case_text: There was no dispute between the parties as to the principles which govern the imposition of a penalty under s 76(1). The relevant principles have been discussed at length in numerous cases: see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 ( 'CSR' ) at 52,151 52,153 per French J; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 ( 'NW Frozen Foods' ) at 291-295 per Burchett and Kiefel JJ; Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at 172 173 [2]-[6] per Sackville J and at 181 184 [47]-[60] per Merkel J; J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 ( 'McPhee' ) at 577-579 [158]-[166]; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) (2004) 212 ALR 564 ( 'Visy Paper (No 2)' ) at 571-572 [28]-[32] per Sackville J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2 ) (2005) 215 ALR 281 at 283 285 [5]-[12] per Merkel J; and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( 'Leahy (No 3)' ) at 307-311 [31]-[43] per Goldberg J.


case_outcome: applied

case_text: There was no dispute between the parties as to the principles which govern the imposition of a penalty under s 76(1). The relevant principles have been discussed at length in numerous cases: see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 ( 'CSR' ) at 52,151 52,153 per French J; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 ( 'NW Frozen Foods' ) at 291-295 per Burchett and Kiefel JJ; Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 at 172 173 [2]-[6] per Sackville J and at 181 184 [47]-[60] per Merkel J; J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 ( 'McPhee' ) at 577-579 [158]-[166]; Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) (2004) 212 ALR 564 ( 'Visy Paper (No 2)' ) at 571-572 [28]-[32] per Sackville J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2 ) (2005) 215 ALR 281 at 283 285 [5]-[12] per Merkel J; and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( 'Leahy (No 3)' ) at 307-311 [31]-[43] per Goldberg J. 16 In McPhee , the Full Court (comprising Black CJ, Lee and Goldberg JJ) reviewed the authorities, including Stihl , Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 298 and Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 ( 'TNT' ) at 40,166, in which the courts attached importance to the deliberateness of the contravening conduct. The Full Court concluded that in fixing penalties under s 76 it is appropriate and relevant to take into account whether the conduct that contravened the TPA was systematic, deliberate or covert: at 577 [158] and at 579 [163]. In doing so, the Court does not stray into irrelevant moral considerations. 30 The decision of Mansfield J in Rural Press illustrates the proposition that s 76(3) and the totality principle can produce similar results. His Honour said at 43,290 [19]: 'The ACCC is correct in stressing that, as I have found, the conduct of the respondents involved two contraventions of s 45 of the Act, namely the making of an arrangement and separately carrying it into effect. In a practical sense, I consider that the conduct that constituted the first of those contraventions was "part and parcel" of the conduct that constituted the second of those contraventions: see for example J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) ATPR |P41-758; (2000) 172 ALR 532 ( "McPhee" ), per Black CJ, Lee and Goldberg JJ at ATPR 40,923; FCR 583 [182]. However, although the conduct constituting the contraventions of s 46 was also closely allied to that conduct, in my view the contraventions of s 46 are separate and could be dealt with separately. For the reasons proposed by the ACCC, and accepted by the respondents, I will however impose one penalty upon each respondent for the contraventions of the Act by that particular respondent, or in which that particular respondent was involved. In this matter, the level of pecuniary penalty which I impose would not alter whether the s 45 and s 46 contraventions had to be treated as part and parcel of the one set of conduct by reason of s 76(3) or were capable of being treated as separate contraventions.' 31 In McPhee at 583 [181]-[183], the Full Court considered the imposition of penalties for making and giving effect to an arrangement or understanding in contravention of s 45. The Court concluded that s 76(3) applied because the conduct which constituted the second contravention of giving effect to the arrangement was part and parcel of the conduct which constituted the first contravention of making the arrangement: 'The case presented to his Honour did not distinguish the conduct of McPhee involving the formation of the proscribed arrangement or understanding from the conduct of McPhee said to constitute giving effect to such arrangement or understanding. According to the Commission's case, the delivery by Mr Webb to Mr Jolly of McPhee's rates was an integral part of the conduct that constituted the contravention of s 45 in making, or arriving at, an understanding or arrangement. That same act was also relied upon by the Commission as the act which constituted the further contravention by McPhee of giving effect to the arrangement or understanding. If the disclosure by McPhee to DFE of the rates charged by McPhee to ACI Florapak could be said to be an act giving effect to an arrangement or understanding already made or arrived at, it was not conduct distinguishable from the conduct of McPhee which constituted the making of such an arrangement or understanding. Pursuant to s 76(3) of the Act, if conduct constitutes a contravention of two or more provisions of Pt IV , a proceeding may be instituted in respect of each contravention but a person is not liable to more than one pecuniary penalty in respect of the same conduct. This was not a case involving repeated conduct concerning discrete events occurring at different times and involving disparate parties: Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR 544; 47 FLR 334 at 336 per Franki J. We therefore accept the submission that his Honour erred in imposing separate penalties in respect of the ACI Florapak conduct. The conduct which constituted the second contravention was part and parcel of the conduct which constituted the first contravention and s 76(3) prescribed that only one penalty could be imposed.' 37 Another difficulty with the ACCC's submission is that, as in McPhee , the ACCC conducted the trial without attempting to draw any distinction between the conduct on the part of the CEPU that was relevant to its involvement in Edison's contravention of s 45E(3) and that which was relevant to Edison's contravention of s 45EA. Quite the contrary; the ACCC relied on the same conduct for its contention that the CEPU was involved in both contraventions. This is confirmed by paras 41 and 42 of the ACCC's amended statement of claim. At trial, senior counsel for the ACCC expressly submitted that the ACCC relied on the same conduct by the CEPU over a relatively short period of time between 9 August and 23 August 2001 in connection with both contraventions. 38 The ACCC's submission fails to take into account the full ambit of my findings concerning the contract, arrangement or understanding between Edison and the CEPU. In my principal judgment, I found that prior to 23 August 2001 Edison and the CEPU made or entered into an arrangement that included a provision that Edison would not engage electrical contractors to perform work at Loy Yang B unless they have a certified agreement with the CEPU prior to commencing work at the site: at [142]. However, I also found that the heads of agreement was entered into on 23 August 2001 in accordance with, and was controlled by, this broader arrangement: at [142] and [173]. Even if the heads of agreement were the only relevant arrangement between Edison and the CEPU, I concluded that cl 4.1 of the heads of agreement constituted a provision that was included in the heads of agreement for a purpose which infringed s 45E(3): at [192]. When I turned to consider the CEPU's liability as an accessory to Edison's contraventions of ss 45E and 45EA, I pointed out that the evidence established that the CEPU made demands which instigated, induced and procured Edison to make both the broader arrangement and the heads of agreement: at [220]. In these circumstances, the implementation steps which the CEPU took on 15 and 23 August 2001 can be regarded as actions by which the CEPU induced, counselled or procured Edison to sign the heads of agreement, which relevantly formed part of the contravening arrangement. Put another way, there is no reason to conclude that the implementation steps which the CEPU took on 15 and 23 August 2001 are relevant only to the contravention of s 45EA and not to the contravention of s 45E(3). In my opinion, they are relevant to both, given the findings I have made concerning the heads of agreement and the relationship between the heads of agreement and the broader arrangement that Edison and the CEPU made some days earlier. 39 For the sake of completeness, I note that the ACCC advanced a different argument in its written submissions on penalty, but it did not pursue that argument in its oral submissions. Shortly stated, the argument was that the CEPU's conduct in relation to s 45EA included its failure to prevent the continuation of Edison's new practice between August 2001 and November 2003. The ACCC did not advance this argument at the principal hearing and, assuming it was not abandoned during the penalty hearing, it is now too late to raise it. At all relevant times, the ACCC's case was that the CEPU was involved in Edison's contravention of s 45EA because the CEPU had counselled, procured or induced Edison to give effect to the offending provision by means of the demands which the CEPU made to Edison in the period leading up to Edison's execution of the heads of agreement on 23 August 2001. At the principal hearing, senior counsel for the ACCC submitted that the ACCC could not point to anything that the CEPU did after the making of the arrangement on or about 23 August that made it an accessory to Edison's contravention of s 45EA. The ACCC did not mount a case that the CEPU policed or sought to enforce the arrangement after it was entered into in August 2001. The ACCC did not ask any questions of Burns or Sutherland or any other witness to the effect that the CEPU had taken any steps to enforce the arrangement after it was entered into in August 2001. 42 If the CEPU's conduct that is relevant to Edison's contravention of s 45EA can be distinguished from its conduct in relation to the s 45E(3) contravention, with the consequence that s 76(3) does not apply, I consider that the approach described in Allied Mills , Advance Bank and in McPhee at 584 [185] should be applied in the circumstances of this case. In substance, the CEPU engaged in a single course of conduct that was related and interlocking and which involved it in both contraventions. To my mind, it would be artificial to distinguish between the conduct that is relevant to the making of the arrangement and that which is relevant to Edison's giving effect to the arrangement. The CEPU's conduct in relation to the two contraventions is so interconnected that the appropriate course is to apply the totality principle to set a penalty for the CEPU's accessorial conduct in respect of one breach and to take the CEPU's involvement in the other breach into account. Adopting that approach, I have concluded that the appropriate penalty would not differ from that which I would impose on the basis that s 76(3) applies.


case_outcome: followed

case_title: Australian Competition and Consumer Commission v Visy Paper Pty Ltd (No 2) (2004) 212 ALR 564


case_outcome: cited

case_title: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281


case_title: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301


case_outcome: considered

case_text: In his trial judgment in Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515 at 42,444 42,445, Heerey J said that it was also relevant to consider whether the respondents had engaged in similar conduct in the past, the financial position of the respondents and their capacity to pay, and the deterrent effect of the proposed penalty. These factors were not the subject of any adverse comment in the Full Court.


case_text: As the wording of s 76(1) indicates, the factors enumerated above are not exhaustive and other considerations may be relevant in a particular case: Trade Practices Commission v CC (NSW) Pty Ltd (No 3) (1994) ATPR 41-363 at 42,723; and Leahy (No 3) at 308 [33] per Goldberg J. It is also necessary to bear in mind that s 76 covers a range of different classes of contravention under Pt IV of the TPA to which different considerations may be relevant.


case_text: Much earlier in the history of the TPA, Smithers J expressed similar views in Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 ( 'Stihl' ) at 17,896: 'The penalty should constitute a real punishment proportionate to the deliberation with which the defendant contravened the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrence of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive.' 16 In McPhee , the Full Court (comprising Black CJ, Lee and Goldberg JJ) reviewed the authorities, including Stihl , Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 298 and Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 ( 'TNT' ) at 40,166, in which the courts attached importance to the deliberateness of the contravening conduct. The Full Court concluded that in fixing penalties under s 76 it is appropriate and relevant to take into account whether the conduct that contravened the TPA was systematic, deliberate or covert: at 577 [158] and at 579 [163]. In doing so, the Court does not stray into irrelevant moral considerations.


case_text: In McPhee , the Full Court (comprising Black CJ, Lee and Goldberg JJ) reviewed the authorities, including Stihl , Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 298 and Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 ( 'TNT' ) at 40,166, in which the courts attached importance to the deliberateness of the contravening conduct. The Full Court concluded that in fixing penalties under s 76 it is appropriate and relevant to take into account whether the conduct that contravened the TPA was systematic, deliberate or covert: at 577 [158] and at 579 [163]. In doing so, the Court does not stray into irrelevant moral considerations.


case_text: In McPhee , the Full Court (comprising Black CJ, Lee and Goldberg JJ) reviewed the authorities, including Stihl , Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 at 298 and Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 ( 'TNT' ) at 40,166, in which the courts attached importance to the deliberateness of the contravening conduct. The Full Court concluded that in fixing penalties under s 76 it is appropriate and relevant to take into account whether the conduct that contravened the TPA was systematic, deliberate or covert: at 577 [158] and at 579 [163]. In doing so, the Court does not stray into irrelevant moral considerations. 19 Depending on the circumstances of the case, other principles may also be relevant. Where the relevant conduct gives rises to several contraventions of the TPA, it will be relevant to take into account the totality principle to ensure that the total penalty does not exceed what is proper for the entire contravening conduct in question: see Trade Practices Commission v Advance Bank Australia Ltd (1993) ATPR 41-229 ( 'Advance Bank' ) at 41,164 per Gummow J; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169 ( 'ABB Transmission' ) at 179-180 [38]-[39]; TNT at 40,169. The parity principle, ie all other things being equal, similar conduct should be deserving of similar penalties, will have direct application where penalties are being imposed on several contravening respondents. The principle also draws attention, albeit less directly, to the penalties that have been imposed in past cases. There is, of course, a limit to the usefulness of any comparison with past penalties: the circumstances of particular cases are likely to differ in significant respects and each case must be considered by reference to its own circumstances: see Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 ( 'George Weston' ) at 40,984 [31] per Goldberg J. 23 The CEPU also advanced a number of alternative submissions. First, it submitted that its conduct should be viewed as a single course of conduct, attracting one penalty only, even if it were possible to draw some distinction between the conduct that was relevant to s 45E and that which was relevant to s 45EA. In support of this submission, the CEPU relied upon Advance Bank at 41,164 per Gummow J; ABB Transmission at 179-180 [38] and Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833 ( 'Rural Press' ) at 43,290 [16]-[17]. Further or alternatively, the CEPU submitted that if this approach could not be adopted, its conduct in relation to the two contraventions was so interconnected that, by the application of the totality principle, the Court ought to arrive at a penalty of the same magnitude as if it were dealing with a single contravention: see Rural Press at 43,290 [19] and TNT at 40,169. 28 In Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 256 ( 'Allied Mills' ) at 258, Sheppard J was required to assess penalties in relation to price fixing contraventions of s 45 of the TPA. His Honour said that where more than one breach of s 45 is alleged and admitted, it would not be appropriate to impose substantive penalties for each breach because each arises out of the one transaction, namely, the arrangement or understanding alleged in the amended statement of claim. In taking this course, Sheppard J followed the approach adopted by Kitto J in imposing penalties for breaches of the Customs Act 1901 (Cth) in L Vogel & Son Pty Ltd v Anderson (Minister for Customs) [1967] HCA 46 ; (1968) 120 CLR 157 at 164-165. Sheppard J's approach was followed in TNT at 40,169. These cases involved applications of the totality principle rather than s 76(3). 32 The Full Court added at 584 [185] that, if s 76(3) did not apply, the totality principle should have been applied because of the interlocking nature of the conduct involved in the two contraventions: 'If it could be said that the conduct relevant to the two contraventions was not the same conduct for the purpose of s 76(3) , we would be of the opinion that his Honour's discretion in calculating the appropriate penalty to be imposed miscarried, in that his Honour failed to have regard to the interlocking nature of the conduct involved in the two contraventions and to the need to set a total penalty appropriate in the circumstances. On the particular facts of this case, it was not appropriate to impose a substantive penalty for each breach of the Act arising as they did out of the one transaction. The appropriate course was to set a penalty for the conduct imposed in respect of one breach and to take the other breach into account: Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 37 ALR 256; 60 FLR 1 per Sheppard J at FLR 40; Trade Practices Commission v TNT Australia Pty Ltd , above, at 40,169; McDonald v R (1994) 48 FCR 555; 120 ALR 629. For the reasons we have set out above, we consider that the appropriate total of penalty would have been a sum of $500,000.' The penalty of $500,000 was the same figure that the Full Court considered to be the appropriate penalty on the footing that s 76(3) did apply. 61 It is a well accepted principle that, in the assessment of a penalty, a respondent who withdraws defences and acknowledges liability, and thereby saves the community the costs of a lengthy trial, is entitled to special consideration in reduction of the penalty that would otherwise be assessed: NW Frozen Foods at 293-294 per Burchett and Kiefel JJ; TNT at 40,169 40,170 per Burchett J; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 at 48,626 48,630 [49]-[71] per Branson, Sackville and Gyles JJ. The extent of the discount will depend, inter alia, upon whether the respondent's co-operation with the ACCC indicates a resolve to comply with the law, thereby reducing the need for specific deterrence: see Leahy (No 3) at 309-310 [40]-[41] per Goldberg J. 64 The ACCC's submission is unacceptable as a matter of general principle and runs counter to settled authority in this Court. In TNT at 40,170, Burchett J said: 'It need hardly be emphasized that the acceptance by the Court of the principle recognizing the taking into account of an admission of liability, and the saving of time and expense involved in it, does not imply any doctrine that would increase a penalty because there was no admission. The law does not permit that. The contravener who fights the case to the bitter end will obtain no discount, but the penalty imposed will be the proper penalty, and no more. However, the penalties I have ordered to be paid here do not represent what I would have imposed as proper in such circumstances, since I have made substantial allowance for the admissions, both as indicative of a true resolve to comply with the law in future, and as involving a benefit to the community, belated though it was, that ought to be recognized in the fixing of penalties that are just in all the circumstances.' In Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236, the ACCC contended on appeal that the trial judge had erred by concluding that the respondents should be given credit for their meaningful co-operation in the investigation of the ACCC and in the conduct of the hearing. On that occasion, the ACCC submitted that there was no support in the authorities, or in principle, for a penalty to be reduced on account of the way in which litigation is conducted where liability is in issue. The Full Court accepted the ACCC's submission and concluded that the conduct of the trial should not have been taken into account in fixing penalty, although it is something to which regard might have been had in relation to costs orders: at 285 [166].


case_text: In Visy Paper (No 2) , Sackville J noticed the debate as to whether the punishment of a contravener is a relevant factor to take into account in determining the appropriate penalty to be imposed. His Honour said that the authorities suggest that there is little or no difference between taking into account the deliberate nature of the conduct in question and the object of punishing the contravener: see Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851 at 44,542 44,543 [50]; Minister for Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89 at 102 104 [52]-[57] per Sackville J; see also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 at 241 per Goldberg J; and Leahy (No 3) at 308 309 [37]-[39] per Goldberg J.


case_title: Minister for Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89


case_title: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238


case_text: Depending on the circumstances of the case, other principles may also be relevant. Where the relevant conduct gives rises to several contraventions of the TPA, it will be relevant to take into account the totality principle to ensure that the total penalty does not exceed what is proper for the entire contravening conduct in question: see Trade Practices Commission v Advance Bank Australia Ltd (1993) ATPR 41-229 ( 'Advance Bank' ) at 41,164 per Gummow J; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169 ( 'ABB Transmission' ) at 179-180 [38]-[39]; TNT at 40,169. The parity principle, ie all other things being equal, similar conduct should be deserving of similar penalties, will have direct application where penalties are being imposed on several contravening respondents. The principle also draws attention, albeit less directly, to the penalties that have been imposed in past cases. There is, of course, a limit to the usefulness of any comparison with past penalties: the circumstances of particular cases are likely to differ in significant respects and each case must be considered by reference to its own circumstances: see Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 ( 'George Weston' ) at 40,984 [31] per Goldberg J. 23 The CEPU also advanced a number of alternative submissions. First, it submitted that its conduct should be viewed as a single course of conduct, attracting one penalty only, even if it were possible to draw some distinction between the conduct that was relevant to s 45E and that which was relevant to s 45EA. In support of this submission, the CEPU relied upon Advance Bank at 41,164 per Gummow J; ABB Transmission at 179-180 [38] and Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833 ( 'Rural Press' ) at 43,290 [16]-[17]. Further or alternatively, the CEPU submitted that if this approach could not be adopted, its conduct in relation to the two contraventions was so interconnected that, by the application of the totality principle, the Court ought to arrive at a penalty of the same magnitude as if it were dealing with a single contravention: see Rural Press at 43,290 [19] and TNT at 40,169. 29 The same observation can be made concerning Advance Bank , upon which the CEPU relied. In that case, Gummow J was required to assess penalties in relation to five misleading advertisements published over a two week period. His Honour referred with approval to the following remarks by Lockhart J in Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd (No 2) (1980) 44 FLR 149 at 176: 'Guidance is given in the field of sentencing for criminal offences by the well-known principle that where several offences are heard together and arise out of the same transaction it is a sound working rule that the sentences imposed for those offences should be made concurrent; it is inappropriate to sentence consecutively when the offences were all really involved in the same episode... I accept that the contraventions arose out of the one course or pattern of conduct. Although it is necessary to look at each contravention separately, nevertheless consideration must be given to the facts common to each contravention.' 42 If the CEPU's conduct that is relevant to Edison's contravention of s 45EA can be distinguished from its conduct in relation to the s 45E(3) contravention, with the consequence that s 76(3) does not apply, I consider that the approach described in Allied Mills , Advance Bank and in McPhee at 584 [185] should be applied in the circumstances of this case. In substance, the CEPU engaged in a single course of conduct that was related and interlocking and which involved it in both contraventions. To my mind, it would be artificial to distinguish between the conduct that is relevant to the making of the arrangement and that which is relevant to Edison's giving effect to the arrangement. The CEPU's conduct in relation to the two contraventions is so interconnected that the appropriate course is to apply the totality principle to set a penalty for the CEPU's accessorial conduct in respect of one breach and to take the CEPU's involvement in the other breach into account. Adopting that approach, I have concluded that the appropriate penalty would not differ from that which I would impose on the basis that s 76(3) applies.


case_text: Depending on the circumstances of the case, other principles may also be relevant. Where the relevant conduct gives rises to several contraventions of the TPA, it will be relevant to take into account the totality principle to ensure that the total penalty does not exceed what is proper for the entire contravening conduct in question: see Trade Practices Commission v Advance Bank Australia Ltd (1993) ATPR 41-229 ( 'Advance Bank' ) at 41,164 per Gummow J; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169 ( 'ABB Transmission' ) at 179-180 [38]-[39]; TNT at 40,169. The parity principle, ie all other things being equal, similar conduct should be deserving of similar penalties, will have direct application where penalties are being imposed on several contravening respondents. The principle also draws attention, albeit less directly, to the penalties that have been imposed in past cases. There is, of course, a limit to the usefulness of any comparison with past penalties: the circumstances of particular cases are likely to differ in significant respects and each case must be considered by reference to its own circumstances: see Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 ( 'George Weston' ) at 40,984 [31] per Goldberg J. 23 The CEPU also advanced a number of alternative submissions. First, it submitted that its conduct should be viewed as a single course of conduct, attracting one penalty only, even if it were possible to draw some distinction between the conduct that was relevant to s 45E and that which was relevant to s 45EA. In support of this submission, the CEPU relied upon Advance Bank at 41,164 per Gummow J; ABB Transmission at 179-180 [38] and Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833 ( 'Rural Press' ) at 43,290 [16]-[17]. Further or alternatively, the CEPU submitted that if this approach could not be adopted, its conduct in relation to the two contraventions was so interconnected that, by the application of the totality principle, the Court ought to arrive at a penalty of the same magnitude as if it were dealing with a single contravention: see Rural Press at 43,290 [19] and TNT at 40,169.


case_text: Depending on the circumstances of the case, other principles may also be relevant. Where the relevant conduct gives rises to several contraventions of the TPA, it will be relevant to take into account the totality principle to ensure that the total penalty does not exceed what is proper for the entire contravening conduct in question: see Trade Practices Commission v Advance Bank Australia Ltd (1993) ATPR 41-229 ( 'Advance Bank' ) at 41,164 per Gummow J; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169 ( 'ABB Transmission' ) at 179-180 [38]-[39]; TNT at 40,169. The parity principle, ie all other things being equal, similar conduct should be deserving of similar penalties, will have direct application where penalties are being imposed on several contravening respondents. The principle also draws attention, albeit less directly, to the penalties that have been imposed in past cases. There is, of course, a limit to the usefulness of any comparison with past penalties: the circumstances of particular cases are likely to differ in significant respects and each case must be considered by reference to its own circumstances: see Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 ( 'George Weston' ) at 40,984 [31] per Goldberg J. 51 I have already observed that the CEPU was aware that DJN performed work at Loy Yang B, that it did not have an EBA with the CEPU, and that the provision proposed by the CEPU for Edison's agreement would operate to exclude DJN from working at Loy Yang B so long as it did not enter into an EBA with the CEPU. Edison was also aware of these matters. As events transpired, DJN was the only electrical contractor affected by the arrangement over the period between August 2001 and December 2003. However, the impact of the arrangement was potentially wider than this. In my opinion, it is appropriate to have regard to the fact that the arrangement was general in terms, and that the exclusionary provision had the potential to prevent any electrical contractor being retained by Edison to perform work at Loy Yang B if the contractor did not obtain or maintain a current certified agreement with the CEPU. In Rural Press at 43,296 [46], Mansfield J pointed out that even in cases where the contravening conduct was not carried through to its conclusion and therefore no loss resulted, courts have taken into account the potential harm in determining the seriousness of the offence; see also George Weston and Australian Competition and Consumer Commission v Cromford Pty Ltd (1998) ATPR 41-618.


case_outcome: approved

case_text: The CEPU also advanced a number of alternative submissions. First, it submitted that its conduct should be viewed as a single course of conduct, attracting one penalty only, even if it were possible to draw some distinction between the conduct that was relevant to s 45E and that which was relevant to s 45EA. In support of this submission, the CEPU relied upon Advance Bank at 41,164 per Gummow J; ABB Transmission at 179-180 [38] and Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833 ( 'Rural Press' ) at 43,290 [16]-[17]. Further or alternatively, the CEPU submitted that if this approach could not be adopted, its conduct in relation to the two contraventions was so interconnected that, by the application of the totality principle, the Court ought to arrive at a penalty of the same magnitude as if it were dealing with a single contravention: see Rural Press at 43,290 [19] and TNT at 40,169.


case_text: In Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 256 ( 'Allied Mills' ) at 258, Sheppard J was required to assess penalties in relation to price fixing contraventions of s 45 of the TPA. His Honour said that where more than one breach of s 45 is alleged and admitted, it would not be appropriate to impose substantive penalties for each breach because each arises out of the one transaction, namely, the arrangement or understanding alleged in the amended statement of claim. In taking this course, Sheppard J followed the approach adopted by Kitto J in imposing penalties for breaches of the Customs Act 1901 (Cth) in L Vogel & Son Pty Ltd v Anderson (Minister for Customs) [1967] HCA 46 ; (1968) 120 CLR 157 at 164-165. Sheppard J's approach was followed in TNT at 40,169. These cases involved applications of the totality principle rather than s 76(3). 32 The Full Court added at 584 [185] that, if s 76(3) did not apply, the totality principle should have been applied because of the interlocking nature of the conduct involved in the two contraventions: 'If it could be said that the conduct relevant to the two contraventions was not the same conduct for the purpose of s 76(3) , we would be of the opinion that his Honour's discretion in calculating the appropriate penalty to be imposed miscarried, in that his Honour failed to have regard to the interlocking nature of the conduct involved in the two contraventions and to the need to set a total penalty appropriate in the circumstances. On the particular facts of this case, it was not appropriate to impose a substantive penalty for each breach of the Act arising as they did out of the one transaction. The appropriate course was to set a penalty for the conduct imposed in respect of one breach and to take the other breach into account: Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 37 ALR 256; 60 FLR 1 per Sheppard J at FLR 40; Trade Practices Commission v TNT Australia Pty Ltd , above, at 40,169; McDonald v R (1994) 48 FCR 555; 120 ALR 629. For the reasons we have set out above, we consider that the appropriate total of penalty would have been a sum of $500,000.' The penalty of $500,000 was the same figure that the Full Court considered to be the appropriate penalty on the footing that s 76(3) did apply. 42 If the CEPU's conduct that is relevant to Edison's contravention of s 45EA can be distinguished from its conduct in relation to the s 45E(3) contravention, with the consequence that s 76(3) does not apply, I consider that the approach described in Allied Mills , Advance Bank and in McPhee at 584 [185] should be applied in the circumstances of this case. In substance, the CEPU engaged in a single course of conduct that was related and interlocking and which involved it in both contraventions. To my mind, it would be artificial to distinguish between the conduct that is relevant to the making of the arrangement and that which is relevant to Edison's giving effect to the arrangement. The CEPU's conduct in relation to the two contraventions is so interconnected that the appropriate course is to apply the totality principle to set a penalty for the CEPU's accessorial conduct in respect of one breach and to take the CEPU's involvement in the other breach into account. Adopting that approach, I have concluded that the appropriate penalty would not differ from that which I would impose on the basis that s 76(3) applies.


case_text: In Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 256 ( 'Allied Mills' ) at 258, Sheppard J was required to assess penalties in relation to price fixing contraventions of s 45 of the TPA. His Honour said that where more than one breach of s 45 is alleged and admitted, it would not be appropriate to impose substantive penalties for each breach because each arises out of the one transaction, namely, the arrangement or understanding alleged in the amended statement of claim. In taking this course, Sheppard J followed the approach adopted by Kitto J in imposing penalties for breaches of the Customs Act 1901 (Cth) in L Vogel & Son Pty Ltd v Anderson (Minister for Customs) [1967] HCA 46 ; (1968) 120 CLR 157 at 164-165. Sheppard J's approach was followed in TNT at 40,169. These cases involved applications of the totality principle rather than s 76(3).


case_text: The same observation can be made concerning Advance Bank , upon which the CEPU relied. In that case, Gummow J was required to assess penalties in relation to five misleading advertisements published over a two week period. His Honour referred with approval to the following remarks by Lockhart J in Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd (No 2) (1980) 44 FLR 149 at 176: 'Guidance is given in the field of sentencing for criminal offences by the well-known principle that where several offences are heard together and arise out of the same transaction it is a sound working rule that the sentences imposed for those offences should be made concurrent; it is inappropriate to sentence consecutively when the offences were all really involved in the same episode... I accept that the contraventions arose out of the one course or pattern of conduct. Although it is necessary to look at each contravention separately, nevertheless consideration must be given to the facts common to each contravention.'


case_text: In McPhee at 583 [181]-[183], the Full Court considered the imposition of penalties for making and giving effect to an arrangement or understanding in contravention of s 45. The Court concluded that s 76(3) applied because the conduct which constituted the second contravention of giving effect to the arrangement was part and parcel of the conduct which constituted the first contravention of making the arrangement: 'The case presented to his Honour did not distinguish the conduct of McPhee involving the formation of the proscribed arrangement or understanding from the conduct of McPhee said to constitute giving effect to such arrangement or understanding. According to the Commission's case, the delivery by Mr Webb to Mr Jolly of McPhee's rates was an integral part of the conduct that constituted the contravention of s 45 in making, or arriving at, an understanding or arrangement. That same act was also relied upon by the Commission as the act which constituted the further contravention by McPhee of giving effect to the arrangement or understanding. If the disclosure by McPhee to DFE of the rates charged by McPhee to ACI Florapak could be said to be an act giving effect to an arrangement or understanding already made or arrived at, it was not conduct distinguishable from the conduct of McPhee which constituted the making of such an arrangement or understanding. Pursuant to s 76(3) of the Act, if conduct constitutes a contravention of two or more provisions of Pt IV , a proceeding may be instituted in respect of each contravention but a person is not liable to more than one pecuniary penalty in respect of the same conduct. This was not a case involving repeated conduct concerning discrete events occurring at different times and involving disparate parties: Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR 544; 47 FLR 334 at 336 per Franki J. We therefore accept the submission that his Honour erred in imposing separate penalties in respect of the ACI Florapak conduct. The conduct which constituted the second contravention was part and parcel of the conduct which constituted the first contravention and s 76(3) prescribed that only one penalty could be imposed.' 40 This is not a case where different actions were taken by the CEPU at different times and in relation to dealings with different persons or entities. In such a case, the most that could be said was that the conduct on each occasion was of a similar character: see Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR 544 at 548 per Franki J. On the findings I have made, the CEPU's conduct was part and parcel of one transaction or episode that took place over the period between 9 August and 23 August 2001. 41 In my opinion, the conduct on the part of the CEPU that made it an accessory to Edison's contravention of s 45E(3) is the same conduct that made it an accessory to Edison's contravention of s 45EA. Accordingly, s 76(3) applies. The consequence is that the CEPU is not liable to more than one pecuniary penalty under s 76(1) in respect of its conduct, and the maximum amount of that penalty is $750,000.


case_text: I have already observed that the CEPU was aware that DJN performed work at Loy Yang B, that it did not have an EBA with the CEPU, and that the provision proposed by the CEPU for Edison's agreement would operate to exclude DJN from working at Loy Yang B so long as it did not enter into an EBA with the CEPU. Edison was also aware of these matters. As events transpired, DJN was the only electrical contractor affected by the arrangement over the period between August 2001 and December 2003. However, the impact of the arrangement was potentially wider than this. In my opinion, it is appropriate to have regard to the fact that the arrangement was general in terms, and that the exclusionary provision had the potential to prevent any electrical contractor being retained by Edison to perform work at Loy Yang B if the contractor did not obtain or maintain a current certified agreement with the CEPU. In Rural Press at 43,296 [46], Mansfield J pointed out that even in cases where the contravening conduct was not carried through to its conclusion and therefore no loss resulted, courts have taken into account the potential harm in determining the seriousness of the offence; see also George Weston and Australian Competition and Consumer Commission v Cromford Pty Ltd (1998) ATPR 41-618.


case_text: Prior to August 2001, there was no finding that the CEPU had contravened, or been involved in any contravention, of the TPA. Arising out of events that took place in October 2002, the ACCC instituted proceedings against the CEPU and other unions alleging a contravention of Pt IV of the TPA and which resulted in consent orders: see Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2004) ATPR 42-002 ( 'PKIU' ). The proceedings related to a picket that was established between 2 October and 23 October 2002 at premises in East Gippsland. The CEPU was the third respondent to the proceedings. Under the consent orders, the CEPU submitted to an injunction by consent, agreed to pay a pecuniary penalty of $100,000, and agreed to implement a trade practices compliance program. 58 Aside from this proceeding and the PKIU case, there is no evidence of any other finding that the CEPU has been involved in contraventions of the TPA either before or after August 2001. 59 The trade practices compliance program which the CEPU implemented in 2004 in accordance with the consent orders made in PKIU is ongoing. It includes the preparation of a compliance procedure document outlining the CEPU's obligations under the TPA and the conduct of regular trade practices seminars for all CEPU officers throughout Australia. On the evidence before the Court, there is no reason to doubt the rigour or ambit of the compliance program. The implementation of the compliance program has been audited and reviewed each year since 2004 and a copy of each audit report was provided to the ACCC. The ACCC has not raised any concerns about its content or reach.


case_text: It is a well accepted principle that, in the assessment of a penalty, a respondent who withdraws defences and acknowledges liability, and thereby saves the community the costs of a lengthy trial, is entitled to special consideration in reduction of the penalty that would otherwise be assessed: NW Frozen Foods at 293-294 per Burchett and Kiefel JJ; TNT at 40,169 40,170 per Burchett J; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 at 48,626 48,630 [49]-[71] per Branson, Sackville and Gyles JJ. The extent of the discount will depend, inter alia, upon whether the respondent's co-operation with the ACCC indicates a resolve to comply with the law, thereby reducing the need for specific deterrence: see Leahy (No 3) at 309-310 [40]-[41] per Goldberg J.


case_text: The ACCC's submission is unacceptable as a matter of general principle and runs counter to settled authority in this Court. In TNT at 40,170, Burchett J said: 'It need hardly be emphasized that the acceptance by the Court of the principle recognizing the taking into account of an admission of liability, and the saving of time and expense involved in it, does not imply any doctrine that would increase a penalty because there was no admission. The law does not permit that. The contravener who fights the case to the bitter end will obtain no discount, but the penalty imposed will be the proper penalty, and no more. However, the penalties I have ordered to be paid here do not represent what I would have imposed as proper in such circumstances, since I have made substantial allowance for the admissions, both as indicative of a true resolve to comply with the law in future, and as involving a benefit to the community, belated though it was, that ought to be recognized in the fixing of penalties that are just in all the circumstances.' In Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236, the ACCC contended on appeal that the trial judge had erred by concluding that the respondents should be given credit for their meaningful co-operation in the investigation of the ACCC and in the conduct of the hearing. On that occasion, the ACCC submitted that there was no support in the authorities, or in principle, for a penalty to be reduced on account of the way in which litigation is conducted where liability is in issue. The Full Court accepted the ACCC's submission and concluded that the conduct of the trial should not have been taken into account in fixing penalty, although it is something to which regard might have been had in relation to costs orders: at 285 [166].


case_text: The ACCC submitted that an important consideration in the context of deterrence is that the CEPU has expressed no contrition for its involvement in Edison's contraventions of ss 45E(3) and 45EA. As a result, the ACCC submitted that the Court could have no confidence that the CEPU and its senior officers, including Mighell, regret what happened or that they have resolved to ensure that contravening conduct of the kind in question in this case will not happen again. An explicit statement of contrition will ordinarily be associated with an admission of liability: see eg, Australian Securities and Investments Commission v Vizard [2005] FCA 1037 ; (2005) 145 FCR 57 at 64 [31] . Where a respondent contests allegations that it contravened a provision of Pt IV of the TPA, and wishes to preserve its right of appeal, it is hardly to be expected that the respondent will express unreserved contrition at the penalty hearing. Moreover, there may be reasons unknown to the court why a respondent has not been prepared to admit liability prior to the hearing. In general, I consider that an appropriate expression of contrition may warrant a discount on penalty, but the absence of an expression of that kind ought not to elevate the penalty beyond what would otherwise be appropriate. In this context, the inquiry that must be pursued is what level of penalty is required to achieve the objective of specific deterrence, having regard to the factors to which the CEPU points, including its record of non-contravention since October 2002 and its ongoing compliance program, and the other circumstances of the case. I have concluded that the absence of an expression of contrition by the CEPU for its contraventions should not elevate the penalty to be imposed on the CEPU beyond what would otherwise be appropriate. 73 The CEPU referred the Court to three cases in which penalties were imposed on unions under the TPA. It contended that these cases supported its submission that the appropriate penalty was in the order of $20,000, and that the penalty proposed by the ACCC was excessive. 74 In the PKIU case, the Court held that three unions, including the CEPU, contravened s 45D of the TPA by forming and maintaining a picket line over the period from 2 October 2002 to 23 October 2002 which prevented the construction of a gas plant. Each of the unions agreed to a penalty of $100,000, in circumstances where there was no order for costs against them. The picket line was established in defiance of orders made by the Australian Industrial Relations Commission ('the Commission') and caused significant losses to the owner of the plant. In his reasons for judgment, Gray J noted that the respondents had reached agreement to pay compensation to the plant owner for its losses, that the respondents were entitled to credit for their co-operation with the Commission and for the saving of public money in relation to the litigation, and that it was not suggested that any of the respondents had a record of similar contraventions: at 48,750 [8]. On the other side of the ledger, Gray J noted several factors that would tend to increase the size of the penalty: the picket continued to be operated despite the orders of the Commission, the delay in the construction of the plant was thus extended, and the unions had not instituted any program or training designed to ensure compliance with the TPA: at 48,751 [10]. His Honour concluded that the penalties ought to be at the very highest end of the range appropriate for conduct of the kind in question, and on that basis he made orders which imposed penalties at the agreed level of $100,000. In the absence of agreement as to that level of penalty, Gray J said that he would have fixed a figure considerably lower than $100,000. In expressing this view, Gray J took particular note of the fact that the unions were not profit-making enterprises and did not engage in the conduct in question for their own gain. His Honour also noted that the agreed penalties represented a large sum for the unions to pay from their own resources which would ultimately have to come from the pockets of wage earners.


case_text: In Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472, the offending conduct comprised two picket lines which delayed the departure of two vessels. The parties agreed upon a penalty of $75,000 for each of the contraventions of s 45DB of the TPA. Hill J found that these penalties were appropriate, although he considered them to be at the bottom of the range, bearing in mind that the conduct was deliberate and involved the implementation of a policy which was most likely to contravene the TPA: at 493 [97]. Hill J also said that, in accepting the agreed penalties of $75,000 for each contravention, he had taken into account the fact that the respondents had co-operated with the ACCC to agree the facts and had accepted that their conduct amounted to a contravention, thereby reducing the expense which a contested hearing would have required: at 493 [97].


case_text: In Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 , two unions were involved in conduct on two separate occasions, in April 2004 and again in November 2004, in contravention of s 45D of the TPA. The April conduct interrupted a concrete pour for several hours and it was followed by a picket which obstructed access to a construction site for a new hotel at the Burswood Casino in Perth. The interruption of a concrete pour and the picket caused significant delays to the project and exposed the builder to losses. The November conduct was another picket at the site which restricted access by construction workers. Each of the unions agreed to pay a pecuniary penalty to the Commonwealth of $50,000. Nicholson J concluded that the proposed penalties were appropriate. In doing so, his Honour made particular reference to the fact that the unions had co-operated with the ACCC by approaching the Court for the final disposition of the proceeding on a non-contested basis, and that neither union had engaged in the conduct for financial gain: at [14]. 77 The facts of these cases are very different from the facts of the case before me. Each case involved an agreement as to the appropriate level of penalty. I accept that the conduct involved in each case had significant adverse commercial or financial consequences, more so than in the case before me, although I note that in the PKIU case the unions agreed to pay compensation to the affected company. In the end, while these three cases provide general guidance, I have derived limited assistance from them because each case turned on its particular facts. 78 Weighing up all of the factors to which I have referred, I consider that the penalty of $20,000 proposed by the CEPU does not properly reflect the nature and seriousness of the contravening conduct. It is, moreover, inadequate from the viewpoint of both specific and general deterrence. On the other hand, I consider that the penalty proposed by the ACCC is disproportionate to the size and financial resources of the CEPU and the nature, seriousness, duration and impact of the contravening conduct.


case_text: The major obstacle to Telstra's application for an interlocutory injunction seems to me to be the principle that underlies the judgment of the Full Court in Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2002] FCAFC 223 (2002) 193 ALR 629. That case concerned an advertising campaign by one battery manufacturer, in which it compared the particular feature of its alkaline battery with the same feature of the other battery manufacturer's different product, its carbon zinc battery. The major issue was whether this was a misleading comparison, when it did not inform the consumer that the second manufacturer also had its own alkaline battery. The Full Court made it very clear that it was open to the advertiser to choose with which product it compared, and to choose the feature on which it made a comparison. 7 At [21]-[22], Heerey J rejected the argument that comparison would be meaningful and fair only where it compared products which were approximate peers, or were like products. At [22], his Honour said: Provided the factual assertions are not untrue, or misleading half-truths, an advertiser can lawfully compare a particular aspect of its product or service favourably with the same aspect of a competitor's product or service. At [28], his Honour said: There is no doubt on the evidence that the Eveready Super Heavy Duty battery, the highest selling carbon zinc battery in Australia, competes head to head with Duracell's alkaline battery. Duracell is entitled, in my opinion, to point out truthfully to consumers a feature of its product which is superior to that of a rival product. If viewers think that Energizer has no other batteries which are more powerful than the Eveready Super Heavy Duty, then that belief would spring from their own mistaken assumptions and not from anything Duracell has told them in the advertisement. The appropriate remedy is for Eveready to correct such mistaken assumptions, if they exist, by its own advertising. There is no legal or ethical obligation on a trader to publicise the full range of a competitor's products, and reasonable viewers would not think otherwise. 8 Lindgren J expressed his views somewhat differently. In a lengthy paragraph, numbered [53], he dealt with a number of the considerations that the trial judge had dealt with. In the course of that discussion, at p 645 of the report in the Australian Law Reports, his Honour said: In my opinion, it is important not to apply a "policy" thought to underlie the prohibition of misleading or deceptive conduct in place of the words of the provision. Moreover, the present case illustrates a particular difficulty to which such an approach can give rise. Policy may be thought to require that Duracell be able, by means of comparative advertising, to inform viewers that the Eveready SHD battery does not give value for money. But does policy permit it to do so without also informing them of the availability of Energizer alkaline batteries of the same size? I do not understand how any answer to this question can be confidently arrived at. At 646, his Honour said: It cannot be accepted as a general proposition that in order not to be misleading or deceptive, comparative advertising must refer to all of the criteria by reference to which the goods might be compared. Most goods have several "selling features" and consumers understand that a comparative advertisement referring to only one of them does not necessarily exhaust the field. Consumers understand that the advertiser has selected a feature which favours the advertised product, in the hope that that feature will be so important to consumers that they will not be interested to inquire into other potential bases for comparison. The present product is unusual in that it has only two selling features: power and price. Its power is indicated by how long it lasts. The modified advertisement tells a viewer something about the only criterion other than price by reference to which he or she might choose a non-rechargeable battery. But I do not think the viewer would understand the commercial to represent that the compared batteries are equal or approximately equal in price. There are other equally likely possibilities, such as, that the price of the Duracell battery will not be more than "up to three times greater" than the price of the Eveready SHD battery, or that the price of the Duracell battery will not be so much greater than the price of the Eveready SHD battery that a buyer of the Duracell battery will get value for money. 9 Merkel J also agreed in the result. At [85], his Honour agreed, for the reasons given by Heerey and Lindgren JJ, that: the impression that is likely to be created upon the viewer is that the modified advertisement compares the power of the Duracell alkaline battery and the Eveready Super Heavy Duty battery and not their price or value. His Honour did not accept that the advertisement made any representation as to price or value, but left the potential purchaser to make his or her own choice on those matters at the point of sale. At [90], his Honour said: The modified advertisement makes representations about two battery types. It does not make any representation about, or comparison between, the two brands or their respective ranges of batteries. Thus, the modified advertisement does not represent that the Eveready Super Heavy Duty battery is the only direct competitor (within the Eveready range of batteries) of the Duracell alkaline batteries. It does no more than represent in graphic terms the power difference between two specified batteries which are direct competitors in the market place. In the absence of a representation, implication or impression that the Eveready Super Heavy Duty battery is the only Eveready competitor, I do not think that the disclosure of other competitive products in the Eveready alkaline range, having similar performance characteristics to Duracell's alkaline battery, is necessary to prevent the comparison from being misleading. The position might have been otherwise if the two comparators were not competitors or if the comparison were for some other reason inappropriate. That however, is not the situation in the present case. 10 It seems to me that the principle underlying this case tends very strongly against the case put by Telstra. There can be little doubt that the two products specified in the Optus advertising campaign are products that compete one with the other. That being the case, it is legitimate for Optus to make a truthful comparison of whatever feature or features of them it chooses to compare, without it being obliged to inform consumers that the product with which it makes comparison is not the only product in the Telstra range. It is open to Optus to select whichever feature or features it wishes to compare, and as long as it makes a truthful comparison, it does not have to correct any mistaken assumptions on the part of the consumer about the choice of the product with which the comparison is made. 11 Counsel for Telstra sought to distinguish the Gillette case on the basis that here there is reference to price, whereas in the battery advertising there was no reference to price or indeed to value. The Optus advertising is all about value and certainly specifies price. In my view, those features do not take the Optus advertising campaign outside the principle laid down by the Full Court in the Gillette case. If anything, the specification of price and the reference to value in the present case makes Telstra's case even weaker than was the case in relation to the battery comparisons. In the first place, it is clearly specified that the comparison is between the Optus $49 Cap Plan and the Telstra $40 Phone Plan. Plainly, the monthly price of the two plans is specified to be different. Plainly also, in the use of the phrase "Cap Plan" and the phrase "Phone Plan", there will be conveyed to the reasonable consumer at least the possibility that the comparison is between two different styles of plan. There may well be consumers who understand the difference between a "Cap Plan" and a "Phone Plan". Even those who do not will have conveyed to them that there is likely to be some difference. 12 Despite this manifest differentiation, counsel for Telstra has been driven to suggesting that there is some kind of subtle message in the Optus advertisements that in reality the two products that are being compared are the directly competitive products. I do not think that is the case. I have pressed counsel for Telstra repeatedly to tell me how much clearer the advertisement could make it that there was a comparison between plans of different prices and with different descriptions, and therefore likely to have different features. Counsel for Telstra has been unable to suggest ways in which such differentiation might be made more plainly. In my view, it is more than amply plain. In any event, even if there were a subtle message that the two were directly competitive, there is no misleading of the consumer into believing that the Telstra $40 Phone Plan is Telstra's only product, and no suggestion that Telstra does not have a $49 Cap Plan which could be compared with Optus. 13 The advertisements are very plainly aimed at those who make a lot of use of their mobile telephones to initiate communications with other people. There is no suggestion that there is any untruth about the assertion that there would be greater value for a consumer who wants to make a lot of two-minute voice calls to any home or mobile number in Australia. There would be greater value because of the $300 cap, which presumably, on any calculation, if the amount of the cap were used fully or some amount close to it were used, would more than offset the additional $9 per month that would be paid for the plan.


case_text: This is an application for leave to appeal by Mr Pende Gamogab from a decision of French J given on 8 September 2006 in Akiba and Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) [2006] FCA 1173. 2 French J dismissed an application by Mr Gamogab, a Papua New Guinea ('PNG') national, to be joined as a party to a native title claim (specifically an application for a determination of native title under s 61 of the Native Title Act 1993 (Cth) ('the Act')) over a large area of sea and seabed in the Torres Strait. His Honour made no order for the costs of the motion by Mr Gamogab seeking to be joined as a party. 3 That native title determination application covers approximately 44,000 square kilometres in the Torres Strait and the Coral Sea, being areas of sea, seabed, and inter-tidal zone. The application has become known as the Torres Strait Regional Seas Claim. 4 Section 84(5) of the Act provides the Federal Court with power to join parties to a proceeding: '84 Parties ... Joining parties (5) The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings. ...' 7 French J at par 34 considered that s 84(5) of the Act required the consideration of three elements: 1. Whether the person has an interest; 2. Whether the interest may be affected by a determination in the proceedings; and 3. Whether, in any event, in the exercise of its discretion the Court should join the person as a party. 8 French J concluded (for the purposes of joinder) that Mr Gamogab had an interest and that interest was an interest that might be affected by a determination in the proceedings. His Honour decided, in the exercise of his discretion, that Mr Gamogab should not be joined as a party. His findings in these respects are as follows: 10 French J said at par 33: 'The kind of interest necessary to enliven the discretion under s 84(5) can include '... a special well-established non-proprietary connection with land or waters that is of significance to that person'. The interest need not be proprietary or legal or equitable in nature. It must not be indirect, remote or lacking in substance. It will not include interests of an emotional, conscientious, ideological or intellectual kind Byron Environment Centre Inc v The Arakwal People (1997) 148 ALR 46 at 51-52 (Black CJ, see also at 84 Merkel J).' 11 French J said at 36 and 37: '36 It cannot be said that the interests of traditional inhabitants of the Torres Strait regional claim area from PNG would be unaffected by a native title determination over the sea. A native title determination recognising native title rights and interests on the part of the applicants could render enforceable and protected at Australian law, rights and interests which accord no recognition to the rights and interests asserted by Mr Gamogab and his community. In so saying, I offer no opinion on the question whether Mr Gamogab's asserted rights and interests as a traditional inhabitant do in truth exist in the claim area . 37 Relevantly to the exercise of the discretion to join Mr Gamogab, it can be said that a consideration of the legitimate traditional rights and interests of PNG nationals who are traditional inhabitants of the claim area would lead to a more accurate definition of the native title rights and interests claimed. The determination could protect the rights and interests of traditional inhabitants from PNG by limiting the scope of the rights and interests of the Torres Strait Regional Seas Claim applicants and their communities.' (Emphasis added.) 12 In the motion for joinder heard by French J, Mr Gamogab described himself as a subsistence farmer living in the Kupere Village in the South Fly District. This claim, as descrbed by French J, was: '7. He asserted, on behalf of a group he called the Dangaloub-Gizra, traditional rights of movement and ownership and use of resources of the Torres Strait region, which is now subject to the Torres Strait Regional Seas Claim. He said, inter alia:' "We claim ourselves to be a party to true traditional inherent land and resource owners and users as original inhabitants of our customary land on the coast and in the sea together with our SIEPAM (TORRES STRAIT ISLANDER) and ABARSEN (MALIG and GUDANG ABORIGINES) relatives." He said that they seek recognition by Australia of their traditional inherent rights of access and movement for traditional purposes in the Torres Strait region and of their usage and ownership of traditionally shared resources in the same or similar manner as Australia has done for their Torres Strait Island and Aboriginal relatives. 8. Mr Gamogab set out some Dangaloub-Gizra oral history and what he called the Myth of Origin passed orally from generation to generation, from time in antiquity to the present...' (Emphasis added.) 13 I have emphasised aspects of the reasons of French J above, as they are relevant to what Mr Gamogab is seeking, and the purpose, or one of the purposes, of his application to be joined as a respondent. 14 Mr Gamogab, in his affidavit, referred to a submission prepared in 2002, apparently on behalf of the occupants of the Kupere Village, in support of the Dan-Ngaloub clan's participation in the sharing of benefits which might arise from the proposed PNG-Australia gas pipeline project. 15 The basis for the exercise of a discretion by French J against ordering the joinder of Mr Gamogab as respondent to the determination application is based on his Honour's consideration on the implication of the 1978 Australia-PNG Treaty ('the Treaty'), Treaty between Australian and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters [1985] ATS 4. The Treaty was made on 18 December 1978 in Sydney and entered into force on 15 February 1985. 16 His Honour summarises the nature of the provisions of the Treaty as follows: '19 Article 1 of the Treaty is an interpretation provision. By Article 2 PNG recognises Australia's sovereignty over all islands south of a seabed jurisdiction line referred to in Article 4(1) of the Treaty, defined in Annex 5 of the Treaty and shown on a map comprising Annex 6. PNG also recognised Australia's sovereignty over certain specified islands and cays north of the line. The islands recognised were Aubusi, Boigu, Dauan, Deliverance, Kaumag, Kerr, Moimi, Saibai and Turnagain. Australia recognised PNG's sovereignty over all islands north of the seabed jurisdiction line and three islands south of the line, being Kawa, Mata Kawa and Kussa. The sovereignty reciprocally recognised over the islands includes sovereignty over their territorial seas, the seabed beneath those territorial seas and its subsoil and any islands, rocks or low-tide elevation lying within their territorial seas. 20 Article 10 of the Treaty defines a 'Protected Zone' comprising all the land, sea, airspace, seabed and subsoil within an area bounded by a line described in Annex 9 to the Treaty and shown in a map comprising Annex 7. The Protected Zone lies both to the north and south of the seabed jurisdiction line in the area between the two mainlands. Article 10(3) states: "'The principal purpose of the Parties in establishing the Protected Zone, and in determining its northern, southern, eastern and western boundaries, is to acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement." 21 Article 12 provides: "Where the traditional inhabitants of one Party enjoy traditional customary rights of access to and usage of areas of land, seabed, seas, estuaries and coastal tidal areas that are in or in the vicinity of the Protected Zone and that are under the jurisdiction of the other Party, and those rights are acknowledged by the traditional inhabitants living in or in proximity to those areas to be in accordance with local tradition, the other Party shall permit the continued exercise of those rights on conditions not less favourable than those applying to like rights of its own traditional inhabitants."' 17 The term ' traditional inhabitants ' is defined in Article 1 (m) of the Treaty, and by that definition, in relation to Papua New Guinea, includes persons who: '(i) live in the Protected Zone or the adjacent coastal area of Papua New Guinea, (ii) are citizens of Papua New Guinea, and (iii) maintain traditional customary associations with areas or features in or in the vicinity of the Protected Zone in relation to their subsistence or livelihood or social, cultural or religious activities.' 18 The term ' Protected Zone' means the zone established under Article 10 of the Treaty, namely: '1. A Protected Zone in the Torres Strait is hereby established comprising all the land, sea, airspace, seabed and subsoil within the area bounded by the line described in Annex 9 to this Treaty. The line so described is shown on the maps annexed to this Treaty as Annexes 6 and 7 and, in part, on the map annexed to this Treaty as Annex 2. 2. The Parties shall adopt and apply measures in relation to the Protected Zone in accordance with the provisions of this Treaty. 3. The principal purpose of the Parties in establishing the Protected Zone, and in determining its northern, southern, eastern and western boundaries, is to acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement. 4. A further purpose of the Parties in establishing the Protected Zone is to protect and preserve the marine environment and indigenous fauna and flora in and in the vicinity of the Protected Zone.' 19 The term ' traditional activities ' is defined in Article 1 (k) to include, amongst other things, ' traditional fishing ', and ' barter and market trade '. Article 1 (k) says that, ' In the application of this definition, except in relation to activities of a commercial nature, "traditional" shall be interpreted liberally and in the light of prevailing custom '. 25 The effect of the Exchange of Notes between Australia and Papua New Guinea in 2000 on those who were to be traditional inhabitants figures very highly in the reasons for his Honour's discretion. French J said at par 26: 'It appears from the applicants' submissions which were, in this respect, undisputed, the definition of 'traditional inhabitants' in the Treaty did not lend itself to a straightforward identification of PNG nationals who would benefit from the Treaty. A list of villages whose inhabitants would be regarded as traditional inhabitants for the purposes of the Treaty was agreed by Exchange of Notes between Australia and PNG in 2000. This effectively restricted the definition of the term 'traditional inhabitant' to people from one of 14 listed 'Treaty villages'. The applicants pointed out that this created two classes of PNG nationals who might seek access to Australian waters. The first are those nationals who are from Treaty villages and who are accepted as beneficiaries of the Treaty. The second consists of nationals who did not have the benefit of the Treaty. I have not been able to sight the Exchange of Notes nor to consider their effect on the Treaty obligations.' 26 In this regard, I note that the question of exclusion of a number of villages including Kupere is a matter of concern to the people of Kupere, on whose behalf Mr Gamogab sought joinder. 27 In his reasons, French J said at par 28: 'In a petition addressed to the Honourable Sir John Kaputin, former Minister for Foreign Affairs and Trade of PNG, it was said that a number of villages including Kupere have been '... excluded from the Treaty since 1978.' One of the demands in the petition was that the Ministry of Foreign Affairs endorse '... our membership to the Treaty and accordingly inform Canberra'. 28 The basis for his Honour's decision against joinder appears from pars 46 to 49 of his Honour's reasons: '46 In my opinion it is reasonable arguable that the Commonwealth has an obligation under the Treaty to ensure that the traditional activities of traditional inhabitants in the Torres Strait which are protected by the Treaty are taken into account to the extent that it is proper to do so in the native title determination process. This may extend to the provision of evidence relevant to the existence of limitations on the applicants' native title rights and interests by reference to their traditional acceptance of concurrent use of some of the land and waters within the claim area. The extent to which that obligation is limited by the Exchange of Notes was not debated on the motion before the Court. 47 The question whether a PNG village whose members are not treated as traditional inhabitants by the executive governments of PNG and Australia for the purposes of the Treaty should be so treated for the purpose of these proceedings, is a matter for those executive governments . These proceedings should not be used as a vehicle for advancing the case of particular PNG villages in that respect. It may be that a PNG group dissatisfied with its government's failure to recognise its members as traditional inhabitants for the purposes of the Treaty could bring declaratory proceedings in the National Court of PNG. 48 There is a risk, in my opinion, that the joinder of Mr Gamogab will bring to bear on these proceedings debates between village communities in PNG about their respective interests in the Torres Region Seas Claim area. These are matters best left to the Courts of PNG or to its executive government to resolve by agreement with the Australian government under the Treaty. As a matter of discretion I consider that the joinder of Mr Gamogab, notwithstanding his claimed interest, is undesirable. I consider that attention should also be given to the position of other PNG nationals who have been joined as parties. 49 I do not exclude the possibility that any native title determination which is made pursuant to the Torres Strait Regional Seas Claim will be expressed to be subject to the traditional rights and interests of PNG nationals. It is to be hoped that so much could be made a matter of agreement if the positions of the parties allow. The question then of which PNG nationals would be entitled to exercise those traditional rights and interests could be worked out on a case by case basis in the event of a dispute if one arose. It may be, for example, that the applicants would be able to agree that villages recognised as Treaty villages pursuant to the Exchange of Notes made in 2000 , could be identified as members of the classes of person entitled to carry out traditional activities in part of the claim area . The list of such communities need not be exhaustive for the purposes of the determination and need not exclude the possibility that other groups might be included.' (Emphasis added.) 29 All the parties in these proceedings have treated the decision of French J declining Mr Gamogab as a respondent to the determination proceedings as an interlocutory decision. 35 It is accepted by the parties that in deciding whether leave to appeal should be granted in this case, the issues are: (i) whether, in all the circumstances, the decision of French J is attended by sufficient doubt to warrant its being reconsidered by a Full Court; and (ii) whether substantial injustice would result if leave were refused, supposing the decision to be wrong. See Décor Corporation Pty Ltd and another v Dart Industries Inc (1991) 33 FCR 397 at pp 397 - 400. 38 I am, here, concerned only with the question of whether leave should be granted, and not whether the exercise of judicial discretion by French J miscarried. In that regard, I have to consider the tests earlier set out in Décor Corporation Pty Ltd and another v Dart Industries Inc (1991) 33 FCR 397. 39 Both the Commonwealth of Australia and the applicants in the principal proceedings have submitted that leave should be refused. The State of Queensland has entered a submitting appearance on the application for leave save as to costs. 40 Ms R. Webb QC, counsel for the Commonwealth, pointed out that the Papua Act 1905 (Cth) was repealed by an Act which was itself repealed, and the effect of s 4 of the Papua New Guinea Independence Act 1975 (Cth) makes it plain that Mr Gamogab has no rights under the Papua Act 1905 (Cth) (as Mr Gamogab in one of his affidavits alleges). Further, Ms Webb contends this basis is a matter which was not argued before the primary judge. 50 The Commonwealth, in its submissions before French J, disputed the contentions by the applicant in the principal proceedings about the effect of the 1985 Treaty, and made detailed submissions in respect of each aspect of those contentions. Importantly, however, the primary judge said at par 45: 'It is not necessary for present purposes to rule upon the correctness of the Commonwealth's submissions. The nature of the issues they raise however, informs the exercise of the discretion to join or not join Mr Gamogab .' (Emphasis added.) 51 It is arguable that this consideration taints the exercise of the discretion by the primary judge. Further, French J said at par 47: 'The question whether a PNG village whose members are not treated as traditional inhabitants by the executive governments of PNG and Australia for the purposes of the Treaty should be so treated for the purpose of these proceedings, is a matter for those executive governments...' 52 This also arguably taints the valid exercise of the discretion not to join Mr Gamogab to the claim determination proceedings. 53 In my opinion, it is at least arguable that the fact that the governments of PNG and Australia in the Exchange of Notes seem to evince the view that the villagers of Kupere are not ' traditional inhabitants ' should not be the basis for denying Mr Gamogab from contending in the principal proceedings that he enjoys rights which qualify the rights of the applicants in the Torres Strait Island sea claim. 56 The submissions on behalf of the Commonwealth acknowledge: '71. There is perhaps an alternative basis upon which Mr Gamogab might be allowed to participate in the Torres Strait Regional Seas claim, which alternative basis need not involve the Court in non-justiciable controversies. 72. This alternative basis has not been expressly relied on by Mr Gamogab. 73. However, French J alluded to this alternative basis at [34-35], when he suggested that Mr Gamogab could seek to mount a defensive action against the Torres Strait islander claimants to try to limit the kinds of native title rights that they might have recognised. 74. In other words, Mr Gamogab's involvement in the Torres Strait Regional Seas claim need not violate the principles set out earlier in these submissions if that involvement: (a) is on the basis that Mr Gamogab is not entitled to rely on or indeed invoke the Treaty; and (b) is strictly confined to being a contradictor to the evidentiary case advanced by the Torres Strait islander native title claimants.' 75. For example, Mr Gamogab might seek to lead evidence relating to the content of the rights and interests possessed for the purposes of the Native Title Act 1993 (Cth) under the traditional laws acknowledged, and the traditional customs observed, by the Torres Strait islander native title claimants. 76. In this regard, Mr Gamogab might seek to lead evidence that the rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Torres Strait islander native title claimants: 76.1 have never included rights of exclusive possession of the sea or seabed; 76.2 have never amounted to a right to exclude the Dangaloub-Gizra from the claim area or parts of it; 76.3 always positively included rights of access and use possessed by the Dangaloub-Gizra; 76.4 never covered certain areas (e.g. reefs) customarily exploited by the Dangaloub-Gizra. E.g. (purely hypothetically): 'in the memory of the oldest living inhabitant at Kupere, the people of Kupere have always fished at reef X in the claim area, and nobody has ever tried to stop them. The Torres Strait islanders have always accepted that people from Kupere have right to fish at reef X in the claim area'.' 57 The claim for Mr Gamogab to be joined, is, in my view, not confined to being a contradictor to the evidentiary case advanced by the claimants. Positive evidence that the people of Kupere have always fished in the claim area, or have always exercised other rights would be relevant in the determination of the extent of the rights that inhere to the Torres Strait Island claimants. 58 The Commonwealth, however, contends that this is not an argument that Mr Gamogab is thus far advancing in this Court. 59 This submission involves, in my view, a misunderstanding of at least one basis of the claim that Mr Gamogab wishes to advance. I have earlier emphasised some of the reasons of French J which bear on this claim. French J held that Mr Gamogab had an interest which would render him eligible for joinder as a party. His Honour said at par 33: 'The kind of interest necessary to enliven the discretion under s 84(5) can include " ... a special well-established non-propriety connection with land or waters that is of significance to that person"...' 60 And at par 36, his Honour said: '... A native title determination recognising native title rights and interests on the part of the applicants could render enforceable and protected at Australian law, rights and interests which accord no recognition to the rights and interests asserted by Mr Gamogab and his community. In so saying, I offer no opinion on the question whether Mr Gamogab's asserted rights and interests as a traditional inhabitant do in truth exist in the claim area.' 61 The issues I have canvassed on this leave application involve important questions and it is at least arguable that the exercising of discretion by the primary judge was tainted by having regard to irrelevant considerations, or by a misunderstanding of what the applicant was asserting as a basis for joinder. 62 The fact that the applicant wishes also to have considered the contents of the Exchange of Notes and the correctness of the classification of the villagers (questions which are not relevant to the principal proceedings, with the consequence that those proceedings are not a competent, let alone appropriate, forum for the resolution of those issues) does not mean that Mr Gamogab ought not be allowed to participate in the Torres Strait Regional Seas Claim. 63 In the words of the Commonwealth submission, having regard to the interest which Mr Gamogab asserted and which the primary judge regarded as sufficient as providing a sufficient basis to join him as a party, it is arguable that the decision to exclude him as a part was wrong. I emphasise that I am only determining a question of leave to appeal. 65 For the above reasons I grant leave to Pende Gamogab to appeal from the judgment of French J of 8 September 2006 in proceeding QUD 6040 of 2001. 66 There will be no order as to costs. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 31 January 2007 The applicant provided submissions in writing. Counsel for the Respondents: Mr Sturt Glacken Solicitor for the Respondents: Mr David Saylor, Torres Strait Regional Authority Counsel for the Commonwealth of Australia: Ms Raelene Webb QC Solicitor for the Commonwealth of Australia: Mr Gavin Loughton, Australian Government Solicitor Date of Hearing: 18 December 2006 Date of Judgment: 31 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/39.html


case_text: A determination whether a decision is interlocutory or final is frequently one of much difficulty. The usual formulation, that a judgment is interlocutory in nature if it does not 'finally dispose of the rights of the parties', does not resolve that difficulty. That formulation is derived from the judgments of the High Court in Hall v Normal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at p 440, and in Licul v Corney [1976] HCA 6 ; (1975) 180 CLR 213. 32 See also in this context the judgment of Lindgren J in Macteldir Pty Ltd v Dimoski [2006] FCA 489 ; (2006) 152 FCR 487 , where his Honour said at p 489, par 6, discussing whether an order of dismissal was final or interlocutory: 'Whether a judgment if final, rather than interlocutory, usually depends on whether it finally determines the rights of the parties in respect of the matter of dispute between them: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 ('Carr') at 248; Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 ('Luck') at [4]. In Carr at 248 and in Luck at [4], it was observed that in applying this test, the Court must have regard to the legal effect, as distinct from the practical effect, of the judgment. In those cases, the full expression used was 'finally determine[s] the rights of the parties in a principal cause pending between them'.


case_title: Noble v Murgha [2005] FCAFC 211

case_text: Noble v Murgha [2005] FCAFC 211 is a recent illustration of the difficulty which in that case occurred in the context of parties to a native title claim. Noble v Murgha was an application for leave to appeal from a decision of Dowsett J on 31 March 2005 to remove the applicant of a native title claim pursuant to s 66B of the Act. The Full Court (North, Weinberg and Greenwood JJ) said at par 2: 'Although the matter before this Court is, in form, an application for leave to appeal, the Court has heard full argument on the merits of the appeal. Whether, in truth, his Honour's judgment was interlocutory, or whether it was actually final in character, is by no means an easy question to resolve. Fortunately, we are able to determine this application without any elaborate discussion of that question.'


case_text: See also in this context the judgment of Lindgren J in Macteldir Pty Ltd v Dimoski [2006] FCA 489 ; (2006) 152 FCR 487 , where his Honour said at p 489, par 6, discussing whether an order of dismissal was final or interlocutory: 'Whether a judgment if final, rather than interlocutory, usually depends on whether it finally determines the rights of the parties in respect of the matter of dispute between them: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 ('Carr') at 248; Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 ('Luck') at [4]. In Carr at 248 and in Luck at [4], it was observed that in applying this test, the Court must have regard to the legal effect, as distinct from the practical effect, of the judgment. In those cases, the full expression used was 'finally determine[s] the rights of the parties in a principal cause pending between them'.


case_text: The decision for which leave is sought involved the exercise of judicial discretion. On an appeal from such an exercise, the appeal court is not entitled to try the issue afresh or to substitute its own discretionary judgment in place of one already pronounced. It is only if the appeal court is satisfied that the discretion of the primary judge miscarried that it can properly intervene: Niemann v Electronic Industries Ltd [1978] VR 431 at p 436.


case_text: Further there is a strong presumption, on an appeal, in favour of the correctness of the decision the subject of that appeal as explained by Kitto J in Australian Coal and Shale Employees' Federation and another v The Commonwealth and others (1953) 94 CLR 631 at p 627: 'So, too, there are to be found in many of the cases decided upon the wider question as to the proper attitude of a court of appeal to any judgment given in exercise of a discretion, statements appearing to limit the function of the appellate court to correcting errors of principle. Yet in that wider area it is clear that such statements are not exhaustive. I shall not repeat the references I made in Lovell v. Lovell [1950] HCA 52 ; (1950) 81 CLR 513 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King [1936] HCA 40 ; (1936) 55 CLR 499.'


case_text: The High Court in Williams and others v Spautz (1991 1992) [1992] HCA 34 ; 174 CLR 509 referred at p 528 to a statement In re Marjory [1955] Ch 600 by the Lord Evershed., where the Master of the Rolls said: '...court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them for some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; ...' 47 Accepting that leave should not be granted so as to enable a determination of whatever treaty rights may or may not exist in Mr Gamogab, nonetheless, it seems to me that the primary judge found that there was a legitimate interest which resided in Mr Gamogab which enabled him to be considered for joinder as a respondent in the native title determination application proceedings. 48 It seems to me that the focus on the Treaty as the basis for the exercise of a discretion against the joinder of Mr Gamogab is, at least arguably, quite misplaced. The focus on the Treaty has to be seen in the context of the submission that was made by the applicants in the principal proceedings: that Australian migration, fisheries, and associated legislation made it unlawful, at least for PNG non-Treaty groups, to access the claim area, inconsistent with their continued use of the claim area in accordance with their customary law.


case_outcome: referred to

case_text: The Court has clear power under s 601EE to order winding up of a managed investment scheme which has not been registered in contravention of s 601ED(5). The range of orders which may be made is unrestricted: s 601EE(2), and see the observation of Barrett J in Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd [2002] NSWSC 576 ; (2002) 42 ACSR 240 at [13] and of White J in Re Stacks Managed Investments Ltd (as responsible entity of Premium Mortgage Income Fund) [2005] NSWSC 753 ; (2005) 219 ALR 532 at [32] .


case_title: Re Stacks Managed Investments Ltd (as responsible entity of Premium Mortgage Income Fund) [2005] NSWSC 753 ; (2005) 219 ALR 532


case_text: A management investment scheme is defined in s 9 of the Act. In essence, it requires a "program or plan of action": see Australian Softwood Forests Pty Ltd v Attorney-General (NSW) [1981] HCA 49 ; (1981) 148 CLR 121 at 129, which involves the pooling of funds of a number of persons: see Australian Securities and Investments Commission v Enterprise Solutions 2000 Pty Ltd (2000) 35 ACSR 620. There must be consideration for the pooling of funds in the grant of rights or interests to benefits to be generated from the use of those funds: Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 at [46] . The scheme must therefore contemplate the generation of benefits under a common enterprise that is, financial benefits or benefits which are rights or interests in property from the funds contributed. And, the contributors should not have the day to day control of the operations of the scheme, ie they should not engage in the acts which constitute its management or the carrying out of its activities: see Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd [2002] NSWSC 310 ; (2002) 41 ACSR 561 at [55] .


case_title: Australian Securities and Investments Commission v Enterprise Solutions 2000 Pty Ltd (2000) 35 ACSR 620


case_title: Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339