case_text: The Minister also referred me to more recent authority including Stone J's decision in SZGIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1739 [31] to like effect. The Minister submitted that the Tribunal had a duty to consider all the material before it for the purposes of identifying what claim or claims an applicant for review had made in support of the claim for a protection visa, relying on the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 (see e.g. at 393-394 [23]-[24] and [26]). For that purpose it was said that the Tribunal was entitled to have regard to all of the material before it.


case_outcome: discussed

case_text: The Minister argued that for the obligation to provide particulars under s 424A(1) to be engaged, the Tribunal must consider that the information to which it refers is adverse to the applicant for review's claim to have the review decided in his or her favour and must be integral to the decision. The Minister relied on a line of authority in the Court, in particular the decision of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 478 [33]. Moreover, the Minister submitted that to the extent that the Tribunal's reasons identified omissions in the claims made by the appellant in support of her application for a visa it was the omissions and nothing more which constituted the reason why, or the integral part of the reasoning why, the Tribunal came to reject the appellant's claim. In that respect the Minister relied upon what Finn and Stone JJ had earlier said in the VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 [24], namely: '[24] As to the first of these, there is now a considerable body of case law concerned with the compass of the term "information" in its s 424A(1) setting. The following propositions emerge from it: (i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word "information" in s 424A(1) has the same meaning as ins 424: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at 217-18 [19]-[22]; and (iii) the word does not encompass the tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC2000108482 at [25]; approved [2002] FCAFC 120 ; BC 200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] .' 20 The task of statutory construction obliges courts to construe a relevant provision so that it is consistent with the language and purpose of all the provisions in the statute as is pointed out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381 [69] . When s 424A refers to 'the reason or part of the reason' it does not divide the reasoning process into what is said to be 'integral' from what the Tribunal is required to express as its reasons in the language of s 430(1). In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 478 [33] Finn and Stone JJ discussed the need to isolate what their Honours termed to be 'the integral parts of the reasons for the tribunal's decision'. Their Honours said that task, necessarily, was an interpretive one. 25 Moreover, there is a number of judgments in the Court in which conflicting views have been expressed as to whether the general proposition in VAF v Minister (2004) 206 ALR 471 at 447 lays down a rule of general application that identified gaps, defects or lack of detail or specificity in evidence or conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc. can never amount to information. In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 at [21] , Allsop J pointed out there may be a distinction, sometimes fine, but nevertheless important, between information which may be knowledge acquired by the Tribunal and the subjective appraisal or thought processes of it. His Honour concluded (at [2005] FCA 1200 at [29] - [30] ): 'If, as here, the very form and content of a statement (including what was not said) is central to the rejection of virtually all of the evidence of the appellant, I do not see anything [Branson J said] in NIAH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 124 FCA 223 at [28] as necessarily inconsistent with an application of s 424A. To say that there is no information here because the statement (which is information) lacked the aspect now being adduced would be to fail to recognize that the information that is central to the reason for the decision is that the appellant said so much and no more on an earlier occasion. That is the relevant information.'


case_outcome: referred to

case_text: The CEPU contested the allegations made against it. The proceeding, in so far as it involved allegations against the CEPU, went to trial before Young J. On 19 December 2006 his Honour made orders declaring that the CEPU had been an accessory to the contraventions, by Edison, of ss 45E(3) and 45EA of the Act . His Honour further ordered that the CEPU be restrained for a period of three years from engaging in any repetition of such conduct directed to Edison: see Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777. Having heard further submissions relating to the quantum of penalty and costs his Honour, on 16 January 2007, ordered that the CEPU pay a penalty of $125,000 and costs of $200,000: see Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No. 2) [2007] FCA 11. The CEPU has lodged an appeal against his Honour's decision. The appeal grounds challenge his Honour's findings in relation to liability and penalty.


case_text: The CEPU contested the allegations made against it. The proceeding, in so far as it involved allegations against the CEPU, went to trial before Young J. On 19 December 2006 his Honour made orders declaring that the CEPU had been an accessory to the contraventions, by Edison, of ss 45E(3) and 45EA of the Act . His Honour further ordered that the CEPU be restrained for a period of three years from engaging in any repetition of such conduct directed to Edison: see Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777. Having heard further submissions relating to the quantum of penalty and costs his Honour, on 16 January 2007, ordered that the CEPU pay a penalty of $125,000 and costs of $200,000: see Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No. 2) [2007] FCA 11. The CEPU has lodged an appeal against his Honour's decision. The appeal grounds challenge his Honour's findings in relation to liability and penalty. 11 Initially, I was concerned that the imposition of a monetary penalty on Edison which was only slightly less than that imposed on the CEPU might not be in accord with the parity principle having regard to the finding of Young J that the CEPU was the instigator of the offending conduct and that the CEPU could not claim the benefit of any discount by reason of any cooperation with the ACCC's investigation or an early willingness to acknowledge liability. However, having heard argument on the point, I was persuaded that the imposition of a penalty of $120,000 on Edison would not contravene the parity principle. I have come to this view having regard to a number of factors. The first is that the CEPU was penalised as an accessory rather than a party principal. Moreover it was penalised in respect of a single course of conduct which extended over two weeks: see [2007] FCA 11 at [40] - [41] , [50]. Edison, on the other hand, committed two separate contraventions of the Act , one under s 45E and the other under s 45EA. The contravention of s 45E occurred when Edison, in August 2001, entered into the agreement with the CEPU. The contravention of s 45EA , which occurred when Edison gave effect to the agreement, involved conduct undertaken over a period of more than two years (21 August 2001 until 20 November 2003). 12 The nature of the contravening conduct to which Edison has admitted and the circumstances in which it occurred appear from the passages in the agreed statement of facts extracted above at [5]. The demand, by the CEPU, which led to the making of the offending agreement, was made at a time when Edison was peculiarly susceptible to industrial pressure by reason of pressing commercial imperatives. The principal victim of the agreement was DJN. It was unable to obtain work from Edison at the Loy Yang site for over two years. Edison was deprived of the option of engaging DJN and any other subcontractors who did not have certified agreements with the CEPU. It is not possible to quantify the losses sustained by DJN and Edison which were caused by the agreement. Those losses do not appear to have been significant in monetary terms. 13 It is necessary, in fixing an appropriate penalty, to have regard to the need to deter other companies from engaging in similar conduct. In my view a penalty of the magnitude proposed serves this purpose.


case_outcome: cited

case_text: The maximum monetary penalty which may be imposed upon a corporation for a contravention of ss 45E and 45EA of the Act is, in each case, $750,000: see s 76(1A) of the Act . Edison's admissions, therefore, render it liable to a maximum aggregate penalty of $1.5m. It was submitted that an appropriate penalty, absent any ameliorative factors, was one tenth of that amount, namely $150,000. A discount of $30,000 was applied to take account of Edison's cooperation with the ACCC in the course of the ACCC's investigation and Edison's early admission of liability: cf Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851.


case_text: The declarations, proposed by the parties, and made by the Court, identify the relevant conduct and declare that it involved contraventions of the Act . Such declarations are appropriate in circumstances such as the present. They serve the public interest by making it plain that conduct of the kind admitted by Edison contravenes the Act : see Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 at 333; Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91.


case_title: Australian Competition and Consumer Commission v NW Frozen Foods (1996) ATPR 41-515

case_text: In determining the "proper range" within which a monetary penalty for contravention of the Act falls a wide range of considerations has potential application. The Court is required, by s 76(1) of the Act , to have regard "to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under ... Part [VI] to have engaged in any similar conduct." Additional factors have been identified by the Court: see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-153; ACCC v NW Frozen Foods (1996) ATPR 41-515 at 42,444-42,445. To the extent that these factors have application in the circumstances in the present case, I have taken them into account.


case_text: The agreement between the ACCC and Edison had been entered into well before Young J determined that a penalty of $125,000 should be imposed on the CEPU. In these circumstances the principle of parity assumes considerable importance in determining the appropriate penalty to be imposed on Edison. That principle of parity, better known in the context of criminal sentencing, is applicable in cases such as the present: see Northwest Frozen Foods at 295. It requires, inter alia, that disparate penalties should not be imposed on co-offenders such as to engender "a justifiable sense of grievance" on the part of one of them or as to "give the appearance that justice has not been done": see Lowe v The Queen [1984] HCA 46 ; (1984) 154 CLR 606 at 611; Postiglione v The Queen [1997] HCA 26 ; (1997) 189 CLR 295 at 301, 338. The tests are objective and they are to be applied "having regard to the different circumstances of the co-offenders in question and their different degrees of [culpability]": Postiglione at 302.


case_text: The parties were agreed that a single pecuniary penalty should be imposed in respect of all of the contravening conduct. It was submitted that the appropriate amount was $120,000. The parties acknowledged that it remained a matter for the Court to make an independent judgment as to the amount of the penalty. The exercise of the Court's powers in this regard is guided by the principles outlined in the joint judgment of Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 291 . Their Honours said: "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 circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, except in a clear case." See also Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; (2004) ATPR 41-993.


case_outcome: followed

case_title: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285


case_title: Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53


case_title: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076


case_text: are various considerations that may be relevant in determining an appropriate penalty for a contravention of the Building and Construction Industry Improvement Act . They include: (a) the circumstances in which the relevant conduct took place; (b) the nature and extent of the conduct which led to the breaches, including whether the conduct was undertaken in deliberate disregard of the applicable law; (c) the consequences of the contravening conduct, including the nature and extent of any loss or damage sustained as a result; (d) where more than one contravention of the Act is involved, whether the contraventions are properly seen as distinct or whether they arise out of the one course of conduct; (e) whether the respondent has previously been found to have engaged in similar unlawful conduct; and (f) the need for specific and general deterrence. See Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 ; (2008) 177 IR 61 , at 69 [40] per Tracey J and Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714 ; (1999) 94 IR 231 at [7] - [8] per Branson J, both of which have been cited with approval. These factors are relevant in this case. In Stuart-Mahoney , Tracey J also included a number of other factors, such as the size of the business enterprise involved; whether senior management was involved in the breaches; whether the party committing the breach had exhibited contrition; whether the party committing the breach had taken corrective action; whether the party committing the breach had cooperated with the enforcement authorities; and the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements. As appears in the following discussion, some of these factors have some bearing on the appropriate penalties in this case. It is convenient to consider the question of penalties, having regard to the various factors falling for consideration. Similar unlawful conduct in the past is relevant and may justify a heavier penalty than might otherwise be imposed, although not a penalty that is disproportionate to the contravention in question: see Coal and Allied Operations Pty Ltd (No 2) 94 IR at 232 [7]-[8] per Branson J. As Tracey J observed in Stuart-Mahoney 177 IR at 70 [44], "[s]imilar previous conduct demonstrates that the respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions". Also, as his Honour went on to say: Conduct which is of a different character does not assist this assessment: see Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 389 [67] . Similar conduct which has been found to contravene other legislative provisions will have potential relevance. In this case, any previous contraventions by the respondents of s 43 of the Building and Construction Industry Improvement Act will be relevant. The applicant submitted that the Union had previously been found to have contravened s 43 of the Building and Construction Industry Improvement Act in Stuart-Mahoney 177 IR 61. In Stuart-Mahoney 177 IR 61, the respondent Union admitted (on 16 April 2008) that, in October 2005, it had contravened ss 38 and 43 of that Act. On 19 September 2008, the Court made declarations to that effect and imposed penalties. The respondents noted, correctly in my view, that this contravention of s 43 is not properly treated as a prior contravention: the conduct in question preceded the first contravention here (on 15 February 2006) but was not the subject of judicial decision (or admission) until last year. Stuart-Mahoney shows, however, that the Union did in fact engage in similar conduct prior to 15 February 2006 a fact that may be taken into account although accorded less significance than if the matter had been dealt with by the Court before 15 February 2006. In Stuart-Mahoney 177 IR at 71 [49], Tracey J held that the Union was a very large national organisation. On the basis of Mr Gregor's affidavit, I would reach the same conclusion. Its financial report for the year ending 31 December 2007 stated that, as at 31 December 2007, the Union had 103,850 members and net assets of $382,393. Mr Mates stands in a very different position to the Union. He is an individual employed as a worker on a building site. There was in this case no evidence that any senior official or members of the governing bodies of the Union were involved in the contravening conduct. Accordingly, the present case is distinguishable from the situation in Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847 ; (2005) 224 ALR 467 , where Merkel J found (at 475 [27]) that CBA acted through senior executives in its contravening conduct. The case is also distinguishable from Stuart-Mahoney 177 IR 61, where (at 71 [51]) Tracey J noted that the contraventions in that case took place with the knowledge and consent of senior Union officials. This is not an aggravating circumstance in this case. Section 3(1) of the Building and Construction Industry Improvement Act specifically states that the main object of the Act is "to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole". The imposition of penalties for contraventions of provisions such as s 43 is one way in which this is achieved. As already noted, the contraventions under consideration were clear. Bearing these factors in mind, the need for general deterrence is plain enough, with the result that penalties should be imposed at what has been termed a "meaningful level" to serve as a general deterrence to others who may be disposed to engage in the conduct in question: see Stuart-Mahoney 177 IR 61 at 72 [58], citing Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 at [66] ; Finance Sector Union v Commonwealth Bank of Australia 224 ALR at 479 [41]; and Australian Competition and Consumer Commission v ABB Transmission & Distribution Ltd [2001] FCA 383 ; [2001] ATPR 41-815 at [13] . The respondents argued for lower penalties, bearing in mind Stuart-Mahoney 177 IR 61, which they noted involved the imposition of an overtime ban over a period of six days for all employees, in response to the builder's refusal to engage apprentices. The trial judge held that the ban was designed to disrupt work, and senior management of the Union knew of and consented to its imposition. The respondents submitted that, in all the relevant circumstances, the appropriate level of penalty that should be imposed on the Union was $10,000, and on Mr Mates, $2,500. The respondents argued that such a level of penalty was consistent with the fact that what was involved in this case was significantly less serious than the contravening conduct found in Stuart-Mahoney 177 IR 61 (also a s 43 breach). The applicant replied that this case warranted a significantly higher penalty than in Stuart-Mahoney , noting other alleged features of the respective cases. Ultimately, whilst consideration of Stuart-Mahoney is helpful, the fact remains that each case must be considered, having regard to its own facts. Unsurprisingly, Stuart-Mahoney was different from this case in a number of material respects.


case_text: are various considerations that may be relevant in determining an appropriate penalty for a contravention of the Building and Construction Industry Improvement Act . They include: (a) the circumstances in which the relevant conduct took place; (b) the nature and extent of the conduct which led to the breaches, including whether the conduct was undertaken in deliberate disregard of the applicable law; (c) the consequences of the contravening conduct, including the nature and extent of any loss or damage sustained as a result; (d) where more than one contravention of the Act is involved, whether the contraventions are properly seen as distinct or whether they arise out of the one course of conduct; (e) whether the respondent has previously been found to have engaged in similar unlawful conduct; and (f) the need for specific and general deterrence. See Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 ; (2008) 177 IR 61 , at 69 [40] per Tracey J and Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714 ; (1999) 94 IR 231 at [7] - [8] per Branson J, both of which have been cited with approval. These factors are relevant in this case. Similar unlawful conduct in the past is relevant and may justify a heavier penalty than might otherwise be imposed, although not a penalty that is disproportionate to the contravention in question: see Coal and Allied Operations Pty Ltd (No 2) 94 IR at 232 [7]-[8] per Branson J. As Tracey J observed in Stuart-Mahoney 177 IR at 70 [44], "[s]imilar previous conduct demonstrates that the respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions". Also, as his Honour went on to say: Conduct which is of a different character does not assist this assessment: see Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 389 [67] . Similar conduct which has been found to contravene other legislative provisions will have potential relevance. In support of this proposition, the respondents relied on Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 390 and Temple v Powell 173 IR 189 at 209 [63]. In Leighton Contractors , the Supreme Court of Western Australia was called to fix a penalty for contravention of s 38 of the Building and Construction Industry Improvement Act . In connection with the Union's prior contraventions, after citing with approval the comments of Branson J in Coal and Allied Operations Pty Ltd (No 2) 94 IR 231 (see [9] above), Le Miere J said (at 390 [67]) that: One matter her Honour considered was whether the respondent had previously been found to have engaged in conduct in contravention of Pt XA of that Act. In my view, that is the correct approach. It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the first defendant anywhere in Australia. The first defendant is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the first defendant are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of the conduct of the first defendant through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in questions and are contraventions of different legislation.


case_text: agree with his Honour's observations: compare Williams v Construction, Forestry, Mining and Energy Union (No 2 ) [2009] FCA 548 at [16] per Jessup J and Temple v Powell [2008] FCA 714 ; (2008) 173 IR 189 at 209 [64] per Dowsett J. Further, on 13 March 2009, in Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223 , Jessup J found that, on 31 July 2006, Mr Mates and the Union had committed two breaches of s 43 of the Building and Construction Industry Improvement Act by organising a stoppage of work on a building site and threatening to organise a further stoppage unless the employer engaged a labourer. On 28 May 2009, Jessup J dealt with the matter of penalties: see Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548. (With the consent of the applicant, the respondents advised me that this last-mentioned judgment was the subject of an appeal.) Plainly enough, Williams is not to be treated as a prior contravention on the part of Mr Mates or the Union since the conduct in question post-dated the 15 February 2006 contravention in this case and had not been the subject of any judicial decision until this year. Always bearing this in mind, the findings of contravention of s 43 of the Building and Construction Industry Improvement Act are not necessarily irrelevant to the assessment of penalty and may be taken into appropriate account. In addition to these matters, the applicant relied on various other decisions as indicative of a prior history on the Union's part. In particular, the applicant argued that the Union had a substantial history of engaging in similar conduct because it had been found to have engaged in unlawful coercion on numerous previous occasions contrary to: A lengthier list of judicially determined contraventions of industrial legislation was set out in exhibit MG 2 to Mr Gregor's affidavit, and, as the respondents noted, included matters that were not properly to be treated as prior contraventions. I would not regard this evidence as inadmissible but the matters mentioned are to be accorded substantially less weight than those contraventions specifically mentioned above and, in some instances, virtually no weight at all. Various other judicial statements have been made concerning the significance of a prior contravention in a different state or territory: see A & L Silvestri v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [13] and Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 at [18] - [19] per Jessup J. Nothing to which I have been referred dissuades me from the view that, whilst prior contraventions in any state and territories may be relevant to fixing the penalty to be imposed on the Union, it will be for the Court in each case to consider the question of weight, having regard to all the relevant circumstances. Until Jessup J's decision in Williams [2009] FCA 223 , Mr Mates had not been found to have contravened s 43 of the Building and Construction Industry Improvement Act or any other industrial legislation. The applicant referred to Duffy v Construction, Forestry, Mining and Energy Union (2008) 178 IR 47, in which, on 28 November 2008, Marshall J found that, in October 2005, the Union had contravened s 38 of the Building and Construction Industry Improvement Act . Although the report of the case indicates that Mr Mates was involved in the events resulting in the contravention finding against the Union, there was no finding of contravention against Mr Mates. Further, for present purposes, I accept that s 38 involves consideration of facts of a different kind to that involved in a s 43 contravention. Jessup J's judgment in Williams [2009] FCA 223 was delivered on 13 March 2009, and involved findings that, on 31 July 2006, Mr Mates and the Union had each committed two breaches of s 43 of the Building and Construction Industry Improvement Act . Whilst these breaches cannot be treated as prior contraventions, they can be taken into account in imposing penalties in this case. I note, of course, that they involve judicial findings made earlier this year in respect of conduct five months after 15 February 2006. These considerations affect the weight to be given Williams in imposing penalties here. The applicant submitted that the three contraventions in question here were distinct, although they all related to the respondents' purpose of coercing Hardcorp to meet their demands regarding the re-employment of Messrs Deans and O'Donnell and Ms Singleton at the Mount Street site and the allocation of particular responsibilities and duties. Much the same must also be said of Williams [2009] FCA 223 and Williams (No 2) [2009] FCA 548. Consideration of them is helpful, but ultimately the factors relevant to the imposition of penalties differ.


case_text: agree with his Honour's observations: compare Williams v Construction, Forestry, Mining and Energy Union (No 2 ) [2009] FCA 548 at [16] per Jessup J and Temple v Powell [2008] FCA 714 ; (2008) 173 IR 189 at 209 [64] per Dowsett J. In support of this proposition, the respondents relied on Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 390 and Temple v Powell 173 IR 189 at 209 [63]. In Leighton Contractors , the Supreme Court of Western Australia was called to fix a penalty for contravention of s 38 of the Building and Construction Industry Improvement Act . In connection with the Union's prior contraventions, after citing with approval the comments of Branson J in Coal and Allied Operations Pty Ltd (No 2) 94 IR 231 (see [9] above), Le Miere J said (at 390 [67]) that: One matter her Honour considered was whether the respondent had previously been found to have engaged in conduct in contravention of Pt XA of that Act. In my view, that is the correct approach. It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the first defendant anywhere in Australia. The first defendant is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the first defendant are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of the conduct of the first defendant through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in questions and are contraventions of different legislation. In imposing penalties in respect of admitted breaches of ss 170MN and 178 of the Workplace Relations Act and s 38 of the Building and Construction Industry Improvement Act , Dowsett J said in Temple v Powell 173 IR 189 at 209 [63]: The respondents submitted that in a large organisation such as the CFMEU, with autonomous state branches, it is not necessarily appropriate to treat conduct by all branches throughout the country as relevant past conduct for the purpose of fixing a penalty in connection with the unlawful conduct of one branch. There is substance in that submission. Whether previous misconduct is relevant to fixing a penalty is a question of logic. In some cases a pattern of conduct across the country may suggest a nationwide plan of action or a national culture of misconduct. In other cases it may appear that a particular branch or geographical region has acted alone in adopting a plan of action or has developed a particular culture. It was also submitted that past conduct cannot operate so as to increase the penalty beyond that which is appropriate to the misconduct in question. That proposition mat be correct, but it should not be taken as implying that past misconduct is irrelevant to the fixing of penalty. In neither of these passages was the Court laying down a hard and fast rule that prior contraventions of another autonomous division or branch of the Union should never be taken into account. Whether or not prior contraventions will be relevant and, if relevant, accorded any and what weight will necessarily depend on the nature and circumstances, as disclosed in the record of the prior contraventions. In this context, if it appeared that a series of prior contraventions were part of any nationwide campaign, then this would plainly militate against an offending union. Plainly too, a union, considered as a single entity, cannot shrug off responsibility for prior contraventions just because they were geographically widespread. I accept that, as the relevant legislation provides, an organisation that organises itself into national and state division or branches is accountable for how its representatives operate, whether at divisional or branch level. This does not precisely answer the point at issue, however, because the place where a prior contravention occurred, the status of the Union representative through whom liability arose, and the nature of the organisation (here, including the structure of the Union) are, just like the date and precise nature of the conduct in question, a part of the circumstances to be considered when the weight to be given a prior contravention falls for determination. Prior contraventions may be indicative of a pattern of misconduct on the Union's part or a culture of disregard for the law. Or the circumstances may indicate that care should be taken in giving too much weight to these possibilities, particularly when it is apparent that the liability of the Union has come about through the actions of a site delegate or other local representative or member who may well be more affected by matters close at hand than any shared national interest, culture or concern. In many cases, these may be matters of impression that are not capable of too close analysis.


case_text: engaged in prior to 15 February 2006 (when the first contravention occurred) and for which no contravention was recorded until after 15 February 2006 is not treated as a prior contravention: see Alfred v Walter Construction Group Pty Ltd [2005] FCA 497 at [13] per Branson J. However, similar conduct engaged in prior to 15 February 2006 and for which a contravention was recorded after that date can be taken into account ( Alfred [2005] FCA 497 at [13] ) although will usually be given less weight than a prior contravention as judicially determined: see R v McInerney (1986) 42 SASR 111 at 113 per King CJ and 124 per Cox J. Further, similar conduct subsequently found to have been done after the relevant date (here 15 February 2006) is not irrelevant to the assessment of appropriate penalty. As the applicant noted, there have been cases involving s 170NC that have, in substance, involved judicial findings of similar unlawful conduct by the Union's representatives prior to 15 February 2006: see Alfred v Construction, Forestry, Mining & Energy Union , District Court of New South Wales, 5 March 2004 and Alfred v Walter Construction Group Limited [2005] FCA 497. Although involving different conduct, these two s 170NC cases may be said to demonstrate a similar modus operandi on the Union's part to this case in which coercion is used to secure control of employees on building site. I would regard both these prior contraventions as relevant to the imposition of penalties, although I note that in both cases the conduct in question took place in New South Wales, rather than in Victoria. For reasons explained below, this affects the weight I would attach to them. As noted below, the question of weight is an unavoidable one when considering the significance of prior contraventions. Each of the other s 170NC cases relied on by the applicant is in a different class.


case_title: R v McInerney (1986) 42 SASR 111

case_text: engaged in prior to 15 February 2006 (when the first contravention occurred) and for which no contravention was recorded until after 15 February 2006 is not treated as a prior contravention: see Alfred v Walter Construction Group Pty Ltd [2005] FCA 497 at [13] per Branson J. However, similar conduct engaged in prior to 15 February 2006 and for which a contravention was recorded after that date can be taken into account ( Alfred [2005] FCA 497 at [13] ) although will usually be given less weight than a prior contravention as judicially determined: see R v McInerney (1986) 42 SASR 111 at 113 per King CJ and 124 per Cox J. Further, similar conduct subsequently found to have been done after the relevant date (here 15 February 2006) is not irrelevant to the assessment of appropriate penalty.


case_text: unlawful conduct in the past is relevant and may justify a heavier penalty than might otherwise be imposed, although not a penalty that is disproportionate to the contravention in question: see Coal and Allied Operations Pty Ltd (No 2) 94 IR at 232 [7]-[8] per Branson J. As Tracey J observed in Stuart-Mahoney 177 IR at 70 [44], "[s]imilar previous conduct demonstrates that the respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions". Also, as his Honour went on to say: Conduct which is of a different character does not assist this assessment: see Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 389 [67] . Similar conduct which has been found to contravene other legislative provisions will have potential relevance. In support of this proposition, the respondents relied on Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 390 and Temple v Powell 173 IR 189 at 209 [63]. In Leighton Contractors , the Supreme Court of Western Australia was called to fix a penalty for contravention of s 38 of the Building and Construction Industry Improvement Act . In connection with the Union's prior contraventions, after citing with approval the comments of Branson J in Coal and Allied Operations Pty Ltd (No 2) 94 IR 231 (see [9] above), Le Miere J said (at 390 [67]) that: One matter her Honour considered was whether the respondent had previously been found to have engaged in conduct in contravention of Pt XA of that Act. In my view, that is the correct approach. It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the first defendant anywhere in Australia. The first defendant is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the first defendant are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of the conduct of the first defendant through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in questions and are contraventions of different legislation.


case_text: other judicial statements have been made concerning the significance of a prior contravention in a different state or territory: see A & L Silvestri v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [13] and Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 at [18] - [19] per Jessup J. Nothing to which I have been referred dissuades me from the view that, whilst prior contraventions in any state and territories may be relevant to fixing the penalty to be imposed on the Union, it will be for the Court in each case to consider the question of weight, having regard to all the relevant circumstances.


case_text: contraventions on 15, 17 and 21 February 2006 had the same purpose, namely, to coerce Hardcorp to re-employ Messrs Deans and O'Donnell and Ms Singleton at the Mount Street site and, amongst other things, to have Ms Singleton appointed as OH&S officer on the Mount Street site. This was the common thread running through the offending conduct of 15, 17 and 21 February 2006. To this extent, the comparison with Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585 is justified. Further, the fact of this common thread should be taken into account in fixing penalties, but, in my view, the contravening conduct is not, for this reason, properly seen as one course of conduct. This is because the conduct comprising each of the contraventions was separate and distinct in time and place, and in the coercion that the Union exerted. The conduct on 15 February 2006 involved demands and threats to cause trouble at the Mount Street site if the demands were not met. The conduct on 17 February 2006 involved similar demands and threats but on a different day and place, and in a different context with different participants in the occasion of the contravention. The conduct on 21 February 2006 involved Mr Mates coming on to the site and shutting down the crane. Therefore, these are three separate and distinct contraventions: compare Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at 396-399 [41] - [55] ; [2008] FCAFC 70 at [41] - [55] per Stone and Buchanan JJ. As noted above, where (as here) penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties in aggregate are just and appropriate to the circumstances of the case. As Tracey J said in Stuart-Mohoney 177 IR at 73 [60]: Another factor to be considered is the totality principle. This principle is designed to ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing see: Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14 at [30] referred to with approval by Buchanan J in Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 at [89] . The orthodox position requires the determination of appropriate penalties for each contravention arising from the same course of conduct. The aggregate figure is then considered to ensure that the penalty is an appropriate response to the conduct in question see: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 ; 145 ALR 36 at 53 and Ponzio at [145] per Jessup J. Penalties must also be proportionate to the culpability and seriousness of the respondent's contravening conduct and sufficient to mark the seriousness of that conduct. Neither respondent has expressed any contrition.


case_text: totality principle must, however, apply: see Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 62-63. Where penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties in aggregate are just and appropriate to the circumstances of the case. Penalties must be proportionate to the culpability and seriousness of the respondent's contravening conduct and sufficient to mark the seriousness of that conduct. Penalties must also be sufficiently high to deter repetition by the contravener and others who might be tempted to engage in contravening conduct. Deterrence is a primary objective of penalties. In argument, the parties referred to some considerations beyond those mentioned at paragraph [9] above. I discuss each of these additional matters seriatim before turning to the major issue of deterrence. The first such matter was the size and financial position of the Union.


case_text: course, to say the Union is a large national organisation is not to deny that the Union is a non-profit-making enterprise, a consideration that has sometimes been taken into account in the Union's favour: see Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2004] FCA 517 at [8] per Gray J; Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243 at [44] per Marshall J; and Duffy v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 299


case_title: Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243


case_text: Jessup J's decision in Williams [2009] FCA 223 , Mr Mates had not been found to have contravened s 43 of the Building and Construction Industry Improvement Act or any other industrial legislation. The applicant referred to Duffy v Construction, Forestry, Mining and Energy Union (2008) 178 IR 47, in which, on 28 November 2008, Marshall J found that, in October 2005, the Union had contravened s 38 of the Building and Construction Industry Improvement Act . Although the report of the case indicates that Mr Mates was involved in the events resulting in the contravention finding against the Union, there was no finding of contravention against Mr Mates. Further, for present purposes, I accept that s 38 involves consideration of facts of a different kind to that involved in a s 43 contravention. Of course, to say the Union is a large national organisation is not to deny that the Union is a non-profit-making enterprise, a consideration that has sometimes been taken into account in the Union's favour: see Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2004] FCA 517 at [8] per Gray J; Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243 at [44] per Marshall J; and Duffy v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 299


case_text: applicant noted that there was no evidence of any regret, contrition or remorse on the part of the Union or Mr Mates for their contravening conduct, and there was no apology. The respondents replied (and I accept) that this was not an aggravating circumstance that justified an increase in the level of the penalty: compare BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 at [10] per Kiefel J. The applicant further noted that there was no evidence of any corrective action taken by the Union or Mr Mates in relation to the contraventions. Again this is not an aggravating circumstance that would justify a higher penalty. The applicant submitted that the respondents had chosen not to cooperate with him or the Office of the Australian Building and Construction Commissioner. The applicant further contended that the respondents' lack of cooperation, and failure to make admissions of liability whilst making only limited admissions of facts, necessitated the preparation of a great deal of evidence and led to a lengthy trial. This placed a burden on the limited resources of the Court and the applicant. The applicant further submitted that the respondents' conduct during the proceeding deserved censure. The applicant commented adversely on the respondents' failure to call witnesses after filing and serving witness statements, and the abandonment of their defence (that there was a crane malfunction) on the first day of trial. The applicant claimed "[a] vast amount of work needed to be undertaken ... to respond to [this] Defence".


case_text: factors may be relevant to costs (discussed below) but they do not amount to aggravating circumstances justifying a higher penalty than otherwise. This is consistent with the conclusion reached by the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at 285 [166] . The applicant submitted that the respondents' conduct was serious in that, if left unchecked, it would undermine the statutory purposes of the Building and Construction Industry Improvement Act as set out in s 3 of the Act. In effect, this consideration has previously been considered in connection with the nature and extent of the unlawful conduct. I turn now to the important question of deterrence.


case_text: the respondents submitted, the proceedings themselves might reasonably be thought to have some deterrent effect in respect of the Union and Mr Mates. It has sometimes been appropriate to recognise this factor in discussing deterrence in an industrial context: see, for example, Lisette Pine v Expoconti Pty Ltd [2005] FCA 1434 per Kenny J, Pine v Casello Constructions Pty Ltd [2005] FCA 1854 at [9] per North J; Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964 at [20] , [29]-[30] per North J; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705 at [20] per Marshall J. This consideration may be borne in mind here, although I would not accord it great weight.


case_title: Pine v Casello Constructions Pty Ltd [2005] FCA 1854


case_text: the respondents submitted, the proceedings themselves might reasonably be thought to have some deterrent effect in respect of the Union and Mr Mates. It has sometimes been appropriate to recognise this factor in discussing deterrence in an industrial context: see, for example, Lisette Pine v Expoconti Pty Ltd [2005] FCA 1434 per Kenny J, Pine v Casello Constructions Pty Ltd [2005] FCA 1854 at [9] per North J; Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964 at [20] , [29]-[30] per North J; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705 at [20] per Marshall J. This consideration may be borne in mind here, although I would not accord it great weight. As noted above, where (as here) penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties in aggregate are just and appropriate to the circumstances of the case. As Tracey J said in Stuart-Mohoney 177 IR at 73 [60]: Another factor to be considered is the totality principle. This principle is designed to ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing see: Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14 at [30] referred to with approval by Buchanan J in Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 at [89] . The orthodox position requires the determination of appropriate penalties for each contravention arising from the same course of conduct. The aggregate figure is then considered to ensure that the penalty is an appropriate response to the conduct in question see: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 ; 145 ALR 36 at 53 and Ponzio at [145] per Jessup J. Penalties must also be proportionate to the culpability and seriousness of the respondent's contravening conduct and sufficient to mark the seriousness of that conduct. Neither respondent has expressed any contrition.


case_title: Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705


case_text: 3(1) of the Building and Construction Industry Improvement Act specifically states that the main object of the Act is "to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole". The imposition of penalties for contraventions of provisions such as s 43 is one way in which this is achieved. As already noted, the contraventions under consideration were clear. Bearing these factors in mind, the need for general deterrence is plain enough, with the result that penalties should be imposed at what has been termed a "meaningful level" to serve as a general deterrence to others who may be disposed to engage in the conduct in question: see Stuart-Mahoney 177 IR 61 at 72 [58], citing Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 at [66] ; Finance Sector Union v Commonwealth Bank of Australia 224 ALR at 479 [41]; and Australian Competition and Consumer Commission v ABB Transmission & Distribution Ltd [2001] FCA 383 ; [2001] ATPR 41-815 at [13] .


case_text: was in this case no evidence that any senior official or members of the governing bodies of the Union were involved in the contravening conduct. Accordingly, the present case is distinguishable from the situation in Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847 ; (2005) 224 ALR 467 , where Merkel J found (at 475 [27]) that CBA acted through senior executives in its contravening conduct. The case is also distinguishable from Stuart-Mahoney 177 IR 61, where (at 71 [51]) Tracey J noted that the contraventions in that case took place with the knowledge and consent of senior Union officials. This is not an aggravating circumstance in this case. Section 3(1) of the Building and Construction Industry Improvement Act specifically states that the main object of the Act is "to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole". The imposition of penalties for contraventions of provisions such as s 43 is one way in which this is achieved. As already noted, the contraventions under consideration were clear. Bearing these factors in mind, the need for general deterrence is plain enough, with the result that penalties should be imposed at what has been termed a "meaningful level" to serve as a general deterrence to others who may be disposed to engage in the conduct in question: see Stuart-Mahoney 177 IR 61 at 72 [58], citing Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 at [66] ; Finance Sector Union v Commonwealth Bank of Australia 224 ALR at 479 [41]; and Australian Competition and Consumer Commission v ABB Transmission & Distribution Ltd [2001] FCA 383 ; [2001] ATPR 41-815 at [13] .


case_title: Australian Competition and Consumer Commission v ABB Transmission & Distribution Ltd [2001] FCA 383 ; [2001] ATPR 41-815


case_text: usual practice is that costs follow the event, with the result that the Court will order the recovery of costs by a successful party on a party and party basis. The matter of costs is, however, in the general discretion of the Court, although the discretion must be exercised judicially, that is, in a principled way by reference to the litigation: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 [9]-[10]. In some circumstances, the usual rule will be found wanting and success on a portion only of a claim may make it reasonable for the litigant to bear the expense of the portion in which the litigant failed. Sometimes too, an otherwise successful litigant may be ordered to pay the costs of the other party in respect of the issues on which that litigant failed. As Black CJ and French J said in Ruddock v Vadarlis (No 2) 115 FCR 229 at 236 [15], "[u]sually the circumstances in which a successful party is denied all or part of its costs have to do with its conduct of the proceedings". Their Honour continued (236-237 [15] and [18]): Within the general discretion to award costs, costs may be refused where, for example, the applicant has made an exaggerated claim which has occupied a significant proportion of the proceedings and has succeeded only on a minor aspect of its original claim. Costs may be apportioned according to success or failure on particular distinct or severable issues ... And a trial judge may award only a proportion of the successful party's costs if the conduct of that party at trial was such as to unreasonably prolong the proceedings ... ... That a proceeding was brought otherwise than for the personal or financial gain of the applicant, and in that sense in the public interest, does not detract from the general proposition that ordinarily costs follow the event and that the primary factor in deciding on the award of costs is the outcome of the litigation.


case_title: Cretazzo v Lombardi (1975) 13 SASR 4

case_text: in mind matters of the kind referred to by Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 15, courts ordinarily exercise some care before making an apportionment of costs of the kind the respondents seek. Thus, the Full Court in Australian Trade Commission v Disktravel [2000] FCA 62 at [4] declined to make such an order, upon the basis that: The appellant succeeded completely in terms of the final orders it secured. The issues it raised in argument on the appeal were not unreasonably raised. The somewhat complex factual background was a matter which had to be considered in relation to all issues. None of the issues raised can be characterised in terms of the time and work involved as distinct and severable from the other issues to the extent that an apportionment would be warranted. The applicant and the respondents all relied on this passage, pointing to different factors in their favour. In the present case, the key factor is that the applicant has not acted unreasonably in raising any issues in the context of the facts as they understood them.


case_title: Australian Trade Commission v Disktravel [2000] FCA 62


case_text: far as the law permits and is practicable, however, fairness should govern the disposition of costs: compare Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5] per as Finkelstein and Gordon JJ. The critical factor in support of a departure from the usual order as to costs is that the applicant has failed in respect of his allegations concerning events after the crane incident on 21 February 2006 and following, which turned on additional and different evidence to the earlier events. These allegations were that: (1) on 21 February 2006, Mr Mates telephoned the office of the crane company and said that its crew were not to work on the project at Mount Street; (2) on 21 February 2006, Mr Mates telephoned the Union's offices or a representative of the Union and instructed the person he contacted to instruct Maurie Hill (the Union organiser responsible for mobile cranes in Victoria (FEDFA division)) to ring Sergi Cranes and other crane operators to warn them off working at the Mount Street site; and (3) on 22 February 2006 and following, Mr Mates organised a picket line at the Mount Street site. The applicant further alleged that the Union and/or Mr Mates had contravened s 38 of the Act in that Mr Mates' alleged conduct on 21 February 2006 and in organising a picket line at the Mount Street site between 22 February 2006 and 3 March 2006 constituted "building industrial action" within the meaning of paragraphs (b) and (c) of the definition in s 36(1) of the Building and Construction Industry Improvement Act . Plainly enough, some significant amount of time and effort was devoted to that part of the applicant's unsuccessful case, although it is difficult to quantify this precisely. In all the circumstances, it would be reasonable to deprive the applicant of a percentage of his trial costs. Having regard to these circumstances, I consider that it would be fair and just to deprive the applicant of 40 per cent of his trial costs. It would be inappropriate to order the applicant to pay any portion of the respondents' costs.


case_title: Butler v Johnston (1984) 4 FCR 83

case_text: submissions made on behalf of Woodside Energy identified, as its principal argument, the proposition that the hedging expenses which it incurred are, for the purposes of s 24 of the PRRT Act, 'expenses payable, by [Woodside Energy] in relation to the sale' of petroleum recovered from the production licence area. The Commissioner, it was said, contended for a narrow meaning of the words 'in relation to' limiting the expenses under s 24 to costs such as delivery, commissions and cargo insurance. Woodside Energy argued that the words 'in relation to' and 'in carrying on or providing the operation facilities and other things comprising the project' should be construed having regard to the policy and objects of the legislation. It submitted that the term 'in relation to' requires a consideration of economic and commercial factors as well as physical and temporal factors. Reference was made to Butler v Johnston (1984) 4 FCR 83 at 87; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491; Robe River Mining Co Pty Ltd v Commissioner of Taxation (1988) 19 FCR 294 at 306 and PMT Partners Pty Ltd ( In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 330-331. The width of the phrase 'in carrying on or providing the operations, facilities and other things comprising the project' is also to be determined having regard to the policy and objects of the legislation and will require a consideration of economic and commercial factors.


case_title: Hatfield v Health Insurance Commission (1987) 15 FCR 487


case_title: Robe River Mining Co Pty Ltd v Commissioner of Taxation (1988) 19 FCR 294


case_title: PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301


case_text: it was submitted that Professor Garnaut's evidence was relevant to understand the mischief which the PRRTA Act was intended to remedy. Evidence of that kind was said to have been relied upon in Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 at [107] and Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at [665] . The evidence of the two experts was said to be informative and of assistance to the Court in coming to a conclusion whether the hedging losses are covered by the words 'in relation to' and in understanding what constitutes 'carrying on or providing the operations, facilities and other things comprising the project'. In summary it was said that Professor Garnaut's evidence demonstrates the economic and commercial reality of treating the hedge expenses as being in relation to the sale of petroleum or in carrying on the relevant operations.


case_text: it was submitted that Professor Garnaut's evidence was relevant to understand the mischief which the PRRTA Act was intended to remedy. Evidence of that kind was said to have been relied upon in Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 at [107] and Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at [665] . The evidence of the two experts was said to be informative and of assistance to the Court in coming to a conclusion whether the hedging losses are covered by the words 'in relation to' and in understanding what constitutes 'carrying on or providing the operations, facilities and other things comprising the project'. In summary it was said that Professor Garnaut's evidence demonstrates the economic and commercial reality of treating the hedge expenses as being in relation to the sale of petroleum or in carrying on the relevant operations. Against that background the evidence which it is sought to elicit from Professor Garnaut does not go to the meaning of any particular word or words in the PRRTA Act. The term 'economic rent' appears nowhere in the Act, nor does the term 'resources rent tax' save for the title to the Act. In particular, the Act does not contain any explicitly economic terms whose application to a particular case would be assisted by economic evidence. By explicitly economic terms, I mean words such as 'market' and 'competition' which appear in Pt IV of the Trade Practices Act 1974 (Cth). In proceedings under Pt IV of that Act the evidence of economists may be relied upon to aid in the identification of the relevant 'market' and judgments about the effects, historic or predictive, of particular conduct on competition in a market. 53 Re Michael concerned the application of statutory and Gas Access Code provisions to the determination of an access tariff for a gas pipeline. Parker J (Malcolm CJ and Anderson J agreeing) referred to some of the terms of the relevant Act and the Code as being 'in common use in that field of economics which is concerned with competition policy, or more particularly with the regulation of essential infrastructure' (at [107]). His Honour observed that these words or phrases conveyed a meaning to those familiar with the field of economics differing from that which the words themselves would suggest in ordinary everyday usage. He said (at [107]): 'As the subject matter is by nature conceptual there is no uniform, accepted and certain meaning, but there is a principle or theory, the essential tenets of which are widely understood, though there need not be uniform acceptance of them. In my view, expert evidence may relevantly and usefully inform the court as to this specialised usage, of which the court would otherwise be unaware, so that the court can determine whether the Act and Code is using particular words or phrases in their ordinary everyday usage, or in the specialised usage among those versed in this field of economics.' Importantly his Honour continued (at [107]): 'Further, the expert evidence provides an appreciation of the nature and objectives of competition policy in the field of economics, and, in particular, of the regulation of essential infrastructure, so that the policy and objectives of the Act can be discerned with a greater and more reliable appreciation of the possibilities. In addition, the potential relevance of some concepts and provisions in the Act and Code can be more readily understood.' In Visa , Tamberlin J observed in relation to Re Michael and other cases involving admissibility of expert economic evidence (at [665]): 'The emphasis in these cases is on informing and assisting the court with a view to illuminating an understanding of the terms used in relation to the issues raised.' His Honour also agreed with Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79, that, generally, it is not for an expert to give evidence as to the application of a legislative provision, as opposed to furnishing evidence from the viewpoint of an economist with respect to what factors can or should be taken into consideration or ignored. It is also appropriate to note his Honour's prudential observation, with which I agree, that (at [669]): 'In ruling on the admissibility of the expert evidence at an early stage of the hearing, I was conscious that there can be substantial difficulties particularly in relation to issues of relevance and appreciating the overall context against which to properly or fully consider admissibility. The general approach which I took was to err on the side of admitting evidence which was on or close to the borderline, on the basis that such evidence, if admitted, could be evaluated as to substance and weight in final submissions.' Professor Garnaut's evidence assumes that the Act is intended to tax economic rent as he explains that term. The company relies upon various extrinsic materials antedating the passage of the Act as indicative of that purpose. Assuming that purpose is made out, then Professor Garnaut offers what amounts to the inference that the overall objective of the Act is to generate revenue 'without distorting business decisions on the amount or composition of investment or production'. This identified purpose is relied upon to assist the Court to decide in the first place, whether the contentious hedging losses were 'expenses payable by [Woodside Energy] in relation to the sale' of petroleum within the meaning of s 24(a) of the PRRTA Act. Assuming that the hedging losses are properly to be called 'expenses' the question reduces to whether they are expenses 'in relation to' the sale. The words 'in relation to' and similar terms like 'in respect of' or 'in connection with' or just 'in' have been considered in many cases and many contexts. They denote a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection depends upon context. In Workers' Compensation Board (Qld) v Technical Products Proprietary Limited [1988] HCA 49 ; (1988) 165 CLR 642, the term 'in respect of' was said to have a wide meaning. It '... gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends' (at 653-654 per Deane, Dawson and Toohey JJ). The words 'in relation to' have been described as a 'prepositional phrase' which is 'indefinite' and which, 'subject to any contrary indication derived from its context or drafting history ... requires no more than a relationship whether direct or indirect between two subject matters' O'Grady v North Queensland Company Limited [1990] HCA 16 ; (1990) 169 CLR 356 at 376 (McHugh J). The term is indefinite and will not generally apply to any relationship no matter how remote. The extent of the relationship required will depend upon the context in which the words are used Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at 482 (Hill J) and authorities there cited. Two things may stand 'in relation to each other' in a variety of ways. The relationship may be spatial, temporal or causal. It may be a relationship of similarity or difference. Relationships between things in the law do not simply exist to await discovery. They are defined by the common law or by legislation and their authoritative interpreters. The criteria by which a statutory test of 'relationship' is to be applied will have to be relevant to and serve the purposes of the statute. The relationship between claimed expenses and the sale of petroleum products in s 24(a) of the PRRTA Act cannot be the subject of a bright line definition covering all cases but it must lie within the bounds of relevance to the statutory purpose. If that purpose can be explained or elucidated by reference to a recognised economic mechanism to which the Act is intended to give effect, then expert evidence about the operating principles of that mechanism can be received. Such evidence may not be material directly concerned with interpretation of provisions of the Act as is extrinsic material received pursuant to s 15AB of the Acts Interpretation Act . Nor can it justify any application of the Act beyond the bounds set by its language. But it may help to identify the purpose of the statute and thus inform the application of ambulatory terms in it such as 'in relation to' in s 24(a). The preceding observations do not import any concluded view about whether the assumption on which Professor Garnaut will base his evidence is made out. That will require a closer consideration of the terms of the Act and the extrinsic materials relevant to its interpretation. It is better done in the context of all the evidence, including the extrinsic materials relied upon. I am not prepared to rule Professor Garnaut's evidence inadmissible. I take it as evidence rather than as submission in that it purports to demonstrate that the economic mechanism to which the PRRTA Act is said to give effect would treat hedging losses as expenses in the way for which Woodside Energy contends. If some of his evidence trespasses into argument, I will simply treat it as such. I do not regard him as offering evidence on the ultimate issue even if that were a difficulty. Rather, it proposes that a certain treatment of hedging losses would advance the purpose of the statute viewed in the light of the economic theory which underpins it. I will therefore admit the evidence proposed to be called from Professor Garnaut. Ultimately, this is a decision about relevance. It may be that in the light of further evidence and argument his evidence will be shown to be based upon a false assumption. If that is so, then it may be that it will be rejected as irrelevant. I am not prepared to find, on the materials presently before me, that the assumption upon which he advances his evidence has been falsified. It seems to me to be at least arguably relevant and so will be admitted. The admissibility of the evidence of Professor Walker It is well established that evidence of accounting practice may be admitted in revenue cases so that the Court has the opportunity to characterise such things as receipts and payments for the purposes of the relevant statute by reference to accounting and commercial realities. That is not to say that such evidence can displace the words of the statute. Nor does it involve the expert witness in interpreting the statute. But where, as in this case, there are terms used of indefinite import such as 'in relation to', 'incurred ... in relation to' and 'made ... in carrying on ... operations', then such evidence may properly inform their application having regard to the purpose of the statute and the context in which the provision appears. In Rowe and Son Pty Ltd v Commissioner of Taxation [1970] HCA 57 ; (1971) 124 CLR 421, Gibbs J referred to expert evidence that it was unusual to bring into the accounts of a trader, making sales on terms only, the payments received or receivable in the year in question and that to do so would not record the true position of the trading. In connection with such evidence generally he said (at 452): 'When the [ITAA] gives no directions on the point, the question when income is earned, and the method of accounting to be adopted for the purpose of ascertaining the income, depend upon business conceptions and the principles and practices of accountancy ...'. In BHP Billiton Professor Walker gave evidence as to the proper accounting treatment to be adopted in the accounts of a corporation such as BHP Billiton. The passage from the judgment of Gibbs J quoted above was quoted in the joint judgment of Hill and Heerey JJ at 134. In Ogilvy Mather Pty Ltd v Federal Commissioner of Taxation (1990) 95 ALR 663, Hill J, in the Full Court, referred to expert evidence which had been adduced from a professor of accounting and said (at 703): 'Accounting evidence cannot be substituted for the test laid down by s 51(1): FCT v James Flood Pty Ltd [1953] HCA 65 ; (1953) 88 CLR 492 at 506-7. Nevertheless, as the Full Court of this court pointed out in Hooker Rex Pty Ltd v FCT 88 ATC 4392 at 4399: "... the tendency of judicial decision has been to place increasing reliance upon the concepts of business and the principles and practices of commercial accountancy, not only in the ascertainment of income, but also in the ascertainment of expenditure: DCT (SA) v Executor Trustee and Agency Co of South Australia Ltd [1938] HCA 69 ; (1938) 63 CLR 108 at 153; FCT v Australian Guarantee Corp Ltd (1984) 54 ALR 209; 84 ATC 4642'.' Applying the prudential approach adopted by Tamberlin J in the Visa case, to which I referred earlier, I am of the opinion that Professor Walker's evidence should be admitted as arguably relevant to the application of the terms to which I have referred and the proper characterisation of the hedging losses in the context of the provisions to which I have referred. Conclusion For the preceding reasons, the evidence of Professors Garnaut and Walker will be admitted at the hearing. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 4 October 2006 Counsel for the Applicant: Mr J De Wijn QC and Mr A Broadfoot Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondent: Ms M Gordon SC and Mr SH Steward Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 September 2006 Date of Judgment: 4 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1303.html


case_text: accounting treatment which Woodside Energy adopted and Professor Walker's evidence were said to provide useful assistance in confirming the existence of the necessary connection between the sale of petroleum and the payment of hedge expenses, although of course the accounting treatment would not be determinative of the issue. BHP Billiton Petroleum (Bass Strait) Pty Ltd v Commissioner of Taxation [2002] FCAFC 433 ; (2002) 126 FCR 119 was cited in which Hill and Heerey JJ said (at [68]): '... it is clear even in the context of s 51(1) where a jurisprudential analysis prevails over a commercial view, that accounting and business practice will not always be irrelevant and may indeed provide useful assistance to the Court: Coles Myer Finance Ltd v Commissioner of Taxation (Cth) [1993] HCA 29 ; (1993) 176 CLR 640 at 666...' Reliance was also placed on Commissioner of Taxation v Citibank Ltd (1993) 44 FCR 434 at 443-445 in which a Full Court held that accounting evidence is often relevant and indeed highly significant in resolving issues which arise under the Income Tax Assessment Act. See also Hooker Rex Pty Limited v Federal Commissioner of Taxation (1998) 79 ALR 181 at 189. In the ultimate issue question, Woodside Energy pointed to the abolition of the ultimate issue inadmissibility rule of common law by s 80 of the Evidence Act 1995 (Cth). Against that background the evidence which it is sought to elicit from Professor Garnaut does not go to the meaning of any particular word or words in the PRRTA Act. The term 'economic rent' appears nowhere in the Act, nor does the term 'resources rent tax' save for the title to the Act. In particular, the Act does not contain any explicitly economic terms whose application to a particular case would be assisted by economic evidence. By explicitly economic terms, I mean words such as 'market' and 'competition' which appear in Pt IV of the Trade Practices Act 1974 (Cth). In proceedings under Pt IV of that Act the evidence of economists may be relied upon to aid in the identification of the relevant 'market' and judgments about the effects, historic or predictive, of particular conduct on competition in a market. 53 Re Michael concerned the application of statutory and Gas Access Code provisions to the determination of an access tariff for a gas pipeline. Parker J (Malcolm CJ and Anderson J agreeing) referred to some of the terms of the relevant Act and the Code as being 'in common use in that field of economics which is concerned with competition policy, or more particularly with the regulation of essential infrastructure' (at [107]). His Honour observed that these words or phrases conveyed a meaning to those familiar with the field of economics differing from that which the words themselves would suggest in ordinary everyday usage. He said (at [107]): 'As the subject matter is by nature conceptual there is no uniform, accepted and certain meaning, but there is a principle or theory, the essential tenets of which are widely understood, though there need not be uniform acceptance of them. In my view, expert evidence may relevantly and usefully inform the court as to this specialised usage, of which the court would otherwise be unaware, so that the court can determine whether the Act and Code is using particular words or phrases in their ordinary everyday usage, or in the specialised usage among those versed in this field of economics.' Importantly his Honour continued (at [107]): 'Further, the expert evidence provides an appreciation of the nature and objectives of competition policy in the field of economics, and, in particular, of the regulation of essential infrastructure, so that the policy and objectives of the Act can be discerned with a greater and more reliable appreciation of the possibilities. In addition, the potential relevance of some concepts and provisions in the Act and Code can be more readily understood.' In Visa , Tamberlin J observed in relation to Re Michael and other cases involving admissibility of expert economic evidence (at [665]): 'The emphasis in these cases is on informing and assisting the court with a view to illuminating an understanding of the terms used in relation to the issues raised.' His Honour also agreed with Lindgren J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79, that, generally, it is not for an expert to give evidence as to the application of a legislative provision, as opposed to furnishing evidence from the viewpoint of an economist with respect to what factors can or should be taken into consideration or ignored. It is also appropriate to note his Honour's prudential observation, with which I agree, that (at [669]): 'In ruling on the admissibility of the expert evidence at an early stage of the hearing, I was conscious that there can be substantial difficulties particularly in relation to issues of relevance and appreciating the overall context against which to properly or fully consider admissibility. The general approach which I took was to err on the side of admitting evidence which was on or close to the borderline, on the basis that such evidence, if admitted, could be evaluated as to substance and weight in final submissions.' Professor Garnaut's evidence assumes that the Act is intended to tax economic rent as he explains that term. The company relies upon various extrinsic materials antedating the passage of the Act as indicative of that purpose. Assuming that purpose is made out, then Professor Garnaut offers what amounts to the inference that the overall objective of the Act is to generate revenue 'without distorting business decisions on the amount or composition of investment or production'. This identified purpose is relied upon to assist the Court to decide in the first place, whether the contentious hedging losses were 'expenses payable by [Woodside Energy] in relation to the sale' of petroleum within the meaning of s 24(a) of the PRRTA Act. Assuming that the hedging losses are properly to be called 'expenses' the question reduces to whether they are expenses 'in relation to' the sale. The words 'in relation to' and similar terms like 'in respect of' or 'in connection with' or just 'in' have been considered in many cases and many contexts. They denote a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection depends upon context. In Workers' Compensation Board (Qld) v Technical Products Proprietary Limited [1988] HCA 49 ; (1988) 165 CLR 642, the term 'in respect of' was said to have a wide meaning. It '... gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends' (at 653-654 per Deane, Dawson and Toohey JJ). The words 'in relation to' have been described as a 'prepositional phrase' which is 'indefinite' and which, 'subject to any contrary indication derived from its context or drafting history ... requires no more than a relationship whether direct or indirect between two subject matters' O'Grady v North Queensland Company Limited [1990] HCA 16 ; (1990) 169 CLR 356 at 376 (McHugh J). The term is indefinite and will not generally apply to any relationship no matter how remote. The extent of the relationship required will depend upon the context in which the words are used Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at 482 (Hill J) and authorities there cited. Two things may stand 'in relation to each other' in a variety of ways. The relationship may be spatial, temporal or causal. It may be a relationship of similarity or difference. Relationships between things in the law do not simply exist to await discovery. They are defined by the common law or by legislation and their authoritative interpreters. The criteria by which a statutory test of 'relationship' is to be applied will have to be relevant to and serve the purposes of the statute. The relationship between claimed expenses and the sale of petroleum products in s 24(a) of the PRRTA Act cannot be the subject of a bright line definition covering all cases but it must lie within the bounds of relevance to the statutory purpose. If that purpose can be explained or elucidated by reference to a recognised economic mechanism to which the Act is intended to give effect, then expert evidence about the operating principles of that mechanism can be received. Such evidence may not be material directly concerned with interpretation of provisions of the Act as is extrinsic material received pursuant to s 15AB of the Acts Interpretation Act . Nor can it justify any application of the Act beyond the bounds set by its language. But it may help to identify the purpose of the statute and thus inform the application of ambulatory terms in it such as 'in relation to' in s 24(a). The preceding observations do not import any concluded view about whether the assumption on which Professor Garnaut will base his evidence is made out. That will require a closer consideration of the terms of the Act and the extrinsic materials relevant to its interpretation. It is better done in the context of all the evidence, including the extrinsic materials relied upon. I am not prepared to rule Professor Garnaut's evidence inadmissible. I take it as evidence rather than as submission in that it purports to demonstrate that the economic mechanism to which the PRRTA Act is said to give effect would treat hedging losses as expenses in the way for which Woodside Energy contends. If some of his evidence trespasses into argument, I will simply treat it as such. I do not regard him as offering evidence on the ultimate issue even if that were a difficulty. Rather, it proposes that a certain treatment of hedging losses would advance the purpose of the statute viewed in the light of the economic theory which underpins it. I will therefore admit the evidence proposed to be called from Professor Garnaut. Ultimately, this is a decision about relevance. It may be that in the light of further evidence and argument his evidence will be shown to be based upon a false assumption. If that is so, then it may be that it will be rejected as irrelevant. I am not prepared to find, on the materials presently before me, that the assumption upon which he advances his evidence has been falsified. It seems to me to be at least arguably relevant and so will be admitted. The admissibility of the evidence of Professor Walker It is well established that evidence of accounting practice may be admitted in revenue cases so that the Court has the opportunity to characterise such things as receipts and payments for the purposes of the relevant statute by reference to accounting and commercial realities. That is not to say that such evidence can displace the words of the statute. Nor does it involve the expert witness in interpreting the statute. But where, as in this case, there are terms used of indefinite import such as 'in relation to', 'incurred ... in relation to' and 'made ... in carrying on ... operations', then such evidence may properly inform their application having regard to the purpose of the statute and the context in which the provision appears. In Rowe and Son Pty Ltd v Commissioner of Taxation [1970] HCA 57 ; (1971) 124 CLR 421, Gibbs J referred to expert evidence that it was unusual to bring into the accounts of a trader, making sales on terms only, the payments received or receivable in the year in question and that to do so would not record the true position of the trading. In connection with such evidence generally he said (at 452): 'When the [ITAA] gives no directions on the point, the question when income is earned, and the method of accounting to be adopted for the purpose of ascertaining the income, depend upon business conceptions and the principles and practices of accountancy ...'. In BHP Billiton Professor Walker gave evidence as to the proper accounting treatment to be adopted in the accounts of a corporation such as BHP Billiton. The passage from the judgment of Gibbs J quoted above was quoted in the joint judgment of Hill and Heerey JJ at 134. In Ogilvy Mather Pty Ltd v Federal Commissioner of Taxation (1990) 95 ALR 663, Hill J, in the Full Court, referred to expert evidence which had been adduced from a professor of accounting and said (at 703): 'Accounting evidence cannot be substituted for the test laid down by s 51(1): FCT v James Flood Pty Ltd [1953] HCA 65 ; (1953) 88 CLR 492 at 506-7. Nevertheless, as the Full Court of this court pointed out in Hooker Rex Pty Ltd v FCT 88 ATC 4392 at 4399: "... the tendency of judicial decision has been to place increasing reliance upon the concepts of business and the principles and practices of commercial accountancy, not only in the ascertainment of income, but also in the ascertainment of expenditure: DCT (SA) v Executor Trustee and Agency Co of South Australia Ltd [1938] HCA 69 ; (1938) 63 CLR 108 at 153; FCT v Australian Guarantee Corp Ltd (1984) 54 ALR 209; 84 ATC 4642'.' Applying the prudential approach adopted by Tamberlin J in the Visa case, to which I referred earlier, I am of the opinion that Professor Walker's evidence should be admitted as arguably relevant to the application of the terms to which I have referred and the proper characterisation of the hedging losses in the context of the provisions to which I have referred. Conclusion For the preceding reasons, the evidence of Professors Garnaut and Walker will be admitted at the hearing. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 4 October 2006 Counsel for the Applicant: Mr J De Wijn QC and Mr A Broadfoot Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondent: Ms M Gordon SC and Mr SH Steward Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 September 2006 Date of Judgment: 4 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1303.html


case_text: accounting treatment which Woodside Energy adopted and Professor Walker's evidence were said to provide useful assistance in confirming the existence of the necessary connection between the sale of petroleum and the payment of hedge expenses, although of course the accounting treatment would not be determinative of the issue. BHP Billiton Petroleum (Bass Strait) Pty Ltd v Commissioner of Taxation [2002] FCAFC 433 ; (2002) 126 FCR 119 was cited in which Hill and Heerey JJ said (at [68]): '... it is clear even in the context of s 51(1) where a jurisprudential analysis prevails over a commercial view, that accounting and business practice will not always be irrelevant and may indeed provide useful assistance to the Court: Coles Myer Finance Ltd v Commissioner of Taxation (Cth) [1993] HCA 29 ; (1993) 176 CLR 640 at 666...' Reliance was also placed on Commissioner of Taxation v Citibank Ltd (1993) 44 FCR 434 at 443-445 in which a Full Court held that accounting evidence is often relevant and indeed highly significant in resolving issues which arise under the Income Tax Assessment Act. See also Hooker Rex Pty Limited v Federal Commissioner of Taxation (1998) 79 ALR 181 at 189. In the ultimate issue question, Woodside Energy pointed to the abolition of the ultimate issue inadmissibility rule of common law by s 80 of the Evidence Act 1995 (Cth).


case_title: Hooker Rex Pty Limited v Federal Commissioner of Taxation (1998) 79 ALR 181


case_text: reply, the Commissioner referred to the rejection by the Full Court of evidence of irrelevant extrinsic material in Commissioner of Taxation v Murray (1990) 21 FCR 436. The principal provisions relating to relevance in the Evidence Act are ss 55 and 56 . Section 55(1) provides: 'The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.' Section 56 provides: '(1) Except as otherwise provided by this Act evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.' The admissibility of opinion evidence is governed by Pt 3.3. Section 76 provides, inter alia: '(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.' This is subject to qualifications found in the Act, and in particular s 79 which provides: 'If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.' As to the ultimate issue, s 80 provides: 'Evidence of an opinion is not inadmissible only because it is about: (a) a fact in issue or an ultimate issue; or (b) a matter of common knowledge.'