case_text: particular, Carr J (with whom Alsop J agreed) said in relation to the last matter ( Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515 at [43] ): In my opinion the contents of the document, taken as a whole, do not establish on the balance of probabilities that publication by the respondent of it was done reasonably and in good faith for any genuine academic or other genuine purpose in the public interest. In the context of knowing that Australian Jewish people would be offended by the challenge which the appellant sought to make, a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views. In my opinion, the Document shows that the appellant made no such effort. On the contrary, the terms of the Document are, in my view, deliberately provocative and inflammatory. The reference to the Lenin and Stalin eras was, in my opinion, contrived to smear those on the receiving end of the appellant's message. The appellant described the Jews as "also murderers". This reference was made almost as an aside, clearly to paint the Jews in a bad light, before the author resumed his flamboyantly-worded challenge. I think that the primary judge was correct in finding that there was no proof of good faith. I would go further and hold that there is no proof that the publication was done reasonably or in good faith. The respondent's publications after the Full Court decision and before 16 November 2006 Between the delivery of judgment by the Full Court and November 2006, the respondent published on the website a plethora of information which is contained in Exhibit "JJ1" to the applicant's affidavit sworn on 1 November 2006 and which had been read by the applicant on 18 August 2006 and was subsequently re-read on 11 October 2007. I set out a summary of the applicant's claims of breaches of the September 2002 orders occurring after those orders were made and before 16 November 2006: July 2003 Attributes ulterior motives to what it describes as "Holocaust propaganda". Refers to Diary of Anne Frank as one of "those self-serving Holocaust frauds", to "Holocaust stories and myths", and repeatedly to the "Holocaust lie". September 2003 Attacks the decision of the Full Court and "extremist Jews" said to be currently "over-represented in politics, the media and the judiciary", refers to "historical lies such as the drummed up six-million lies" and to the "filthy lie" of the "Holohoax". 9 October 2003 It contains repeated denials that the Holocaust ever happened accompanied by viciously racist and antisemitic statements. 10-11 October 2003 It contains repeated denials that the Holocaust happened and says that the respondent is "pushing the limits of a Federal Court of Australia gag order, and pressuring the upholders of the Holocaust orthodoxy to admit they are living on [!] a lie". 3 January 2004 Refers to the "holocaust dogma of Judaism" being used to enslave Christian Germany and the rest of the world and as propaganda to achieve the creation of Israel and to get money by blackmail and extortion. February 2004 Refers to Holocaust museums and reparations claims as "just a gimmick to collect money". Case proven that the holocaust was a hoax. There were no gas chambers. March 2004 Refers to the "'Hitler gas chamber legend'", "the non-existent 'Hitler gas chambers'" and Holocaust myths as propagated by Jews, the Soviets and others for ulterior purposes and describes the Jewish author of a book on Holocaust revisionism as a "Holocaust Pimp". States "the holocaust is a lie", that school education teaches "the lies of the holocaust" and refers to "the Auschwitz Lie". The Germans had no gas chambers, no gas vans, and did not commit any inexcusable crimes. Revisionists understand that the holocaust did not happen. November 2005 Refers inter alia to "more Holocaust rubbish", "'Holocaust' educational fraud program", a "tsunami of lies" preventing discussion of Nazi extermination of Jews in homicidal gas chambers, the "Hoaxoco$t Blood Libel", "the hoax of the century" etc and contains grossly antisemitic, racist and hate-filled material about Jews and the Holocaust. January 2005 A report in The Tehran Times on 29 December 2005 of an interview with him, which was still there on 24 April 2008 and 23 May 2008, containing inter alia the following: Fredrick Toben, the director of the Adelaide Institute in Australia, believes that Israel was created based on the Holocaust myth. On December 19, the Mehr News Agency conducted an interview with Toben to ask why Western countries were so outraged when Iranian President Mahmud Ahmadinejad called the Holocaust a myth. Following is the text of the interview: Q: The Iranian president said that he thinks that the Holocaust is a myth. However, he also said some European countries insist that millions of innocent Jews were killed during the Second World War by Hitler, and asked why the Europeans don't give part of their land to the Jews if they are correct. What is your view? A: The Holocaust is a lie because none of its three main pillars on which it rests are factually true or proven. 1. Germany Hitler systematically exterminated European Jewry. There is simply no proof of this claim it was a transfer of Jews, and together with Zionist collaboration, German Jews arrived in Palestine with their property. Others were moved out of German territory and Auschwitz was a transit camp. 2. The killing was done in huge chemical slaughterhouses homicidal gas chambers. This is a technical impossibility because you can work out how long it would take, for example, to kill one million people the size of a city like Adelaide without anyone finding out about it. The world soon found out President Bush lied about Iraq's Weapons of Mass Destruction that lie didn't last even one year. 3. Six million Jews were killed this number is mythical/religious and although at one time the numbers killed at Auschwitz was claimed to be 4 million, then reduced to 1-1.5 million, and now to around 500,000, the six million remains the same. Why? Anyone who questions these three points is imprisoned and Revisionists must ask these questions if they wish to know the facts about the Holocaust story. February 2006 Refers to the Holocaust as the "alleged Holocaust of the Jews, a lie whose ravages, wrought for more than half a century now ... are a disaster that worsens from year to year", a legend or myth, "a gigantic slander, blackmail and extortion operation", an imposture for ulterior purposes, "dumb as doggy dodo Sixpackers", "the hoaxaco$t fairytale", "elite Jewry's shakedown of the Swiss banks", "Jews who expected some payout for their time spent at the Awshucks labour camp", "embezzlers", "the Auschwitz Lie", "the holocaust fable" etc. 2 March 2006 Contains antisemitic, racist material of the worst kind and is endorsed by the respondent with the banner and motto of the Adelaide Institute and a copyright-free notation at the end of it. March 2006 Praises Ahmadinejad for his denial of the Holocaust and refers to the Holocaust as "a deliberately contrived falsehood" and a hoax with a Zionist provenance and motivation. March 2006 Refers to the "Holocaust" lie and hoax propagated by the Jews for ulterior motives and out of hatred, made derogatory comments about the applicant, whom he referred to as "Australia's own paranoid Jew", referred to the Holocaust as a propaganda weapon to create world sympathy for Israel, said he was testing the limits of free speech, and stated that the Holocaust is a "myth/lie" and that Holocaust believers are either ignorant or liars. April 2006 Says the myth of the Holocaust was used to create and defend Israel, the gas chambers never existed at Auschwitz or anywhere else, the Holocaust is an extraordinarily profitable lie and a swindle. 16 November 2006 Notice of motion and supporting affidavit JJ1 filed commencing proceeding for contempt. The notice of motion of 16 November 2006


case_outcome: cited

case_text: respondent next argued that the September 2002 orders were vague or unclear and therefore cannot be enforced in contempt proceedings, and in that regard relied upon the decision of the Full Court of this Court in Universal Music Australia Pty Ltd v Sharman Network Ltd [2006] FCAFC 41. In ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 , Lockhart J (with whom Gummow J agreed and French J generally agreed) said at 259: Plainly injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction. Contempt proceedings are not appropriate for the determination of questions of construction of the injunction or the aptness of the language in which they are framed. That decision was approved in Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41.


case_outcome: applied

case_title: Wimpole v McIlwraith [1923] VLR 553

case_text: applicant argued, relying upon a decision of the Supreme Court of Victoria in Wimpole v McIlwraith [1923] VLR 553 , that those paragraphs of the respondent's which contained admissions were admissible without the applicant being required to tender the whole of the affidavit. In that case, Mann J said at 555: I think in trials without juries there has been in our Courts some diversity of practice about this matter, and I think the reason is that there are two courses that may be taken, and which lead now practically to the same result. One course I might take here would be to admit the four paragraphs tendered, subject to and along with any other qualifying paragraphs to which the defendant's counsel would be at liberty to refer without thereby being taken to be tendering evidence. The other alternative is to insist on the whole document going in, but with these reservations, which seem to be just—firstly, that the plaintiff putting in the document would only be bound by the admissions to which he calls attention and any qualifications contained in any other part of the document. The defendant would not be treated as calling evidence by calling attention to any such qualifications. As regards statements appearing elsewhere in the affidavit prejudicial to the plaintiff, I should hold that he is not bound by them in the circumstances, and, so far as those statements were in support of facts, the proof of which was on the defendant, I should not accept them as being sufficient proof of those facts by the defendant for the purpose of satisfying that proof. I refused to admit those parts of the respondent's affidavits which contained admissions. If it were a criminal trial, s 90 of the Evidence Act 1995 (Cth) (the Evidence Act ) would give the Court a discretion to refuse to admit the evidence of an admission if, having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. The admissions were contained in affidavits filed prior to the present charges being laid. The respondent was unrepresented at that time. He was apparently not warned that anything contained in an affidavit might be used against him in contempt proceedings. The applicant only seeks to put part of the respondent's affidavit, effectively reserving to himself the editing of the respondent's affidavits. However, this is not a criminal trial, even though the charges must be proved to the level of satisfaction required in a criminal trial, so s 90 of the Evidence Act does not control the admissibility of the evidence of an admission.


case_text: course, the November 2007 undertaking is in a different class. The respondent gave the undertaking himself. He has always been aware of that undertaking and its effect. So much is clear from his attempting to resile from the undertaking. An undertaking given to the Court is punishable in the same way as if it were an order of the Court. It is a contempt to breach an undertaking the same as it is to disobey an order of the Court: Biba Ltd v Stratford Investments Ltd [1973] Ch 281 ; Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384 ; (1986) 19 FCR 110. A breach of an undertaking will involve the same consequences for the party in breach as disobedience of an order of the Court: Milburn v Newton Colliery (1908) 52 S.J. 317. Where the undertaking is given to the Court by the person who is to be bound by the undertaking, the undertaking does not need to be served upon that person before contempt proceedings for a breach of that undertaking are commenced. Order 37 rule 3 only applies to orders, not undertakings: Windsurfing International Inc v Sailboard Australia Pty Ltd [1986] FCA 384 ; 19 FCR 110. Separate charges for breaches of the September 2002 orders and the November 2007 undertaking


case_title: Witham v Holloway (1995) 183 CLR 525

case_text: Witham v Holloway (1995) 183 CLR 525 , Brennan, Deane, Toohey and Gaudron JJ described the distinction between civil and criminal contempts as illusory. In that case, the majority held that because contempt proceedings are brought to punish the contemnor either for the purpose of vindicating judicial authority or for the purpose of coercing obedience to an order, the proceedings must realistically be seen as criminal in nature. For that reason, whether the contempt is civil or criminal, the charge must be proved beyond reasonable doubt. The onus of establishing the contempt is, of course, on the party asserting it.


case_text: nature and history of the proceeding This appeal is from a judgment of the Federal Magistrates Court in Boglari & Anor v Coadys (a firm) [2008] FMCA 1277. The learned federal magistrate dismissed an application by the appellants to set aside a bankruptcy notice. The bankruptcy notice was founded on a judgment of the County Court of Victoria, which was given in default of defence. The federal magistrate refused to exercise the discretion to go behind the judgment. The substantial question in the appeal is whether this exercise of discretion miscarried, because the federal magistrate did not apply the correct principle. The respondent is a firm of solicitors. The appellants engaged the respondent to act for them in litigation with another party or parties. The details of that litigation are not relevant to this appeal. The appellants paid the respondent three sums of money in respect of costs and disbursements in relation to the litigation. The respondent alleged that the appellants owed further money. The respondent sued the appellants in the Magistrates Court of Victoria. The appellants counterclaimed for alleged negligence by the respondent in the conduct of the litigation. Their counterclaim was for an amount that exceeded the jurisdiction of the Magistrates Court of Victoria. The proceeding was therefore transferred to the County Court of Victoria. On 12 December 2006, the proceeding came before a judge of the County Court for directions. The respondent then filed affidavit material and the proceeding came before another judge on 29 January 2007. That judge directed the appellants to file and serve a defence and counterclaim in proper form and adjourned the matter until 23 February 2007. On that occasion, his Honour struck out the defence and counterclaim because they were not properly pleaded. He refused to give judgment for the respondent then and there, without a formal application for judgment. On 16 April 2007, the judge gave judgment for the respondent for $3,211.15 plus interest of $848.68 and ordered the appellants to pay the costs of the proceeding in the Magistrates Court of Victoria and the County Court. On 9 July 2008, the respondent procured the issue of a bankruptcy notice directed to both appellants, claiming a debt of $4,659.77. This was made up of the total amount of the judgment, $4,059.83, and interest accrued since the date of the judgment of $599.94. The respondent did not claim anything in the bankruptcy notice in respect of the costs of the proceeding in the Magistrates Court of Victoria and the County Court. The appellants applied to the Federal Magistrates Court on 15 August 2008. Their application specified that they sought the following orders: 1) Set aside the Bankruptcy Notice 2) Set aside the judgment/ orders of the county court [ sic ] CI 06/ 02602 That the court revisit/ go behind the judgment of the Hon judge [ sic ] Holt of the County Practice Court To set aside/ or dismiss the above mentioned judgment on the basis that : a) the debt is fictional/ non existent b) the Practice Court was prejudice [ sic ] due to no legal representation c) Dismissal of counter claim Dismissal of defense [ sic ] (not even requested by the Plaintiff/ Defendant by counter claim (Coadys Firm) Not allowing the improved / clearly outlined Defense [ sic ] to go ahead in front of a judge and jury.


case_text: is also authority to the effect that a court will be more ready to find that there is a substantial reason for questioning whether a judgment is based on an actual debt when that judgment has been given by default. See Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 348 per Dixon, Williams, Webb and Kitto JJ and 357-358 per Fullagar J and Wolff v Donovan (1991) 29 FCR 480 at 486 per Lee and Hill JJ.


case_outcome: followed

case_text: power of a court on an application to set aside a bankruptcy notice to "go behind the judgment" on which the bankruptcy notice is based is a discretionary power. In an appeal from a judgment involving the exercise of discretion, the question for the appeal court is not whether it would have exercised the discretion differently from the court below. The basis on which an appeal court is required to act is set out in the well-known passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504-555: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.


case_title: Jooss é v Commissioner of Taxation [2004] FCAFC 245 (2004) 137 FCR 576

case_text: nature of the discretion the exercise of which is sought when a recipient of a bankruptcy notice seeks to set aside that notice by going behind the judgment on which it is based is set out in the joint judgment of North and Finkelstein JJ in Joossé v Commissioner of Taxation [2004] FCAFC 245 (2004) 137 FCR 576 at [3] : The court can go behind a judgment to determine whether it is founded on a real debt because a sequestration order should not be made on the petition of a person who is not a real creditor. The court has a discretion whether or not to go behind the judgment. The discretion is of a limited kind. In Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 , Barwick CJ, with whom Windeyer and Owen JJ agreed, said (at 224-225) that: [t]he Court's discretion ... is a discretion to accept the judgment as satisfactory proof of [the petitioning creditor's] debt. That discretion is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner.


case_text: is also unfortunate that the federal magistrate devoted a significant part of his reasoning to defending the position of the County Court judge in the exchange referred to in [9] above. This was but one passage of several in the transcript of the County Court proceeding before the federal magistrate in which the County Court judge appeared to be suggesting that, unless the appellants could afford to engage a lawyer, or could comply strictly with the rules of the County Court, they would lose the case. It would be a pity if, in the 21st century, any court were to take the view that precise pleadings were always necessary. Because of the decline in legal aid, and perhaps for other reasons, there is a plethora of unrepresented litigants in all courts. As the High Court said in Neil v Nott [1994] HCA 23 ; (1994) 121 ALR 148 at 150: A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. It has been so in this case. It is necessary to focus on the material placed before Tadgell J and to ascertain whether, on that material, a refusal to extend time bespeaks an error of principle affecting the exercise of the discretion to extend time. It may be that, as was the case in Neil v Nott , what the High Court described at 151 as "misconceived advocacy" by the unrepresented litigant made matters difficult for the County Court judge. Nevertheless, it was apparent from what the first appellant told the County Court judge that he claimed to have a defence of the kind outlined above. Even if it could be said that the purported counterclaim of the appellants, based on alleged negligence by the respondent, was so incompetently drafted as to require striking out, it is difficult to see how the striking out of the counterclaim would justify treating the appellants as if they had no defence to the respondent's claim. For the foregoing reasons, the federal magistrate's refusal to exercise the discretion to go behind the County Court judgment in favour of the appellants should be set aside. Rather than remitting the matter to the Federal Magistrates Court, I should exercise the discretion myself. My finding that there is a substantial reason for questioning whether the County Court judgment is based on an actual debt leads to the conclusion that the discretion should be exercised in favour of setting aside the bankruptcy notice. The objections to competency Ground 1 of the respondent's notice of objection to competency is said to have been included because there is a conflict of authority as to whether a judgment given on an application to set aside a bankruptcy notice is interlocutory or final. If it were necessary to come down on one side or other of this controversy, I should be inclined to hold that the judgment was final. Subject to appeal, it determined the rights of the parties in relation to the bankruptcy notice. It is true that, if there were to be a creditor's petition, based on an act of bankruptcy constituted by a failure to comply with a demand made in the bankruptcy notice by the due time, there would be further proceedings between the two parties. They would be proceedings instituted separately, however, in respect of different rights from those the subject of an application to set aside the bankruptcy notice. It is unnecessary to determine the controversy, however. Any requirement that there be leave to appeal ought not to be allowed to stand in the way of the appellants in the present proceeding. To the extent necessary, an extension of time to seek leave to appeal should be granted, and leave should be granted to appeal, so that the appeal can be heard and determined in their favour. Ground 2 of the notice of objection to competency attacks the validity of the grounds in the notice of appeal. It is true that the grounds are not in perfect form. It could hardly be expected of a litigant in person whose first language is not English that he display the skill of a legal draftsperson. Following what the High Court said in Neil v Nott , this is another situation which the Court must not have its attention diverted by the misconceived advocacy of an unrepresented litigant, but must endeavour to ascertain the rights of the parties. There is sufficient substance in the complaints made by the appellants in the grounds of appeal to enable the appeal to proceed. The grounds are directed to criticism of the judgment of the County Court. They do contain considerations that I have held the federal magistrate should have taken into account, namely the fact that the County Court judgment is obtained by default and the allegation that the debt on which the County Court judgment was based was not in fact due. There are sufficient grounds to make the appeal competent. Grounds 3 and 4 of the notice of objection to competency refer to the fact that the notice of appeal seeks orders having the effect of setting aside the judgment of the County Court. Manifestly, this Court does not sit on appeal from the County Court in relation to judgments for debts. The presence of the claim for orders beyond the powers of this Court does not render the entire notice of appeal incompetent. Grounds 3 and 4 of the notice of objection to competency are not proper grounds for dismissing the appeal as incompetent. The orders sought by the appellants, to which grounds 3 and 4 of the notice of objection to competency relate, simply cannot be made. Conclusion The appellants' notice of motion, filed on 18 June 2009, must be dismissed. To the extent to which it is necessary, time should be extended to enable the appellants to apply for leave to appeal, and leave should be granted to the appellants to appeal from the judgment of the Federal Magistrates Court. The appeal should be allowed and the orders made by the federal magistrate should be set aside. For those orders, there should be substituted an order setting aside the bankruptcy notice.


case_title: Wolff v Donovan (1991) 29 FCR 480


case_text: The principles governing the grant or refusal of interlocutory injunctions have recently been confirmed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457. Chief Justice Gleeson and Crennan J at [19] observed: ... in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) [1968] HCA 1 ; 118 CLR 618] should be folIowed. (footnotes omitted) 25 At [70] Gummow and Hayne JJ make clear that they (like Gleeson CJ and Crennan J) have no objection to the use of the phrase 'serious question' if it is understood as conveying the notion that the seriousness of the question depends on the considerations emphasised in Beecham [1968] HCA 1 ; 118 CLR 618 . At [71] their Honours emphasise that the governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.


case_outcome: approved

case_text: The scope of the definition of a 'managed investment scheme' has been considered in a number of cases. In Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46, Barrett J adopted the description and explanation of a 'managed investment scheme and its components' in Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 at [45] - [49] and Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at [26]-[32]. Justice Goldberg in Australian Securities and Investments Commission v Primelife (2006) 235 ALR 328 agreed with and adopted those descriptions and I would be content to do likewise.


case_text: The scope of the definition of a 'managed investment scheme' has been considered in a number of cases. In Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46, Barrett J adopted the description and explanation of a 'managed investment scheme and its components' in Australian Securities and Investments Commission v Knightsbridge Managed Funds Ltd [2001] WASC 339 at [45] - [49] and Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 at [26]-[32]. Justice Goldberg in Australian Securities and Investments Commission v Primelife (2006) 235 ALR 328 agreed with and adopted those descriptions and I would be content to do likewise. 26 This application is also brought in reliance of provisions of the Corporations Act , and I am mindful of the need to consider the purpose and objectives of that legislation in the consideration of the relief sought, particularly pursuant to ss 1323 and 1324 of the Corporations Act . I should therefore consider the public interest that would be promoted by the making of certain orders if a proper legal basis existed for such relief: see generally Pegasus 41 ACSR 583-584 at [108]-[110]. I must consider whether it is necessary or desirable to make orders for the purpose of protecting the interests of aggrieved persons where orders are sought prohibiting the transfer of property (see for example s 1323 of the Corporations Act ). However, I must be careful not to go beyond what is necessary in the circumstances of this case in making interlocutory orders, based on the extent of the evidentiary material before me. 27 APM has already been wound up. A liquidator, Mr McCann, has been appointed. As I have said, no relief at this interlocutory stage is sought directly in relation to the alleged Scheme, only in relation to its participants. Ancillary orders are sought, for instance, that the provisional liquidator provide a written report as to certain aspects, including the future disposition, of the Scheme but the making of these orders depends on the appointment of a provisional liquidator to the corporate defendants. 28 My function now is to preserve the status quo and to protect insofar as is necessary the interests I have outlined above. As events have transpired the only issues remaining are: • whether the continuation of orders preventing the disposal of property in the name of APM should be made; • whether a provisional liquidator should be appointed to the corporate defendants other than APM; • whether the continuation or imposition of orders preventing the disposal of property or the financial records held by the corporate defendants (other than APM) should be made; • whether orders should be made restraining the operation of the Scheme; and • whether restraining orders should be made against Mr Kyriackou.


case_title: Australian Securities and Investment Commission v Primelife (2006) 235 ALR 328


case_title: Australian Securities and Investments Commission v Takaran Pty Ltd [2002] NSWSC 834 ; (2002) 43 ACSR 46


case_outcome: considered

case_text: In Constantinidis v JGL Trading Pty Ltd (1995) 17 ACSR 625, Kirby P said at 635: In Zempilas v J N Taylor Holdings Ltd (No 2) (1990) 55 SASR 103; 3 ACSR 5183 (SC(SA)), King CJ (with the agreement of Cox and Olsson JJ) stressed that: The appointment of a provisional liquidator pending adjudication upon the petition for winding up, is a drastic intrusion into the affairs of the company and is not to be contemplated if other measures would be adequate to preserve the status quo . (emphasis added)


case_text: In Re Bike World (Wholesale) Pty Ltd (1992) 6 ACSR 681 Anderson J said at 684: ... An appointment is made primarily to preserve the assets and undertaking of the company pending the hearing of the petition. The task of the provisional liquidator is to attempt to maintain the status quo until a final decision can be made, after a full hearing, whether the company should be wound up: Re Carapark Industries Pty Ltd (in liq) [1967] 1 NSWR 337 at 341. Such an appointment is not to be made lightly. It works a major interference in the management of the company . ... (emphasis added) 35 I do not discount the possibility that a provisional liquidator may be appointed if there be some public interest element calling for his or her appointment, but there must be some need for such an appointment at this interlocutory stage. 36 I consider that if other appropriate orders can be made to protect the public interest element contended for by ASIC, which in my view there can be in the current circumstances, then the appointment of a provisional liquidator to the corporate defendants is not warranted.


case_text: Appellants, whether represented or unrepresented, should be required to articulate before the Federal Magistrates Court their challenges to a decision of the Refugee Review Tribunal. They should only be permitted to raise before this Court a new ground if there is an adequate explanation for not having raised the ground before the Federal Magistrate and if the ground has merit. In SZIBR v Minister for Immigration & Citizenship [2008] FCA 502 Lander J summarised the position as follows: [38] A party is not entitled to raise new grounds which were deliberately or by inadvertence not put to the Court from which the appeal is brought: Metwally v University of Wollongong [1985] HCA 28 ; (1985) 60 ALR 68 at 71. [39] If the appellant were entitled to raise these new grounds, it would mean that this Court would have to sit, as it were, as the Court at first instance to determine whether these new grounds would give rise to the relief sought in the application before the Federal Magistrate. Parliament has given the responsibility for hearing these applications exclusively to the Federal Magistrates Court. The parties, whether they are represented or unrepresented, ought to articulate all of their complaints in relation to the Tribunal's reasons in the Federal Magistrates Court so that that Court can make the appropriate findings and reach a considered decision on all aspects of the Tribunal's decision. [40] To allow the appellant to articulate these grounds on appeal would be to allow the appellant to treat this Court as a Court at first instance. Such a course of action is unsatisfactory, not only for this Court but also for the High Court which would hear any application for special leave from this decision. It would put the High Court, as it were, in a position of hearing applications for special leave from a court of first instance: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499. [41] However, authority seems to suggest that I need to consider whether the grounds have merit before I determine whether I should give leave for the appellant to raise the matters: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158. In VUAX the conclusion was reached that leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: [2004] FCAFC 158 at [46] . Kiefel, Weinberg and Stone JJ there further concluded: [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. ... There was no adequate explanation in the present proceedings as to why the first Ground of Appeal was not raised before the Federal Magistrate. Nor was it raised as an issue before the Tribunal.


case_text: A decision of the Federal Magistrates Court dismissed an application to review the decision of the Tribunal: SZLBJ v Minister for Immigration & Citizenship [2008] FMCA 90. 5 The Appellant now appeals to this Court. The Grounds of Appeal as set forth in his Notice of Appeal (without alteration) are as follows: GROUNDS OF APPEAL: 1. THAT THE APPLICANT DID NOT RECEIVED THE INCITATION OF HEARING IN THE TIME AS PER MIGRATION REGULATION 4.35D. 2. THAT THE RRT FAILED TO COMPLY WITH THE MANADATORY REQUIRMENTS UNDER THE MIGRATION REGULATION AND MIGRATION ACT . 3. THAT THE APPLICANT FULLY DESCRIBED THE ABOVE SITUATION IN HIS APPLICATION SUBMITTED BEFORE THE FEDERAL MAGISTRATE ON 30/1/2008 THE SAME WAS NOT CONSIDERED BY THE RESPONDENT OF THE RRT. THEY HAVE COMMITTED THE LEGAL AND PRICEDURAL ERROR AND COUPLE THE JURIDICTIONAL ERROR. 6 The Appellant appeared unrepresented before the Court this afternoon, but he did have the benefit of a Court appointed interpreter.


case_title: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158


case_outcome: discussed

case_text: On 21 December 2001 I ordered that the application brought by the applicant ("the Commission") against the first respondent ("Safeway") and the third respondent ("Mr Jones") for contraventions of various provisions under Pt IV of the Trade Practices Act 1974 (Cth) ("the Act ") be dismissed: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861 ; (2001) 119 FCR 1. On 22 October 2002 I ordered that the Commission pay Safeway and Mr Jones' costs of and incidental to the application. The Commission appealed to the Full Court of the Federal Court and on 30 June 2003 the Full Court delivered judgment in the appeal, allowing it in part: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd and Anor [2003] FCAFC 149 ; (2003) 129 FCR 339. On 1 August 2003 the Full Court made orders giving effect to its earlier reasons.


case_title: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd and Anor [2003] FCAFC 149 ; (2003) 129 FCR 339


case_text: French J identified a further six factors to be taken into account in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 (" TPC v CSR ") at 52,152 (commonly known as the "French factors"): (1) the size of the contravening company; (2) the degree of power it has, as evidenced by its market share and ease of entry into the market; (3) the deliberateness of the contravention and the period over which it extended; (4) whether the contravention arose out of the conduct of senior management or at a lower level; (5) whether the company has a corporate culture conducive to compliance with the Act , as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and (6) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. 18 In NW Frozen Foods the majority of the Court observed at 293: "In TNT (at 40,168), it was pointed out that some other factors which have been regarded as important actually flow from what French J called in CSR Ltd (at 52,152) '[t]he primacy of the deterrent purpose in the imposition of penalty'. One of those factors is the size of the corporation involved, since '[w]hat would deter a small company might have little effect on a very large one'. ... As Smithers J emphasised in Stihl Chain Saws (at 17,896), insistence upon the deterrent quality of a penalty should be balanced by insistence that it 'not be so high as to be oppressive'. Plainly, if deterrence is the object, the penalty should not be greater than is necessary to achieve this object; severity beyond that would be oppression."


case_text: In Australian Competition and Consumer Commission v NW Frozen Foods (1996) ATPR 41-515 at 42,444-42,445, Heerey J considered the following additional three factors (commonly known as the "Heerey factors"): (1) similar conduct in the past; (2) financial position; (3) deterrent effect. These factors are not exhaustive; other factors may be relevant in a particular case depending upon the issues raised: Trade Practices Commission v CC (New South Wales) Pty Limited & Ors (1994) ATPR 41-363 at 42,723.


case_title: Trade Practices Commission v CC (New South Wales) Pty Limited & Ors (1994) ATPR 41-363


case_text: The French factors and the Heerey factors have been applied in numerous subsequent Federal Court decisions: see, for recent examples, Australian Competition and Consumer Commission v D M Faulkner Pty Ltd [2004] FCA 1666 at [53] ; Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597 at [7] ; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 ( "ACCC v Leahy" ) at [32] [33].


case_title: Australian Competition and Consumer Commission v Ferndale Recyclers Pty Ltd [2004] FCA 1597


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


case_text: It has been accepted for some considerable time that the principal object of s 76 penalties is deterrence, both specific and general: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 4 FCR 296 per Toohey J at 298; TPC v CSR at 52,152; Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763 at 40,986; NW Frozen Foods v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 294-295 (" NW Frozen Foods "). In Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) ATPR 41-815 (" ACCC v ABB No 1 "), Finkelstein J said at 42,938: "If general deterrence is the principal object of imposing a penalty, the number of cases that still come before the court, and the seriousness of the conduct that is involved in some of them, suggests that past penalties are not achieving that object. For a penalty to have the desired effect, it must be imposed at a meaningful level. Most antitrust violations are profitable. Accordingly, the penalty must be at a level that a potentially-offending corporation will see as eliminating any prospect of gain." More recently in Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247 , the Full Court of the Federal Court said at [11]: "As the cases to which the judge was referred show, the principal, if not the sole, purpose for the imposition of penalties for a contravention of the antitrust provisions in Part IV is deterrence, both specific and general. This rule is so well entrenched that citation of authority is unnecessary. Moreover, as deterrence (especially general deterrence) is the primary purpose lying behind the penalty regime, there inevitably will be cases where the penalty that must be imposed will be higher, perhaps even considerably higher, than the penalty that would otherwise be imposed on a particular offender if one were to have regard only to the circumstances of that offender." These observations are pertinent in the present circumstances.


case_title: Australian Competition and Consumer Commission v George Weston Foods Ltd (2000) ATPR 41-763


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


case_title: Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) ATPR 41-815


case_title: Australian Competition and Consumer Commission v High Adventure Pty Limited [2005] FCAFC 247


case_text: There has also been some debate as to whether the issue of punishment ought to also be considered: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,810 43,811; ACCC v ABB No 1 at 42,936. In Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851 at 44,543, the Full Court raised the issue of the dispute in relation to the role of punishment in imposing penalties. The Full Court noted: "...we see little or indeed no difference between taking into account, in computing the penalty, the deliberate nature of the conduct in question (a matter the relevance of which is not in dispute) and taking into account the fact that the penalty should act as a punishment of the offender."


case_text: In Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 2 ; (2003) 127 FCR 170 ( "Schneider v ACCC" ) Sackville J said at 174-175: "Secondly, I would not place particular emphasis on the size of Schneider's Australian business, as such, as an additional factor distinguishing it from WTC and Tyree. Schneider's size and profitability doubtless explain why it did not dispute its capacity to pay any penalty that might reasonably be expected to be imposed and, to that extent, its size has already been taken into account. As I have said, from the point of view of deterrence, it is the nature of the contravening conduct that is the central determinant in determining an appropriate penalty. The size of a corporation may bear on the assessment of the seriousness of the contravening conduct, as when a large corporation has substantial market power which it uses to intimidate or cajole others to join in contravening conduct." 21 The Commission submitted that although the penalties sought for Safeway's contraventions were substantial, the penalties were appropriate having regard to the available maximum and the importance of deterring the abuse of market power that is the essence of s 46. The Commission relied on the observations of Finkelstein J in Australian Competition and Consumer Commission v ABB Transmission & Distribution Ltd (No 2) (2002) 190 ALR 169 at [13]: "... antitrust legislation is founded on the underlying premise that free competition is essential for the welfare of the state. Conduct that affects the public, such as the anti-competitive behaviour that is outlawed by the Trade Practices Act , can never really be considered as anything other than serious." and Merkel J on appeal in Schneider v ACCC at 184: "... it is appropriate to emphasise the need to ensure that penalties are not fixed in sums that do not have adequate regard to the nature and extent of the contravention, the losses caused by the contravention and the need to deter not only the offending parties but also others from engaging in similar conduct." I agree with these observations. 47 In the present circumstances, I consider it of little relevance to the imposition of the penalties to take into account the fact that Safeway is a wholly-owned subsidiary of a major public company. Safeway is a large company in its own right. At the relevant time it operated some 130 supermarkets in Victoria and Albury. It employed approximately 18,000 to 20,000 employees and had some 28,000 product lines and 1,500 suppliers. I adopt and apply the observation of Merkel J in Schneider v ACCC at 181: "The size of a parent may be of relevance where, for example, the parent bore some responsibility for the subsidiary's conduct or where it is relevant to the subsidiary's capacity to meet a substantial pecuniary penalty. However, I do not regard the size of Schneider's parent company, or of the group of which it forms part, to be a relevant factor in the present case for three reasons. First, it is not suggested that the parent had any involvement in Schneider's contraventions. Second, Schneider did not put in issue its capacity to pay any penalty that may be imposed. Third, it is clear that Schneider operates a substantial business in Australia in its own right. In 2000 it employed 420 employees and had an annual turnover in excess of $200 million. Since 1996, other than in 2000, it has regularly earned net annual profits before tax well in excess of $18 million. Thus, the present case is not one in which it is necessary to determine the circumstances in which the size of a parent of an offending subsidiary will be relevant to the quantum of the penalty that is appropriate." 48 The relevant fact remains Safeway is a very large corporation, with a significant presence in the commercial community. 49 The Commission submitted that the involvement of Mr Brookes, merchandise manager for Safeway, in the four s 46 incidents was an exacerbating factor that the Court ought to take into account in imposing penalties. The Commission said that Mr Brookes was directly involved in the Frankston incident as he made the decision to delete.


case_text: Two further matters need to be taken into account, the totality principle (see Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 at 40,169 per Burchett J and Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,817) and the parity principle (see Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 1) (2004) ATPR 42-022 at [84]-[85] (" ACCC v McMahon ")). In ACCC v Leahy , I said at [43]: "When dealing with several respondents whose situation and culpability are not the same, it is inevitable that different penalties will be imposed. Nevertheless it is necessary to bear in mind what is generally referred to as the parity principle. All other things being equal, similar conduct should be deserving of similar penalties. Of course, as the Full Court said in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission ... 'other things are rarely equal where contraventions of the Trade Practices Act are concerned'. It is also desirable to bear in mind the penalties that have been imposed in past cases. A dramatic departure from previous practice might be seen as representing unjustifiable disparity but may also demonstrate that a level or quantum of previous penalties may, now in the present circumstances under consideration, be regarded as inadequate."


case_title: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562; 75 FCR 238

case_text: There has also been some debate as to whether the issue of punishment ought to also be considered: see Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,810 43,811; ACCC v ABB No 1 at 42,936. In Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851 at 44,543, the Full Court raised the issue of the dispute in relation to the role of punishment in imposing penalties. The Full Court noted: "...we see little or indeed no difference between taking into account, in computing the penalty, the deliberate nature of the conduct in question (a matter the relevance of which is not in dispute) and taking into account the fact that the penalty should act as a punishment of the offender." 20 Two further matters need to be taken into account, the totality principle (see Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 at 40,169 per Burchett J and Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,817) and the parity principle (see Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 1) (2004) ATPR 42-022 at [84]-[85] (" ACCC v McMahon ")). In ACCC v Leahy , I said at [43]: "When dealing with several respondents whose situation and culpability are not the same, it is inevitable that different penalties will be imposed. Nevertheless it is necessary to bear in mind what is generally referred to as the parity principle. All other things being equal, similar conduct should be deserving of similar penalties. Of course, as the Full Court said in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission ... 'other things are rarely equal where contraventions of the Trade Practices Act are concerned'. It is also desirable to bear in mind the penalties that have been imposed in past cases. A dramatic departure from previous practice might be seen as representing unjustifiable disparity but may also demonstrate that a level or quantum of previous penalties may, now in the present circumstances under consideration, be regarded as inadequate." 69 Safeway submitted that it should not be penalised more severely than the total penalties imposed on George Weston Foods Limited ("Tip Top") in this proceeding: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238. I reject that submission. The only penalty imposed on Tip Top that could be relevant to any penalties imposed on Safeway is the contravention of s 45 at Preston Market. Tip Top's other contraventions were for contraventions of s 48 of the Act . There were no allegations of breach of s 46 as against Tip Top. It would be plainly wrong to compare penalties in circumstances where the contraventions relate to different sections of the Act and different types of conduct. 70 Tip Top was ordered to pay $300,000 in respect of the making of the price-fixing agreement and $450,000 in respect of the implementation of it. However, Safeway's contravention was substantially more serious than Tip Top, given that it was Safeway's conduct which brought about the events which led to the contravening conduct. 71 Safeway identified nine matters which it submitted were significant when assessing the penalties against Tip Top: • the contraventions were brought about by senior people in the Victorian division of Tip Top; • none of the senior officers at Tip Top acted as a check or control on the others involved; • the contraventions did not occur as result of one Tip Top officer acting on a frolic of his own; • Tip Top operated a compliance program which made clear that the contraventions were strictly prohibited and could be the subject of severe penalties, and the program was found to be ineffective and was ignored or disregarded; • it was because the compliance program was disregarded by senior officers that a significant deterrent element was required; • the size of George Weston Foods Ltd (Tip Top) was significant as its commercial activity permeated the commercial and consumer life of the public; • Tip Top's conduct in resale price maintenance was engaged in with a conscious appreciation that it was intended to ensure that the discounting of bread by retailers was discouraged or prevented, and was aimed directly towards small businesses; • Tip Top's conduct was deliberate and systematic and engaged in for commercial reasons; Tip Top (on the agreed facts) anticipated Safeway's reaction and did not seek to resist Safeway; and • with respect to the Preston market incident, the contravention of s 45 was (on the agreed facts) admitted and the agreement on prices was reached at senior management level. Although these matters were particularly relevant to the fixing of penalties against Tip Top there are many points of difference between Tip Top's contraventions and Safeway's contraventions and their respective circumstances which render comparison of little value. 83 In having regard to all of the above factors, I have nevertheless borne in mind the totality principle. That is, I have ensured that having determined an appropriate penalty for each contravention, I have, as a check considered whether the aggregate is appropriate for the various acts of contravening conduct involved: McDonald v The Queen (1994) 48 FCR 555 and Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,817.


case_title: Australian Competition and Consumer Commission v McMahon Services Pty Ltd (No 1) (2004) ATPR 42-022


case_text: The Commission submitted that although the penalties sought for Safeway's contraventions were substantial, the penalties were appropriate having regard to the available maximum and the importance of deterring the abuse of market power that is the essence of s 46. The Commission relied on the observations of Finkelstein J in Australian Competition and Consumer Commission v ABB Transmission & Distribution Ltd (No 2) (2002) 190 ALR 169 at [13]: "... antitrust legislation is founded on the underlying premise that free competition is essential for the welfare of the state. Conduct that affects the public, such as the anti-competitive behaviour that is outlawed by the Trade Practices Act , can never really be considered as anything other than serious." and Merkel J on appeal in Schneider v ACCC at 184: "... it is appropriate to emphasise the need to ensure that penalties are not fixed in sums that do not have adequate regard to the nature and extent of the contravention, the losses caused by the contravention and the need to deter not only the offending parties but also others from engaging in similar conduct." I agree with these observations.


case_text: As a result of the Preston Market incident consumers paid more for bread at the Preston Market stall and were denied the benefit of competition in relation to branded bread. This incident was inherently anti-competitive, although the extent of the anti-competitive consequence cannot be quantified. That does not alter the significance of the contravention. As Merkel J observed in Australian Competition and Consumer Commission v Leahy Petroleum (No 2) (2005) 215 ALR 281 at [20]: "Any determination of the actual quantum of the higher retail prices paid for petrol by reason of the understanding would necessarily be speculative and would be unlikely to serve any useful purpose. The important point is that price-fixing arrangements and understandings of the kind made and given effect to in the present case have been treated by the legislature as per se contraventions of the Act because their inherently anti-competitive nature inevitably harms consumers and has a deleterious and pernicious effect on economic efficiency."


case_text: The observations of Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd (2004) ATPR 42-031 are also pertinent in this context. At [16] Selway J said: "... [T]he actual market outcome in a particular case is not necessarily an important issue in determining the appropriate penalty, except, perhaps, as a matter of aggravation. In relation to price fixing agreements, the law itself assumes that the purpose and/or the effect of the proscribed behaviour is to "substantially lessen competition": s 45A of the TPA and see Brunt Economic Essays on Australian and New Zealand Competition Law (2003) at 133. Given that assumption, it cannot be a factor in mitigation of a pecuniary penalty for engaging in price fixing that no such purpose or effect occurred in the particular case. If it is true that the uncompetitive purpose and effect did not result in a measurable or ascertainable loss to a particular individual, that is necessarily fortuitous and coincidental. It is not a matter of mitigation. Further, as already noted, the reason for the prohibition is the effect of the behaviour on the overall market, not on a particular transaction. Collusive bidding practices are unacceptable whatever their effect in a particular transaction. Those involved in them must expect significant penalties." 58 With respect to the Preston Market incident, consumers were affected in a true economic sense as the price-fixing arrangement resulted in consumers paying a higher price for bread at the Preston Market stall. 59 The Commission submitted that Safeway did not have any substantial trade practices compliance program in place, and to the extent it had any at all, it was ineffective. The Commission contended that Safeway did not call evidence or tender any contemporaneous documents that showed any substantial or systematic program of compliance at the time of the contraventions.


case_text: I also draw in aid the approach I took in Australian Competition and Consumer Commission v SIP Australia Pty Limited (2003) ATPR 41-937 at [57]-[58]: "There is no basis for considering that there should be any parity with, or relationship between, the penalties imposed upon Baker Bros and its two directors and the penalties to be imposed upon SIP and Mr Ippaso. In the present circumstances there are significant differences between the position of Baker Bros and its directors on the one hand and SIP and Mr Ippaso on the other. In particular, Baker Bros admitted its contraventions at a very early stage of the proceeding, as did its directors in relation to their participation in those contraventions. Baker Bros was a much smaller company than SIP by reference to factors such as financial resources and commercial resources generally and SIP's market share between 1994 and 1998 and its turnover were significantly greater than Baker Bros' turnover. Further, Baker Bros and its two directors actively co-operated with the Commission in finalising the case against them and assisting it in prosecuting its case against SIP and Mr Ippaso. Although SIP and Mr Ippaso co-operated with the Commission when s 155 notices were served on them, they contested the proceeding. They are not to be penalised for so doing but they are not entitled to any discount in respect of co-operating with the Commission so as to obviate the necessity for a trial. Further, although Baker Bros committed the contraventions, it did so only after significant commercial pressure was placed upon Messrs Baker by Mr Ippaso. The role played by Mr Ippaso and SIP in procuring and implementing the March 1994 agreement was significantly different in that it was the initiating factor and the factor which drove the negotiations which culminated in the agreement. This difference warrants SIP and Mr Ippaso being given significantly and substantially greater penalties than Baker Bros and their directors. Mr Ippaso's culpability is significantly greater than that of the two directors of Baker Bros. I am therefore satisfied that a more substantial penalty should be imposed upon SIP and Mr Ippaso than was imposed upon Baker Bros and Messrs Baker." 74 There are significant differences between the position of Tip Top and the position of Safeway. On one view comparing their positions is akin to comparing apples with oranges. In particular, Tip Top admitted the contraventions at an early stage and co-operated with the Commission and so became entitled to a significant discount in the penalties to be imposed. Further, the penalties imposed upon Tip Top were based on an agreed statement of facts, which were not tested by cross-examination. It is inappropriate to use those facts, which were agreed, as relevant to Safeway's position in this penalty hearing. 75 The allegations against Tip Top were contraventions of ss 45 and 48 , and not s 46. The contraventions differed in fundamental ways: • Tip Top's contraventions did not involve the exercise of substantial market power, whereas it was a fundamental element of Safeway's four s 46 incidents that it both had, and took advantage of, market power in order to deter or prevent competitive conduct; • Tip Top's conduct was a response to the deletion of its products by Safeway. In the four incidents, Safeway's purpose was to deter or prevent supply, whereas Tip Top did not have such a purpose.


case_text: The Commission submitted that having regard to the authorities a high penalty is generally appropriate for contraventions of s 46. The Commission referred to the cases of Trade Practices Commission v Carlton United Breweries Ltd (1990) 24 FCR 532 , TPC v CSR, Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833, Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd No 2 (2002) 201 ALR 618 (and on appeal: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529) and Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd (Administrators Appointed) (2004) ATPR 41-983 (" ACCC v Fila ") in support.


case_title: Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833


case_title: Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd No 2 (2002) 201 ALR 618


case_title: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529


case_text: The Commission submitted that having regard to the authorities a high penalty is generally appropriate for contraventions of s 46. The Commission referred to the cases of Trade Practices Commission v Carlton United Breweries Ltd (1990) 24 FCR 532 , TPC v CSR, Australian Competition and Consumer Commission v Rural Press Ltd (2001) ATPR 41-833, Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd No 2 (2002) 201 ALR 618 (and on appeal: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529) and Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd (Administrators Appointed) (2004) ATPR 41-983 (" ACCC v Fila ") in support. 79 Safeway submitted that if the penalties sought by the Commission are imposed, such penalties would be in stark contrast to those imposed in the ACCC v Fila decision, given that the contraventions in that case were more damaging, intentional, sustained and widespread. In ACCC v Leahy I said at [43]: "... All other things being equal, similar conduct should be deserving of similar penalties...It is also desirable to bear in mind the penalties that have been imposed in past cases. A dramatic departure from previous practice might be seen as representing unjustifiable disparity but may also demonstrate that a level or quantum of previous penalties may, now in the present circumstances under consideration, be regarded as inadequate". Little attention has been paid in recent times to the level or quantum of penalty appropriate for contraventions of s 46 of the Act . 80 There are several difficulties in the application of the parity principle. The first is that all of the authorities referred to by the parties differ in some way, and in some instances many ways from the present circumstances. I do not consider that it is useful to use any one case as a determinant of the quantum of penalty for another. 81 Secondly, a number of the authorities referred to were decided when the maximum penalty for corporations for contraventions of ss 45 and 46 was $250,000. This is in contrast to the maximum penalty of $10 million that is now available. If an appropriate case were identified, the question arises as to how one compares a penalty that was imposed at a time when the maximum penalty was different. The Commission approached the issue on a percentage basis, and identified what percentage of the maximum penalty was imposed. I doubt that this is the correct approach, as the Court is not engaged in a mathematical exercise in which precise calculations are derived from specified or identified integers. Rather the Court is engaged in a weighing and balancing exercise.


case_text: The "totality" principle requires the Court, after determining an appropriate sentence or penalty for specific offences or contraventions in accordance with proper principles, to review the total of the sentences or penalties and consider "whether the aggregate is 'just and appropriate'": Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 63, approving of the description of the totality principle in Thomas, Principles of Sentencing , (2nd ed) (1979) pp 56-57. The totality principle finds its genesis in the criminal law but it has also been applied in the context of fixing penalties for contravention of the Act : Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 37 ALR 256 at 258; ACCC v McMahon at [90]. However, an application of the totality principle in the present circumstances must take into account, and make an allowance for the fact, that there are a number of contraventions of the Act which did not arise out of one, or a single, plan, arrangement, proposal or sequence of conduct. It should also be recognised that one of the explanations for the application of the totality principle is that: "...if the totality of the prisoner's liability to incarceration produces figures that crush any hope of reformation and any reasonable expectation of a useful life after release, the sentences must be made concurrent or partially concurrent with each other to avoid disproportion, given the finite length of human lives": R G Fox and A Freiberg, Sentencing: State and Federal Law in Victoria, (2nd ed) (1999) pp 229-230. This rationale has little application in the context of the determination of the appropriate level of penalties for contraventions of Pt IV of the Act and in particular, in relation to large companies with very substantial financial resources. This is not to say that the determination of the appropriate penalties should be disproportionate to the severity and significance of the contraventions established. The total of penalties fixed for separate and discrete contraventions of Pt IV of the Act should not be disproportionate to the severity and significance of the various contraventions which have been established. Nevertheless, it must be remembered that there are separate and discrete contraventions not linked in point of time or causation.


case_title: Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 37 ALR 256


case_title: McDonald v The Queen (1994) 48 FCR 555

case_text: In having regard to all of the above factors, I have nevertheless borne in mind the totality principle. That is, I have ensured that having determined an appropriate penalty for each contravention, I have, as a check considered whether the aggregate is appropriate for the various acts of contravening conduct involved: McDonald v The Queen (1994) 48 FCR 555 and Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,817.


case_text: The Commission and Mr Jones correctly point out that imposing penalties pursuant to s 76 of the Act is a matter for the Court. When a court is presented with an agreed penalty, the proper task is to determine whether the proposed penalty comes within the permissible range: NW Frozen Foods at 290-291 per Burchett and Kiefel JJ and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 per Branson, Sackville and Gyles JJ at 48,627. 88 I have considered whether it is appropriate to give Mr Jones any discount in penalty by virtue of his admission of the contravention at Preston market. Once the Full Court made its findings with respect to Mr Jones' role in the Preston market incident, Mr Jones had little option but to admit liability. In those circumstances, it cannot be said that Mr Jones' admission has saved any substantial amount of court time. 89 There was no evidence before me as to Mr Jones' financial position. Accordingly I am unable to take into account the ability of Mr Jones to pay any particular penalty.


case_outcome: referred to

case_text: the orders sought are as follows: (a) Paragraph 4 seeks an order 'pursuant to Order 15A rule 8 of the Federal Court Rules or otherwise , that the Russian Federation provide discovery' of documents within listed categories in the schedule to the amended notice or as otherwise ordered by the Court; (b) paragraph 5 seeks an order, in the nature of a Sabre order ( Sabre Corp Pty Ltd v Russ Calvin's Hair Care Co (1993) 46 FCR 428), requiring FKP and FGUP to take steps to obtain such documents in the possession, custody or control of the Russian Federation, and par 6 seeks an order for the provision of such documents to Spirits together with verifying affidavits; (c) paragraph 6A seeks an order that the amended notice of motion be stood over for consideration, if necessary, of a stay of the cross-claim in the event of non-compliance with any order in terms of par 4 or pars 5 and 6. The 'otherwise' alternative basis to O 15A r 8 of the Federal Court Rules of the order sought in [2(a)] above, is that the Russian Federation is the 'true' or 'real' applicant/plaintiff on the cross-claim, not FKP and FGUP, which are but 'nominal' applicants/plaintiffs. It is not in dispute that FKP and FGUP are Russian State-owned enterprises; that they are separate legal entities which are distinct from the Russian Federation. FKP is a 'federal treasury enterprise', being a commercial organisation which holds property settled on it by the Russian Federation 'by right of operational management'. FGUP is a 'federal State unitary enterprise', being a commercial organisation which holds property settled on it by the Russian Federation 'by right of economic management'. In her affidavit Ms Mozgonenko confirms the foregoing (at [11] and [12]) and explains what is meant by the terms 'by right of operational management' and 'by right of economic management' (at [13] [19]) and Mr Tsyplakov, in his affidavit, confirms that he 'substantially agrees' with Ms Mozgonenko on all these matters (at [23]). On the conclusion I have reached, it is not necessary that I deal with the motion insofar as it seeks an order in terms of par 5 of the amended notice a Sabre order requiring FKP and FGUP to take steps to obtain the documents, within the listed categories or as otherwise ordered by the Court, in the possession, custody or control of the Russian Federation, and an order in terms of par 6 thereof for the provision of such documents to Spirits together with verifying affidavits. Nevertheless, again in deference to the submissions that were made, I should indicate why, had it been necessary to consider this aspect of the motion, I would have been minded to dismiss it. First, there must be a real likelihood that the party, in this case FKP and FGUP, who is to take steps to obtain access to and discover the documents which are in the possession, power or control of a third party, would be given access to the documents upon request: See Sabre at 432 433. This likelihood must be established by evidence: Gambro at [8], [17] [19]. In the present case, Spirits has made no attempt to establish this. There is nothing in the evidence from which the inference could be drawn that any documents within the very broad categories requested by Spirits would be provided by the Russian Federation or its ministries, agencies and instrumentalities.


case_title: Willis & Co v Baddeley [1892] 2 QB 324

case_text: careful consideration, I have come to the conclusion, not without some hesitation, that the Russian Federation is the 'real,' applicant/plaintiff in the cross-claim because the claims made therein are brought and made on behalf of the Russian Federation by FKP and FGUP, and not in their own right: see Willis & Co v Baddeley [1892] 2 QB 324; Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1992] 2 All E.R. 20, [1991] 2 Lloyd's Rep. 508, cf James Nelson & Sons Ltd v Nelson Line (Liverpool) Ltd [1906] 2 KB 217.


case_title: Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1992] 2 All E.R. 20


case_title: James Nelson & Sons Ltd v Nelson Line (Liverpool) Ltd [1906] 2 KB 217


case_text: I have indicated at [2(a)], Spirits seeks an order for discovery 'pursuant to O 15A r 8 or otherwise '. I do not regard this alternative basis as, in substance and effect, a request for third party discovery pursuant to O 15A r 8 of the Federal Court Rules . It is a totally discrete basis founded on s 23 of the Federal Court Act ; wide enough to cover orders requiring the discovery, production and inspection of documents: Commonwealth v Northern Land Council (1991) 30 FCR 1 per Black CJ, Gummow and French JJ; see also Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 ; at the same time, accepting that the Court has a general power under s 23 to prevent the abuse or frustration of its processes in relation to matters coming within its jurisdiction ( Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214) or where it is otherwise necessary to protect the integrity of the processes of the Court: CSR Ltd v CIGNA Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 at 391 392; Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380.


case_text: I have indicated at [2(a)], Spirits seeks an order for discovery 'pursuant to O 15A r 8 or otherwise '. I do not regard this alternative basis as, in substance and effect, a request for third party discovery pursuant to O 15A r 8 of the Federal Court Rules . It is a totally discrete basis founded on s 23 of the Federal Court Act ; wide enough to cover orders requiring the discovery, production and inspection of documents: Commonwealth v Northern Land Council (1991) 30 FCR 1 per Black CJ, Gummow and French JJ; see also Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 ; at the same time, accepting that the Court has a general power under s 23 to prevent the abuse or frustration of its processes in relation to matters coming within its jurisdiction ( Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214) or where it is otherwise necessary to protect the integrity of the processes of the Court: CSR Ltd v CIGNA Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 at 391 392; Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380. First, there must be a real likelihood that the party, in this case FKP and FGUP, who is to take steps to obtain access to and discover the documents which are in the possession, power or control of a third party, would be given access to the documents upon request: See Sabre at 432 433. This likelihood must be established by evidence: Gambro at [8], [17] [19]. In the present case, Spirits has made no attempt to establish this. There is nothing in the evidence from which the inference could be drawn that any documents within the very broad categories requested by Spirits would be provided by the Russian Federation or its ministries, agencies and instrumentalities.


case_title: CSR Ltd v CIGNA Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345


case_title: Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380


case_text: and FGUP submitted that an order for third party discovery ought not to be granted against a foreign entity which is not a party to the proceeding and is not otherwise subject to the jurisdiction of the Court. They point out that there is ample authority in the context of applications for leave to serve subpoenas outside the jurisdiction for the proposition that such leave should not be granted in respect of a non-party foreign entity 'except in the most exceptional circumstances': Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 at [12] per Allsop J. See also Arhill Pty Ltd v General Percival Company (1991) 23 NSWLR 454; Aetna Pacific Securities v Hong Kong Bank of Australia Ltd (20 April 1993, Supreme Court of New South Wales, Giles J, unreported). The cases suggest, they submit, that this will particularly be the case where (as here) the foreign jurisdiction in question is a civil law jurisdiction: Arhill . Underlying this principle is the view that service of an order upon a foreign entity demanding that it do something in Australia on pain of punishment in proceedings to which it has not submitted is an invasion of the foreign territory's sovereignty: Stemcor . In addition, such a subpoena, even if it is served, is not capable of enforcement: Stemcor . The position, they submit, is no different in principle in the case of an order for third party discovery pursuant to O 15A r 8; the order compels production of documents, disobedience of it would give rise to contempt, and leave is required in order to serve it outside the jurisdiction: See O 8 r 3. Compare Arhill . None of the cases included in Spirits' list of authorities, they observe, involved the making of an order for third party discovery against a foreign entity.


case_title: Arhill Pty Ltd v General Percival Company (1991) 23 NSWLR 454


case_text: and FGUP submitted that an order for third party discovery ought not to be granted against a foreign entity which is not a party to the proceeding and is not otherwise subject to the jurisdiction of the Court. They point out that there is ample authority in the context of applications for leave to serve subpoenas outside the jurisdiction for the proposition that such leave should not be granted in respect of a non-party foreign entity 'except in the most exceptional circumstances': Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 at [12] per Allsop J. See also Arhill Pty Ltd v General Percival Company (1991) 23 NSWLR 454; Aetna Pacific Securities v Hong Kong Bank of Australia Ltd (20 April 1993, Supreme Court of New South Wales, Giles J, unreported). The cases suggest, they submit, that this will particularly be the case where (as here) the foreign jurisdiction in question is a civil law jurisdiction: Arhill .


case_outcome: related

case_title: Sheikholeslami v Brungs [2006] FCA 933

case_text: applicant, Roya Sheikholeslami, commenced employment with the second respondent, the University of New South Wales, on 6 June 1996. On 21 October 2004, whilst still employed, she made a complaint of discrimination occurring over a period of some four years to the Human Rights and Equal Opportunity Commission. The discrimination was alleged to have been carried out by the first respondent, Michael Brungs, an employee of the second respondent. On 20 April 2005, the complaint was terminated. On 17 May 2005, the applicant filed an application (Form 5) and claim (Form 167) under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) in the Court. On 28 July 2006, Tamberlin J dismissed the applicant's claim pursuant to both O 35A r 3(1) and O 20 r 2 of the Federal Court Rules ( Sheikholeslami v Brungs [2006] FCA 933). The applicant was ordered to pay the costs of the respondents on a solicitor/client basis. The applicant seeks leave to appeal from the dismissal of the proceeding and the order for costs. Tamberlin J was the docket judge and had management of the proceeding from its inception. Tamberlin J reserved his decision, having had the benefit of argument from counsel for the respondents and counsel for the applicant, although the applicant had represented herself up to that time. His Honour referred to authority and recognised that dismissal of proceedings on either basis required considerable restraint and would be ordered sparingly. As to O 35A r 3(1), his Honour applied the principles outlined by the Full Court in Lenijamar Pty Ltd and Others v AGC (Advances) Limited (1990) 27 FCR 388. His Honour concluded that the history of non-compliance by the applicant was such as to indicate an inability or unwillingness to cooperate with the Court and the other party in having the matter ready for trial within an acceptable period. His Honour took the view that the way in which the litigation had been conducted by the applicant rendered it impossible for the respondents to meaningfully address any case against them. There had been a persistent failure to identify any specific incident which had any connection to discrimination. His Honour was also satisfied that the way in which the proceeding had been conducted amounted to an abuse of process under O 20 r 2, such that the process was an instrument of injustice or unfairness to the respondents. An order for costs on a solicitor/client basis was founded upon the same findings. Counsel for the applicant presented a well constructed argument. It commenced with a detailed examination of the procedural defaults found by Tamberlin J and a submission that there was no proper basis for a number of those findings. Suffice to say that, for the purposes of this application, there is an arguable case that a number of the defaults either did not occur or are explicable. Investigation of those issues by a Full Court would involve considerable time and effort and would involve no issue of principle. Even if established, the result is unlikely to be different. One question of potential importance is whether or not it is arguable that the finding that there had been a persistent failure by the applicant to identify any specific incident which had any connection with discrimination was wrong as that was the most significant basis upon which the decision was made. It is submitted that the material filed by the applicant with her original application to the Court did specify particular instances of discrimination. Upon examination, that material does not specify particular instances of discrimination in the sense used by Tamberlin J. It was submitted that Tamberlin J did not take into account the fact that the Court in these matters is not bound by technicalities or legal form (s 46PR of the Human Rights and Equal Opportunity Commission Act 1986 ). I do not regard the judge as having been concerned with technicalities or legal form but rather with the failure of the applicant to state her case in a manner which could be grappled with by the respondents and dealt with by the Court. It was also submitted that the Court had not taken into account the fact that the applicant had been unrepresented until the notice of motion in question. It was submitted that coping with issues such as particulars, discovery, framing a case and responding to a subpoena place an unrepresented litigant at a significant disadvantage. The difficulties faced by an unrepresented litigant are well understood, but so are the difficulties of a respondent to a claim brought by an unrepresented party who cannot or will not comply with the ordinary rules. The application was hardly precipitate. The proceeding had been on foot for more than 12 months.


case_text: was submitted that the circumstances were not within those recognised as being appropriate for the grant of indemnity costs ( Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225; Re Wilcox; Ex parte Venture Industries Pty Ltd and Others (No 2) (1996) 72 FCR 151). I can see no arguable error of principle in the award of costs on a solicitor/client basis, bearing in mind the basis of the order of dismissal, the effect of which was that the proceeding had never been in appropriate form.


case_text: for the applicant recognised the difficulty of upsetting an interlocutory judgment of this kind concerning matters of practice and procedure by the docket judge having an intimate knowledge of the progress of the case. The normal considerations to be taken into account are: (a) whether the judgment is attended by sufficient doubt to warrant it being reconsidered by a Full Court; and (b) whether substantial injustice would result if leave were refused supposing the decision to be wrong ( Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397). However, the exercise of discretion should not be unduly constrained by rigid rules ( Seven Network Limited v News Limited [2005] FCAFC 125).


case_text: J was the docket judge and had management of the proceeding from its inception. Tamberlin J reserved his decision, having had the benefit of argument from counsel for the respondents and counsel for the applicant, although the applicant had represented herself up to that time. His Honour referred to authority and recognised that dismissal of proceedings on either basis required considerable restraint and would be ordered sparingly. As to O 35A r 3(1), his Honour applied the principles outlined by the Full Court in Lenijamar Pty Ltd and Others v AGC (Advances) Limited (1990) 27 FCR 388. His Honour concluded that the history of non-compliance by the applicant was such as to indicate an inability or unwillingness to cooperate with the Court and the other party in having the matter ready for trial within an acceptable period. His Honour took the view that the way in which the litigation had been conducted by the applicant rendered it impossible for the respondents to meaningfully address any case against them. There had been a persistent failure to identify any specific incident which had any connection to discrimination. His Honour was also satisfied that the way in which the proceeding had been conducted amounted to an abuse of process under O 20 r 2, such that the process was an instrument of injustice or unfairness to the respondents. An order for costs on a solicitor/client basis was founded upon the same findings.


case_title: Re Wilcox; Ex parte Venture Industries Pty Ltd and Others (No 2) (1996) 72 FCR 151


case_title: Seven Network Limited v News Limited [2005] FCAFC 125


case_text: was submitted that Tamberlin J failed to take into account the fundamental objective of Court process, being to decide cases brought to the Court ( The State of Queensland and Anor v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146 at 154). The judge was conscious of the need to sparingly exercise the powers that he did and had given the applicant every opportunity of outlining her case, over many months. It is also put that the judge erred in failing to consider the other powers of the Court to sanction non-compliance such as the use of costs orders. That argument does not meet the fundamental nature of the problem found by Tamberlin J.


case_text: The Full Court held that certain expert evidence tendered by the applicant had been wrongly excluded: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 239 ALR 662 . The Full Court refused the application of the applicant (Cadbury) for a new trial and remitted the matter to me as the trial judge for the purpose of receiving the wrongly rejected evidence and relevant opposing evidence on behalf of the respondent (Darrell Lea). The further hearing has been fixed to commence on 11 March 2008. 2 By notice of motion dated 7 December 2007 Cadbury seeks orders: (a) That Cadbury have leave to conduct a new survey in accordance with Practice Note 11 (motion pars 1-5 and 9); (b) That Cadbury by 15 February 2008 notify Darrell Lea of form objections (if any) to the affidavit of John Hall sworn 13 January 2006 (motion par 6); (c) That the parties file by specified dates submissions in relation to applications to be made under ss 135 and 136 of the Evidence Act 1995 (Cth) concerning the evidence of Professor Gibbs and Messrs Riches and Stavros (motion pars 7-8, 10 and 12); (d) The parties arrange for any additions to the Court Book (motion par 11); (e) That specified passages from the evidence of the Cadbury witness Mr Nowicki be not admitted (motion par 13); (f) That Cadbury witness Professor Roger Layton be recalled for further re-examination (motion par 14); (g) That specified passages from the cross-examination of certain Darrell Lea witnesses (Mr Lea, Ms McGlinchey, Ms Hurst, Ms Borjeson, Ms Akins and Ms Ettia) be not admitted and that they be available for further cross-examination (motion pars 15-21); 3 Because of the impending Christmas break, the urgency of the matter and the difficulty of arranging a mutually convenient hearing time for counsel and the Court, I directed that the motion be heard on the papers. The parties duly filed detailed written submissions, Cadbury's on 17 December and Darrell Lea's on 19 December.


case_text: As the Full Court made clear in a second judgment when the matter was brought back on Cadbury's application ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2007] FCAFC 102) there is not to be a new trial of this matter enabling Cadbury to call any evidence and ask any questions which it now thinks would be helpful. The Full Court said (emphasis added): [6] However, the Court did not consider that a new trial was justified. Rather, the Court was of the view that justice would be served by a further hearing before the primary judge, at which Cadbury would have another opportunity of adducing the disputed evidence . [7] The proceeding was remitted on the basis that it would be before the primary judge as though the case were part heard. Thus, it would be a matter for the primary judge to determine the extent to which, after entertaining all proper objections and making rulings on such objections, additional or further evidence should be admitted . That may have the consequence that Darrell Lea would seek to adduce its own evidence in response to the disputed evidence. [8] We indicated in our reasons (at [110]) that, if proper objections were taken to the disputed evidence at the further hearing and the evidence was rejected, it would be open to the primary judge to allow Cadbury to elicit further evidence to overcome the objections . That would be an aspect of the management of the further hearing by the primary judge in the same way as it would have been had his Honour not rejected the disputed evidence in its entirety. That is to say, it would be for counsel for Darrell Lea to make such objections to the admissibility of the disputed evidence on formal grounds as they may consider appropriate. If, in the exercise of his discretion, the primary judge were to permit Cadbury the opportunity of adducing further evidence to overcome any objections, that would be a matter entirely for his Honour at the further hearing. 6 The proposed calling of further evidence of a survey, to be conducted two years after the trial, would be inconsistent with that ruling of the Full Court. On appeal Cadbury sought a new trial. The Full Court rejected that application and removed any doubt on the second hearing. Subsequently the High Court refused Cadbury's application for special leave to appeal. 7 Darrell Lea does not object to the course proposed but asks, reasonably in my opinion, that notice of any such objections be filed by 31 January 2008.


case_text: Cadbury complains of the lack of an oral hearing and alleges there has been a breach of natural justice. However, I am satisfied I have the power to make the direction in question under s 23 of the Federal Court of Australia Act 1976 (Cth). That section confers a general power that may be invoked to facilitate the judicial process for various purposes, including ensuring the convenient, expeditious and fair conduct of legal proceedings: Keith Hercules & Sons v Steedman (1987) 17 FCR 290 at 300. It is an everyday practice in this Court for subsidiary matters, for example questions of costs, to be dealt with on the papers. It can be an efficient and cost-effective procedure without in any way impairing the parties' rights to make an appropriate presentation of their arguments to the Court. Cadbury's written submissions were detailed and covered twelve pages. Darrell Lea's were of eight pages. Having read them, I cannot think of any further questions I would have wished to ask in an oral hearing. I now turn to the orders sought.