case_title: North Coast Environment Council Inc v Minister for Resources (1994) 127 ALR 617


case_outcome: cited

case_title: Ogle v Strickland (1987) 13 FCR 306

case_text: Fourth, the respondent's submissions concerning this issue have substantially equated "person aggrieved" for the purposes of s 46P HREOC Act with principles articulated in Boyce [1903] 1 Ch 109 and the possession by a complainant of a special interest so as to enforce the public rights created by statute. Clearly, there is a different jurisprudential approach entailed by identifying whether rights created by statute are public rights permitting enforcement by an individual in circumstances only where the individual has a special interest, compared with considering legislation authorising a person aggrieved to enforce statutory rights created by the legislation. Nonetheless, it is certainly the case that Courts have explained the words "person aggrieved" in terms of special interest in the public law sense. So, for example, in Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 at 447, Bowen CJ and Franki J said the words "a person who is aggrieved": ...are not to be confined to those who can establish that they have a legal interest at stake in the making of the decision. In our view they cover a person who can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public. (see Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 per Ellicott J) (cf United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 527, Ogle v Strickland .) 44 Fifth, traditionally the term "person aggrieved" should not be interpreted narrowly: N'Jie [1961] AC at 634 , Koowarta 153 CLR at 185, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; Ogle v Strickland (1987) 13 FCR 306 (especially Fisher J at 307-308 and Lockhart J at 314-315). Further, as Gibbs CJ said in Onus v Alcoa of Australia Ltd 149 CLR at 36 in relation to whether a person has a "special interest" sufficient to sustain litigation, The rule is obviously a flexible one since, as was pointed out in [ Australian Conservation Foundation ], the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.


case_outcome: considered

case_title: Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc (2006) SASC 114

case_text: The decision in Manuka [1998] ACTSC 86 may be further contrasted with, for example, Onesteel Manufacturing Pty Ltd v Whyalla Red Dust Action Group Inc [2006] SASC 114 where Debelle J held that an association of 45 residents in the Whyalla area concerned with environmental issues involving the steel works operated by Onesteel [2006] SASC 114 was nonetheless not a "person interested" for the purposes of the relevant legislation because: It is unable to point to any physical injury or harm. It has no property which is affected by the subject matter of the application. It has no interests of its own which might be affected other than indirectly through those of its members who might be affected. The evidence does not disclose how many of its members are affected. All that is known is that some of its members live, work or own property affected by dust from OneSteel's plant. One possible corollary is that some of its members may not be affected at all. (at [30])


case_text: Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.) 41 Third, in order for a person to be "aggrieved" the test is objective, not subjective. A person does not qualify merely because he or she feels aggrieved by the conduct. He or she, in the judgment of the Court, must, in truth, be aggrieved by that conduct ( Cameron v Human Rights and Equal Opportunity Commission 46 FCR at 515) and not merely have an intellectual or emotional concern in the subject matter of the proceedings ( Australian Conservation Foundation 146 CLR at 547-548). The words do not include "a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests": Attorney-General (Gambia) v N'Jie [1961] AC 617 at 634, Gibbs CJ in Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168 at 185. It is not sufficient that a person voices a particular concern and regards the actions of another as injurious to the object of that concern (Stephen J in Australian Conservation Foundation 146 CLR at 539, Gibbs CJ in Onus v Alcoa of Australia 149 CLR at 37). 44 Fifth, traditionally the term "person aggrieved" should not be interpreted narrowly: N'Jie [1961] AC at 634 , Koowarta 153 CLR at 185, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; Ogle v Strickland (1987) 13 FCR 306 (especially Fisher J at 307-308 and Lockhart J at 314-315). Further, as Gibbs CJ said in Onus v Alcoa of Australia Ltd 149 CLR at 36 in relation to whether a person has a "special interest" sufficient to sustain litigation, The rule is obviously a flexible one since, as was pointed out in [ Australian Conservation Foundation ], the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.


case_text: Whether a statute confers upon individuals personal rights and standing to enforce those rights are matters to be determined on the construction of the statute, by reference to the subject, scope and purpose of that statute: Allan v Transurban City Link Ltd [2001] HCA 58 ; (2001) 208 CLR 167 at 174; cf McInerney J in Grand Central Car Park [1969] VR at 74, Kaye and Marks JJ in Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 at 486 and Atkin LJ in Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 841. This case 32 The respondent submits further that as s 32 DD Act provides that contravention of disability standards is unlawful , public rights are created. However the fact that legislation provides that conduct is "unlawful" does not of itself mean that exclusively public rights of enforcement exist in relation to that legislation. There is an extensive body of law which provides that simply because a statute deems that certain actions are required by law, and failure to comply is unlawful even to the extent of prescribing a penalty, it does not mean that personal actions are therefore excluded (note for example comments of Atkin LJ in Phillips [1923] 2 KB 832; Groves v Lord Wimborne [1898] 2 QB 402 especially at 415-416; Britannic Merthyr Coal Company Ltd v David [1910] AC 74; Knox CJ, Isaacs, Gavan Duffy and Rich JJ in Mallinson v The Scottish Australian Investment Company Ltd [1920] HCA 51 ; (1920) 28 CLR 66 at 70-72; Potter v Ferguson [1979] 1 NSWLR 364 at 372; Toohey J in University of Newcastle v Chopra [1989] HCA 27 ; (1989) 85 ALR 321 at 343; Campbell v University of New South Wales (1992) 44 IR 56 at 68-69; Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 648; "GS" v News Ltd (1998) Aust Torts Reports 81-466 at 64,906). In all cases, notwithstanding the existence of other remedies (such as penalties), whether personal rights of action exist will depend on the construction of the statute itself.


case_title: Potter v Ferguson [1979] 1 NSWLR 364

case_text: The respondent submits further that as s 32 DD Act provides that contravention of disability standards is unlawful , public rights are created. However the fact that legislation provides that conduct is "unlawful" does not of itself mean that exclusively public rights of enforcement exist in relation to that legislation. There is an extensive body of law which provides that simply because a statute deems that certain actions are required by law, and failure to comply is unlawful even to the extent of prescribing a penalty, it does not mean that personal actions are therefore excluded (note for example comments of Atkin LJ in Phillips [1923] 2 KB 832; Groves v Lord Wimborne [1898] 2 QB 402 especially at 415-416; Britannic Merthyr Coal Company Ltd v David [1910] AC 74; Knox CJ, Isaacs, Gavan Duffy and Rich JJ in Mallinson v The Scottish Australian Investment Company Ltd [1920] HCA 51 ; (1920) 28 CLR 66 at 70-72; Potter v Ferguson [1979] 1 NSWLR 364 at 372; Toohey J in University of Newcastle v Chopra [1989] HCA 27 ; (1989) 85 ALR 321 at 343; Campbell v University of New South Wales (1992) 44 IR 56 at 68-69; Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 648; "GS" v News Ltd (1998) Aust Torts Reports 81-466 at 64,906). In all cases, notwithstanding the existence of other remedies (such as penalties), whether personal rights of action exist will depend on the construction of the statute itself.


case_text: I agree with the submissions of Mr Lenehan for the Commissioner which are in summary: a. the jurisdiction of the Court is enlivened under s 46PO(1) HREOC Act where a "complaint" has been terminated by the President of HREOC b. the complaint must have been a valid complaint for the purposes of s 46P HREOC Act, namely that the complaint was lodged by or on behalf of a "person aggrieved" by the alleged unlawful discrimination c. in accepting the complaint under s 46P, HREOC is not making a determination which is binding on this Court as to whether the complainant is a "person aggrieved" for the purposes of s 46P. As Brennan J observed in Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242 "It is the court's judgment and not the administrative body's opinion which defines the extent of...its statutory authority" d. it is not the case that whether a complainant is a "person aggrieved" can only be addressed by judicial review of the decision of HREOC to accept the complaint. This is inconsistent with Parliament's intention to create a process for handling discrimination complaints which would be efficient and unburdened by technicality ( Human Rights Legislation Amendment Bill 1998 (Cth) Second Reading Speech, Honourable Daryl Williams, Commonwealth Parliamentary Debates , House of Representatives, 3 December 1998, 1276).


case_text: Further, it is clear that legislation may create personal statutory rights which can be enforced by an individual in a Court of law: Wool Sliping and Scouring Co Ltd v Central Wool Committee [1920] HCA 21 ; (1920) 28 CLR 51 per Knox CJ at 61-62; Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 76; SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 246, Dajon Investments Pty Ltd v Talbot [1969] VR 603 at 613, Australian Conservation Foundation 146 CLR at 537, 542-544; Re East, ex parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354. As Stephen J observed in Australian Conservation Foundation 146 CLR at 541, referring to s 52 Trade Practices Act 1974 (Cth): statutes may of course confer standing in express terms...they may also do so by conferring some right the denial of the enjoyment of which gives standing to sue to complain of that denial. Although that very denial might be thought to qualify as the suffering of special damage such as that of which Buckley J spoke, it is, perhaps, preferable in such a case to resolve the question of standing by the direct route of a search for enforceable rights conferred by statute, rather than follow the circuitous course of seeking, in accordance with Boyce's Case, for the existence of special damage. (cf Gibbs J at 532) 31 In contrast, in the case before me the HREOC Act and the DD Act (including the Disability Standards formulated pursuant to s 31) provide a scheme which allows "a person aggrieved" by alleged unlawful discrimination - including, as I have already noted, conduct deemed unlawful by s 32 DD Act - to lodge a complaint with HREOC (s 46P HREOC Act); and in the event that the complaint is terminated, a person affected by the termination to make application to the Federal Court or the Federal Magistrates Court (s 46PO HREOC Act). Significantly, the HREOC Act also creates a specific structure sanctioning applications to the Court for remedies where the Court is satisfied that there has been unlawful discrimination, including payment of damages by the respondent, employment or re-employment an applicant, an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination as is sought in this case (s 46PO(4) HREOC Act). Indeed the point of the statutory scheme as constituted in this case by the HREOC Act and the DD Act is to make laws with respect to discriminatory conduct, and to allow those who are aggrieved by discriminatory conduct, personal rights to seek redress in respect of such conduct. To adopt the language of the majority of the High Court in Re East, ex parte Nguyen 196 CLR at 365, repeated in Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at 96, The elaborate and special scheme...was plainly intended by the Parliament to provide the means by which a person aggrieved by a contravention ... might obtain a remedy, and thus was regarded by Parliament as fulfilling Australia's treaty obligations, bearing always in mind the legal structure and system which formed the context in which the [legislation] was to operate. (That those comments were in respect of the legislation as it stood prior to amendments, and the removal of provisions from the HREOC Act into the DD Act and other statutes, does not in any way minimise their relevance. As observed, in my view correctly, by Nicholson J in Bropho v State of Western Australia [2004] FCA 1209 at [26] - [29] and [51]-[52], they are equally applicable to the scheme as it presently exists.) 45 Sixth, in interpreting "person aggrieved" in this context, it is appropriate to accord a construction that would promote the purpose or object underlying the relevant legislation rather than a construction that would not promote that purpose or object: s 15AA(1) Acts Interpretation Act 1901 (Cth). In light of the scheme created by the interaction of the HREOC Act and the DD Act for the purpose of permitting aggrieved persons to make complaints in relation to unlawful discrimination, it is prima facie appropriate to extend a consideration of the term beyond the purpose of the HREOC Act to include the purpose of the DD Act . This is particularly so given that the unlawful discrimination alleged derives from ss 31 and 32 DD Act . I have already noted observations of the High Court in Re East, ex parte Nguyen [1998] HCA 73 ; 196 CLR 354 as to the intentions of Parliament in relation to the scheme to provide the means by which a person aggrieved by a contravention might obtain a remedy. I also note the objects of the DD Act as stated in s 3 of the Act: The objects of this Act are: (a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: (i) work, accommodation, education, access to premises, clubs and sport; and (ii) the provision of goods, facilities, services and land; and (iii) existing laws; and (iv) the administration of Commonwealth laws and programs; and (b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and (c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.


case_text: Fourth, the respondent's submissions concerning this issue have substantially equated "person aggrieved" for the purposes of s 46P HREOC Act with principles articulated in Boyce [1903] 1 Ch 109 and the possession by a complainant of a special interest so as to enforce the public rights created by statute. Clearly, there is a different jurisprudential approach entailed by identifying whether rights created by statute are public rights permitting enforcement by an individual in circumstances only where the individual has a special interest, compared with considering legislation authorising a person aggrieved to enforce statutory rights created by the legislation. Nonetheless, it is certainly the case that Courts have explained the words "person aggrieved" in terms of special interest in the public law sense. So, for example, in Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 at 447, Bowen CJ and Franki J said the words "a person who is aggrieved": ...are not to be confined to those who can establish that they have a legal interest at stake in the making of the decision. In our view they cover a person who can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public. (see Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 per Ellicott J) (cf United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 527, Ogle v Strickland .)


case_outcome: applied

case_title: Right To Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50

case_text: Eighth, merely incorporating a body and providing it with relevant objects does not provide it with standing it otherwise would not have had. This point was made clear in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, particularly by Lockhart J at 67. The Court in that case approved similar comments of Lindgren J at first instance where his Honour said: The applicant submitted that what distinguished it from ordinary members of the public was that it was organised, and since 1984 incorporated, with objects directly related to the subject matter of the decision sought to be challenged. But to accord the status of a "person aggrieved" for no more reason than this would be to elevate form above substance. It would allow individuals who were opposed to a decision, albeit sincerely and for unselfish motives, to acquire standing to challenge it by the procedure of devising an appropriate form of constitution, and if necessary procuring corporate form. It would, for example, distinguish between the unsuccessful Mr Cameron in Cameron v Human Rights and Equal Opportunity Commission noted above and an incorporated association of individuals organised under a constitution with objects of seeking a more equitable allocation of scholarships to Fijians. In my opinion, the issue of standing is not to be foreclosed by such a formal distinction. ( Right to Life Association (NSW) Inc v The Secretary of the Commonwealth Department of Human Services and Health and Family Planning Victoria Inc , unreported, 23 September 1994, para 69) 51 Eleventh, there are a number of cases where incorporated associations have sought to commence proceedings for breach of legislation in the environmental and human rights contexts. Traditionally, courts have tended to apply principles as to standing strictly and have frequently found that such organisations do not have an interest in the litigation, either because the association does not have a special interest in enforcing the relevant public right ( Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512) or because the association is not a "person aggrieved" for the purposes of the relevant legislation ( Right To Life 50 FCR 56, Defence Coalition against RCD 74 FCR at 153). In a number of cases however the Court has held that the relevant association did have standing as a "person aggrieved" ( North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580, National Trust of Australia [1976] VR 592, Manuka [1998] ACTSC 86). Consideration and findings


case_text: The traditional approach to standing in matters involving the enforcement of statutes was that while interference with private rights could be asserted by individuals, public rights could only be asserted by the Attorney-General representing the public, either in the name of the Attorney or at the relation of some complainant: Boyce v Paddington Borough Council [1903] 1 Ch 109, Gouriet v Attorney-General [1977] UKHL 5 ; [1978] AC 435; Australian Conservation Foundation Inc v Commonwealth [1979] HCA 1 ; (1980) 146 CLR 493, Davis v Commonwealth [1986] HCA 66 ; (1986) 68 ALR 18 per Gibbs CJ at 35-36; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247 at 261. As observed by Mason J in Australian Conservation Foundation 146 CLR at 547-8: Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests...and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi for, as I said in Robinson v Western Australian Museum [1977] HCA 46 ; (1977) 138 CLR 283 at 327-328: "The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another". 24 Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.)


case_text: Defining private rights for this purpose is a distinct challenge (note Heydon JD "Injunctions and Declarations" in Stein LA (ed) Locus Standi (Law Book Company, 1979) at 38-39). Traditionally they have included proprietary and financial interests (Davies J in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Nicholson J in Allan v Development Allowance Authority (1998) 80 FCR 583 at 598). The distinction between rights which are "private rights" enabling commencement of proceedings by way, for example, of declaratory and injunctive relief, and "public rights" the enforcement of which lay at the feet of the Attorney-General, has however blurred over time to permit individuals to bring proceedings where the individual suffers special damage peculiar to himself or herself from the interference with the public right: Boyce [1903] 1 Ch at 114. Although this principle has received recognition in Australian law note for example comments of Gavan Duffy CJ, Starke and Evatt JJ in Anderson v Commonwealth of Australia [1932] HCA 2 ; (1932) 47 CLR 50 at 52; Mason J in Robinson v Western Australian Museum (1977) 138 CLR 238 at 327; Australian Conservation Foundation 146 CLR per Gibbs J at 526-527, Stephen J at 537-538 and Mason J at 547; Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 per Gibbs CJ at 35-36, Davis [1986] HCA 66 ; (1986) 68 ALR 18; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs of the State of South Australia [1995] HCA 11 ; (1995) 183 CLR 552 at 558; Allan v Development Allowance Authority 80 FCR per Wilcox J at 586-87, Nicholson J at 598 giving effect to the principle raises difficulties in itself. (A useful summary of cases, and difficulties of application of relevant principles, as existed at the time can be found in Heydon in Stein (1979) at 38-40, 45-54.)


case_text: Further, it is clear that legislation may create personal statutory rights which can be enforced by an individual in a Court of law: Wool Sliping and Scouring Co Ltd v Central Wool Committee [1920] HCA 21 ; (1920) 28 CLR 51 per Knox CJ at 61-62; Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 at 76; SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VR 229 at 246, Dajon Investments Pty Ltd v Talbot [1969] VR 603 at 613, Australian Conservation Foundation 146 CLR at 537, 542-544; Re East, ex parte Nguyen [1998] HCA 73 ; (1998) 196 CLR 354. As Stephen J observed in Australian Conservation Foundation 146 CLR at 541, referring to s 52 Trade Practices Act 1974 (Cth): statutes may of course confer standing in express terms...they may also do so by conferring some right the denial of the enjoyment of which gives standing to sue to complain of that denial. Although that very denial might be thought to qualify as the suffering of special damage such as that of which Buckley J spoke, it is, perhaps, preferable in such a case to resolve the question of standing by the direct route of a search for enforceable rights conferred by statute, rather than follow the circuitous course of seeking, in accordance with Boyce's Case, for the existence of special damage. (cf Gibbs J at 532)


case_text: The applicant submitted in summary: a. the issue of standing to commence an action under the HREOC Act or the DD Act is to be determined on the proper construction of those Acts, not by reference to provisions of other enactments or common law principles: Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 b. given that the legislation is for the benefit of a burdened class of the public, in the event of ambiguity the legislation should receive a beneficial interpretation: Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481 c. contravention of a standard may be cause for complaint under s 32 DD Act d. section 46P(2) HREOC Act defines who may lodge a complaint under the HREOC Act. The section contemplates a complaint by an "aggrieved person" on the basis of "alleged unlawful discrimination" e. the provisions of the HREOC Act and the DD Act make it plain that they confer private rights with respect to "unlawful discrimination" as defined in s 3 HREOC Act f. the proceedings in the Court involve a determination of the allegations of unlawful discrimination as set out in the complaint, and are circumscribed by the complaint which was terminated by the President g. the applicant's complaint concerns ss 31 and 32 DD Act , and the terms of the complaint and the proceedings before the Court raise the issue of a contravention of the Disability Standards h. the HREOC Act operates to allow complaints to be made about non-compliance with the Disability Standards. Section 46P(1) HREOC Act creates a private right to make a complaint based on s 32 i. the material clearly identifies a dispute between the applicant and the respondent, namely the failure on the part of the respondent to comply with the Disability Standards j. Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 is not relevant in this matter because the High Court found that the provisions of the relevant legislation in that case did not create private rights k. the approach taken by the High Court in Truth About Motorways [2000] HCA 11 ; 200 CLR 591 confirms that the provisions of the HREOC Act and the DD Act permit the applicant to proceed in this Court. 33 Both the applicant and the Commissioner have submitted that in this case the issue of standing is to be determined on the proper construction of the HREOC Act and the DD Act , and not by reference to principles of general law. In my view this is correct. Findings supporting this submission were made by the Full Court in Stephenson v Human Rights and Equal Opportunity Commission 68 FCR at 296 in relation to provisions of the HREOC Act and the Sex Discrimination Act 1985 (Cth) Further, I note observations of the High Court in Allan v Transurban City Link Ltd 208 CLR at 174 that: A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute.


case_text: Ms Eastman on behalf of the applicant submitted , inter alia , that: a. the majority of the applicant's constituents are people with disabilities who are resident in the Maryborough and Hervey Bay areas of Queensland, and who have the requisite interest associated with the actions of the respondent in the provision of goods and services within the Hervey Bay area b. the applicant is an aggrieved person within the meaning of s 46P(2) HREOC Act c. HREOC's acceptance of the complaint would indicate that HREOC had accepted that the applicant was a person who could make a complaint for the purpose of s 46P(2) HREOC Act, and the respondent did not challenge that decision by way of judicial review under the ADJR Act d. once a decision was made by the President of HREOC to terminate the applicant's complaint pursuant to s 46PH(1) HREOC Act the applicant became an "affected person" as defined in s 3 HREOC Act. There is no requirement for the purpose of making an application to the Court that the applicant re-establish that it is an aggrieved person after the complaint was accepted by the Commission and investigated by the President. The applicant cites two decisions of the Federal Magistrates Court, Stokes v Royal Flying Doctor Service [2003] FMCA 164 and Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 , in support of this proposition. "Person aggrieved" - relevant principles


case_outcome: distinguished

case_text: I also note other cases where standing as "aggrieved person" has been recognised in relation to corporate bodies, including National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592, Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580, North Coast Environment Council Inc v Minister for Resources (1994) 127 ALR 617 and Manuka Business Association Inc v The Australian Capital Territory Executive and Minister for the Environment, Land and Planning [1998] ACTSC 86. 51 Eleventh, there are a number of cases where incorporated associations have sought to commence proceedings for breach of legislation in the environmental and human rights contexts. Traditionally, courts have tended to apply principles as to standing strictly and have frequently found that such organisations do not have an interest in the litigation, either because the association does not have a special interest in enforcing the relevant public right ( Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493, Central Queensland Speleological Society v Central Queensland Cement (No 1) [1989] 2 Qd R 512) or because the association is not a "person aggrieved" for the purposes of the relevant legislation ( Right To Life 50 FCR 56, Defence Coalition against RCD 74 FCR at 153). In a number of cases however the Court has held that the relevant association did have standing as a "person aggrieved" ( North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580, National Trust of Australia [1976] VR 592, Manuka [1998] ACTSC 86). Consideration and findings 63 Further, although of somewhat debatable significance (note comments of Lockhart J in Right to Life 56 FCR at 253), unlike in the North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580 and National Trust of Australia (Vic) [1976] VR 592, there is no evidence before me that the applicant in this case is considered to be a peak body representing the interests of the disabled in the Hervey Bay region of Queensland, or that the applicant has been recognised by government as a body representing the concerns of the disabled in the Hervey Bay region of Queensland or had participated in official government decision-making processes. Further, while I note from correspondence attached to the affidavit of Mr Robin Andrew King sworn 8 November 2005 that the respondent has acknowledged the applicant's interest in bus shelter infrastructure in the region and sought the input of the applicant and its members (annexure RK 3), and that the Disability Standards require, inter alia , that a provider must consult with "passengers with disabilities who use their service, or with organisations representing people with disabilities, about any proposal for equivalent access" (cl 33.2 Disability Standards), it is difficult to characterise the conduct of the respondent as being anything more than a willingness to consult an organisation which was willing to provide information. In this sense, a comparison may be drawn with the consultation with the Foundation in Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. Accordingly, I do not find comparisons with North Coast 127 ALR 617, Tasmanian Conservation Trust 127 ALR 580 or the National Trust of Australia (Vic) [1976] VR 592 cases of assistance in these proceedings.


case_text: Whether a statute confers upon individuals personal rights and standing to enforce those rights are matters to be determined on the construction of the statute, by reference to the subject, scope and purpose of that statute: Allan v Transurban City Link Ltd [2001] HCA 58 ; (2001) 208 CLR 167 at 174; cf McInerney J in Grand Central Car Park [1969] VR at 74, Kaye and Marks JJ in Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 at 486 and Atkin LJ in Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 841. This case


case_text: Fourth, the respondent's submissions concerning this issue have substantially equated "person aggrieved" for the purposes of s 46P HREOC Act with principles articulated in Boyce [1903] 1 Ch 109 and the possession by a complainant of a special interest so as to enforce the public rights created by statute. Clearly, there is a different jurisprudential approach entailed by identifying whether rights created by statute are public rights permitting enforcement by an individual in circumstances only where the individual has a special interest, compared with considering legislation authorising a person aggrieved to enforce statutory rights created by the legislation. Nonetheless, it is certainly the case that Courts have explained the words "person aggrieved" in terms of special interest in the public law sense. So, for example, in Ricegrowers Co-operative Mills Ltd v Bannerman (1981) 56 FLR 443 at 447, Bowen CJ and Franki J said the words "a person who is aggrieved": ...are not to be confined to those who can establish that they have a legal interest at stake in the making of the decision. In our view they cover a person who can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public. (see Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 per Ellicott J) (cf United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 527, Ogle v Strickland .) 44 Fifth, traditionally the term "person aggrieved" should not be interpreted narrowly: N'Jie [1961] AC at 634 , Koowarta 153 CLR at 185, Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437; Ogle v Strickland (1987) 13 FCR 306 (especially Fisher J at 307-308 and Lockhart J at 314-315). Further, as Gibbs CJ said in Onus v Alcoa of Australia Ltd 149 CLR at 36 in relation to whether a person has a "special interest" sufficient to sustain litigation, The rule is obviously a flexible one since, as was pointed out in [ Australian Conservation Foundation ], the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation. 65 In Tooheys Ltd v Minister for Business and Consumer Affairs 54 FLR at 437 Ellicott J said: The question whether an applicant is a person aggrieved is one of mixed law and fact and in many cases would best be determined at a final hearing when all the facts are before the court and the court has the benefit of a full argument on the matter.


case_text: The respondent made written submissions to the following effect: a. the applicant is doing nothing other than attempting to enforce the public law as enacted by the provisions of the DD Act and the Disability Standards b. there is no right subsisting for the benefit of the applicant or its members personally that is sought to be asserted through this litigation c. the application by the applicant is one to assert the effect of the public law of the Commonwealth and the applicant therefore faces the difficulty in relation to standing as the application is a bare attempt to assert a public right or duty: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. The applicant has no special interest or private right asserted by the litigation, and there is no statutory basis providing standing in respect of the complaint: Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [2000] HCA 11 ; (1999) 200 CLR 591 d. no relator action is brought in the name of the Attorney-General at the applicant's request that such proceeding be undertaken: Farley & Lewers Ltd v AG [1963] NSWR 1624 e. this is not a case where the interference with a public right is such that the applicant suffers special damage peculiar to itself from the interference: Boyce [1903] 1 Ch 109 f. the applicant does not have standing to bring the prosecution. Accordingly, the complaint does not disclose a reasonable cause of action and should be struck out: Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493. 28 The applicant submitted in summary: a. the issue of standing to commence an action under the HREOC Act or the DD Act is to be determined on the proper construction of those Acts, not by reference to provisions of other enactments or common law principles: Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 b. given that the legislation is for the benefit of a burdened class of the public, in the event of ambiguity the legislation should receive a beneficial interpretation: Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481 c. contravention of a standard may be cause for complaint under s 32 DD Act d. section 46P(2) HREOC Act defines who may lodge a complaint under the HREOC Act. The section contemplates a complaint by an "aggrieved person" on the basis of "alleged unlawful discrimination" e. the provisions of the HREOC Act and the DD Act make it plain that they confer private rights with respect to "unlawful discrimination" as defined in s 3 HREOC Act f. the proceedings in the Court involve a determination of the allegations of unlawful discrimination as set out in the complaint, and are circumscribed by the complaint which was terminated by the President g. the applicant's complaint concerns ss 31 and 32 DD Act , and the terms of the complaint and the proceedings before the Court raise the issue of a contravention of the Disability Standards h. the HREOC Act operates to allow complaints to be made about non-compliance with the Disability Standards. Section 46P(1) HREOC Act creates a private right to make a complaint based on s 32 i. the material clearly identifies a dispute between the applicant and the respondent, namely the failure on the part of the respondent to comply with the Disability Standards j. Australian Conservation Foundation [1979] HCA 1 ; 146 CLR 493 is not relevant in this matter because the High Court found that the provisions of the relevant legislation in that case did not create private rights k. the approach taken by the High Court in Truth About Motorways [2000] HCA 11 ; 200 CLR 591 confirms that the provisions of the HREOC Act and the DD Act permit the applicant to proceed in this Court.


case_title: United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520


case_title: University of Newcastle v Chopra [1989] HCA 27 ; (1989) 85 ALR 321


case_text: Tenth, to the extent that incorporated associations are bodies corporate which may sue or be sued in their own name, in assessing the interests of a body corporate the interests of its members are arguably irrelevant. So in Victorian Chamber of Manufactures v The Commonwealth [1943] HCA 19 ; (1943) 67 CLR 335 at 343 Starke J, without needing to decide the point, observed that an infringement of the rights of members of an incorporated body does of itself mean that the rights of the incorporated body are infringed, or that the incorporated body has standing to maintain an action (cf Lockhart J in Right to Life 56 FCR at 253 and Nicholson J in Defence Coalition against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142). This may be distinguished from the position concerning unincorporated associations. A useful illustration of this point in this context is Scully 79 FCR 537, where an unincorporated association commenced proceedings under the Racial Discrimination Act 1975 (Cth) (in its then form), Wilcox J said: I agree with Commissioner Nettlefold that, as Executive Council for Australian Jewry is not a "person" in the eyes of the law, it is incapable of being a 'person aggrieved' within the meaning of s 22(1) of the Racial Discrimination Act . Therefore it is not itself a competent complainant. However, this does not mean its complaint is a nullity. It is necessary to go behind the name and consider whether the juristic persons who constitute the unincorporated association are 'persons aggrieved' by the allegedly unlawful act. If they are, the complaint is competent in law, though not in name, as it was made by them. (at 548) 59 Second, there is substantial body of authority, to which I have already referred, that the interests of members of a body corporate do not equate with the interests of the body corporate: Victorian Chamber of Manufactures [1943] HCA 19 ; 67 CLR 335, Right to Life 56 FCR 50, Defence Coalition against RCD 74 FCR 142.


case_text: In contrast, in the case before me the HREOC Act and the DD Act (including the Disability Standards formulated pursuant to s 31) provide a scheme which allows "a person aggrieved" by alleged unlawful discrimination - including, as I have already noted, conduct deemed unlawful by s 32 DD Act - to lodge a complaint with HREOC (s 46P HREOC Act); and in the event that the complaint is terminated, a person affected by the termination to make application to the Federal Court or the Federal Magistrates Court (s 46PO HREOC Act). Significantly, the HREOC Act also creates a specific structure sanctioning applications to the Court for remedies where the Court is satisfied that there has been unlawful discrimination, including payment of damages by the respondent, employment or re-employment an applicant, an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination as is sought in this case (s 46PO(4) HREOC Act). Indeed the point of the statutory scheme as constituted in this case by the HREOC Act and the DD Act is to make laws with respect to discriminatory conduct, and to allow those who are aggrieved by discriminatory conduct, personal rights to seek redress in respect of such conduct. To adopt the language of the majority of the High Court in Re East, ex parte Nguyen 196 CLR at 365, repeated in Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at 96, The elaborate and special scheme...was plainly intended by the Parliament to provide the means by which a person aggrieved by a contravention ... might obtain a remedy, and thus was regarded by Parliament as fulfilling Australia's treaty obligations, bearing always in mind the legal structure and system which formed the context in which the [legislation] was to operate. (That those comments were in respect of the legislation as it stood prior to amendments, and the removal of provisions from the HREOC Act into the DD Act and other statutes, does not in any way minimise their relevance. As observed, in my view correctly, by Nicholson J in Bropho v State of Western Australia [2004] FCA 1209 at [26] - [29] and [51]-[52], they are equally applicable to the scheme as it presently exists.)


case_title: Wool Sliping and Scouring Co Ltd v Central Wool Committee [1920] HCA 21 ; (1920) 28 CLR 51


case_outcome: followed

case_text: The applicants have, in my view, established a serious question to be tried, or as that time honoured phrase has been refined more recently in the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 , a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. 27 I then come to the question of the balance of convenience. On the one hand, the applicants assert that there is a risk if these new V-Series plates are issued following the auction that the value of their plates will significantly depreciate. The respondent does not gainsay that proposition. I note that, in the auction catalogue that I have already referred to which is concerned with the auction tomorrow night, although the other plates that constitute lots in the auction have a guiding monetary range adjacent to them, the V-Series plates do not. It is evident that VicRoads is wishing to test the water and that the valuation which might be placed on particular plates is presently a matter only of speculation and will depend on what the market will bear when the auction takes place. 28 The auction, as I've already indicated, is not confined to V-Series plates. There are 40 other lots that will be available, and there is therefore no reason why the auction cannot proceed tomorrow night. The two applicants have indicated a willingness to give undertakings as to damages, such that if the other plates, the V-Series plates, are not offered for auction tomorrow night, and damage to the respondent ensues they will be responsible for the payment of compensation. Accordingly, I think, on balance, convenience favours the granting of the injunction sought, not in the form that appears in the application, but in the form of a minute of proposed order that was handed to me this afternoon. There will simply be a restraint until trial or further order on the respondent offering the V-Series numberplates for sale.


case_title: Australian Securities and Investments Commission v Beekink [2006] FCA 388

case_text: Both McHugh J and Finkelstein J recognised that in cases of this kind the factors referred to by Santow J are cognate with the similar kinds of factors which judges sentencing in criminal matters would take into account in assessing what was the appropriate penalty for that conduct. As Finkelstein J said (145 FCR 65 [33] and see too Australian Securities and Investments Commission v Beekink (2006)57 ACSR 284 at [99] per Nicholson J): 'The sentence must be exemplary and sufficient so that members of the business community are put on notice that if they break the trust which has been reposed in them they will receive a proper punishment. It is vital, not only in the interests of the business community but in the interests of society, that leaders of that community will act honestly in all their dealings. Any slip from the high standards demanded of directors can put at risk the fortunes of their company and also the fortunes (large or small) of those who invest in them. In extreme cases, the misconduct can affect the economy as a whole.'


case_title: Australian Securities and Investments Commission v Southcorp Limited (No 2) [2003] FCA 1369 ; (2003) 130 FCR 406

case_text: The question for me is whether I am satisfied that the proposed order under s 206E of the Corporations Act 2001 (Cth) that Mr Haddad be disqualified from managing corporations for a period of five years is appropriate: N.W. Frozen Foods Pty Limited (No 2) v Australian Competition & Consumer Commission (1996) 71 FCR 285 at 298G to 299B per Burchett and Kiefel JJ; Australian Securities and Investments Commission v Southcorp Limited [2003] FCA 1369 ; (2003) 130 FCR 406 per Lindgren J. In considering the period of disqualification it appears to me that I should have regard to the 15 propositions formulated by Santow J in Re HIH Insurance Limited (in prov liq) ; Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 at 97 to 99 [56]-[57].


case_outcome: approved

case_title: Australian Securities and Investments Commission v Vizard [2005] FCA 1037 ; [2005] 145 FCR 57

case_text: As the majority of the Court recognised, orders under s 206E are not susceptible of the classification that they are simply protective of the public; they have a punitive effect such that, inter alia, they give a personal defendant the right to claim privilege against self exposure as to penalties (220 CLR at 147 [37]). The effect of that decision was summarised by Finkelstein J in Australian Securities and Investments Commission v Vizard [2005] FCA 1037 ; (2005) 145 FCR 57 at 65 [35] as making clear that a disqualification order can be imposed not only to protect the company's shareholders against further abuse, but also by way of punishment and, importantly, for general deterrence. 51 Both McHugh J and Finkelstein J recognised that in cases of this kind the factors referred to by Santow J are cognate with the similar kinds of factors which judges sentencing in criminal matters would take into account in assessing what was the appropriate penalty for that conduct. As Finkelstein J said (145 FCR 65 [33] and see too Australian Securities and Investments Commission v Beekink (2006)57 ACSR 284 at [99] per Nicholson J): 'The sentence must be exemplary and sufficient so that members of the business community are put on notice that if they break the trust which has been reposed in them they will receive a proper punishment. It is vital, not only in the interests of the business community but in the interests of society, that leaders of that community will act honestly in all their dealings. Any slip from the high standards demanded of directors can put at risk the fortunes of their company and also the fortunes (large or small) of those who invest in them. In extreme cases, the misconduct can affect the economy as a whole.'


case_title: Re HIH Insurance Limited (in prov liq); Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80

case_text: The question for me is whether I am satisfied that the proposed order under s 206E of the Corporations Act 2001 (Cth) that Mr Haddad be disqualified from managing corporations for a period of five years is appropriate: N.W. Frozen Foods Pty Limited (No 2) v Australian Competition & Consumer Commission (1996) 71 FCR 285 at 298G to 299B per Burchett and Kiefel JJ; Australian Securities and Investments Commission v Southcorp Limited [2003] FCA 1369 ; (2003) 130 FCR 406 per Lindgren J. In considering the period of disqualification it appears to me that I should have regard to the 15 propositions formulated by Santow J in Re HIH Insurance Limited (in prov liq) ; Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 at 97 to 99 [56]-[57]. 49 Those factors were summarised by McHugh J in Rich v Australian Securities and Investments Commission (2004) 220 CLR 107 at 152-154 [49] as follows: 'The 15 propositions formulated by Santow J are as follows ( Adler (2002) 42 ACSR 80 at 97-99): 1. Disqualification orders are designed to protect the public from the harmful use of the corporate structure or from use that is contrary to proper commercial standards. 2. The banning order is designed to protect the public by seeking to safeguard the public interest in the transparency and accountability of companies and in the suitability of directors to hold office. 3. Protection of the public also envisages protection of individuals who deal with companies, including consumers, creditors, shareholders and investors. 4. The banning order is protective against present and future misuse of the corporate structure. 5. The order has a motive of personal deterrence, though it is not punitive. 6. General deterrence is an object of the legislation. 7. In assessing the fitness of an individual to manage a company, it is necessary that the individual have an understanding of the proper role of the company director and the duty of due diligence that is owed to the company. 8. Longer periods of disqualification are reserved for cases where contraventions have been of a serious nature such as those involving dishonesty. 9. In assessing an appropriate length of prohibition, consideration is given to the degree of seriousness of the contraventions, the propensity of the defendant to engage in similar conduct in the future and the likely harm that may be caused to the public. 10. It is necessary to balance the personal hardship to the defendant against the public interest and the need for protection of the public from any repeat of the defendant's conduct. 11. A mitigating factor in considering a period of disqualification is the likelihood of the defendant reforming. 12. The eight criteria to govern the exercise of the court's powers of disqualification set out in Commissioner for Corporate Affairs (WA) v Ekamper ((1987) 12 ACLR 519) have been influential. It was held that in making such an order it is necessary to assess: (a) the character of the defendant; (b) the nature of the breaches; (c) the structure of the company or companies and the nature of its or their business; (d) the interests of shareholders, creditors and employees; (e) the risks to others from the continuation of the defendant as a director; (f) the honesty and competence of the defendant; (g) hardship to the defendant and to his or her personal and commercial interests; and (h) the defendant's appreciation that future breaches could result in future proceedings. 13. Factors that have led to the imposition of the longest periods of disqualification (that is, disqualifications of 25 years or more) include: (a) large financial losses; (b) high propensity that the defendant may engage in similar activities or conduct; (c) activities undertaken in fields in which there was potential to do great financial damage such as in management and financial consultancy; (d) the defendant's lack of contrition or remorse; (e) disregard for the law and compliance with corporate regulations; (f) dishonesty and intent to defraud; and (g) previous convictions and contraventions for similar activities. 14. In cases in which the period of disqualification ranged from 7 years to 12 years, the factors that led to the conclusion that these cases were serious though not the "worst cases", included: (a) serious incompetence and irresponsibility; (b) substantial loss; (c) the fact that the defendant had engaged in deliberate courses of conduct to enrich himself or herself at others' expense, but with lesser degrees of dishonesty; (d) continued, knowing and wilful contraventions of the law and disregard for legal obligations; and (e) lack of contrition or acceptance of responsibility, although that must be weighed against the prospect that the defendant may reform. 15. The factors leading to the shortest disqualifications (that is, disqualifications for up to 3 years) were: (a) although the defendant had personally gained from the conduct, he or she had endeavoured to repay or partially repay the amounts misappropriated; (b) the defendant had no immediate or discernible future intention to hold a position as manager of a company; and (c) the defendant had expressed remorse and contrition, acted on advice of professionals and had not contested the proceedings against him or her.'


case_title: N.W. Frozen Foods Pty Limited v Australian Competition & Consumer Commission (1996) 71 FCR 285


case_title: Rich v Australian Securities and Investments [2004] HCA 42 ; (2004) 220 CLR 129

case_text: Those factors were summarised by McHugh J in Rich v Australian Securities and Investments Commission (2004) 220 CLR 107 at 152-154 [49] as follows: 'The 15 propositions formulated by Santow J are as follows ( Adler (2002) 42 ACSR 80 at 97-99): 1. Disqualification orders are designed to protect the public from the harmful use of the corporate structure or from use that is contrary to proper commercial standards. 2. The banning order is designed to protect the public by seeking to safeguard the public interest in the transparency and accountability of companies and in the suitability of directors to hold office. 3. Protection of the public also envisages protection of individuals who deal with companies, including consumers, creditors, shareholders and investors. 4. The banning order is protective against present and future misuse of the corporate structure. 5. The order has a motive of personal deterrence, though it is not punitive. 6. General deterrence is an object of the legislation. 7. In assessing the fitness of an individual to manage a company, it is necessary that the individual have an understanding of the proper role of the company director and the duty of due diligence that is owed to the company. 8. Longer periods of disqualification are reserved for cases where contraventions have been of a serious nature such as those involving dishonesty. 9. In assessing an appropriate length of prohibition, consideration is given to the degree of seriousness of the contraventions, the propensity of the defendant to engage in similar conduct in the future and the likely harm that may be caused to the public. 10. It is necessary to balance the personal hardship to the defendant against the public interest and the need for protection of the public from any repeat of the defendant's conduct. 11. A mitigating factor in considering a period of disqualification is the likelihood of the defendant reforming. 12. The eight criteria to govern the exercise of the court's powers of disqualification set out in Commissioner for Corporate Affairs (WA) v Ekamper ((1987) 12 ACLR 519) have been influential. It was held that in making such an order it is necessary to assess: (a) the character of the defendant; (b) the nature of the breaches; (c) the structure of the company or companies and the nature of its or their business; (d) the interests of shareholders, creditors and employees; (e) the risks to others from the continuation of the defendant as a director; (f) the honesty and competence of the defendant; (g) hardship to the defendant and to his or her personal and commercial interests; and (h) the defendant's appreciation that future breaches could result in future proceedings. 13. Factors that have led to the imposition of the longest periods of disqualification (that is, disqualifications of 25 years or more) include: (a) large financial losses; (b) high propensity that the defendant may engage in similar activities or conduct; (c) activities undertaken in fields in which there was potential to do great financial damage such as in management and financial consultancy; (d) the defendant's lack of contrition or remorse; (e) disregard for the law and compliance with corporate regulations; (f) dishonesty and intent to defraud; and (g) previous convictions and contraventions for similar activities. 14. In cases in which the period of disqualification ranged from 7 years to 12 years, the factors that led to the conclusion that these cases were serious though not the "worst cases", included: (a) serious incompetence and irresponsibility; (b) substantial loss; (c) the fact that the defendant had engaged in deliberate courses of conduct to enrich himself or herself at others' expense, but with lesser degrees of dishonesty; (d) continued, knowing and wilful contraventions of the law and disregard for legal obligations; and (e) lack of contrition or acceptance of responsibility, although that must be weighed against the prospect that the defendant may reform. 15. The factors leading to the shortest disqualifications (that is, disqualifications for up to 3 years) were: (a) although the defendant had personally gained from the conduct, he or she had endeavoured to repay or partially repay the amounts misappropriated; (b) the defendant had no immediate or discernible future intention to hold a position as manager of a company; and (c) the defendant had expressed remorse and contrition, acted on advice of professionals and had not contested the proceedings against him or her.'


case_text: So much must be taken from his admission that the declarations are appropriate since in order to be knowingly concerned in order to aid or abet the making of a contravention of s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth), s 12DB(1)(c) of that Act, and s 1041H(1) of the Corporations Act 2001 (Cth), it was essential for Mr Haddad to have had knowledge of the material ingredients of the offence (see Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 667 to 669 per Mason ACJ and Wilson, Deane and Dawson JJ). 37 Moreover, I am satisfied that Mr Haddad, on the evidence, did have actual knowledge of the material ingredients of each contravention of the law, the subject of his admissions in the consent declarations. 38 Mr Khoury submitted that Mr Haddad is a young man who had not aimed his conduct at vulnerable persons in the community; he submitted that I should accept that Mr Haddad had not aimed to take advantage of persons who were vulnerable but dealt principally with business people at arms length, and although Mr Haddad's evidence showed that he believed that the policies were underwritten by Zurich, he had been misled into that belief by Mr Dano's evidence. Mr Khoury submitted that Mr Haddad had been cooperative and had complied with Court orders and had not held information back from the Commission or the Court. Mr Khoury submitted that Mr Haddad had been foolish and naive, that he had learned his lesson, that he would not offend again and that he had lost virtually everything as a result of his business and his judgment in involving himself in, among other things, the business the subject of the current proceedings.


case_text: On 24 February 2006, the applicant companies (which I will describe collectively as "the Metcash companies") commenced proceedings against Mr Bunn. Interlocutory relief was sought to restrain publications by Mr Bunn relating to companies and their businesses which they claimed were objectionable. At a contested interlocutory hearing on 9 March 2006 at which Mr Bunn appeared without legal representation, Lander J of this Court was satisfied that there were serious questions to be tried in relation to alleged breaches of the companies' trademarks, inducements to third parties to breach their contracts with the Metcash companies and contraventions of s 52 and s 53 of the Trade Practices Act 1974 (Cth): Metcash Trading Limited v Bunn [2006] FCA 322. Being satisfied that the balance of convenience favoured the applicants, his Honour made interlocutory orders which included the following: 3.2 Until further order, the Respondent, his servants or agents be restrained from publishing or republishing the allegations contained in the "Open Letter" dated 17 December 2005 being exhibit "PAC 11" to the affidavit of Peter Andrew Campbell sworn 23 February 2006. ... 3.5 Until further order, the Respondent, his servants or agents be restrained from publishing, whether on the internet or by any other means of communication to the public, any allegation to the effect that: a. the Respondent or the Respondent's former company, Chadmar Enterprises Pty Ltd (In Liquidation) is currently pursuing recovery proceedings against any of the Applicants or their related entities; b. the Applicants actively and deliberately operated in a manner calculated to destroy the Respondent's business; c. the Applicants actively and deliberately operate in a manner calculated to prejudice, damage or destroy the business of independent retailers with whom they deal ; d. the Applicants have deliberately and improperly concealed the existence of substantial actions commenced by suppliers and customers and thereby caused Metcash Limited to breach its disclosure requirements'. (Emphasis added.) 3 Though the contempt charged relates only to instances of disobedience to Order 3.5(c), the other orders above are of some significance, as will later become apparent. 4 The first version of the applicants' Statement of Claim post-dated the 9 March 2006 orders. It was filed on 26 May 2006 and, in addition to the causes of action identified by Lander J, it contained as well claims for threatened disclosure of confidential information, defamation and injurious falsehood. I simply note in passing that the allegations pleaded in the current version of the statement of claim in relation to defamation, injurious falsehood and contravention of s 52 and s 53(d) of the Trade Practices Act reflect that referred to in Order 3.5(c): see Second Amended Statement of Claim paras 46.1.5, 47, 52, 57 and 61. 5 At a later interlocutory hearing before Lander J on 28 February 2007, the scope and meaning of aspects of the above orders was raised in discussion between Lander J and Mr Bunn. The genesis of this discussion related in part to Mr Bunn's claimed inability to work out what it was in his 17 December 2005 "Open Letter" to which the Metcash companies objected. The contents of that letter are described below. The following exchanges extended across seven pages of the Transcript: see pp 51-57. MR BUNN: I first of all started off trying to work out exactly what they were referring to in my open letter of 17 December. ... MR BUNN: The order against me was I was restrained from publishing and republishing the allegations contained in the open letter of 17 December. See, from my perspective, I am not seeing allegations. I know them to be facts so that is where all my confusion comes in. So I actually went and I broke down that open letter of 17 December into numbered paragraphs and sub-numbered sentences, asking them: please tell me which is which? All I got was - - - HIS HONOUR: Sorry, what do you ask? MR BUNN: In the letter I asked them: could they please identify by paragraph and sentence number the allegations to which you are claiming in regard to the injunction that was placed on it. HIS HONOUR: Where do you write that? MR BUNN: The third-last paragraph. HIS HONOUR: Of what? MR BUNN: The 5 October letter, which is 130 PCV130. HIS HONOUR: Yes. MR BUNN: Asked the name so that we can actually deal in words. Maybe I was wrong in doing that, I don't know. The only reply I got was annexure 131 from Mr Mauritz, who basically said: we have clearly identified the issues in dispute, and he names the statement of claim and the categories of documents. He does state prior to that: we are not your legal advisers, a fact that you have identified. Once again, another twist of what has been said before, but I understand that they are not, that they are bringing the claim against me and I just wanted to know, what were the allegations in that 17 December letter. After getting that reply I then wrote to them on 9 October. This time I went to the great time and effort to list, or enclose all open letters which were referred to in this Court into numbered paragraphs and sub-sentences I am pretty proud of my job, if I may say so, it took a long time once again, to identify which allegations or what they are calling an allegation including the page of the Metcash Info site. HIS HONOUR: Mr Bunn, in that letter you wrote sending the open letter, to which - - - MR BUNN: Is that the 17th, or all of the open letters, your Honour? HIS HONOUR: Well, as the order presently stands you are not entitled to publish any of the allegations which are assertions of fact contained in the open letter of 17 December. MR BUNN: But what are they calling an allegation in that letter? HIS HONOUR: An assertion of fact. MR BUNN: An assertion of fact is something that is not backed by evidence, is it not? HIS HONOUR: No, no. At this stage anything assertion of fact which is made is an allegation. MR BUNN: Even if it has got factual evidence? HIS HONOUR: Yes. Until such time as it is established to be a fact by the Court. MR BUNN: Okay. All right, my understanding. I didn't think I was being stopped talking about truth and fact. HIS HONOUR: There might be something to be said to varying the order because it is probably too wide. MR BUNN: I read the order all the time and I didn't understand it as saying, I couldn't even talk about fact. It says: Any allegation to the effect that. HIS HONOUR: Yes. MR BUNN: An allegation is unbased with evidence, is it not? HIS HONOUR: Well, yes. MR BUNN: Have I got it upside down? HIS HONOUR: I think you have. I think the intent of the order is to prevent you making the claims previously published in that letter. Whether the order ought to continue to stand is another thing. ... MR BUNN: This is where I get tripped up. A lot of what is in that 17 December letter is fact. Some of the stuff they haven't even raised in it. Some of the stuff they have raised but it has got blaring evidence that even they have produced to this Court ... HIS HONOUR: Can I answer some of your questions that you raised rhetorically, I think and this is not to sound critically of you you have got an ongoing campaign directed against Metcash. MR BUNN: It is not a campaign, your Honour. It is not directed at Metcash. Can I explain? HIS HONOUR: Yes. MR BUNN: I had six supermarkets turning over a substantial amount of money and I had operated in the industry for 18 years and I had a lot all my life, everything invested in it. Under a contract that was what I believed was what I could base that business on. The contract was either not honoured or was manipulated by the applicants and of course the company got into trouble, and since then I have lost the company, I have lost everything in life, I have gone into bankruptcy. It has all been a 5 big joke to Metcash. But my greatest fear is, above everything else that has happened to me, is that what I have gone through doesn't happen to anyone else, and it doesn't happen to anyone else through them knowing what and how it occurred, what is occurring and what is going on. Now, I have at all times, if you go through these open letters, I have said to Metcash: you place in the public forum the evidence to prove me wrong and I will not only withdraw what I have said, I will make a public apology and I mean that I have no malice towards anybody in particular at Metcash and I have said in numerous open letters: yes, I want them to review their conduct in regard to Chadmar and its supply agreement. I am not in the position as Franklins are to take them to the Supreme Court and run through there for three and a half years but, yes, I do so it is not an agenda to pull down Metcash. HIS HONOUR: I didn't say that. MR BUNN: But, I tell you what, it is in to make sure that no other independent wholesaler falls into the hole that I fell into. HIS HONOUR: Yes. I think - - - MR BUNN: And, this is all based on fact and truth. I mean, it is not - - - HIS HONOUR: That may be so. I don t think anything you have said actually causes me to alter what I said. I think you are running a campaign, and this is not said critically, you are a constant critic of Metcash, and it is directed against Metcash and the ALM. Now, whilst you do that, you can assume that Metcash will react because - - - MR BUNN: Certainly. ... MR BUNN: ... In regard to the affidavit of Peter Andrew Campbell, 5 February, under contempt, and I understand that contempt is now off the table, and has taken another format. But, still, he quotes that the orders at number 38, he quotes the orders: The applicants actively and deliberately operate in a manner calculated prejudice, damage, or destroy the business of the independent retailer. Without going through every sentence, and every paragraph I understand what that says in that order. I'm very aware of what it says in that order but in nothing that they have brought before this Court have I said that they actively do it, or deliberately do it. What I have always said and I have said right from the start is that their actions create a problem. Their actions are having these impacts. Whether it be naively or anything else, I have never made a judgment on it. What I have made a judgment on has been the resulting effect of what Metcash do and what Metcash say. So I have never said they don t have the - - - HIS HONOUR: That is a different thing. The order doesn't address motive; the order addresses actions. It might be that they have done it for the right motives or for the wrong motives, but the question is: if you write something in which you say that Metcash has intentionally done something, in a manner calculated to produce damage or destroy the business of a retailer, then you will breach the order. MR BUNN: But I haven t said that they have actively or deliberately done it; calculated it to do such. HIS HONOUR: You don't have to use the words of the order to breach it. You can breach the order if what you write is contrary to the terms of the order. I'm not saying you have - - - MR BUNN: With all due respect, your Honour and this is no criticism of the Court, because I understand; you explained it to me in March when the injunction was put on me the reasons why the Court had to but the basis on their applications and the issues ordered would really, if you allow their interpretations to rest on everything that has been written and, mind you, there is a mile of other stuff that has been printed that I have made no issue with but if you take what they have brought up to this Court and having issue with on their interpretation of my words, well then I would get sunk on every sentence in every paragraph of every media release and every open letter. HIS HONOUR: Maybe, but that is not the issue today. As I said, if you want to apply to discharge or vary the order, make your application and I will hear it as soon as I can. 6 I refer to this exchange despite its length, as it bears directly both on the way in which the Metcash companies seek to characterise the contempt alleged and on Mr Bunn's defence of the charges against him. What I would presently emphasise is that, while the first two passages I have emphasised clearly relate to Order 3.2, the latter two equally clearly relate to Order 3.5(c). The two orders, as his Honour indicated, were quite different in the restraints they respectively imposed. 7 By notice of motion of 27 March 2007, Mr Bunn sought, amongst other things, the deletion of Order 3.5(c). Argument on that motion was heard on 17 December 2007. Mr Bunn indicated then that he no longer wished to prosecute the Order 3.5(c) part of his motion, having been advised against it by pro-bono solicitors appointed by this Court to advise him in relation to that and other motions. 8 The first of the three publications said to constitute the contempt was published in July 2007. 16 In the exchange between Lander J and Mr Bunn quoted above, reference was made both to Mr Bunn's claimed loss of his business at Metcash's hands and to what his Honour described as Mr Bunn's "campaign" against the Metcash companies. While neither of these matters were the subject of direct evidence in this proceeding, they were subjects to which reference was made. They clearly inform a proper understanding of this matter. As to the "campaign", sufficient instances of publications and "open letters" have been put in evidence to substantiate that characterisation of Mr Bunn's conduct vis-à-vis the Metcash companies. 17 The circumstances alleged to have given rise to Mr Bunn's business, Chadmar Enterprises Pty Ltd, going into liquidation and Mr Bunn's allegations against Metcash in relation to, and arising out of, the liquidation are the principal topics of the 17 December 2005 "open letter" referred to earlier in these reasons. The allegations contained in that letter were the subject of Order 3.2 quoted above. I emphasise the focus on Chadmar and its failure in the open letter because it bears upon the construction Mr Bunn has placed upon Order 3.5(c). 18 When both the first and second of the three contempt publications were made, the Metcash companies lawyers wrote to Mr Bunn indicating their and their clients' view that the allegations made breached Order 3.5(c). 25 I preface what I have to say, first, by referring to the acknowledgment by Lander J that Order 3.2 and possibly Order 3.5(c) may be too wide. Nonetheless, neither order was later varied at Mr Bunn's behest. Secondly, one potential difficulty in construing Order 3.5(c) has been dissolved by a concession by the Metcash companies for the purposes of the present motion. That concession, as I will note below, is advantageous to Mr Bunn. 26 To reiterate, Orders 3.2 and 3.5(c) provide, insofar as presently relevant: 3.2 Until further order, the Respondent, his servants or agents be restrained from publishing or republishing the allegations contained in the "Open Letter" dated 17 December 2005 ... 3.5 Until further order, the Respondent, his servants or agents be restrained from publishing, whether on the internet or by any other means of communication to the public, any allegation to the effect that: ... c. the Applicants actively and deliberately operate in a manner calculated to prejudice, damage or destroy the business of independent retailers with whom they deal. 27 I would note that, while Order 3.2 relates to the publishing or republishing of allegations contained in a designated document (ie the proscribed allegations are those made in that document), Order 3.5(c) is not circumscribed in the same way. The publishing of allegations is proscribed by that order, not because they are contained in a designated document, but because they have a particular character (ie the allegations are to the effect that "the Applicants actively and deliberately etc"). So much is quite clear on the face of the orders themselves and this in turn is reflected in the explanation of the orders given by Lander J to Mr Bunn on 28 February 2007: see [5] above. 28 Mr Bunn appears not to have perceived this obvious difference between the two orders, or to have understood Lander J's explanation of them in this respect. In consequence, as seems to emerge from his cross-examination, he took the view that Order 3.5 was simply an itemisation of Order 3.2 having the same 17 December temporal limitation, hence the following exchange (Transcript 29): Can you refresh your memory about the terms of paragraph 3.2?---I have. That was restraining you from publishing, or re-publishing the allegations in the letter of 17 December, wasn't it?---Yes. Paragraph 3.5 was not limited to that, was it?---Oh, I thought it was directly in relation to it. Well, tell me where?---Because it talks about at paragraph 8: The respondent, or the respondents former company, Chadmar Enterprises, currently pursuing recovery proceedings. And it went through and listed, and itemised that letter of 17 December. Where does it refer to the letter of 17 December?---Well, they were the allegations contained in the 17 December. Where does the order refer to - - -?---Well, the order doesn't. No?---I'm just telling you that was my understanding. And, notwithstanding that there was an order in paragraph 3.2 that specifically prohibited you from publishing the allegations in the letter of 17 December?---Well, it followed on in my mind when it went from when it goes down to 3.5,A and B, and C, and D is that that's what it was doing. It was expanding on what was in 3.2. That's how I understood it to be. 29 Consistent with this view Mr Bunn claims that the orders as he understood them only prohibited him from publishing or republishing allegations made in the 17 December letter that gave rise to the orders. Those allegations, which had not as yet been substantiated in the principal proceedings, could not be published. New allegations (which were not in issue in that proceedings) could be published. In his evidence he described the procedure he used to check whether material to be published was caught by the orders as he understood them. He explained how he used a legal dictionary's definition of "allegation" to assist his understanding of the 9 March orders. He took from that definition (not from the terms of the order) that he was stopped from publishing any still to be proved assertion made by a party to the principal proceeding. This in turn he took to mean that he could publish the assertions of retailers , seemingly because they were not parties. In his affidavit of 25 February he appears to use this explanation to indicate that such assertions were not "allegations" for the purposes of the orders. In cross-examination he did accept, though, that in publishing such retailer assertions he was himself making an assertion about what retailers were saying. Mr Bunn's misunderstandings in all of this if misunderstandings they be were stark. They took him far from the obvious meaning and intent of Order 3.5(c). 30 Necessarily I have to return to the question of Mr Bunn's veracity below. All I wish to emphasise here is that such understanding as he says he entertained of the proper construction of Order 3.5(c) was not the true construction of that order. 36 Secondly, they rely upon Lander J's 28 February 2007 explanation to Mr Bunn of the meaning and intent of Orders 3.2 and 3.5(c) which has been set out in part at [5] above. 37 Thirdly, they point to the attitude demonstrated by Mr Bunn in media releases and "open letters" he published from time to time. By way of illustration, I note the statement relied upon in the open letter of 10 May 2008 that: One would assume that given you have been unable to silence, and stop my publications after 28 months in the Federal Court, that you would have realised that the legal system does not stop free speech, truth and fact from being spoken, and published ... 38 Finally, reliance is placed upon the pattern of conduct of repeated publishing of allegations after the making of the orders. The contempt publications, it is said, are merely representative of that conduct. 43 Mr Bunn has, for practical purposes, represented himself on this motion and, as I understand it, in much of the principal proceedings. This in turn has had its adverse effects in this matter. He appears to have lacked effective assistance in understanding the real burden of orders or for that matter legal threats made against him. It is quite obvious both from his oral evidence and conduct at the hearings before me, and from the transcripts of the hearings before Lander J, that he does not grapple easily with concepts and he is not quick to understand what is put to him. For this reason I am not prepared to attribute great significance to the actual explanation of the orders given to him by Lander J, while accepting that he ought reasonably to have had greater regard to what was said to him by his Honour. I will return to that matter below. 44 It is equally clear, as his campaign against the applicants attests, that he is tenacious in adhering to a view once entertained. I am not prepared to conclude that he was wilfully blind in the view of the orders he took, but he nonetheless seems to have viewed them uncritically from a perspective that was least disfavouring of his cause against the Metcash companies as, for example, in his seeing Order 3.5 as simply an itemisation of order 3.2 or in accepting apparently that he could without breach of the orders recount the comments of other retailers as these were not relevantly "allegations". 45 Whatever may have been the intellectual processes that lead him to the conviction that the orders had the meaning he ascribed to them I am not prepared to find he was knowingly dishonest in that regard I cannot find beyond reasonable doubt that he did not genuinely hold the views he has espoused. I equally consider it most unlikely that his views would be shaken in any way by contrary assertions made by the applicants' lawyers. Both of these matters had some reflection in his tenacious adherence to his views despite protracted and hostile cross-examination. In saying this, I am not suggesting he so rendered his views the more plausible but rather that, despite what was put to him to the contrary, he would not readily yield.


case_text: These are not in issue and can be stated shortly. First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 515-516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40] . Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at [19] . Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at [6] . Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534.


case_title: Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609


case_title: Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110


case_text: These are not in issue and can be stated shortly. First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 515-516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40] . Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41 ; (2006) 150 FCR 110 at [19] . Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at [6] . Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534. 47 What I have said so far is not intended to diminish my view of the seriousness of Mr Bunn's contempt. Rather it is to indicate why I am not satisfied that Mr Bunn consciously and deliberately breached the order. His conduct nonetheless has been censurable. While he may not have understood the true meaning of Order 3.5(c) and hence that his conduct could constitute a breach of that order: cf Microsoft Corporation, at 143; his ignorance could provide him with no ready vehicle for exculpation. He knew he was bound by Court orders and that they precluded him from publishing or republishing certain allegations. After his exchange with Lander J on 28 February he had reason to know that his understanding of the meaning and effect of Orders 3.2 and 3.5(c) was quite imperfect. If he was to continue to publish matter critical of the Metcash companies without acting in breach of the orders, it was necessary for him to have an informed understanding of what the orders prohibited. Against that background, it was hazardous for him obdurately later to reject without inquiry the assertions about the orders made by the applicants' solicitors. Mr Bunn needed, but on the material before me did not obtain, reasonable and reasoned advice. Put shortly, he had been put on inquiry in circumstances in which it quite properly can be said he assumed the risk that his conduct might be found to be in breach of the orders. His so acting may well be a matter appropriately to be taken into account in relation to any penalty imposed on him. 48 I am satisfied that the charge of contempt of court made in the Statement of Charge has been established beyond reasonable doubt. While the applicants have sought orders by way of penalty and otherwise if breach of Order 3.5(c) be established neither party has put on evidence or made submissions (particularly in relation to penalty) against that contingency. It is necessary in light of my findings that this occur. I will adjourn the motion for directions in relation to these matters. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 20 January 2009 Counsel for the Applicants: Mr J Wells QC with Mr I Robertson SC Solicitor for the Applicants: Kelly & Co The Respondent appeared in person. Date of Hearing: 8 August and 10 October 2008 Date of Judgment: 20 January 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/16.html


case_title: Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494


case_title: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525


case_text: There is one additional matter relating to Order 3.5(c) to which I should refer which is the subject of the concession I earlier noted. This relates to what is signified by the concatenation of words "actively and deliberately operate in a manner calculated to ...". The applicants, accept that the word "calculated" when used in connection with conduct may be used in two senses, as meaning either "devised with forethought" or "likely": O'Sullivan v Lunnon [1986] HCA 57 ; (1986) 163 CLR 545 at 549; but that usually it is construed to mean having the described tendency irrespective of intention: R v Odhams Press Ltd; Ex parte Attorney-General [1957] 1 QB 73 at 80. Nonetheless, it is conceded for present purposes properly so in my view the composite formula used in the order and in particular the use of the words "actively and deliberately" in conjunction with the verb "operate", necessitates the construction that the applicants operate in the knowledge that their manner of operation is likely to prejudice etc the business of independent retailers with whom they deal. As I earlier noted, this construction is favourable to Mr Bunn.


case_title: R v Odhams Press Ltd; Ex parte Attorney-General [1957] 1 QB 73


case_text: The Notice of Appeal filed on 8 May 2007 purports on its face to be an appeal to the court in its original jurisdiction from a decision of either a 'Professional Services Review Committee' ('the PSR Committee') or a 'Determining Authority' ('the Authority') established in accordance with ss 93 and 95 of the Health Insurance Act 1973 (Cth) ('the Act') and s 106Q of the Act respectively. For the reasons indicated in Mitchelson v Health Insurance Commission [2007] FCA 1372 , that document entirely fails as a document originating a proceeding as an appeal from a decision of either body, as no appeal lies to the court from such a decision. 4 However, as noted in the earlier Mitchelson decision, the document seeks to challenge the decision of the Authority on the ground that the Authority erred by failing to take into account relevant considerations in reaching its decision. That contention seems to be an attempt to enliven a ground of challenge that the making of the decision is an improper exercise of the power conferred by the Health Insurance Act 1973 (see s 5(1)(e) and s 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)('ADJR Act') and possibly on other grounds. 20 On 28 August, the court refused leave to amend the Notice of Appeal in terms of the amended application and made a direction that 'the applicant in the proceedings file and serve an Application supported by appropriate material for leave to amend the document described as the 'Notice of Appeal' filed on 8 May 2007 so as to properly formulate having regard to identified grounds and particulars of those grounds, an Application for an Order of Review of an identified decision for the purposes of the ADJR Act' ( Mitchelson [23]). By 28 August, the second time the question arose, 134 days had elapsed since Dr Mitchelson had received the decision material. Plainly enough, within that time, Dr Mitchelson ought to have been able to formulate precise grounds of challenge to the Authority's decision and the material facts in support of those grounds especially having regard to the statutory stay effected by s 106V(2) of the Act. The Court further directed that the application for leave to amend the Notice of Appeal would be listed and heard on Tuesday 18 September 2007 at 10.15 am. When the matter came on for hearing on 18 September, the applicant relied upon a notice of motion filed on 12 September which simply sought leave to amend in terms of the same document filed on 24 August 2007. Dr Mitchelson has made no effort to reformulate the amended application to either identify with any precision the grounds of challenge or the material facts giving content and expression to those grounds. Shortly prior to Tuesday 18 September, Mr Royds sought approval to appear and argue the application for leave by telephone. Mr Royds then provided a mobile telephone number to the Court as the appropriate contact telephone number. Mr Moloney appeared in Court for the respondents. 21 Although an application in such a manner by a lawyer for a party seeking leave to amend a document such as the inadequate 'Notice of Appeal' in the context of a decision of the importance to Dr Mitchelson of the Authority's decision is unsatisfactory, ultimately the matter is one for Mr Royds against the background of the earlier Orders made in the proceeding which have not been met and the perceived strength of the argument for leave. If the material filed in support of the application is clear, precise and compelling, an election to seek and obtain approval to support the application by attendance before the Court by telephone or mobile network telephone attendance, might be thought to be cost efficient since Mr Royds practices in Cairns. However, Mr Royds did not file any reformulation of the earlier amended application and by 18 September, 156 days had elapsed since Dr Mitchelson had received the decision material with a continuing statutory stay of the Authority's directions. 22 Dr Mitchelson and Mr Royds have had more than enough time beyond the statutory 28 days prescribed by the ADJR Act to file a proper document.