case_text: The Tribunal simply did not reach a positive state of satisfaction as to whether protection obligations existed. As Scarlett FM concluded, this mandated a refusal (at [25] citing SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225). His Honour observed (at [31]) that there is an obligation on the Tribunal to be satisfied affirmatively. Where an applicant does not attend before the Tribunal to provide further information when the Tribunal has expressed itself not so satisfied, it generally follows, unsurprisingly, that the application is not successful. 9 The appellant has not established any of the grounds of his notice of appeal. He has not established that the Tribunal decision was infected by jurisdictional error. He has not established any error on the part of the Federal Magistrate. There is no suggestion that the Tribunal failed to follow the appropriate procedures in notifying the appellant of the hearing or that the Tribunal was otherwise not entitled to proceed to a decision in the appellant's absence. 10 It follows that the appeal should be dismissed. The appellant is to pay the first respondent's costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 10 September 2008 The appellant was self represented. Solicitor for the Respondents: DLA Phillips Fox Date of Hearing: 26 August 2008 Date of Judgment: 26 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1385.html


case_outcome: considered

case_text: The appellant applied for a protection visa on 3 August 2007. The application was refused by a delegate of the Minister for Immigration and Citizenship. The delegate's decision was affirmed by the Refugee Review Tribunal. An application for judicial review of the Tribunal's decision was dismissed by Scarlett FM ( SZMCW v Minister for Immigration [2008] FMCA 896). 3 The appellant was invited to attend a hearing before the Tribunal following notice to him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The appellant did not attend the hearing. He informed Scarlett FM that the reason was that he was sick and had been sick for four days. He confirmed to his Honour that he did not contact the Tribunal at the time of the hearing to advise that he was ill, nor did he contact the Tribunal after the hearing to seek another chance at a further hearing. 4 In its reasons, the Tribunal noted that the appellant did not attend the hearing and that he had not provided further material or information to the Tribunal with his application for review of the decision of the delegate. The Tribunal concluded that, '[ g ] iven the scant details provided by the applicant regarding his claims ', it was not satisfied on the evidence before it that there was a real chance that the appellant would be persecuted for a Convention reason if he were to return to Malaysia. 5 The Tribunal noted that it was unable to explore further, or test, the veracity of the appellant's claims as he had not attended the hearing. From the Tribunal's decision, it is apparent that it was not satisfied of the veracity of those claims or that they properly established, to the satisfaction of the Tribunal, the matters referred to by the appellant in his written material. That is, the Tribunal was not satisfied as to the events described by the appellant. It followed that the Tribunal was not satisfied that the appellant would suffer persecution were he to return to Malaysia. 6 In his notice of appeal, the appellant raises the following grounds of appeal: 1. The Refugee Review Tribunal did not fully consider the current situation in Malaysia. 2. I face a risk of being put into jail [sic] if I go back to Malaysia. 3. The Tribunal failed to assess the possibility of the risk of being prosecuted for the applicant if the applicant returns to Malaysia.


case_outcome: followed

case_title: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51

case_text: The High Court in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd & Ors [2003] HCA 18 ; (2003) 214 CLR 51 discussed the concept of unconscionable conduct as used in s 51AA of the Act. Gleeson CJ at 62 accepted that 'special disadvantage' meant a disabling circumstance seriously affecting the ability of the innocent party to make a judgment in that party's own best interests. Gleeson CJ (referring to the decision of the Full Court of this Court in Australian Competition and Consumer Commission v Samton Holdings Pty Ltd and Others [2002] FCAFC 4 ; (2002) 117 FCR 301) said in Berbatis [2003] HCA 18 ; 214 CLR 51 at 64: A person is not in a position of relevant disadvantage, constitutional, situational, or otherwise, simply because of inequality of bargaining power. Many, perhaps even most, contracts are made between parties of unequal bargaining power, and good conscience does not require parties to contractual negotiations to forfeit their advantages, or neglect their own interests.


case_outcome: referred to

case_text: Section 51AC commenced operation on 1 July 1998 and as such the applicants can only rely on their claim under this section in relation to the events alleged to have taken place after this time. Pursuant to s 51AC(6)(b) of the Act the Court is entitled to take into account circumstances existing prior to the commencement of the section but is not entitled to take into account alleged conduct prior to the commencement of the section in determining post commencement breaches: see Australian Competition and Consumer Commission v Leelee Pty Ltd and Anor (2000) ATPR 41-742 at [72]-[92]. 75 Section 51AC(3) of the Act sets out a non-exhaustive list of factors to which a court may have regard in determining whether a corporation has contravened s 51AC(1). They include the relative strengths of the bargaining positions of the supplier and the business consumer as defined and whether, as a result of the supplier's conduct, the business consumer was required to comply with conditions not reasonably necessary for the protection of the legitimate interests of the supplier. Other factors include the capacity of the business consumer to understand documents relating to the supply or possible supply of goods or services and whether any undue influence or pressure was exerted on, or unfair tactics used against, the business consumer. Also relevant is the extent to which the supplier unreasonably failed to disclose to the business consumer any intended conduct that might affect the interests of the business consumer and the risk involved. The extent to which the supplier was willing to negotiate the terms and conditions of any contract for the supply of goods or services with the business consumer and the extent to which the supplier and the business consumer acted in good faith are also relevant factors. 76 The relevant conduct for the purposes of s 51AC(1)(a) relied upon by the applicants must be in connection with the supply or possible supply of services to a person. For the applicants to succeed in a claim within this section the services provided by AIA to the applicants must be identified.


case_title: Australian Competition and Consumer Commission v Samton Holdings Pty Ltd and Others [2002] FCAFC 4 ; (2002) 117 FCR 301


case_text: In The Commercial Bank of Australia Limited v Amadio and Another [1983] HCA 14 ; (1983) 151 CLR 447 Mason J referred to the underlying general principle applicable where one party takes unfair or unconscientious advantage of an opportunity created by the special disadvantage of another. Mason J said at 462: I qualify the word "disadvantage" by the adjective "special" in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. 73 Section 51AC of the Act proscribes unconscionable conduct in business transactions. The relevant prohibition is found in s 51AC(1)(a): A corporation must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a person (other than a listed public company); ... engage in conduct that is, in all the circumstances, unconscionable.


case_text: The Court is also guided by the observations of the High Court of Australia in Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [31] where the High Court referred to the preference for courts to make findings on the basis of contemporary materials, objectively established facts and the apparent logic of events rather than on the appearances of witnesses at the hearing. 92 The detail contained in the affidavits provided by Mr Yang is carefully constructed and suggests recent invention in English. The same observation can be made of the other witnesses for the applicants. In this case the translation from Mandarin to English and the grammatical and semantic nuances lost in that process engender too much scope for uncertainty and do not establish the precision necessary for a finding of misrepresentation. The claimed representations by Ms Chen and Ms Lin were allegedly made to Mr Yang in Mandarin. The Court is not satisfied that any representations were made by them as alleged.


case_text: The Court is required to distil from the facts a version of the events which it considers is established by the evidence. In doing so the Court refers to the observations of McLelland CJ in Watson v Foxman and Others (1995) 49 NSWLR 315 at 318-9, cited with approval in Lahoud & Ors. v Lahoud & Anor. [2006] NSWCA 169 at [91] . With regards to allegations of misleading and deceptive conduct claimed to be within s 52 of the Act, his Honour said at 318: ... it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. See also Ingot Capital Investments Pty Ltd and Others v Macquarie Equity Capital Markets Ltd and Others (No 6) (2007) 63 ACSR 1 at 107.


case_title: Lahoud & Ors. v Lahoud & Anor. [2006] NSWCA 169


case_text: The second basis upon which the applicants claim unconscionable conduct on the part of AIA is in relation to the events leading up to the resignation of Mr Yang on 30 January 2002. AIA accepts that a strict application of legal rights may be unconscionable if exercised harshly, oppressively or capriciously: see Legione and Another v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 at 444. However there is nothing to suggest that the effective termination (by resignation) of Mr Yang was exercised by AIA harshly, oppressively or capriciously. The dishonesty of Mr Yang in relation to the issue of the receipts in respect of Mr Xu's policies, the false completion of the application forms for Mr Xu, the false representations to the AIA clerk on 5 December 2001, the false alteration of the receipt presented to AIA and the false versions of events given to Mr Chinnery in January 2002 together with the choice of resignation offered to Mr Yang, support a conclusion that the cessation of Mr Yang's agency was not in any way brought about by the unconscionable conduct of AIA but rather by the conduct of Mr Yang himself.


case_text: The only alleged oral representations made in English were made by Mr Juneau to Mr Yang. The Court is guided by the judgment of Heydon JA in Moukhayber v Camden Timber and Hardware Co Pty Ltd [2002] NSWCA 58 where his Honour said (at [29]) 'the risks of misunderstanding...were doubtless increased by the plaintiff's lack of skill in speaking English' . Given Mr Yang's very limited grasp of the English language, the Court is not satisfied that the alleged representations of Mr Juneau were in fact made. 94 The representation alleging indemnity by AIA to Mr Yang and the evidence in support of such alleged representation lacks the required precision to constitute a representation. In summary the Court is not satisfied on the balance of probabilities that any representations were made to Mr Yang by Ms Lin, Ms Chen or by Mr Juneau as alleged. 95 The terms relied upon by Mr Yang as constituting part of the representations, namely ' security for life' and ' guaranteed for life' , exemplify the language difficulties and imprecision associated with the representations alleged in these proceedings. Identical words are contained in AIA's brochures but in an entirely different context to that claimed by Mr Yang. Such phrases are published by AIA in brochures for the benefit of clients, not for its agents. The brochure entitled 'Security for Life' states, inter alia, 'AIA has the strength and international resources to provide "Security for Life" to its much valued customers' . The brochure published solely for use by agents entitled 'A Career for Life' states, inter alia, 'In Australia, we give our clients 'Security for Life' we will always be there to help them when they need us no matter where they might be' . The brochure does not suggest that the term 'security for life' was to be interpreted as applying to agents. Rather it clearly applies to 'clients' .


case_text: For conduct to be actionable as unconscionable under s 51AA it must be unconscionable under the unwritten law. The requirements of a finding of unconscionability in equity were described by the High Court in Louth v Diprose [1992] HCA 61 ; (1992) 175 CLR 621. At 637 Deane J said: It has long been established that the jurisdiction of courts of equity to relieve against unconscionable dealing extends generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party to the transaction with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that special disability was sufficiently evident to the other party to make it prima facie unfair or "unconscionable" that that other party procure, accept or retain the benefit of, the disadvantaged party's assent to the impugned transaction in the circumstances in which he or she procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable.


case_text: As discussed above, for the applicants to succeed in a claim under s 51AC of the Act the services provided by AIA to the applicants must be in connection with the supply or possible supply of services to the applicants. The Court accepts AIA's submission that the principal 'right' acquired by the applicants under the various agreements is the right to be paid remuneration in the form of commissions and other benefits. In Queensland Aggregates Pty. Ltd. and Another v Trade Practices Commission (1981) 57 FLR 314 at 319 the Full Court held that a payment of money does not comprise a supply of services under the Act. Such 'right' to remuneration is not a connecting factor for the purposes of s 51AC(1)(a) of the Act. Accordingly the requirements of s 51AC have not been met. 139 As such the applicants have not made out their claim under either ss 51A, 51AA or 51AC of the Act and the Court dismisses the application with costs. I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 12 March 2008 Counsel for the Applicant: I. G. Archibald Solicitor for the Applicant: Accentro Legal Counsel for the Respondent: M.A. Jones Solicitor for the Respondent: Ebsworth & Ebsworth Dates of Hearing: 27 31 August, 3 6 September, 10 14 September, 19 21 September, 4 6 December 2007 Date of Judgment: 12 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/39.html


case_text: The Court is required to distil from the facts a version of the events which it considers is established by the evidence. In doing so the Court refers to the observations of McLelland CJ in Watson v Foxman and Others (1995) 49 NSWLR 315 at 318-9, cited with approval in Lahoud & Ors. v Lahoud & Anor. [2006] NSWCA 169 at [91] . With regards to allegations of misleading and deceptive conduct claimed to be within s 52 of the Act, his Honour said at 318: ... it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. See also Ingot Capital Investments Pty Ltd and Others v Macquarie Equity Capital Markets Ltd and Others (No 6) (2007) 63 ACSR 1 at 107. 90 McLelland CJ in Foxman 49 NSWLR 315 also observed at 319 that 'in the absence of some reliable contemporaneous record or other satisfactory corroboration' an applicant who relies upon spoken words as a basis for an allegation of misrepresentation or unconscionable conduct may encounter 'serious difficulties of proof' .


case_text: The submission that the expression "creditors" should be limited to persons to whom the Company was indebted as at the date the notices were sent out or published under s 439A(3) is also inconsistent with the reasoning of the Appeal Division of the Supreme Court of Victoria in Brash Holdings Limited (Administrator appointed) v Katile Pty Ltd [1996] 1 VR 24. In that case the Court had before it for consideration the provisions of Pt 5.3A of the Corporations Law, the predecessor of the present Pt 5.3A of the Act which, for all relevant purposes, was in the same form as the current Pt 5.3A. The administrators of a group of companies had sought declarations as to which creditors of a company were bound by the deed of company arrangement. The relevant enquiry focused on s 444D of the Corporations Law. The Court said at 31-32: "In our opinion, the reference to 'all creditors' in s.444D(1) must be read and understood in the context of all other references to "creditors" in Pt.5.3A. What has so far been described is sufficient to show that the general scheme of the Part is to involve the company's creditors, without further limitation or description. The word "creditors" should, in the absence of any good reason otherwise, be read as used in the same sense throughout Pt.5.3A, and it is difficult to suppose that sections, drawn so widely as, for instance, s.435A (describing the object of the Part) had in mind anything less than all of the creditors for the time being of the company." The Court said further at 33: "Once it is decided, for the reasons we have given, that the expression 'all creditors' in s.444D(1) should not be confined to those having claims for money sums due and payable on or before the day specified in the deed, we see no alternative but to treat the creditors of the company for the purposes of Pt.5.3A as those who would have been creditors had the company gone into liquidation and the relevant date for the purposes of s.553 been the day specified in the deed." 38 The reasoning in Brash Holdings Limited (Administrator appointed) v Katile Pty Ltd (supra) was adopted and followed in Selim v McGrath (2003) 177 FLR 85. Barrett J considered that for the purposes of s 439A creditors in a voluntary administration under Pt 5.3A of the Act were all persons who had debts or claims against a company provable in its winding up and said, at 105: "The boundaries are therefore those set by s 553(1) which refers to 'all debts payable by, and all claims against, the company (present or future, certain or contingent, ascertained or sounding only in damages) ...".


case_outcome: cited

case_title: Selim v McGrath (2003) 177 FLR 85

case_text: The reasoning in Brash Holdings Limited (Administrator appointed) v Katile Pty Ltd (supra) was adopted and followed in Selim v McGrath (2003) 177 FLR 85. Barrett J considered that for the purposes of s 439A creditors in a voluntary administration under Pt 5.3A of the Act were all persons who had debts or claims against a company provable in its winding up and said, at 105: "The boundaries are therefore those set by s 553(1) which refers to 'all debts payable by, and all claims against, the company (present or future, certain or contingent, ascertained or sounding only in damages) ...".


case_text: The expression "injustice" in s 445D(1)(e) is of wide import. As Austin J pointed out in Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (subject to Deed of Company Arrangement) (2001) 37 ACSR 394 at 430: "The case law does not provide any significant assistance as to the meaning of this provision [subpar (e) of s 445D(1)]." What is important to recognise is that it is the "effect" of the deed rather than the purpose of the deed which is to be considered and taken into account: Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (supra) at 430; Mondello Farms Pty Ltd v Annatom Pty Ltd (subject to Deed of Company Arrangement) [2007] SASC 296 at [112] . In the context of s 445D(1)(e) I consider that I should ask whether the effect of the Deed is unfair or inequitable in the impact it has upon one or more of the creditors bound by it.


case_text: The expression "injustice" in s 445D(1)(e) is of wide import. As Austin J pointed out in Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (subject to Deed of Company Arrangement) (2001) 37 ACSR 394 at 430: "The case law does not provide any significant assistance as to the meaning of this provision [subpar (e) of s 445D(1)]." What is important to recognise is that it is the "effect" of the deed rather than the purpose of the deed which is to be considered and taken into account: Cresvale Far East Ltd (in liq) v Cresvale Securities Ltd (supra) at 430; Mondello Farms Pty Ltd v Annatom Pty Ltd (subject to Deed of Company Arrangement) [2007] SASC 296 at [112] . In the context of s 445D(1)(e) I consider that I should ask whether the effect of the Deed is unfair or inequitable in the impact it has upon one or more of the creditors bound by it. 54 Similar considerations apply when considering the application of s 445D(1)(f). In Mondello Farms Pty Ltd v Annatom Pty Ltd (supra), Layton J said at [114]: "In determining whether a deed is oppressive or unfairly prejudicial or unfairly discriminatory, the background of the general principles underlying Pt 5.3A of the Act must be considered. A creditor has the basic right to payment, to the winding up of a company, or to the administration of the company in a manner that keeps the business of the company going which ultimately resulting [sic] in the creditor receiving payment out of the property of the company. The court will look at the whole of the effect of the deed and assess 'its unfairness, if any, to the plaintiff creditor bearing in mind the scheme of Pt 5.3A , the interests of the other creditors, the company and the public generally'. It is necessary to consider the total circumstances of the case so as to determine whether there is overall unfairness." [footnotes omitted]. In the circumstances of the present case, the last sentence of this quotation is critical. 55 The plaintiff's case, in essence, was that effect could not be given to the Deed without injustice and that the Deed was oppressive, prejudicial to and discriminatory against creditors because of the amount for which the land is to be sold pursuant to the Deed of Company Arrangement. Although the Administrators had received an independent valuation of the land which provided a valuation of $5.93 million net of rectification costs, the Administrators had set out in their report factors which made it problematic whether such a value could be received on the sale of the land. Having regard to the circumstances and factors set out in the Administrators' report, I do not consider that effect cannot be given to the Deed without injustice. It is the plaintiff who is complaining about the injustice but I do not consider that there is any injustice to the plaintiff in circumstances where in a context and with the background to which I referred, the creditors, by a majority of number and value, have decided to go the route of deed of company arrangement rather than liquidation. 56 The assumptions and factors identified by the Administrators required the creditors to make a choice. The choice they made did not result in a Deed which was oppressive to, or prejudicial to, or discriminatory against the general body of creditors, and the plaintiff in particular, having regard to the factors which had to be taken into account in determining whether what the Administrators called either a high scenario, a medium scenario or a low scenario in terms of return to creditors might be achieved.


case_title: Re AFG Insurances Ltd [2002] NSWCA 803

case_text: Re AFG Insurances Ltd [2002] NSWCA 803 at [5] and [9]-[11], Barrett J considered a number of authorities which have dealt with the question of the time to be extended for convening the meeting, particularly bearing in mind administrations of some complexity. The authorities to which his Honour referred indicate that in certain cases, an extension of up to five months has been granted. I am mindful of what Barrett J said in AFG Insurances at [11]. His Honour emphasised that that was a special case with complications and difficulties which one would not expect to be encountered in the normal course and that every case must be approached on its merits without any particular reliance on what has happened in other cases. Nevertheless, this case does have some similarities to the considerations which arose in AFG Insurances . In particular, as I said earlier, BBL has no employees, no leases and no secured creditors. In substance the only substantial creditor of BBL is the 8000 noteholders for whom the trustee has been appointed. Accordingly, the question which often arises in these applications is not present here. That is to say, there appear to be no persons affected by the statutory moratorium who might wish to complain about the extension of time which is sought. I also, of course, take into account the fact that no objection was voiced at the first meeting of creditors, albeit that only approximately 100 noteholders were present and that not all of the 8000 noteholders attended that meeting. I also take into account that the trustee has not objected. There are, it appears, some other very minor creditors of BBL, but on the evidence before me these creditors appear to amount in value to approximately $200,000.


case_text: are a substantial number of authorities dealing with the principles to be applied, many of which are referred to in the written submissions of the administrators. They include the decision of Lindgren J in Re Pan Pharmaceuticals Ltd [2003] FCA 598 ; (2003) 46 ACSR 77 at [41] and [42], and the decision of Hayne J in Re Brash Holdings Ltd (1994) 13 ACSR 793 at 794.


case_text: orders which are proposed take into account the form of the order made by Lindgren J in Re Daisytek Australia Pty Ltd [2003] FCA 575 ; (2003) 45 ACSR 446. His Honour there observed that it is desirable that there be an order permitting the meeting to be held before the end of the extended convening period, so that in this case, the administrators will have the ability to convene the meeting earlier than 17 August 2009 if they see the need to do so. Moreover, liberty to apply is granted to any person who can demonstrate sufficient interest to modify or discharge the orders that I will make today, upon appropriate notice being given to the administrators. For those reasons I propose to grant the extension which is sought. However, I would add this. Bearing in mind the careful consideration which has been given to the period of the extension, without of course wishing to fetter the discretion of a judge who may be called upon to do so, I would have some doubts as to whether it may be appropriate for any further extension to be granted. It seems to me that careful consideration has thus far been given to the required period of the extension, but there is always the need to balance the considerations which have been referred to in the authorities of the need to strike the appropriate balance between the speed of the administration and the ability of creditors and shareholders to maximise their return. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 15 April 2009 Solicitor for the Plaintiffs: Blake Dawson Date of Hearing: 8 April 2009 Date of Judgment: 8 April 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/349.html


case_text: principles applicable to the extension of the convening period prescribed by section 439A of the Act have been considered in a number of authorities. The authorities commence with a decision of Young J in Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 at 612. The principle referred to by Young J was also stated in Re Diamond Press Australia Pty Limited [2001] NSWSC 313 by Barrett J at [10]. His Honour observed that: The function of the Court on an application such as this is, as I see it, to strike an appropriate balance between, on the one hand, the expectation that the administration will be a relatively speedy and summary matter and, on the other, the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed toward maximising the return for creditors and any return for shareholders.


case_title: Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611


case_text: also referred to the difficulties which arise in determining the period to permit the appropriate period for an extension in Mentha, in the matter of Hans Continental Small Goods Pty Ltd (Administrators Appointed) [2008] FCA 1933 at [23] - [25] . It seems to me that I ought to take into account the careful consideration which has been given to this question by both of the administrators. It is plain that the administration is a complex one, bearing in mind in particular the size of the BBL Group and the substantial inquiries which the administrators need to pursue, including the need for legal advice.


case_title: Pan Pharmaceuticals Ltd [2003] FCA 598 ; (2003) 46 ACSR 77


case_text: That was not a ground of challenge advanced before the learned Federal Magistrate. That in itself would not prevent a grant of leave to amend a notice of appeal in an appropriate case. In this instance, there is no evidence which would ground a claim either for actual or apprehended bias on the part of the member constituting the Tribunal in the material which comprised the record before the Federal Magistrates Court. There was no attempt to adduce further evidence, and thus no need to consider whether that exceptional course ought to be permitted. It suffices to note that the mere fact that a Tribunal chooses not to accept the claims made either in writing or orally for a protection visa does not in itself give rise to any basis for the setting aside of a Tribunal's decision on the basis of apprehended bias. More particularly, such a finding does not give rise to an objective possibility of bias, as that concept is described by the Full Court of the High Court in Re Refugee Tribunal; Ex Parte H [2001] HCA 28 ; (2001) 75 ALJR 982 at 983, para 5. 5 As a general comment, there is much force in the principal submission made on behalf of the Minister, which is that, as developed in oral argument, and as articulated in the notice of appeal, the Appellant has not engaged with the reasons for judgment of the Federal Magistrate so as to highlight where there is error in the reasoning of that Court. It is to be remembered that the function discharged by this Court is not that of the judicial review of a decision of the Tribunal, but rather the entertaining of an appeal on articulated grounds from the Federal Magistrates Court. 6 For all that, the Minister, by his counsel, very properly undertook the exercise of detailing, having regard to the notice of appeal, why it was that there was no error in the reasoning of the learned Federal Magistrate. In so doing, the assumption was made that the Appellant's case was that the learned Magistrate had erred in not accepting that the Tribunal's decision was flawed on one or more of the bases set out in the notice of appeal. That seems to me to be a fair way to approach the disposal of this appeal. What I therefore propose to do is, in short form, to deal with each of the bases of challenge set out in the notice of appeal.


case_text: Having studied the Tribunal's reasons, the adoption of that particular passage by the learned Federal Magistrate seems to me, with respect, to be both appropriate and indeed unremarkable. In this Court, attention was rightly drawn on behalf of the Minister to an observation made by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at para 67. His Honour there observed that conclusions that an Applicant was not credible and that his claims were fabricated were findings of fact "par excellence".


case_text: It bears repeating that it is no part of the function of the Federal Magistrates Court on a judicial review application, much less that of this Court when entertaining an appeal from that Court, to review on the merits the Tribunal's decision. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. There is no merit in ground 1. 13 Section 424A of the Migration Act 1958 makes provision for the highlighting to an Applicant of potentially adverse "information" and for the extension of an invitation to reply in respect of that information to the Applicant. The Tribunal sought to comply with that obligation as it apprehended it in a letter dated 16 July 2007, directed to the Appellant via his authorised recipient of information for the purposes of his review application. In that letter, the Tribunal provided the following particulars of information: • The Tribunal has before it your business visa application of 22 January 2007 and accompanying documents, submitted in Shanghai. The documents include an approval letter from a named company dated 18 January 2007 listing you as a finance director of that company, and a flight booking for you for 5 February 2007. • You stated on your protection visa application that as soon as you learned, in early February 2007, that you were again wanted, you went to Shanghai. Your protection visa application (and your passport) show that you obtained an Australian business visa in Shanghai on 2 February 2007, and that you departed China on 12 February 2007. • You indicated, on your protection visa application that you had difficulties leaving China. The only detail you gave was that "a friend" helped your travel arrangements. You left China on a passport in your own name. 14 The Tribunal continued, in its letter of 16 July 2007: This information is relevant because it suggests you left China in an orderly fashion, and not to flee persecution. It suggests that during January 2007 you were not organising protests in a named city, but rather making arrangements for your travel to Australia. It casts doubt on your claim that you travelled to Shanghai as you got news from a 'reliable source' that you were again wanted. Instead, you appear to have lodged your business visa application in Shanghai because the opportunity arose for you to present yourself as the finance director of a company in a named place, and because you had to travel to Shanghai to collect your Australian visa once it was ready on 2 February 2007. The above information suggests that, even after your visa was ready, you did not leave China for a further 10 days" [sic].


case_outcome: distinguished

case_text: Counsel for Lion Nathan submitted that the application for the stay should be considered by reference to the principles stated in the case of Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 ('Sterling Pharmaceuticals') . 34 Counsel did not submit that the proceedings in this Court should be stayed on the basis that the proceedings were otherwise an abuse of process or because they were vexatious or frivolous. 35 Counsel for Plantagenet submitted that the case of Sterling Pharmaceuticals was distinguishable because that case was concerned with two sets of proceedings one of which was in Australia and the other in New Zealand, and therefore beyond the scope of the cross-vesting scheme. Counsel for Plantagenet submitted that, in cases where the parties were amenable to the jurisdiction of the legislation comprising the national cross-vesting scheme, the scheme had ousted the common law principles on whether a court would stay its own proceedings on the basis of forum non conveniens. Counsel relied upon observations made by Ormiston JA in Schmidt v Won [1998] 3 VR 435 ('Schmidt') . 45 In the event that I am wrong in the views that I have expressed, I would decline to stay the Federal Court proceedings. This is because the appropriate test to apply in the circumstances is the test in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and not in Sterling Pharmaceuticals (see BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523 ('BHP Billiton') , the observations of Ormiston JA in Schmidt referred to above and Transport Workers' Union of Australia v Bentley [2001] FCA 671 ; (2001) 112 FCR 580). On the application of that test, it could not be said that the Western Australia District Registry of the Federal Court is a clearly inappropriate forum for Plantagenet to commence the Federal Court proceedings. Plantagenet's principal place of business is in Western Australia, the alleged breaches of the TP Act occurred in Western Australia and the alleged losses were suffered in Western Australia.


case_outcome: applied

case_title: Schmidt v Won [1998] 3 VR 435

case_text: Counsel for Plantagenet submitted that the case of Sterling Pharmaceuticals was distinguishable because that case was concerned with two sets of proceedings one of which was in Australia and the other in New Zealand, and therefore beyond the scope of the cross-vesting scheme. Counsel for Plantagenet submitted that, in cases where the parties were amenable to the jurisdiction of the legislation comprising the national cross-vesting scheme, the scheme had ousted the common law principles on whether a court would stay its own proceedings on the basis of forum non conveniens. Counsel relied upon observations made by Ormiston JA in Schmidt v Won [1998] 3 VR 435 ('Schmidt') . 39 In Schmidt , Ormiston JA made the following observations at 453-454: 'Subject always to the power of the Court to stay frivolous, vexatious oppressive proceedings or any which amount to an abuse of process (the categories for which can never be closed), the Voth principle should be considered as having no continued practical application so far as the exercise of jurisdiction as between the several State Supreme Courts. So the ordinary remedy of parties, who are served in Australia with process issued out of the Supreme Courts of States or Territories other than that in which they reside and who wish to complain that the Supreme Court of that other State or Territory is not the appropriate forum in which the litigation should be heard, is to seek transfer pursuant to the provisions of s 5(2) of one of the State Cross-Vesting Acts. In the light of the complex and sophisticated scheme now in operation in this country, a stay of the kind contemplated by Voth must be seen as an inappropriately heavy-handed means of ensuring that issues are determined in the proper forum, ie in the court within Australia most appropriate to hear the action and most convenient to the parties for that purpose. Transfer under the Cross-Vesting legislation should be seen as now providing the necessary and appropriate weapon to achieve the same end by transferring litigation to a more appropriate jurisdiction within Australia.' 44 In this case the parties were amenable to the cross-vesting scheme, and so it was open to Lion Nathan to have brought an application to transfer the Federal Court proceedings under the Cross-Vesting Act rather than to apply for a stay. The transfer application has now been made by the amendment to the notice of motion. As I have already mentioned, Lion Nathan does not seek a stay of the proceedings on the basis of an abuse of process by Plantagenet, and so this application does not fall into the exceptional circumstances category referred to by Ormiston JA in Schmidt in the observations set out above. In my view, therefore, it is appropriate that I decline to exercise the Court's jurisdiction to stay the proceedings. It is appropriate that the question of the destiny of the Federal Court proceedings be considered by reference to Lion Nathan's transfer application now before the Court. 45 In the event that I am wrong in the views that I have expressed, I would decline to stay the Federal Court proceedings. This is because the appropriate test to apply in the circumstances is the test in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and not in Sterling Pharmaceuticals (see BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523 ('BHP Billiton') , the observations of Ormiston JA in Schmidt referred to above and Transport Workers' Union of Australia v Bentley [2001] FCA 671 ; (2001) 112 FCR 580). On the application of that test, it could not be said that the Western Australia District Registry of the Federal Court is a clearly inappropriate forum for Plantagenet to commence the Federal Court proceedings. Plantagenet's principal place of business is in Western Australia, the alleged breaches of the TP Act occurred in Western Australia and the alleged losses were suffered in Western Australia. 49 Section 20 of the SEP Act does not appear in Pt 7 of the SEP Act, and therefore the reference to the word 'Court' in s 20 of the SEP Act is to be construed as a reference to a court of a State. It follows that the reference to 'court' in s 20 of the SEP Act is not a reference to the Federal Court, whose proceedings are not, in any event, served pursuant to the SEP Act. Further, in Schmidt , Ormiston JA at 454 observed that s 20(1) of the SEP Act is to be construed as referring to an inferior court of a State. 50 I, accordingly, decline to stay the Federal Court proceedings under s 20 of the SEP Act as there is no jurisdiction to do so.


case_text: In the case of Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 438 ('Bankinvest') Rogers AJA rejected a submission of counsel in that case that the common law principles of forum non conveniens continued to exist concurrently with the cross-vesting legislation, and observed that 'the former has clearly been subsumed by s 5(2)(b)(iii) [of the Cross-Vesting Act].' 52 Gleeson CJ, McHugh and Heydon JJ in BHP Billiton at 527, at [13] quoted with approval the following observations by Street CJ in Bankinvest : 'The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice...It calls for what I might describe as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.'


case_text: In the event that I am wrong in the views that I have expressed, I would decline to stay the Federal Court proceedings. This is because the appropriate test to apply in the circumstances is the test in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and not in Sterling Pharmaceuticals (see BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523 ('BHP Billiton') , the observations of Ormiston JA in Schmidt referred to above and Transport Workers' Union of Australia v Bentley [2001] FCA 671 ; (2001) 112 FCR 580). On the application of that test, it could not be said that the Western Australia District Registry of the Federal Court is a clearly inappropriate forum for Plantagenet to commence the Federal Court proceedings. Plantagenet's principal place of business is in Western Australia, the alleged breaches of the TP Act occurred in Western Australia and the alleged losses were suffered in Western Australia.


case_text: In the event that I am wrong in the views that I have expressed, I would decline to stay the Federal Court proceedings. This is because the appropriate test to apply in the circumstances is the test in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 and not in Sterling Pharmaceuticals (see BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 211 ALR 523 ('BHP Billiton') , the observations of Ormiston JA in Schmidt referred to above and Transport Workers' Union of Australia v Bentley [2001] FCA 671 ; (2001) 112 FCR 580). On the application of that test, it could not be said that the Western Australia District Registry of the Federal Court is a clearly inappropriate forum for Plantagenet to commence the Federal Court proceedings. Plantagenet's principal place of business is in Western Australia, the alleged breaches of the TP Act occurred in Western Australia and the alleged losses were suffered in Western Australia. 51 In BHP Billiton , Gleeson CJ, McHugh and Heydon JJ said at 527, at [14]: 'In the context of the Cross-Vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-Vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.' 52 Gleeson CJ, McHugh and Heydon JJ in BHP Billiton at 527, at [13] quoted with approval the following observations by Street CJ in Bankinvest : 'The cross-vesting legislation passed by the Commonwealth, the States and the Territories both conferred on each of the ten courts Australia-wide jurisdiction and set up the mechanism regulating the transferring of proceedings from one of these ten courts to another. In relation to transfer, the common policy reflected in each of the individual enactments is that there must be a judicial determination by the court in which proceedings are commenced either to transfer or not to transfer the proceedings to one of the other nine based, broadly speaking, upon consideration of the interests of justice...It calls for what I might describe as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.'


case_title: Anderson Formrite Pty Ltd v Baulderstone Hornibrook Pty Ltd (2003) 206 ALR 614

case_text: Counsel for Lion Nathan submits that considerable weight must be given to the fact that the distribution agreement contains a clause whereby the parties have submitted to the non exclusive jurisdiction of the courts of New South Wales. Counsel relies upon observations by Simmonds J in Anderson Formrite Pty Ltd v Baulderstone Hornibrook Pty Ltd ( 2004) 206 ALR 614 at 618 where his Honour observed that weight should be given to a clause where parties have agreed to submit to the jurisdiction of a particular court even if the submission was to the non exclusive jurisdiction of that court, but that greater weight should be given if the parties have submitted to the exclusive jurisdiction of the court. 57 Counsel for Plantagenet submitted that on the proper construction of the clause Plantagenet has not submitted its TP Act claims to the non exclusive jurisdiction of the courts of New South Wales. The submission to the non exclusive jurisdiction of the New South Wales Court was limited to claims relating to the construction and performance of the distribution agreement, and did not extend to claims of misrepresentation leading to the entry into the agreement. 58 Secondly, counsel argued that the words 'courts of [New South Wales]' in the clause were apt to include the Federal Court which is a court which, inter alia, sits in New South Wales.


case_text: A non exclusive jurisdiction clause does not preclude a party bound by that clause from commencing proceedings in a jurisdiction other than the jurisdiction specified in the clause. The effect of the clause is that the contracting parties agree to submit to the non exclusive jurisdiction of the court specified in the clause, the claims that are within the scope of the clause. I accept the argument of counsel for Plantagenet that there is a relationship between the scope of the choice of law clause and the scope of the submission to the non exclusive jurisdiction in cl 24.7 of the distribution agreement. I also accept Plantagenet's argument that the words 'The Agreement and the transactions contemplated by this [agreement]' in that clause, refer to claims relating to the construction and performance of the distribution agreement and do not refer to claims of misrepresentation inducing the entry into the distribution agreement (see Green v Australian Industrial Investment Ltd (1989) 25 FCR 532 at 543 ('Green') ). However, a significant part of Plantagenet's claim in the Federal Court proceedings relates to allegations of breach of contract by Lion Nathan and, therefore, the fact that Plantagenet is party to a non exclusive jurisdiction clause in favour of the courts of New South Wales must be taken into account. In my view, the effect of the clause is that the parties have agreed that New South Wales is an appropriate forum to consider claims falling within the ambit of the choice of law clause, and have, thereby, agreed to accept the jurisdiction of that Court for the determination of those claims, but that does not mean that they have agreed that there is no other court, particularly within Australia, which may also be an appropriate forum. I am of the view, therefore, that, given the limited scope of the claims that the parties have agreed to submit to the non exclusive jurisdiction of the New South Wales courts, some, but not much, weight is to be accorded to the non exclusive jurisdiction clause, as a factor in favour of the Federal Court proceedings being transferred to the New South Wales Supreme Court. 60 I do not regard it as helpful to address, in this context, the question of whether the Federal Court sitting in Sydney is within the ambit of the expression 'courts of [New South Wales]'. This is because the inquiry at hand requires an assessment of whether, by reference to its connecting factors to the Western Australia District Registry of this Court, as opposed to any other district registry, the Federal Court proceedings should be transferred to the New South Wales Supreme Court. 61 I place no weight, additional to that already referred to, on the fact that the distribution agreement provides that the governing law of the distribution agreement is the law of New South Wales. This is because the Federal Court is a national court which applies the common and statutory law of each of the States when it is appropriate to do so. Further, Lion Nathan has not pointed to any distinguishing features in the law of New South Wales which it is anticipated, will assume any importance in the resolution of the controversy (see Green at 544). 62 I place no weight on the claim that the New South Wales proceedings are likely to be determined within a shorter period than the Federal Court proceedings. The evidence of Ms Ward is that the New South Wales proceedings could be heard within approximately six to seven months. The evidence of Ms Allison is that in her recent experience, it is possible for an application to get to trial in the Western Australia District Registry of this Court within a year of the date of issue, even in cases where there have been defaults in the timetable. In her view, if the parties were to comply with the timetable it would be possible to get a matter to trial in this Registry in a substantially lesser period of time. Ms Allison also deposes that she has been informed by Mr O'Connor, a partner of the Sydney law firm, Addisons, that in his experience a trial may be had in the Federal Court in Sydney within four to six weeks of the issue of the application if the disposition of the matter is regarded as urgent. In my view, evidence at this level of generality is of very limited value. What is more significant is that each court has the facilities available to the parties whereby each court is able to make directions, at the instance of the parties, for bringing the matter to trial within a short period of time. 63 I also place no weight on the claim that the proceedings are further advanced in the New South Wales Supreme Court. In this Court, Plantagenet has filed an application and a statement of claim. In the New South Wales proceedings, Lion Nathan has filed a statement of claim and a commercial list statement. In neither of the proceedings has a defence been filed. Further, in neither of the proceedings have directions been made for the progress of the proceedings to trial. Further, I place no weight on the submission that solicitors and counsel retained in New South Wales will have acquired such a familiarity with the case that it would be inefficient to waste that expertise. There has not been any contested application heard in the New South Wales proceedings.


case_text: In the case of Cultivaust Pty Ltd v Grain Pool of WA [2000] FCA 974 , Heerey J at [12] observed: 'Financial aspects loom large in this matter. Cultivaust is a small company with an annual income of less than $200 000. Grain Pool is a substantial statutory corporation with revenues in excess of $600 million. The objective of access to justice is just as applicable in the area of commercial litigation between corporations as it is when individuals are involved. The extra expense involved in a transfer would be a substantial burden on Cultivaust and would exacerbate the existing imbalance of financial resources between these two litigants.' 77 Although those observations were made in the context of an application to transfer proceedings in the South Australia District Registry of this Court, to the Western Australia District Registry, Heerey J's observations are, in my view, equally applicable to an application for the transfer of proceedings under the cross-vesting legislation. 78 I accept the submissions by counsel for Plantagenet that there is a large disparity in financial resources between Plantagenet and Lion Nathan, and that the effect of having to conduct interstate litigation would be substantially more onerous on the financial resources of Plantagenet than it would be on the financial resources of Lion Nathan. 79 It has been necessary for Plantagenet to engage an additional firm of solicitors to act as its solicitors in New South Wales on instructions from Plantagenet's firm of solicitors in Perth, and that Plantagenet has also been required to engage counsel in New South Wales as well. By contrast, Lion Nathan has used its Sydney based firm of solicitors and counsel both in the New South Wales proceedings and the Federal Court proceedings. Lion Nathan can continue to do so in the event that the Federal Court proceedings are not transferred to the New South Wales Supreme Court. No doubt if the Federal Court proceedings were to be tried in Perth, Lion Nathan may well have to incur the additional costs of transporting and accommodating its legal representatives in Perth for the trial, but those costs would be relatively minor, in comparison to the costs that Plantagenet would have to incur in having to retain for the duration of the proceedings a second firm of solicitors and a counsel in Sydney.


case_title: Transport Workers' Union of Australia v Bentley [2001] FCA 671 ; (2001) 112 FCR 580


case_text: is a public interest in knowing what conduct constitutes contravention and that it is considered to warrant an order recognising its seriousness. This may be done on the basis of admitted facts: ACCC v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665. Her Honour's approach in that case was expressly approved by a Full Federal Court upon appeal: ACCC v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 at [91] - [92] .


case_text: J in Australian Competition and Consumer Commission (ACCC) v IPM Operations Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 at [66] said, concerning the two aspects of deterrence, "that for a penalty to achieve these objectives, it must be imposed at a meaningful level, consistent with the other considerations that must be taken into account in determining the appropriate level of penalty". There is a need, as his Honour said, to show "the seriousness with which the Court considers such contraventions". In support of his submissions relating to penalty, the applicant relies upon: (a) the Statements of Agreed Facts; (b) affidavit of Robert John Wallwork sworn on 23 October 2007, paragraphs 1 to 9 and 118 to 125 (both inclusive); (c) affidavit of Francis Patrick Hannagan sworn on 19 October 2007; (d) affidavit of Nigel Clive Hadgkiss sworn on 26 October 2007; and (e) affidavit of Douglas Bevan sworn on 17 October 2007 paragraphs 1-32 and 83-129. There was no cross-examination of any of the deponents. Indeed by agreement between the parties, they were not required to attend. The applicant submitted that the breach of s 38 of the BCII Act in this case was serious, having regard to the following matters which are drawn from a combination of the several affidavits relied upon as well as the Statements of Agreed Facts: (a) It involved the withdrawal of labour by a substantial number of workers, in circumstances that effectively stopped all work on a major and complicated construction project of public importance. The Project involved tunnelling below the Perth central business district and the unlawful industrial action occurred at a critical stage of this tunnelling. Two full weeks of tunnelling were lost; (b) The contraventions were deliberate in nature and in knowing defiance of the law, the respondents having been advised by their union that they would be exposed to very serious penalties for taking unlawful industrial action; (c) the Strike had a duration of 7 days, although in the case of each respondent it involved one period of industrial action and thus, for the purpose of imposing penalties in this case, one contravention of the BCII Act; (d) the Strike caused LKJV to incur substantial losses. Mr Wallwork, in his affidavit, identified the following actual and contingent losses amounting to more than $1.6 million: Leighton Contractors, one of the LKJV joint venturers, is exposed to the potential claim under a Deed entered into with the Public Transport Authority, for liquidated damages at the rate of $52,000 per day for each day that the project goes beyond the date for practical completion of the Project; daily recurring overhead costs of approximately $5,000 per day; other preliminary costs of approximately $48,000 per day; and other irrecoverable out-of-pocket expenses of approximately $45,000-$55,000 per day; (e) the Strike occurred in contravention of an order of the AIRC for industrial action to stop or not occur which came into force on 6 December 2005 and was to remain in force until 1 July 2007, notice of that order having been placed on the LKJV notice board which was used to convey information to the workers and served upon the relevant respondents; (f) the Strike had the potential to cause substantial safety issues and damage to property, as the project involved tunnelling and stoppage of the tunnel boring machines has the potential to cause serious damage to the tunnel boring machine as well as to buildings above. A worst case scenario could have involved a tunnel collapse; (g) the delay on the project caused by the Strike gave rise to public inconvenience, the railway project being for the benefit of the public, in particular commuters to and from the Perth CBD; and (h) none of the action taken during the Period was based on a reasonable concern by any respondent about an imminent risk to his or her health or safety.


case_text: BHP Steel (AIS) Pty Ltd v CFMEU [2000] FCA 1908 , a penalty of $2,200 was imposed on the CFMEU in what the Court described as a "serious" case (at [8]). The maximum was $10,000. The CFMEU defended the case.


case_title: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No.2) (1999) 94 IR 231

case_text: leading cases concerning the factors that are relevant to the assessment of civil penalties are the judgments of French J in Trade Practices Commission v CSR Ltd (1991) ATPR p41-076 and Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231. The principles identified in those cases have been applied to determining penalties under the BCII Act.


case_title: Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467

case_text: the contraventions in each case contain common elements, namely, unauthorised industrial action by involvement in the Strike. This is a relevant consideration in weighing the appropriate penalty to be imposed: The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228. To punish twice for conduct that contains an area of overlap "would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts": Pearce v R [1998] HCA 57 ; (1998) 156 ALR 684 at [40] . These matters therefore give rise to considerations of cumulation and concurrence, as well as totality: Pearce at [45]; Mill v R [1988] HCA 70 ; (1988) 166 CLR 59; Finance Sector Union v The Commonwealth Bank of Australia (2005) 224 ALR 467 at [25]. If that was the position then it is no longer the position. In Finance Sector Union v Commonwealth Bank of Australia at [72], Merkel J observed that: may be that breaches by unions and employers of industrial legislation from time to time have been accepted as part of the give and take of industrial disputation. However, in recent years industrial legislation has increasingly codified and prescribed what is acceptable, and what is unacceptable, industrial conduct. The legislature has, over time, also moved to increase the penalties that may be imposed in respect of unlawful industrial conduct. In my view, any light handed approach that might have been taken in the past to serious, wilful and ongoing breaches of the industrial laws should no longer be applicable. The penalty imposed by Merkel J in respect of the contraventions of s 298K of the WR Act in the above case ($600,000) was overturned on appeal and substituted for a penalty of $300,000. Importantly, however, Branson J (with whom Spender J agreed in relation to the reduction in penalty) indicated that there was no demonstrable error of principle affecting the penalty imposed by Merkel J at first instance. Her Honour reaffirmed the warning that it may well be that it is appropriate for penalties imposed under the WR Act to rise and rise appreciably. That case was not concerned with breaches by employees, but as I have said, I do not consider that they stand in any different category. I have had regard to part of the Second Reading Speech of the BCII Act which is instructive in this respect: Bill reflects the Government's commitment to ensuring the law applies and is observed equally by all participants in the building and construction industry, regardless of whether they are union officials, employers or workers. industrial record of this industry is deplorable. Royal Commissioner found that the prevalence of industrial action in the building industry is unique. He noted Underlying the attitude of participants in the industry is a disregard of the rule of law, and the adoption of a short term attitude, commercially driven, of expediency. In particular, unions know that the prospect of being held civilly responsible for the losses they cause is remote. [Volume 11, page 10, para 33] level of industrial disputation in the construction industry is substantial. For example, in 2003-04 the construction industry employed 8 per cent of all employed persons in Australia. For the same period, these workers accounted for over 21 per cent of working days lost. action negatively impacts upon industry productivity. Industrial unrest and time lost through work stoppages cause immediate loss to head contractors, subcontractors and employees. Even short strikes can cause commercial damage because standing charges and overheads continue even if work on site stops. Commissioner Cole found project completion delays, with contractual penalties of up to $250,000 a day, are a compelling incentive for employers to surrender to union demands. those who engage in unlawful industrial action in this industry are seldom held accountable. In addition, the current system for recovery of loss due to unlawful industrial action is difficult, costly and time consuming. As Commissioner Cole noted Litigation for loss recovery is regarded as a bargaining chip to be used in future resolution of industrial disputes, rather than as a serious attempt to hold those causing loss responsible for it. [Vol 11, page 13, chapter 1] Bill seeks to implement a framework where unlawful industrial action is not tolerated and those taking such action are brought to account for their lawlessness. I have also taken into account the mitigating factors which are set out above. I have been advised that any penalties which I impose on the respondents will not be paid by them personally although this would not apply to any suspended penalties which became payable upon a further contravention. From around February 2007, the ACTU and CFMEU established and maintained a national fund, known as the Mandurah Dispute Fighting Fund. The monies in the fund will be used to meet the costs of the penalties and legal costs incurred by the respondents. The impecuniosity of individual respondents is not raised as an issue in the proceedings.


case_text: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 "(Mobil Oil") the Full Federal Court acknowledged that deterrence is "one of the principal justifications, if not the only justification for imposing civil penalties" at [53]. In Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 , which involved industrial action on the very project that is in issue in this case, Le Miere J, said putting it in a more limited way [74]: penalties should be sufficiently high to deter repetition by the contravener and by others who might be tempted to engage in contravening conduct. Deterrence is a primary objective of penalties."


case_text: addition, Ryan J's judgment in Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia (2005) 148 IR 242 (" United Firefighters "), suggests that, in the context of the imposition of penalties in respect of a contravention of an order of the AIRC under s 127 of the WR Act, the following additional factors are relevant: (a) an absence of any basis for misapprehension about what the Order commanded; (b) whether a party in breach has previously contravened an order under s127; and (c) the need to deter participants in industrial relations administered under the WR Act from flouting or disregarding orders of the AIRC, "especially where those orders have been made after a full hearing of both sides and have been tailored to meet the exigencies of a particular industrial dispute". Deterrence The respondents submitted that, in this case, the primary consideration is deterrence and in that regard general deterrence is more important than specific deterrence. The applicants' submissions were to the same effect. I accept this submission. This is not to say that specific deterrence is not of importance. This approach is consistent with the main object of the Act to which I have referred. It was further submitted by the applicant that the admitted contraventions of s 127 of the WR Act were similarly serious, having regard to: (a) the clear and unmistakeable command of the AIRC, as expressed in clause 4(a) and (b) of the Order and accordingly the absence of any basis for misapprehension of what the further 67 respondents were being directed to refrain from doing; (b) the exceptional nature of the Order in that it was made for the life of the Project; (c) the very substantial consequences of the industrial action during the Period, as identified above; (d) the particular need for deterrence of participants in the industrial relations system from flouting such orders, as referred to by Ryan J in United Firefighters . The applicant favours a disposition of this matter in terms that involve an immediately payable penalty, and a significant suspended penalty, that will apply for a considerable period of time, being three years. The penalty provisions contained in s 49(1)(c) of the BCII Act contemplate the making of "any other order that the court considers appropriate". This, it is submitted, will serve to achieve the objectives of both specific and general deterrence. In all of the circumstances, the applicant submitted that the following penalties are appropriate and should be considered as being at the lower end of the available range: (a) in respect of each of the respondents for admitted contraventions of s 38 of the BCII Act, a penalty of $9,000 of which $3,000 should be payable within 28 days and the balance of $6,000 suspended for 3 years, to be paid only if the respondent further contravenes the BCII Act or the WR Act during the period of the suspension; and (b) in respect of each of the 67 respondents who have admitted contraventions of s 178 of the WR Act, an additional penalty of $3,000 of which $1,000 should be payable within 28 days and the balance of $2,000 suspended for 3 years, upon similar terms. In United Firefighters, a union was fined $2,500 and its secretary was fined $500 for contravening a s 127 Order. The maximum penalties were $30,000 and $6,000 respectively. The union defended the case. It was submitted that the present action being the first of its kind, seeking to penalise individual employees as distinct from a union or its officers should therefore be seen in the context of the imposition of penalties for new offences. It was further submitted that it is a clear principle of sentencing that for a new offence, the penalties will normally be regarded as having to start at a low level before any subsequent penalties are considered within a context of escalating requirements for deterrence and punishment. No authority was cited for such a principle. I invited senior counsel for the respondents, if he so wished, to provide such authority in supplementary submissions. None have been provided. Finally it was submitted that the appropriate penalty range in this case falls very much towards the bottom end of the range for the reasons and that because of the novelty of the application, that any penalty imposed should be fully suspended. In this way, it was said, the Court could, with justice, mark the punishment and issues of specific and general deterrence to the extent required in this instance. Double Punishment Those respondents who have admitted contraventions of both the WR Act and the BCII Act submit that the contraventions arise from the same conduct and that they ought not to be punished twice for that same conduct. It was not submitted that s 4C of the Crimes Act 1914 (Cth) which prohibits a person from being punished twice for the same act or omission, has any direct application here. The admitted contraventions are not offences. In any event, it is not the case, in my opinion, that the contraventions arise from the same conduct, if by that it is meant that the elements which comprise the contraventions in the case of each of the BCII Act and the WR Act are the same.


case_text: the contraventions in each case contain common elements, namely, unauthorised industrial action by involvement in the Strike. This is a relevant consideration in weighing the appropriate penalty to be imposed: The Community and Public Sector Union v Telstra Corporation Ltd (2001) 108 IR 228. To punish twice for conduct that contains an area of overlap "would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts": Pearce v R [1998] HCA 57 ; (1998) 156 ALR 684 at [40] . These matters therefore give rise to considerations of cumulation and concurrence, as well as totality: Pearce at [45]; Mill v R [1988] HCA 70 ; (1988) 166 CLR 59; Finance Sector Union v The Commonwealth Bank of Australia (2005) 224 ALR 467 at [25].


case_text: Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 "(Mobil Oil") the Full Federal Court acknowledged that deterrence is "one of the principal justifications, if not the only justification for imposing civil penalties" at [53]. In Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 , which involved industrial action on the very project that is in issue in this case, Le Miere J, said putting it in a more limited way [74]: penalties should be sufficiently high to deter repetition by the contravener and by others who might be tempted to engage in contravening conduct. Deterrence is a primary objective of penalties." I consider that the total penalties in each case, tempered by suspension of a significant part of each gives rise to the appropriate overall penalties. In my view, the penalties in each case give effect to the primacy of both specific and general deterrence and in that regard I have given reasonable weight to the submissions of the applicant: Mobil Oil at [53].


case_outcome: discussed

case_text: is a repetition of what was said by French J in Trade Practices Commission v CSR Ltd (1991) ATPR p41-076 at 52,152. See also Trade Practices Commission v Pye Industries Sales Pty Ltd (1978) ATPR p40-089 at 17,859; Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 per Lander J at [93] and per Jessop J at [164]. The respondents referred to Ponzio , a recent Full Court decision about the imposition of penalties under the WR Act. This was a case against an employer under the former s 187AA and the CFMEU and two of its officials under former s 187AB of the WR Act. It concerned payment to employees for a period of industrial action. It adds nothing of significance to the relevant principles involved in the imposition of a penalty. In that case, a penalty of $5,000 was imposed on the employer; none of it was to be paid if the company did not breach any provision of the WR Act for a year. The employer was regarded as being less culpable than the union. A penalty of $6,000 was imposed on the CFMEU. No penalty was imposed on the two officials but declarations were made that they had breached the WR Act. This was the highest penalty imposed under those sections. The other penalties in the 4 earlier cases ranged from $200 to $4,000: [130]-[133] per Jessup J. There have been two cases where penalties have been imposed for contraventions of ss 127 and 178 of the former WR Act. I have given no weight in assessing the appropriate penalties to the view of the workforce that Ballard had been unfairly or unlawfully sacked or in relation to the asserted 'sharp practice' on the part of LKJV: Ponzio at [90] per Lander J. In any event I am unable, on the evidence, to conclude that the respondents' perception that Ballard was unfairly or unlawfully terminated was reasonably based or not. Nor am I in a position to characterise the conditions put by the LKJV for his reinstatement as constituting 'sharp practice', or as being provocative. There was no direct evidence as to this nor am I able to infer it. In any event, if Ballard considered that he had been either unfairly or unlawfully terminated in his employment, then he had both a contractual obligation and a remedy at law. There was a mandatory Dispute Resolution Procedure under the Certified Agreement (cl 4.5) for the resolution of disputes. Ballard was obliged to follow this. He did not. Additionally, an application for relief under s 643(1) of the WR Act was available to Ballard on the ground that the termination was allegedly harsh, unjust or unreasonable. Indeed it was a term of the LKJV New Metro Rail City Project Structural Certified Agreement 2004 that termination of employment by the Joint Venture shall not be harsh, unjust or unreasonable (cl 2.2.3). I was informed by senior counsel for the respondents that Ballard had made an application in relation to his alleged unfair dismissal, claiming that it was harsh, unjust and unreasonable and constituted discrimination. The respondents' perception that Ballard's dismissal was unfair or unlawful did not constitute a warrant for the unlawful industrial action, nor does it constitute any relevant mitigating circumstance. It would be extraordinary if a wilful disregard of the main object of the legislation, and in particular, in this case, the promotion of the rule of law, should be regarded as somehow mitigating the contravention. Mr Rozen, who represented the 7 th , 8 th , 9 th , 12 th , 14 th , 16 th , 28 th , 37 th and 64 th respondents, conceded in argument that the unlawful industrial action was, (in part) clearly motivated by an attempt to bring financial pressure to bear on the LKJV to achieve the reinstatement of Ballard rather than through lawful means. In my view, that concession was correctly made and underlines the seriousness of the conduct. I do not accept that merely because they are employees as opposed to a union, union officials, or an employer, that there is, in principle, any different approach which should be taken on the question of penalty. In any one case there may be different levels of culpability. Each matter requires to be considered by reference to its own facts and circumstances. I was told by senior counsel for the respondents that orders of the AIRC were frequently disobeyed and that this, traditionally, was not regarded as serious. It was also held that this was the first time in which penalty proceedings had been taken against employees in that capacity. This, it was said, was for historical reasons, grounded in the way that industrial disputes have in the past been fought. In Ponzio , a Full Federal Court made a series of detailed declarations concerning contraventions of the WR Act, on the basis of facts established by an agreed statement of facts. It is apparent from that form of declaration in that case that the Full Court was prepared to accept the detail in the agreed statement of facts as a proper factual foundation for the making of declarations. I propose that equivalent declarations should be made in this case. I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 20 December 2007 Counsel for the Applicant: Mr R J H Maidment SC with Mr R L Hooker and Dr S Donaghue Solicitors for the Applicant: Lavan Legal Counsel for Respondents 1-6, 10-11, 13, 15, 17, 19-23, 26-27, 29-36, 39-43, 45-53, 55-62, 66, 68-71, 73-75, 77, 79-81, 83-87, 90-97, 99-107 Mr R Richter QC with Mr K Bonomelli Counsel for Respondents 7, 8, 9, 12, 14, 16, 28, 37 and 64 Mr P Rozen Solicitors for the Respondents: Jeremy Noble, Barristers & Solicitors Date of Hearing: 5 November 2007 Date of Judgment: 20 December 2007 SCHEDULE 1 BREACH OF SECTION 38 OF THE BCII ACT UNLAWFUL INDUSTRIAL ACTION 24, 25, 27, 28 FEBRUARY 2006, 1, 2 AND 3 MARCH 2006 No. RESPONDENT NAME RESPONDENT NUMBER 1 Gordon William Aldin 1 2 Stephen Banks 4 3 Richard John Beck 5 4 Nathan Ryan Bennett 6 5 Robert Biondillo 7 6 Robert Neil Bradbury * Respondent 9 only engaged in unlawful industrial action on 24, 27, 28 February 2006 and 1 March 2006. 8 7 John Francis Bradley 9 8 Jamie Brearley 10 9 Tim Hugh Brown 11 10 Greg James Brown * Respondent 14 only engaged in unlawful industrial action on 28 February 2006 and 1 3 March 2006. 12 11 Mathew Bruce 13 12 Michael Burke 14 13 John Joseph Byrne * Respondent 16 only engaged in unlawful industrial action on 28 February 2006 and 1 3 March 2006. 15 14 David Barrie Cameron 16 15 Terry Allan Collins 17 16 Martin Rashleigh Corbett 19 17 Graeme Cowling 20 18 Robert John Coyle 21 19 Robert William Crampton 22 20 Christopher Albert Crawford 23 21 Glenn James Daniels 26 22 Stuart John Davies 27 23 Dronzo Laurie De Bari 28 24 Kevin John Donlan 29 25 James Patrick Doyle 30 26 John Engel 31 27 Michael Evans 32 28 Gerard Patrick Farhi 33 29 Alessandro Forte 34 30 Paul Desmond Gleeson 35 31 David Joseph Golding 36 32 Shane Robert Greaves 37 33 David Hackett 39 34 Matt Charles Harvey 40 35 Zachary James Haywood 41 36 Lawrence Henry Healey 42 37 Charlie Graham Isaacs 43 38 Clinton Larkin 45 39 Wayne Robert Lee 46 40 Kevin Joseph Liddy 47 41 Mathew David Lothian 48 42 Colin Henry Luff 49 43 Iain MacBeth 50 44 Ronald John Marsh 51 45 Frank McMahon 52 46 James Dzemal Memic 53 47 Jeremy Kane Mills 55 48 Lindsay John Morison 56 49 Darren Raymond Morris 57 50 Richard Michael Mulcahy 58 51 Michael John Mulcahy 59 52 David Martin Murphy 60 53 Peter David Napper 61 54 Anthony Peter Nichols 62 55 Andrew John O'Donnell 64 56 Stephen Francis O'Sullivan 66 57 John Pes 68 58 Malcolm Stanley Peters 69 59 Fiorello Reitano 70 60 Brent David Rothsay 71 61 Joshua Gerald Scott 73 62 Alan Charles Semple 74 63 Daniel Spizzirri 75 64 John Graham Storrie 77 65 John Anthony Terriaca 79 66 Gary Frederick Wagstaff 80 67 Jye McNamara Walsh 81 68 Steven Barnett 84 69 Nathan Jay Bennett 85 70 Neil Lenard Bennett 86 71 Andrew Patrick Bowden 87 72 Dean Jason Coyle 90 73 Skye Maree Coyle 91 74 Ross Alan Curby 93 75 Stephen Ray Eaton 94 76 Matthew Bruce Ferguson 95 77 Errol Joseph Ferguson 96 78 Mark Phillip Galli 97 79 Scott John Gray 99 80 Wayne Clifford Hawkins 100 81 Scott Anthony Heap 101 82 Dean Michael McBride 102 83 Michael John Moran 103 84 Nemo Mouchemore 104 85 Darren Lee Reiher 105 86 Lee Elliott Soden 106 87 Maksi Vujcic 107 SCHEDULE 2 BREACH OF SECTION 127 ORDER UNLAWFUL INDUSTRIAL ACTION 24, 25, 27, 28 FEBRUARY 2006, 1, 2 AND 3 MARCH 2006 No. RESPONDENT NAME RESPONDENT NUMBER 1 Gordon William Aldin 1 2 Stephen Banks 4 3 Richard John Beck 5 4 Nathan Ryan Bennett 6 5 Robert Biondillo 7 6 Robert Neil Bradbury 8 7 John Francis Bradley * Respondent 9 only engaged in unlawful industrial action on 24, 27, 28 February 2006 and 1 March 2006. 9 8 Jamie Brearley 10 9 Tim Hugh Brown 11 10 Greg James Brown * Respondent 14 only engaged in unlawful industrial action on 28 February 2006 and 1 3 March 2006. 12 11 Mathew Bruce 13 12 Michael Burke 14 13 John Joseph Byrne * Respondent 16 only engaged in unlawful industrial action on 28 February 2006 and 1 3 March 2006. 15 14 David Barrie Cameron 16 15 Terry Allan Collins 17 16 Martin Rashleigh Corbett 19 17 Graeme Cowling 20 18 Robert John Coyle 21 19 Robert William Crampton 22 20 Christopher Albert Crawford 23 21 Glenn James Daniels 26 22 Stuart John Davies 27 23 Dronzo Laurie De Bari 28 24 Kevin John Donlan 29 25 James Patrick Doyle 30 26 John Engel 31 27 Michael Evans 32 28 Gerard Patrick Farhi 33 29 Alessandro Forte 34 30 Paul Desmond Gleeson 35 31 David Joseph Golding 36 32 Shane Robert Greaves 37 33 David Hackett 39 34 Matt Charles Harvey 40 35 Zachary James Haywood 41 36 Lawrence Henry Healey 42 37 Charlie Graham Isaacs 43 38 Clinton Larkin 45 39 Wayne Robert Lee 46 40 Kevin Joseph Liddy 47 41 Mathew David Lothian 48 42 Colin Henry Luff 49 43 Iain MacBeth 50 44 Ronald John Marsh 51 45 Frank McMahon 52 46 James Dzemal Memic 53 47 Jeremy Kane Mills 55 48 Lindsay John Morison 56 49 Darren Raymond Morris 57 50 Richard Michael Mulcahy 58 51 Michael John Mulcahy 59 52 David Martin Murphy 60 53 Peter David Napper 61 54 Anthony Peter Nichols 62 55 Andrew John O'Donnell 64 56 Stephen Francis O'Sullivan 66 57 John Pes 68 58 Malcolm Stanley Peters 69 59 Fiorello Reitano 70 60 Brent David Rothsay 71 61 Joshua Gerald Scott 73 62 Alan Charles Semple 74 63 Daniel Spizzirri 75 64 John Graham Storrie 77 65 John Anthony Terriaca 79 66 Gary Frederick Wagstaff 80 67 Jye McNamara Walsh 81 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2068.html


case_text: consider it appropriate that there be declarations as to the contraventions broadly in the terms sought by the applicant: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89. It is convenient and appropriate to do so in order to explain the basis for the penalties ordered: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53.


case_title: The Community and Public Sector Union (CPSU) v Telstra Corporation Ltd (2001) 108 IR 228


case_text: leading cases concerning the factors that are relevant to the assessment of civil penalties are the judgments of French J in Trade Practices Commission v CSR Ltd (1991) ATPR p41-076 and Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231. The principles identified in those cases have been applied to determining penalties under the BCII Act. This is a repetition of what was said by French J in Trade Practices Commission v CSR Ltd (1991) ATPR p41-076 at 52,152. See also Trade Practices Commission v Pye Industries Sales Pty Ltd (1978) ATPR p40-089 at 17,859; Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 per Lander J at [93] and per Jessop J at [164].


case_text: is a repetition of what was said by French J in Trade Practices Commission v CSR Ltd (1991) ATPR p41-076 at 52,152. See also Trade Practices Commission v Pye Industries Sales Pty Ltd (1978) ATPR p40-089 at 17,859; Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 per Lander J at [93] and per Jessop J at [164].


case_title: Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89


case_text: I accept the evidence of Mr Mantach as to what he was told by Nicolas Robinson. Although as counsel for the Robinsons stressed, there was no contemporaneous note (other than the reference to 200 acres) and the conversation occurred some ten years ago, the fact that there was a conversation about the cropping area is corroborated by the valuation report itself made at the time, albeit that it creates a misleading impression. Although the Robinson brothers were present in the court for most of the hearing, they did not give evidence. I think the rule in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 entitles me to infer that their evidence on this critical issue would not have assisted them. There is added significance in the fact that the absent witnesses are a party, and a person closely associated with that party in the matters the subject of the litigation: Australian Communications and Media Authority v Clarity 1 Pty Ltd [2006] FCA 410 ; (2006) 150 FCR 494 at [52] .


case_title: Australian Communications and Media Authority v Clarity 1 Pty Ltd (2006) 150 FCR 49


case_text: The answer to this question is: yes. In any case, I note that the Mantach case was not put on the basis that the test of market value as laid down in Spencer v The Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418 at 432 would have been applied differently if Mr Mantach has known his valuation was for a purchaser rather than a mortgagee. The complaint against Mr Mantach was that his valuations were too high. Understandably, he did not put forward a case along these lines: valuations for mortgagees tend to be low, I thought these valuations were for mortgage purposes, had I known they were for a purchaser they would have been higher. 195 It was put on behalf of Mantach that Mr Macleod admitted in evidence that he expected the valuer would contact the owner to arrange inspections and have discussions and communications with the owners. Counsel also pointed out that Mr Wright was the sole director of the applicant from its incorporation on 5 December 2000 until he was joined by Messrs Cottrell and Andriske on 15 March 2001. Mr Wright remained a director until 23 January 2003. 196 As already mentioned, Mr Wright wrote a letter to Boyds on 25 January 2001 arguing the merits of the Robinson properties, criticising the valuations (particularly those of Cubbins) and asking for a higher price. On 1 February he wrote again answering queries by Boyds about the properties. On 15 February Boyds sent the Letter of Understanding to him.


case_text: The short answer is that it is only necessary to show that, if the Mantach valuations amounted to misleading and deceptive conduct, they were a cause of the applicant's loss in purchasing properties for more than their true value: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459, I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109. As Gleeson CJ said in I & L Securities at [33]: In most business transactions resulting in financial loss there are multiple causes of the loss. The statutory purpose would be defeated if the remedy under s 82 [of the Trade Practices Act ] were restricted to loss of which the contravening conduct was the sole cause.


case_text: The short answer is that it is only necessary to show that, if the Mantach valuations amounted to misleading and deceptive conduct, they were a cause of the applicant's loss in purchasing properties for more than their true value: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459, I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109. As Gleeson CJ said in I & L Securities at [33]: In most business transactions resulting in financial loss there are multiple causes of the loss. The statutory purpose would be defeated if the remedy under s 82 [of the Trade Practices Act ] were restricted to loss of which the contravening conduct was the sole cause. 366 Section 82(1B) of the Trade Practices Act , inserted by Schedule 3 item 5 of the Corporate Law Economic Reform (Audit and Corporate Disclosure) Act 2004 (Cth) is concerned with claims in relation to economic loss caused by conduct in contravention of s 52. It provides for reduction of damages to the extent that the Court thinks just and equitable having regard to the claimant's share in responsibility for the loss or damage. It altered the well-established law that contributory negligence is not available in reduction of damages for claims under Pt V of the Trade Practices Act : I & L Securities.


case_title: Norberg v Wynrib [1992] 2 SCR 226

case_text: The essence of a fiduciary relationship is that one party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other: Norberg v Wynrib [1992] 2 SCR 226 at 272 per McLachlin J, cited with approval in Pilmer v Duke Group Ltd [2001] HCA 31 ; (2001) 207 CLR 165 at [71] . There has been a traditional reluctance to impose fiduciary obligations on parties to commercial transactions: Hospital Products Pty Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41 at 70. However, joint ventures may attract fiduciary obligations : News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193 at 311. But even in such a relationship there will be instances where the parties can choose their own interests ahead of the joint interest and in such matters there will be no fiduciary duties: W D Duncan (ed) Joint Ventures Law in Australia , (2nd ed, The Federation Press 2005) at 50. A person "may be in a fiduciary position quoad a part of his activities and not quoad other parts: each transaction, or group of transactions must be looked at": New Zealand Netherlands Society "Oranje" Inc v Kuys [1973] 2 All ER 1222 at 1225-1226.


case_title: Pilmer v Duke Group Ltd [2001] HCA 31 ; (2001) 207 CLR 165


case_title: Hospital Products Pty Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41


case_title: News Ltd v Australian Rugby Football League Ltd (1996) 139 ALR 193 at 311


case_title: New Zealand Netherlands Society "Oranje" Inc v Kuys [1973] 2 All ER 1222


case_text: Counsel for both the Robinsons and Mantach submitted that Broadmoor is now worth what was paid for it and thus there is no capital loss: Flemington Properties Pty Ltd v Raine & Horne Commercial Pty Ltd (1997) 148 ALR 271. The factual basis is not made out: see [306]-[311] above. The submission must therefore be rejected. Nevertheless, since Flemington Properties loomed large, especially in the submissions of Mantach, its application to the present case warrants some discussion. 323 Flemington Properties concerned a valuation of land for a prospective purchaser. The land was subject to a 99 year lease to a statutory authority. The defendant's valuation was $11.5m-$12.9m. The purchaser bought the land for $9.5m. After the purchase the New South Wales Valuer-General valued the land for the purpose of rent calculation at $10.4m. By the time of the trial the purchaser had sold a substantial portion of the land for $13.75m and retained a large parcel valued at $8m. The purchaser claimed as damages the difference between the price paid and the market value at the time of purchase. It is not clear from the report whether, as seems implicit from the argument of the purchaser, there was some valuation at less than $9.5m. In any event, Lehane J found that the valuer had not been negligent, but went on to make observations on other issues, including whether the purchaser had suffered any loss. Since his Honour's observations were obiter, I am not subject to the convention that a judgment of another single judge should be followed unless thought to be clearly wrong. 327 One of the arguments of the valuer appellant was that the courts below should have restricted damages to the difference between valuation and true value at the time of valuation, in accordance with the Potts v Miller line of cases. The valuer's negligence, it was said, was not the cause of the further loss which resulted from a "supervening event", the fall in the market. The case was thus the converse of Flemington Properties where the defendant valuer had sought to claim the benefit of a post-valuation rise in the market. 331 In Flemington Properties at 316 Lehane J disagreed with that statement. But as long as it is kept in mind that the Potts v Miller rule is not a rigid and inflexible one, the negotiability or otherwise of the property in question seems to be both a sensible rationale of the rule and a guide to possible exceptions.