that stage, the task of the Court was to apply the principles to such facts as were the subject of agreement and to those further facts set forth in three Affidavits filed by the Respondents and the cross-examination of those deponents.


case_text: For the purposes of s 42Y(3)(b) , it may finally be noted, the Secretary does not maintain that there has been " any loss or damage suffered as a result of the contravention ". But, as was pointed out by Olney J in Trade Practices Commission v ICI Australia Operations Pty Ltd [1991] FCA 527 ; (1991) 105 ALR 115 in the context of pecuniary penalties being sought under s 76 of the Trade Practices Act for resale price maintenance, " an absence of loss or damage is not a mitigating factor ". His Honour observed at 118 19: ... The Act also requires that regard be had to any loss or damage suffered as a result of the act or omission. In the facts of the present case there appears to be no basis upon which any loss or damage can be identified. Whatever may have been the circumstances that induced all other Victorian distributors to agree to maintain retail prices at the levels nominated by ICI, it is the conduct in relation to MRW and Heinrich O'Loughlin which is the subject of these proceedings. Nothing has been said to indicate that either of these companies, nor indeed any of their customers, suffered loss or damage by the attempt to induce them to maintain a minimum price. However, I do not think that the absence of loss or damage is necessarily a mitigating factor. In a case where the breach of the Act is an attempt to induce a reseller to impose a minimum price for goods supplied to the reseller, the question of loss or damage will rarely, if ever, arise. The Act does not distinguish in terms of culpability between the various types of conduct which constitute the practice of resale price maintenance. The same conclusion was also reached by Nicholson J in Australian Communications and Media Authority v Clarity1 Pty Ltd (No 2) [2006] FCA 1399 at [29] , [2006] FCA 1399 ; 155 FCR 377 at 384 when considering s 24(2) of the Spam Act 2003 (Cth) . The same conclusion should also be reached in respect to s 42Y(3) of the 1989 Act now under consideration.


case_title: Tran v Commonwealth [2008] FCA 901 , 103 ALD 290


case_title: Vivian v Fitzgeralds [2007] FCA 1602


case_outcome: distinguished

case_title: Wallersteiner v Moir [1974] 1 WLR 991

case_text: The factual basis upon which a declaration may be made, however, seems to have evolved over time. Even quite recently it has been observed that the granting of declaratory relief has " always been regarded with much respect... and ought not to be made on admissions of the parties or on consent, but only if the court was satisfied by evidence ": Wallersteiner v Moir [1974] 1 WLR 991 at 1029 per Buckley LJ.


case_text: is an application for leave to appeal from a decision of the Federal Magistrates Court given on 28 April 2006. On that date the Federal Magistrates Court dismissed an application to quash a decision of the Refugee Review Tribunal of 15 December 2005. It did so pursuant to r 13.03A(c) of the Federal Magistrates Court Rules, because the applicant did not then appear. Consequently, the decision of the Federal Magistrates Court was an interlocutory judgment requiring leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth): See MLGXAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 966. The applicant has not appeared on his motion. He has been notified of the hearing date in accordance with the Court's direction by letter to his address for service dated 13 July 2006. He applied for a fee waiver to be able to file his application. On that document he provided a mobile telephone number. Efforts to contact him at that mobile telephone number, both today and on earlier occasions by the Court, have proved unsuccessful. Not only has the applicant not appeared today and not appeared before the Federal Magistrates Court on the hearing of his application then, but he also did not appear before the Tribunal at the hearing which it fixed for him to give oral evidence and to make submissions. He did not contact the Tribunal to explain his failure to attend. One cannot help but have the suspicion that the applicant is simply using the opportunities provided to him under the law to prolong his stay in Australia. His application for a protection visa was refused, first by a delegate of the first respondent on 15 September 2005, and then by the Tribunal on 15 December 2005, in essence, because his claims were not established to the satisfaction of the initial decision-maker or the Tribunal on the material before them. As the applicant has not appeared today on his own motion, I am entitled to proceed in his absence.


case_text: Heydon J D, Cross on Evidence (7 th Australian ed, 2004) sets forth as follows the circumstances in which a common interest privilege may arise (at [25265]): Where in circumstances of a mutual interest in a particular transaction or transactions the recipient of legal advice relating to such transactions passes documents or information containing that advice to someone who shares that interest, the essential question in each case is whether the nature of their mutual interest in the context of their relationship is such that the party to whom the documents are passed receives them subject to a duty of confidence which the law will protect in the interests of justice. Two persons interested in a particular question will not have a common interest if their individual interests in the question are selfish and potentially adverse to each other. ... See also: University of Western Australia v Gray (No 12) [2007] FCA 396 at [4] per French J. Potential differences in the respective positions of parties may lead to their not having a " common interest ": eg, Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410. Thus, in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 , no common interest privilege arose as between the Commission and entities providing witness statements to the Commission in circumstances where the Commission was asserting that those entities had been involved in breaches of the Trade Practices Act 1974 (Cth). " In that respect they each had interests which were either adverse, or potentially adverse, to each other. In such circumstances common interest privilege cannot arise as there is no common interest ": (1998) 81 FCR at 564 per Goldberg J.


case_title: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526


case_text: A " mere common interest in the outcome of litigation will be sufficient to enable any party with that interest to rely on " common interest privilege: Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 132 FLR 466 at 472 per Sheller JA (Waddell A-JA agreeing). No submission was advanced that for a common interest privilege to be sustained there had to be such an identity of interests that the parties concerned could (had they chosen to do so) have used the same solicitor. 11 It is not considered that such a clear distinction can be drawn between those issues going to liability as opposed to quantum as is contended by the Applicants. 12 Although not of immediate relevance, s 122(2) and (4) of the Evidence Act 1995 (Cth), it may be noted, provides for circumstances in which " client legal privilege " may be lost by reason of the disclosure of evidence. An exception to that provision is that set forth as follows in s 122(5)(b): Loss of client legal privilege: consent and related matters ... (5) Subsections (2) and (4) do not apply to: ... (b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.


case_text: In the circumstances of the present proceeding, it is considered that there is a sufficient common interest such that each of the documents is privileged. Common interest privilege is not a concept " rigidly defined " and it is a question of fact in each case whether there is a sufficient mutual interest: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 280. 9 Common to the position of the Respondents is their alleged factual involvement in the breaches of copyright being pursued by the Applicants. The fact that one or other of them has decided not to put in issue an entitlement of declaratory and injunctive relief does not otherwise deny a common involvement. All resist relief in the form of damages or an account of profits. All of the relevant Respondents also have in common a Defence asserting the illegality of the sales of the films the subject of the proceeding. And there has been no Cross-Claim filed as between any of the Respondents. 13 Nor is there considered to be anything " unfair " in maintaining the privilege otherwise attaching to such legal advice or views as were being exchanged between the solicitors for the Respondents: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275. The limited exchange of views as between the solicitors on a confidential basis could not be construed as a waiver of privilege: (1995) 36 NSWLR 275 at 286. 14 There remains outstanding those documents the subject of the reservation. These documents were described as " copies of tax invoices from Tzovaras Legal to the Fifth Respondent, including detailed narration of work undertaken by Tzovaras Legal on behalf of the Fifth Respondent in relation to the proceedings, including communications between Mr Tzovaras and Mr Armenis ". This is the document of 108 pages identified in the Affidavit of Ms Chylek as falling within paragraph [4] of the Subpoena . 15 Tzovaras Legal were lawyers formerly acting on behalf of the Fifth Respondent.


case_title: University of Western Australia v Gray (No 12) [2007] FCA 396


case_text: On 19 May 2006, I heard an application for interlocutory relief in this matter. The application was brought by Ms Kate Paras, who is an employed solicitor with the Department of Infrastructure of the State of Victoria. The proceedings and the interlocutory application arose from the purported termination of her employment on Friday 12 May 2006. It is unnecessary to repeat the detailed facts set out in my reasons for judgment of 19 May 2006: see Paras v Public Service Body Head of the Department of Infrastructure [2006] FCA 622. 2 Upon the applicant giving certain undertakings, I ordered on 19 May 2006 that until the hearing and determination of this proceeding or until further order, the respondents be restrained from treating as valid or acting upon the purported notice of termination of employment dated 11 May 2006 or the purported dismissal of the applicant from her employment with the first respondent. 3 The respondents have now applied by notice of motion dated 25 May 2006 for orders that, in summary, the injunctive order of 19 May 2006 be discharged, or alternatively it be stayed on the giving of an undertaking by the respondents to pay out the applicant's entitlements, or alternatively for an order that the time for filing an application for leave to appeal be extended to 2 June 2006.


case_text: The first issue which arises concerns the application to discharge the injunctive order made on 19 May 2006. There is a preliminary question as to the circumstances that must be demonstrated before a court would consider varying or discharging an interlocutory injunction. Under O 35 r 7 of the Federal Court Rules , the Court has power to vary or set aside an order. Under sub-rule (1), the power extends to any judgment or order before it has been entered. After entry, the power is limited to stipulated cases which include the case where the order is interlocutory: see sub-rule (2)(c). In each case, the power is discretionary, and the authorities in this Court indicate that it is ordinarily only exercised in exceptional circumstances: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552; Dudzinski v Centrelink [2003] FCA 308 (' Dudzinski' ) at [11]; and McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25] . Where the order has not been entered, an order varying or setting aside the terms of a judgment can also be made to correct error or oversight or to give effect to a review of the contemplated order so that the orders made more adequately deal with the matter as litigated before the Court: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) 18 ATPR 41-508. 5 The authorities indicate that the kind of exceptional circumstances that might attract the power of discharge or variation include where an interlocutory order was obtained by fraud or non-disclosure of material facts, or through an accident or mistake that occurred without the fault of the parties seeking the relief under O 35 r 7: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-551. The court's discretion to vary or set aside an order is to be exercised with great caution having regard to the importance of the public interest in the finality of litigation: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 (' Brown' ) at 178; Baker v Beckett (unreported, Supreme Court of NSW, Cohen J, 26 May 1998) (' Baker' ); and Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 All ER 745 (' Chanel' ) at 751. Similar principles apply to the variation or discharge of final orders: see Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 (' Autodesk' ) at 302, 307, 309-310, 317-318 and 321. Further, as Spender J emphasised in Dudzinski in relation to O 35 r 7(2)(c), the rule is not an alternative to the appellate procedure in respect of interlocutory judgments, nor is it to be invoked for the purpose of allowing a party to present a case a second time to its better advantage. In my opinion, these principles apply, a fortiori, where the party applying for discharge of an interlocutory order seeks to reargue the issues that have already been determined by reference to additional evidence that was available to it on the earlier occasion but which it chose not to advance: see also Autodesk at 310 per Brennan J.


case_title: Dudzinski v Centrelink [2003] FCA 308


case_text: The first issue which arises concerns the application to discharge the injunctive order made on 19 May 2006. There is a preliminary question as to the circumstances that must be demonstrated before a court would consider varying or discharging an interlocutory injunction. Under O 35 r 7 of the Federal Court Rules , the Court has power to vary or set aside an order. Under sub-rule (1), the power extends to any judgment or order before it has been entered. After entry, the power is limited to stipulated cases which include the case where the order is interlocutory: see sub-rule (2)(c). In each case, the power is discretionary, and the authorities in this Court indicate that it is ordinarily only exercised in exceptional circumstances: see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-552; Dudzinski v Centrelink [2003] FCA 308 (' Dudzinski' ) at [11]; and McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25] . Where the order has not been entered, an order varying or setting aside the terms of a judgment can also be made to correct error or oversight or to give effect to a review of the contemplated order so that the orders made more adequately deal with the matter as litigated before the Court: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) 18 ATPR 41-508.


case_title: Yenald Nominees Pty Ltd v Como Investments Pty Ltd (1996) 18 ATPR 41-508