case_text: have now been three judgments of the Court in respect of contraventions of s 16 (among other provisions) of the Spam Act . They are, Australian Communications and Media Authority v Clarity1 Pty Ltd [2006] FCA 1399; (2006) 155 FCR 377 per Nicholson J; Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 4) [2009] FCA 1225 ; (2009) 261 ALR 326 per Logan J; and a further ex tempore judgment by Logan J on 16 December 2009 concerning further respondents in the Mobilegate litigation ( Australian Communications and Media Authority v Mobilegate Ltd (No 6) [2009] FCA 1533). The decision of Nicholson J in Clarity1 , involved conduct on the part of the corporation of sending 270,305,474 commercial electronic messages between 10 April 2004 and 13 April 2006. In the majority of these contraventions, Clarity1 had used harvested addresses in contravention of s 22(1) of the Spam Act . Mr Mansfield, the second respondent, was found to have aided, abetted, counselled and procured the contraventions and to have been knowingly concerned in or a party to them. The Court found Mr Mansfield to have been "closely involved" in the contraventions. The proceedings were contested. Nicholson J made findings of fact in a primary judgment and addressed the question of the pecuniary penalty in the judgment cited above. Nicholson J took these matters into account: it was difficult to quantify the loss or damage caused by the conduct and thus the presence of loss or damage was treated as a possible aggravating circumstance; the contraventions involved a "huge volume" of electronic messages described by witnesses as "annoying, time consuming and frustrating" resulting in responses through filtering and blocking software; since the contravening conduct was the first conduct to be prosecuted under the Spam Act and the respondents genuinely believed that their conduct did not involve a contravention, these circumstances amounted to "an important factor in their favour"; the respondents had not been found by the Court to have engaged in previous contraventions; although the conduct of the respondents was deliberate, the deliberateness was an expression of their belief that their understanding of the new law was correct; and, the issue of capacity to pay a pecuniary penalty, although a relevant factor, was of less relevance when balanced against the necessity of imposing a penalty meeting the objective of general deterrence. His Honour applied the totality principle. On the question of cooperation, the applicant acknowledged that the respondents had not attempted to hinder or prevent it from conducting its investigation of the respondent's conduct. The applicant contended that cooperation flowed from the fact that at no time did the respondents entertain the possibility that their conduct might contravene the Spam Act . The respondents vigorously opposed the position asserted by the applicant that they had not shown any cooperation in relevant respects. Nevertheless, one point of distinction between Clarity1 and the present proceeding is that the respondents in Clarity1 contested the proceedings because they believed their conduct did not involve a contravention of the Act. Thus, they simply sought to ventilate their view of the quality of their conduct in the face of new legislative provisions. In these proceedings, Mr Atkinson, in the face of enforcement proceedings, exhibited genuine cooperation with the Authority. In approaching the assessment of the pecuniary penalty, Nicholson J considered that there is a need for "commercial realism in fixing penalties". He also said this: One difficulty which emerges in the application of the pecuniary penalty provisions in the new Act is that the maximum penalties are so high as to give rise to "an unrealistically large penalty". The unrealistic character derives principally from the quantum of penalty viewed in relation to the capacity of either respondent to pay and the need for general as well as specific deterrence. It is not just the total quantum of a pecuniary penalty which can provide the element of general deterrence. That quality derives from a consideration of the penalty in relation to the conduct giving rise to it and the financial capacity of the offenders. Where the financial capacity is not great, a [lesser] pecuniary penalty in value will derive its quality of general deterrence from its magnitude in relation to that capacity. [As to a penalty of $9.9m sought against Clarity1 ] A penalty in the amount of $9.9 million is clearly one beyond the capacity of Clarity1 to pay and so likely to lead to its liquidation. It is quite disproportionate to the commercial realities of Clarity1 . Even as proposed it is in the particular circumstances "an unrealistically large penalty". ... It is overly weighted in favour of general deterrence. Importantly, it does not appear to be constructed on any allowance of the new character of the legislation and the entitlement of the respondents to test their view of the effect of the legislation. Similar views were expressed in relation to the pecuniary penalty sought against the individual, Mr Mansfield. In the end result a pecuniary penalty of $1m was imposed upon Mr Mansfield. The pecuniary penalties imposed in the matter amounted to approximately 5% of the maximum penalties possible. Secondly , I consider that the decisions of the Court in Clarity1 and Mobilegate engage factors which significantly differentiate those cases from the present case. Clarity1 was a fully contested proceeding involving a different class and scale of conduct. There was no cooperation in relation to the proceeding because the respondents took the view that their conduct did not involve a contravention of the relevant provisions especially in circumstances where the legislation had not been tested and no judicial determination was before the respondents which may have aided their analysis of the various integers contained in the sections. The respondents in Clarity1 cooperated in the conduct of the case but not in the sense of accepting the contention that its conduct contravened the Spam Act , so as to avoid the applicant incurring the costs of the proceeding. The decision in Mobilegate involved truly reprehensible predatory conduct of a kind which warranted a penalty directed emphatically towards specific deterrence and transparent general deterrence. The class of conduct the subject of Mobilegate is not evident in these proceedings. Thirdly , however, as to the class of conduct on the part of Mr Atkinson, there is simply no doubt that Australian citizens find large-scale distribution of unsolicited commercial electronic messages promoting the sale of products, in the circumstances of this case, very irritating and annoying. It causes all users of computers to constantly update spam filters and other protective devices to try to deflect the unwanted rain of electrons and digits disseminated by those who wish to do what Mr Atkinson has done. The Parliament has made its intention plain that the unsolicited distribution of electronic emails (spam) is to be discouraged. Notwithstanding these considerations, the Court ought to take into account and attach significant weight to Mr Atkinson's cooperation with the Authority in isolating the extent of the conduct and in seeking to resolve the present claims on the basis of admissions and a joint submission. Fourthly , Mr Atkinson is represented by independent lawyers and he has formed his view as to the various matters the subject of the submission with the assistance of that advice.


case_outcome: cited

case_title: Australian Communications and Media Authority v Mobilegate Limited A Company Incorporated in Hong Kong (No 4) [2009] FCA 1225 ; (2009) 261 ALR 326

case_text: have now been three judgments of the Court in respect of contraventions of s 16 (among other provisions) of the Spam Act . They are, Australian Communications and Media Authority v Clarity1 Pty Ltd [2006] FCA 1399; (2006) 155 FCR 377 per Nicholson J; Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 4) [2009] FCA 1225 ; (2009) 261 ALR 326 per Logan J; and a further ex tempore judgment by Logan J on 16 December 2009 concerning further respondents in the Mobilegate litigation ( Australian Communications and Media Authority v Mobilegate Ltd (No 6) [2009] FCA 1533).


case_title: Australian Communications and Media Authority v Mobilegate Limited A Company Incorporated in Hong Kong (No 6) [2009] FCA 1533


case_title: Trade Practices Commission v Stihl ChainSaws (Aust) Pty Ltd (1978) ATPR 40-091

case_text: Mobilegate , Logan J was addressing conduct involving the sending of unsolicited short-message-service messages to the mobile telephones of users who had been deceived into providing their mobile telephone numbers to representatives of either Mobilegate , the first respondent, or Winning Bid , the second respondent, under the belief that they were corresponding with individuals seeking to meet them and form relationships via dating web-sites. Logan J described the respondents as "predators on the emotionally vulnerable for reward" which was "a particularly vile form of behaviour". His Honour said the conduct was "duplicitous and exploitative" and "cruel and callous". His Honour concluded that this class of conduct warranted a "very substantial penalty". Among a number of considerations his Honour noted that the conduct was deliberate and covert and that penalties must be sufficiently significant to "deter the unscrupulous from taking a calculated business risk" but should not be so high as to be "oppressive" in the sense contemplated in Trade Practices Commission v Stihl ChainSaws (Aust) Pty Ltd [1978] FCA 104; (1978) ATPR 40-091. In addition, the evidence demonstrated that there was approximately $4m of financial loss on the part of individual mobile telephone users who were charged communications fees. His Honour found that the conduct was "of such an intimate exploitive nature that the exploiter by the very conduct gives itself, himself or herself, a degree of insulation at a practical level from suits for financial recovery" and the conduct involved a "consistent pattern of studied deception". It was deliberate contravening conduct with no mitigating circumstances. In addition, there was no evident cooperation in the administration of justice. The entity, Mobilegate , was ordered to pay $5m which represented 6.87% of a possible maximum of approximately $72,820,000. The entity Winning Bid was ordered to pay $3,500,000 representing 8.51% of a possible maximum of $41,140,000. So far as the individuals were concerned, Logan J took into account that their involvement was extensive, knowing and persistent. However, in examining the implications which might be drawn from statutory maximum pecuniary penalties in the context of individuals found to be parties to contravening corporate conduct, Logan J considered assessment of the maximum penalty as a "theoretical exercise". Significant pecuniary penalties were ordered against the individuals having regard to the quality of their engagement in the conduct of the corporation. There is little point isolating the amount of each penalty in respect of each individual in the circumstances of the findings.


case_text: it is important to take into account the scale of penalties the Parliament has selected as the appropriate range leading to a maximum penalty in respect of contraventions of particular legislation. Often, careful attention will need to be given to the Parliament's selection of maximum penalties as an expression of the Parliamentary intention that particular conduct, must be transparently deterred. This is entirely consistent with Markarian v The Queen (2005) 228 CLR 357. In addition, the Regulation Impact Statement at p 4 of the EM sets out the following statement of the problem sought to be addressed by the Spam Act at p 4. B.1 Problem or issue identification Unsolicited electronic messages or "spam" are reaching plague proportions and growing exponentially. It is causing immense frustration and reduced productivity for users, businesses and government agencies. If left unchecked it will reach proportions which will threaten the viability of the internet as a reliable communications medium. A recent comprehensive review of the problem by the National Office for the Information Economy recommended a multi-layered approach to addressing the problem, including the implementation of specific anti-spam legislation. The EM describes the problem so identified as an international problem affecting the efficient operation of internet telecommunications networks and imposing costs on end-users. At p 5, the EM notes, "There are clear signs of a deleterious impact on the performance of the global e-mail network with some commentators predicting that the continuing proliferation of spam could mean the end of e-mail as an effective form of communication". At p 67, the EM contains this observation in relation to penalties: A daily ceiling for penalties has been set that may be charged for all contraventions against a particular provision that have occurred in one day. This has been included to ensure that a meaningful penalty may be charged for a single contravention without causing an unrealistically large penalty payable for multiple contraventions. For example, there are reported cases of dedicated spammers sending millions of unsolicited commercial electronic messages each day. Without a ceiling amount for daily contraventions, such a spammer could potentially be liable for a million contraventions. The ratio between the penalty payable for a person for single contravention and the ceiling amount is 20 times. Conclusions


case_text: , although the pecuniary penalty is a matter for the Court to determine ( Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72), and the question of whether the Court ought to make declarations as to particular matters or injunctions framed in a particular way or at all necessarily involves discretionary considerations and questions of utility, the Court will attach significant weight to a negotiated settlement quickly reached between parties acting with the benefit of legal advice, provided the document identifies the conduct precisely; the responsibility of each respondent in that conduct is recognised (whether at the centre or at the margin); and the proposed penalty is within the range the Court would impose and is thus not manifestly inadequate: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285; Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199. The approach to the assessment of a pecuniary penalty under the Spam Act ought, in principle, to reflect some of the considerations applied by the Court in assessing a pecuniary penalty under the Trade Practices Act 1974 (Cth). In particular, the Court will have regard to the elements of specific and general deterrence and assess whether a proposed penalty might be so high as to be oppressive in all the circumstances: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; TPC v Stihl Chainsaws (Aust) Pty Limited ; NW Frozen Foods Pty Ltd v ACCC at 293.


case_title: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375


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


case_title: Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) [2009] FCA 754


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


case_title: Auskay International Manufacturing and Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 , 251 ALR 166

case_text: 33H deals with the content of the originating process whereby a representative proceeding is commenced. That section provides as follows: Originating process (1) An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included: (a) describe or otherwise identify the group members to whom the proceeding relates; and (b) specify the nature of the claims made on behalf of the group members and the relief claimed; and (c) specify the questions of law or fact common to the claims of the group members. (2) In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members. Order 73 r 3 of the Federal Court Rules further provides that a representative proceeding " must be commenced by filing an application in accordance with Form 129 ". That form is framed by reference to s 33H(1)(a), (b) and (c): Bailey v Veda Advantage Information Services and Solutions Ltd [2007] FCA 1664 at [9] . Amongst the other requirements imposed by s 33H, s 33H(1)(a) requires the " group members " to be clearly identified: Auskay International Manufacturing and Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 at [27] , [2008] FCA 1458 ; 251 ALR 166 at 175 per Tracey J. In an attempt to give greater clarification as to what is required by s 33H(1)(a), Sackville J in Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61 observed: [19] In determining what s 33H(1)(a) of the Federal Court Act requires, it is important to consider why it is necessary to describe or identify the group members in a representative proceeding. One reason, as the High Court observed in Wong v Silkfield , is to enable the Court to determine whether the requirements of s 33C have been satisfied. Unless the group member is adequately described or identified (although not necessarily named or counted: s 33H(2)), it may be difficult to ascertain, for example, whether the claims of all the group members give rise to a substantial common issue of law or fact. [Emphasis in original] [20] Another reason for describing or identifying group members is to enable group members to decide whether or not to opt out of the representative proceeding pursuant to s 33J(2) of the Federal Court Act . If a person who is a group member does not opt out of the proceedings he or she will be bound by the judgment. (Section 33ZB requires the judgment in a representative proceeding to "describe or otherwise identify the group members who will be affected by it"and provides that the judgment binds any such persons other than any person who has opted out.) The failure by a group member to opt out of representative proceedings may therefore be attended by serious consequences, although of course the litigation might also produce advantages for that group member. [21] These factors suggest that it must be possible for persons who may be within the represented group to ascertain from the pleadings whether they are in fact group members. The point was made by Hedigan J in Cook v Pasminco Ltd [2000] VSC 534 , at [59], in relation to similar State legislation: "It is beyond doubt that in a group proceeding the description of a group membership must be such so that it is at least possible to determine who falls within the group as described. Persons contemplated as being within the group would themselves not understand whether they were within it, unless the definition of the group is intelligible, although not necessarily exact. Members of the group are entitled to know what constitutes the essentials of the group. A decision concerning opt-out cannot be sensibly made unless it is known what it is that is being opted out from." It follows from his Honour's observations that a person must be able to ascertain from the description of the represented group whether he or she is a member of that group. ... [23] Clearly enough, not every description or identification of the represented group will satisfy the requirements of s 33H(1)(a) of the Federal Court Act . A useful, although not necessarily exhaustive test, is whether the description is such as to enable a person, with the assistance of a legal adviser if necessary, to ascertain whether he or she is a group member. If the description incorporates a reference to conduct alleged in the pleadings, a person or his or her adviser ought to be able, by reading the description and the relevant portion of the pleadings, to determine whether he or she is a member of the represented group. If a person cannot reasonably be expected to do this, the definition is unlikely to satisfy the requirements of s 33H(1)(a). In Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510 at [13] Tracey J referred to " the need for precision in the framing of group definitions in representative proceedings ". In Johnstone v HIH Insurance Ltd [2004] FCA 190 at [52] Tamberlin J likewise said that "... it is necessary to know with some precision who the group members are ".


case_title: Bailey v Veda Advantage Information Services and Solutions Ltd [2007] FCA 1664


case_outcome: considered

case_text: various grounds upon which an application may be made to have a subpoena set aside need not be presently canvassed in any great detail. Some of these grounds have been usefully collated by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 as follows (citations omitted): Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example: 1. unless the subpoena was issued for the purpose of a pending trial, hearing or application ... 2. where to require the attendance of a witness would be oppressive ... 3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ... 4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ... 5. where the subpoena has been used for the purpose of obtaining discovery against a third party... 6. where to require a party to comply with a subpoena to produce documents would be oppressive ... 7. where the subpoena has been issued for a purpose which is impermissible, as, for example, "fishing" ... This summary was accepted by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 102 and by Conti J in Mandic v Phillis [2005] FCA 1279 at [33] , 225 ALR 760 at 771 to 772. The stage which a proceeding has reached, and the issues to be resolved at interlocutory applications, are matters of immediate relevance to whether an order should be made for a subpoena or for a subpoena to be set aside: Re Universal Press Pty Limited v Provest Ltd (unreported, FCA, Hill J, G136 of 1989, 14 July 1989). Hill J there observed: [38] With respect, the interests of justice and efficiency, will in most cases be best served if subpoenas are issued requiring documents to be produced at a time before the hearing but it does not follow from that that it will ordinarily be appropriate in the interest of justice for a subpoena to be made returnable before discovery itself has been given by the parties to each other or indeed before, as in this case, the defendant has even filed a statement of defence in the proceedings. Rather it seems to me, so that the issues are defined, that it will be a rare case indeed where the interests of justice will require a subpoena to be issued until the ordinary interlocutory steps have been completed. [39] It must ultimately be borne in mind that a subpoena is intended to require the production of documents so that those documents can be available for tender during a trial and for the purposes of it. I use trial as encompassing of course interlocutory motions should such motions be relevant. In this context I would refer to what was said by Bowen LJ in Elder v. Carter [(1890) 25 QBD 194] (at p 201, 202): "But I am as certain as one can be of anything with regard to practice, that does not intend to enact that at any stage of a proceeding a judge may make, subject to his discretion, an order on a third person for production of a document which belongs to the third person, unless the production of it at that moment is a thing to which the parties are entitled for the purpose of justice; and you are not entitled, for the purpose of justice at any moment during suit, simply because you are a litigant, to see what is in the possession of a third person and to have production of it. Such a thing was never heard of ..." See also: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR at 101 per Powell J.


case_title: Bright v Femcare Ltd [2002] FCAFC 243

case_text: reliance is placed by Counsel on behalf of Pharm-a-Care and IMF (Australia) Limited upon the need for compliance with s 33H to be apparent " from the pleadings ". See also: Bright v Femcare Ltd [2002] FCAFC 243 at [126] , [2002] FCAFC 243 ; 195 ALR 574 at 600 per Kiefel J, with whom Lindgren and Finkelstein JJ agreed. These provisions, together with the other provisions contained within Pt IVA, may have to be considered in greater detail when the Motions are heard seeking either judgment pursuant to s 31A or relief under O 11 rr 16 and 20 or O 13 r 5. The subpoena in issue refers to " [e]ach litigation funding agreement entered into by IMF (Australia) Limited as at 23 December 2008 referred to in paragraph 2(c) of the application filed on 23 December 2008 ... ".


case_outcome: referred to

case_text: should be noted that considerable care should be exercised in placing reliance upon judicial interpretation of any provision without regard to the terms in which a particular statutory or regulatory provision was then expressed. One decision thus relied upon was Fried v National Australia Bank Ltd [2000] FCA 911 , 175 ALR 194. At the time of that decision the power to set aside a subpoena was that conferred by O 27 r 9, which then provided that " [t]he Court may, of its own motion or on the motion of any person having a sufficient interest, set aside the subpoena wholly or in part ". That decision may remain of assistance only in interpreting the expression " any person having a sufficient interest " as it appears in the current r 4(1): it has nothing to say about the phrase " a party ". Moreover, and since the relief claimed by Pharm-a-Care and IMF (Australia) Limited is identical, and since both corporations were represented by the same Counsel, it appeared to matter little which was the entity that sought the relief. Such differences as may emerge in different proceedings where a subpoena is served upon a third party having no interest in a proceeding may in the present proceeding assume less relevance given the role played by funding agreements with IMF (Australia) Limited and the description of Group Members . Different solicitors, however, separately represented each of the applicants on the motions. There may have been some significance if an issue of costs needed resolution. The Second to Sixth Respondents did not dispute that IMF (Australia) Limited had a " sufficient interest " to apply to have the subpoena set aside. Rejected, however, is any contention that Pharm-a-Care does not have standing to seek to have the subpoena served upon IMF set aside.


case_text: importantly, however, it is not considered that there is any legitimate forensic purpose now being pursued by the Second to Sixth Respondents in seeking the production of the documents embraced by the subpoena at this point of time. In so concluding, it is recognised that a subpoena can be made returnable at a date prior to hearing. Indeed, there may well be many practical reasons why such a course may be desirable: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 716 to 717 per Clarke J. So much was not put in issue by Counsel on behalf of Pharm-a-Care and IMF. A subpoena may be made returnable at a date prior to hearing where it is " in the interests of justice and the proper and expeditious conduct of a proceeding " to do so: Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541 at 543 per Toohey J. The time at which a subpoena is sought or served may, however, be of relevance to an order setting it aside: cf Kennedy v Wallace [2004] FCA 636 at [26] , [2004] FCA 636 ; 136 FCR 114 at 121 per Gyles J.


case_title: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (in liq) [2008] FCA 1920 , 252 ALR 41

case_text: it matters not whether the forensic purpose of the Second to Sixth Respondents is tested by reference to their outstanding Motions to strike out the existing pleadings or by reference to their application for summary judgment pursuant to s 31A of the 1976 Act. Evidence as to facts is relevant to an application made under s 31A: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [3] to [8] [2008] FCA 1920 ; , 252 ALR 41 at 43 to 45 per Finkelstein J. But it was accepted by Senior Counsel on behalf of the Second to Sixth Respondents that those submissions of relevance to the identification of the present forensic purpose being pursued were its submissions that judgment should be entered pursuant to s 31A (in summary form) by reason of: the alleged failure to properly identify those persons to whom a public duty was said to be owed for the purposes of the tort of misfeasance; the failure to properly plead the manner in which any breach of duty was said to have caused loss or damage; and the failure to properly plead the loss or damage said to have been suffered. These were all correctly characterised by Counsel for Pharm-a-Care and IMF as " pleading points ". Such facts as may have been exposed by documents otherwise falling within the subpoena could thus not assist the Second to Sixth Respondents in its forthcoming application for judgment pursuant to s 31A. Nor is the identification of the forensic purpose sought to be pursued by the Second to Sixth Respondents in seeking the production of documents from IMF (Australia) Limited assisted by submissions as to whether or not Pharm-a-Care has complied with the obligation imposed upon it by O 15 r 10.


case_text: stage at which a subpoena is issued will necessarily depend upon the facts and circumstances of each individual case. Such relevance as the subpoena was seen as potentially having at the time the order was made for its issue has been answered by: the identification or clarification of the forensic purpose being pursued by the Second to Sixth Respondents; and the submissions now advanced by Counsel on behalf of both Pharm-a-Care and IMF (Australia) Limited. Rejected is the submission advanced on behalf of the Second to Sixth Respondents that the documents have some present relevance — be it described as " adjectival " or otherwise ( Trade Practices Commission v Arnotts Ltd (1989) 88 ALR at 103; IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 at [38] ). This conclusion in respect to the present subpoena does not preclude an application being made for an order under O 27 r 2 for a subpoena in the same or like terms at some future date. The Orders of the Court are: The subpoena as issued at the request of the Second to Sixth Respondents and addressed to IMF (Australia) Limited and returnable on 20 October 2009 is set aside. The Second to Sixth Respondents are to pay the costs of IMF (Australia) Limited and Pharm-a-Care Laboratories Pty Ltd. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 26 October 2009 Counsel for the Applicant and for IMF (Australia) Limited: Mr M J Darke Solicitor for the Applicant: McLachlan Thorpe Solicitor for IMF (Australia) Limited: HBL Ebsworth Solicitor for the First Respondent: Mr M Cessario (Corrs Chambers Westgarth) Counsel for the Second to Sixth Respondents: Mr J E Marshall SC with Ms V McWilliam Solicitor for the Second to Sixth Respondents: Moray & Agnew Date of Hearing: 19 October 2009 Date of Judgment: 26 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1203.html


case_title: Johnstone v HIH Insurance Ltd [2004] FCA 190


case_title: Kennedy v Wallace [2004] FCA 636 , 136 FCR 114


case_title: Mandic v Phillis [2005] FCA 1279 , 225 ALR 760

case_text: various grounds upon which an application may be made to have a subpoena set aside need not be presently canvassed in any great detail. Some of these grounds have been usefully collated by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 as follows (citations omitted): Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example: 1. unless the subpoena was issued for the purpose of a pending trial, hearing or application ... 2. where to require the attendance of a witness would be oppressive ... 3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ... 4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ... 5. where the subpoena has been used for the purpose of obtaining discovery against a third party... 6. where to require a party to comply with a subpoena to produce documents would be oppressive ... 7. where the subpoena has been issued for a purpose which is impermissible, as, for example, "fishing" ... This summary was accepted by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 102 and by Conti J in Mandic v Phillis [2005] FCA 1279 at [33] , 225 ALR 760 at 771 to 772. The terms of O 27 r 4 of the Federal Court Rules should thus be noted. It is that rule which expressly confers the power to set aside a subpoena and identifies those who may apply for such an order. The rule provides as follows: Setting aside or other relief (1) The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest. In support of their submission that Pharm-a-Care does not have sufficient standing to apply to have the subpoena set aside and does not have a " proprietary interest in the documents sought ", the Second to Sixth Respondents rely upon the decision of Conti J in Mandic at [32]. An application was there made by a non-party to have a subpoena set aside. What was not in issue was the interest a party had in setting aside a subpoena. Why r 4(1) and the express reference to " the application of a party " did not confer sufficient authority upon Pharma-a-Care was not sufficiently explained. A contention that the phrase " having a sufficient interest " qualifies both the reference to " any person " and " a party ", such that the Rule is read as referring to " a party ... having a sufficient interest ", is (with respect) unsustainable. That is not what the Rule says and such a construction of the Rule would render the reference to " a party " unnecessary. The reference to " any person having a sufficient interest ", upon such a construction, would identify the entirety of persons — be they parties or non-parties — that could apply. Mandic is no authority to the contrary.


case_title: Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61


case_title: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710


case_outcome: followed

case_text: various grounds upon which an application may be made to have a subpoena set aside need not be presently canvassed in any great detail. Some of these grounds have been usefully collated by Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 as follows (citations omitted): Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example: 1. unless the subpoena was issued for the purpose of a pending trial, hearing or application ... 2. where to require the attendance of a witness would be oppressive ... 3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ... 4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ... 5. where the subpoena has been used for the purpose of obtaining discovery against a third party... 6. where to require a party to comply with a subpoena to produce documents would be oppressive ... 7. where the subpoena has been issued for a purpose which is impermissible, as, for example, "fishing" ... This summary was accepted by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 102 and by Conti J in Mandic v Phillis [2005] FCA 1279 at [33] , 225 ALR 760 at 771 to 772.


case_title: Re Universal Press Pty Limited v Provest Ltd (unreported, FCA, Hill J, G136 of 1989, 20 July 1989)

case_text: stage which a proceeding has reached, and the issues to be resolved at interlocutory applications, are matters of immediate relevance to whether an order should be made for a subpoena or for a subpoena to be set aside: Re Universal Press Pty Limited v Provest Ltd (unreported, FCA, Hill J, G136 of 1989, 14 July 1989). Hill J there observed: [38] With respect, the interests of justice and efficiency, will in most cases be best served if subpoenas are issued requiring documents to be produced at a time before the hearing but it does not follow from that that it will ordinarily be appropriate in the interest of justice for a subpoena to be made returnable before discovery itself has been given by the parties to each other or indeed before, as in this case, the defendant has even filed a statement of defence in the proceedings. Rather it seems to me, so that the issues are defined, that it will be a rare case indeed where the interests of justice will require a subpoena to be issued until the ordinary interlocutory steps have been completed. [39] It must ultimately be borne in mind that a subpoena is intended to require the production of documents so that those documents can be available for tender during a trial and for the purposes of it. I use trial as encompassing of course interlocutory motions should such motions be relevant. In this context I would refer to what was said by Bowen LJ in Elder v. Carter [(1890) 25 QBD 194] (at p 201, 202): "But I am as certain as one can be of anything with regard to practice, that does not intend to enact that at any stage of a proceeding a judge may make, subject to his discretion, an order on a third person for production of a document which belongs to the third person, unless the production of it at that moment is a thing to which the parties are entitled for the purpose of justice; and you are not entitled, for the purpose of justice at any moment during suit, simply because you are a litigant, to see what is in the possession of a third person and to have production of it. Such a thing was never heard of ..." See also: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR at 101 per Powell J.


case_title: Wong v Silkfield Pty Ltd [1999] HCA 48 , 199 CLR 255

case_text: 33A, a provision contained within Pt IVA, defines a " representative proceeding " as " a proceeding commenced under s 33C ". Section 33C(1) provides as follows: Commencement of proceeding (1) Subject to this Part, where: (a) 7 or more persons have claims against the same person; and (b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and (c) the claims of all those persons give rise to a substantial common issue of law or fact; a proceeding may be commenced by one or more of those persons as representing some or all of them. The section is concerned with the commencement of litigation using the procedures provided for in Pt IVA and is not concerned with the subsequent conduct of such a proceeding: Wong v Silkfield Pty Ltd [1999] HCA 48 at [26] , [1999] HCA 48 ; 199 CLR 255 at 266 per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ. Section 33H deals with the content of the originating process whereby a representative proceeding is commenced. That section provides as follows: Originating process (1) An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included: (a) describe or otherwise identify the group members to whom the proceeding relates; and (b) specify the nature of the claims made on behalf of the group members and the relief claimed; and (c) specify the questions of law or fact common to the claims of the group members. (2) In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members. Order 73 r 3 of the Federal Court Rules further provides that a representative proceeding " must be commenced by filing an application in accordance with Form 129 ". That form is framed by reference to s 33H(1)(a), (b) and (c): Bailey v Veda Advantage Information Services and Solutions Ltd [2007] FCA 1664 at [9] . Amongst the other requirements imposed by s 33H, s 33H(1)(a) requires the " group members " to be clearly identified: Auskay International Manufacturing and Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 at [27] , [2008] FCA 1458 ; 251 ALR 166 at 175 per Tracey J. In an attempt to give greater clarification as to what is required by s 33H(1)(a), Sackville J in Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61 observed: [19] In determining what s 33H(1)(a) of the Federal Court Act requires, it is important to consider why it is necessary to describe or identify the group members in a representative proceeding. One reason, as the High Court observed in Wong v Silkfield , is to enable the Court to determine whether the requirements of s 33C have been satisfied. Unless the group member is adequately described or identified (although not necessarily named or counted: s 33H(2)), it may be difficult to ascertain, for example, whether the claims of all the group members give rise to a substantial common issue of law or fact. [Emphasis in original] [20] Another reason for describing or identifying group members is to enable group members to decide whether or not to opt out of the representative proceeding pursuant to s 33J(2) of the Federal Court Act . If a person who is a group member does not opt out of the proceedings he or she will be bound by the judgment. (Section 33ZB requires the judgment in a representative proceeding to "describe or otherwise identify the group members who will be affected by it"and provides that the judgment binds any such persons other than any person who has opted out.) The failure by a group member to opt out of representative proceedings may therefore be attended by serious consequences, although of course the litigation might also produce advantages for that group member. [21] These factors suggest that it must be possible for persons who may be within the represented group to ascertain from the pleadings whether they are in fact group members. The point was made by Hedigan J in Cook v Pasminco Ltd [2000] VSC 534 , at [59], in relation to similar State legislation: "It is beyond doubt that in a group proceeding the description of a group membership must be such so that it is at least possible to determine who falls within the group as described. Persons contemplated as being within the group would themselves not understand whether they were within it, unless the definition of the group is intelligible, although not necessarily exact. Members of the group are entitled to know what constitutes the essentials of the group. A decision concerning opt-out cannot be sensibly made unless it is known what it is that is being opted out from." It follows from his Honour's observations that a person must be able to ascertain from the description of the represented group whether he or she is a member of that group. ... [23] Clearly enough, not every description or identification of the represented group will satisfy the requirements of s 33H(1)(a) of the Federal Court Act . A useful, although not necessarily exhaustive test, is whether the description is such as to enable a person, with the assistance of a legal adviser if necessary, to ascertain whether he or she is a group member. If the description incorporates a reference to conduct alleged in the pleadings, a person or his or her adviser ought to be able, by reading the description and the relevant portion of the pleadings, to determine whether he or she is a member of the represented group. If a person cannot reasonably be expected to do this, the definition is unlikely to satisfy the requirements of s 33H(1)(a). In Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510 at [13] Tracey J referred to " the need for precision in the framing of group definitions in representative proceedings ". In Johnstone v HIH Insurance Ltd [2004] FCA 190 at [52] Tamberlin J likewise said that "... it is necessary to know with some precision who the group members are ".


case_title: Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510


case_title: Ex parte Selby; in the matter of Selby and Norton (1855) 43 ER 1427

case_text: The public and private importance of the change of status in making a party bankrupt is too well known to require detailed citation. It is not a matter merely between debtor and creditor. It affects creditors generally and the public. The bankrupt, while bankrupt, has his or her status changed. Conduct which might otherwise be innocent may become punishable at law. There remains a stigma to the person, often as a mark of failure in life, sometimes of a particularly humiliating character. Though in a dissenting judgment, the seriousness of the matter was luminously expressed by Deane J in Kleinwort Benson Australia Pty Ltd v Crowl [1988] HCA 34 ; (1999) 165 CLR 71 at 82. The public and private interest in discharge or annulment can be seen in many cases such as Re Barton (1980) 43 FLR 245, Re Stainton; Ex parte Board of Trade (1887) 19 QBD 182, Re Haines (1937) 10 ABC 83, Re Gray (1960) 19 ABC 29 and Re Prince (1961) 19 ABC 39 and see also Ex parte Selby; in the matter of Selby and Norton (1855) 43 ER 1437 per Lord Justice Knight-Bruce.


case_title: Kleinwort Benson Australia Pty Ltd v Crowl [1988] HCA 34 ; (1999) 165 CLR 71


case_text: It goes without saying that the procedures required should be viewed from the perspective of the interests of all creditors. In a given case, which is not this one, a Court might look very carefully at any procedure leading to a composition dominated by creditors related to the bankrupt or reflecting a lack of commercial morality or sharp practice. Parliament, however, has chosen to provide in s 74(5) for the annulment and thus for the consequences that flow therefrom: Oates v Commissioner of Taxation (1990) 27 FCR 289 , Re Coyle (1993) 42 FCR 72 , Theissbacher v MacGregor Garrick & Co [1993] 2 Qd R 223, Pascoe; in the matter of Hudson [2005] FCA 1421 , Worrall v Westpac Banking Corporation (1995) 51 FCR 304 and Union Club v Battenberg [2006] NSWCA 72 ; (2006) 66 NSWLR 1.


case_title: Pascoe; Re Hudson [2005] FCA 1421


case_text: The applicants emphasise the expression used by Sheppard J in Van Reesema v Official Trustee in Bankruptcy (1983) 69 FLR 424 at 431 when his Honour used the expression "great power" of the trustee in bankruptcy in preventing a discharge from bankruptcy occurring by entering an objection to discharge. That expression was used by the Full Court in Prentice v Wood [2002] FCA 214 ; (2002) 119 FCR 296 at 300 in discussing the power in s 149C(1)(c). I do not find those expressions of any particular assistance in construing ss 73 and 74 and in ascertaining the statutory consequence of any failure to comply (if that occurred) with ss 73 and 74 .


case_outcome: applied

case_text: These considerations go not only to the construction and interpretation of the Bankruptcy Act , but also to assess the consequences of any breach of that which the statute provides for: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355. When a statute provides for compliance with procedures laid down therein, the consequences of an absence of such compliance upon acts performed pursuant thereto must be assessed. Those procedures, if breached in some aspect, must be examined in their context in order that the Court can understand what Parliament intended to be the consequences of such breach. 58 The question whether information put forward by the bankrupts is sufficient in detail and underlying commercial substance to amount to a proposal will generally be a judgmental decision for the trustee. It may arise at the point of refusal by the trustee to convene a meeting on the basis that there is insufficient reliable material to allow her or him to give an opinion for the purposes of s 73(2A). It may arise at the point of someone seeking to restrain a meeting on the basis that what is being put is not a proposal. In those cases, a substantial question that will arise will be whether there is a proposal of sufficient clarity and reality to permit a judgment of the trustee under s 73(2A). 59 Here, the trustee took the view that there was a proposal. An opinion purporting to be under s 73(2A) was given. Voting took place. The issues are whether there was a proposal and whether the trustee gave an opinion for the purposes of s 73(2A) and if not, whether that made the resolutions, the meeting, the composition and the annulments nullities. 71 Here Mr Thomas took the view that, though there were certain inadequacies in the proposal, it was a proposal. I do not think he was wrong in that. However, even if he were, he decided to take it to the creditors and what followed has been set out above. As I have said in relation to my views on Project Blue Sky [1998] HCA 28 ; 194 CLR 355, even if the first proposal was not a proposal and even if he could not have been forced to take it to a meeting, I do not think that has the consequence of invalidating everything that followed. As I said, I think it was a proposal in that there was an arrangement capable of being accepted, whether or not its implementation was certain I think more went to its attractiveness than as to whether it was a proposal. There was no time expressed for implementation. The law will always imply a reasonable time. Again, if I am wrong and that was such as to make it not a proposal, Mr Thomas' view that it was and that it should go to the meeting was not a failure of procedure which nullifies all that flows thereafter.


case_title: Re Barton (1980) 43 FLR 245

case_text: The public and private importance of the change of status in making a party bankrupt is too well known to require detailed citation. It is not a matter merely between debtor and creditor. It affects creditors generally and the public. The bankrupt, while bankrupt, has his or her status changed. Conduct which might otherwise be innocent may become punishable at law. There remains a stigma to the person, often as a mark of failure in life, sometimes of a particularly humiliating character. Though in a dissenting judgment, the seriousness of the matter was luminously expressed by Deane J in Kleinwort Benson Australia Pty Ltd v Crowl [1988] HCA 34 ; (1999) 165 CLR 71 at 82. The public and private interest in discharge or annulment can be seen in many cases such as Re Barton (1980) 43 FLR 245, Re Stainton; Ex parte Board of Trade (1887) 19 QBD 182, Re Haines (1937) 10 ABC 83, Re Gray (1960) 19 ABC 29 and Re Prince (1961) 19 ABC 39 and see also Ex parte Selby; in the matter of Selby and Norton (1855) 43 ER 1437 per Lord Justice Knight-Bruce. 56 Relevant also, in addition to the interests of the parties, is the interest of the public, as I have said, in a discharge context: see in particular Re Barton 43 FLR 245. The important changes, retrospectively, to the status of the former bankrupt brought about by annulment and the operation of s 74(5) , with the consequential permission of the erstwhile bankrupt to move about the community with full status, also inform the need to construe the provisions with an eye to substance over formality and not subvert the intended practical freedom sought to be given to the bankrupt by procedural issues not affecting in any given case the substance of the legitimacy of the expression of the creditors' views.


case_outcome: discussed

case_text: It is said that the trustee did not provide an opinion of the purposes of s 73(2A) because the trustee only said that it would appear that both alternatives (that is the McGurk contract and the first Naylor proposal) benefited the bankrupts' creditors. There is some force in that: Re Bendel; Ex parte Bendel v Pattison (1997) 80 FCR 123 at 132. But once again, any failure of the trustee to comply with s 73(2A) would not necessarily invalidate what flowed thereafter for the reasons I have already given. I do not see any non-compliance here as fatal to a vote. That is not to say that if the context of the case was injunctive relief to prevent a meeting going ahead because of inadequate information in the opinion of the trustee that such an injunction would not be given. 73 Also, to reinforce what I said earlier, to the extent that there has been inadequate information in the opinion of the trustee, the egregiousness or otherwise of any such error would be, as the asserted error of the trustee here is, a relevant consideration for the operation of ss 30 , 178 , 222 and 222C . Also, for completeness, I do not think it should be accepted as it was submitted here that the first Naylor proposal was not bone fide . The Naylors, who put on evidence, were not cross-examined about that; cf Re Bendel 80 FCR 123 at 131. 74 The second Naylor proposal was equally not too vague or uncertain in my view. There was an unconditional offer of payment even if it came from a finance company who had a letterhead without an address except a post box. The terms of any mortgage were not necessary to vote on. The reduced security from the Naylors' mother dropping out was not a matter for the creditors to be concerned with save and except that it may have meant that the Naylors were not able to last very long out of bankruptcy. But again, given that the creditors were being paid in one lump sum that was not their concern. As to whether there was a certainty of the money being available, these were matters, once again, for the creditors to assess and the trustee to give his opinion on. 75 The second proposal can be seen, I think, to be an amendment of the first proposal. The provider of the money changed, the mortgage arrangements changed and although there were the variations from $685,000 down to $620,000 this was in substance no different to the earlier proposal. Even if I am wrong that there was not an amendment but a new proposal, once again, given the fact that the matter went to the creditors pursuant to the meeting, I do not see the breach of procedure, if it be such, has a nullifying effect on what occurred.


case_title: Re Coyle (1993) 42 FCR 72


case_title: Re Edwards (1987) 14 FCR 113

case_text: The first argument is that the first Naylor proposal was an impermissible joint or unitary composition. Section 73 , it was submitted, did not permit two bankrupts to put a proposal in one document. I do not agree. The proposal was joint and several. Section 73 requires a proposal to the bankrupts' creditors. There is no reason why one proposal cannot be put forward, as long as it was put forward to all three groups of creditors, as it plainly was and was intended to be. The proposal, if put to a meeting of an individual body of creditors, can be seen as a proposal put forward by the bankrupt for his creditors to deal with. It is said that the proposal to each estate cannot come in the same joint form and that three cases stand as authority for that proposition; Re Pepper (1969) 14 FLR 282 , Re Tynan; Ex parte Tynan (1997) 16 FCR 307 and Re Edwards (1987) 14 FCR 113. 66 In Re Edwards 14 FCR 113 French J dealt with one joint composition covering two estates, a joint estate and a several estate. Despite some of the language in the judgment, it is clear that the vice identified by his Honour was the single approval for all the estates in one meeting. This can be seen by his Honour's reliance upon the reference to Re Forbes 24 FLR 87. French J said the following at 116: In a case where the bankrupts have some joint creditors and some separate creditors it would be inappropriate to submit the separate creditors to a binding composition on which they may have been out-voted by joint creditors with quite different interests. Similarly it would be inappropriate to admit to a vote on a joint composition, separate creditors whose interests might conflict with those of the joint creditors. Re Forbes was a decision of Judge White in the Court of Insolvency of South Australia in which his Honour declared void a composition purportedly entered into under Part X of the Act, by a husband and wife who were not in partnership but who had substantial joint creditors. Each also had separate debts. A joint meeting of creditors was called at which a composite special resolution was passed. Creditors of all classes voted on the composite resolution. His Honour then quoted White J at page 88. French J concluded his judgment by saying: The proposal if it is to be proceed will have to be recast in the form of separate proposals for each of the bankrupts. Each will require a separate meeting of creditors although the meetings can be held concurrently provided that the procedure necessary to maintain the distinction between the two proposals is followed. On this basis I have no alternative but to dismiss the application. 67 In Re Tynan 16 FCR 307, French J had a case before him where there were bankrupts who had been partners with no separate bankrupt estate. Some passages of the judgment of French J appear, taken literally, to prevent under s 73 any joint composition to be entered where there is more than one estate. I do not think his Honour's reasons should be so read, especially in the light of the terms of Re Edwards 119 FCR 113 in the same year. By his Honour's reference to Re Pepper 14 FLR 282 and Re Edwards 14 FCR 113 (and through it Re Forbes 24 FLR 97) and via what his Honour said at pages 312 and 313 about the need for separate meetings, I conclude that his Honour was dealing with the same essential difficulty, that is, of mixing up the voting of different creditors at different meetings.


case_title: Re Forbes (1974) 24 FLR 87

case_text: In Re Forbes (1974) 24 FLR 87, White J of the Court of Insolvency of South Australia discussed Part IX and s 187 of the Bankruptcy Act . The issue there identified was not the putting of a composite proposal, but the putting of a composite proposal to one undifferentiated meeting. The essence of the matter was put at pages 88 and 93, as follows: In my opinion, this procedure is not open to debtors under Part X and the alleged composition is void. They should have held separate meetings (albeit concurrently) to which separate special resolutions could have been submitted to the relevant classes of creditors, in order that the wishes of interested parties be ascertained, including the existence or otherwise of the appropriate majorities both in number and value. Where there are joint creditors, it is a matter of necessity rather than convenience that meetings are held at the one time and the one place. As will be seen later, care must be taken at such concurrent meetings to separate out the different resolutions relating to each debtor and the classes of creditors entitled to vote in relation to each resolution. ... I am happy to say that I reached this conclusion before reading Mr Irlicht's small but excellent book "Assignments, Arrangements and Compositions by Debtors" where he expresses the opinion ...: "There should be a separate meeting with respect to each debtor, although there is no objection against holding meetings of more than one debtor concurrently, providing that a special resolution is passed with respect to each debtor (of course only the creditors of the debtor in question can vote on the relevant resolution, but creditors to whom debtors are jointly indebted may vote on the resolutions with respect to each debtor). This procedure of holding concurrent meetings is best adopted when there are a number of joint debtors". 65 The case does not assist with the question whether one group of creditors should not have the opportunity to vote on a proposal which involved another debtor. 66 In Re Edwards 14 FCR 113 French J dealt with one joint composition covering two estates, a joint estate and a several estate. Despite some of the language in the judgment, it is clear that the vice identified by his Honour was the single approval for all the estates in one meeting. This can be seen by his Honour's reliance upon the reference to Re Forbes 24 FLR 87. French J said the following at 116: In a case where the bankrupts have some joint creditors and some separate creditors it would be inappropriate to submit the separate creditors to a binding composition on which they may have been out-voted by joint creditors with quite different interests. Similarly it would be inappropriate to admit to a vote on a joint composition, separate creditors whose interests might conflict with those of the joint creditors. Re Forbes was a decision of Judge White in the Court of Insolvency of South Australia in which his Honour declared void a composition purportedly entered into under Part X of the Act, by a husband and wife who were not in partnership but who had substantial joint creditors. Each also had separate debts. A joint meeting of creditors was called at which a composite special resolution was passed. Creditors of all classes voted on the composite resolution. His Honour then quoted White J at page 88. French J concluded his judgment by saying: The proposal if it is to be proceed will have to be recast in the form of separate proposals for each of the bankrupts. Each will require a separate meeting of creditors although the meetings can be held concurrently provided that the procedure necessary to maintain the distinction between the two proposals is followed. On this basis I have no alternative but to dismiss the application. 67 In Re Tynan 16 FCR 307, French J had a case before him where there were bankrupts who had been partners with no separate bankrupt estate. Some passages of the judgment of French J appear, taken literally, to prevent under s 73 any joint composition to be entered where there is more than one estate. I do not think his Honour's reasons should be so read, especially in the light of the terms of Re Edwards 119 FCR 113 in the same year. By his Honour's reference to Re Pepper 14 FLR 282 and Re Edwards 14 FCR 113 (and through it Re Forbes 24 FLR 97) and via what his Honour said at pages 312 and 313 about the need for separate meetings, I conclude that his Honour was dealing with the same essential difficulty, that is, of mixing up the voting of different creditors at different meetings.


case_title: Re Haines (1937) 10 ABC 83


case_title: Re Pepper (1969) 14 FLR 282

case_text: The first argument is that the first Naylor proposal was an impermissible joint or unitary composition. Section 73 , it was submitted, did not permit two bankrupts to put a proposal in one document. I do not agree. The proposal was joint and several. Section 73 requires a proposal to the bankrupts' creditors. There is no reason why one proposal cannot be put forward, as long as it was put forward to all three groups of creditors, as it plainly was and was intended to be. The proposal, if put to a meeting of an individual body of creditors, can be seen as a proposal put forward by the bankrupt for his creditors to deal with. It is said that the proposal to each estate cannot come in the same joint form and that three cases stand as authority for that proposition; Re Pepper (1969) 14 FLR 282 , Re Tynan; Ex parte Tynan (1997) 16 FCR 307 and Re Edwards (1987) 14 FCR 113. 63 In Re Pepper 14 FLR 282, Gibbs J (as he then was) decided that s 55(1) of the Bankruptcy Act , permitting a debtor to present a petition against himself, did not permit a number of debtors to present a joint petition. This construction was reached because the contrary would have permitted not only joint debtors, that is, debtors to a joint obligation, but several debtors who had no joint assets to present a petition. This case is of no particular assistance here, where as long as the proposal was one which the individual creditors of the individual bankrupt's estate can vote on, no inconvenience results therefrom. There is no inconvenience here of the kind referred to by Gibbs J in that case. 67 In Re Tynan 16 FCR 307, French J had a case before him where there were bankrupts who had been partners with no separate bankrupt estate. Some passages of the judgment of French J appear, taken literally, to prevent under s 73 any joint composition to be entered where there is more than one estate. I do not think his Honour's reasons should be so read, especially in the light of the terms of Re Edwards 119 FCR 113 in the same year. By his Honour's reference to Re Pepper 14 FLR 282 and Re Edwards 14 FCR 113 (and through it Re Forbes 24 FLR 97) and via what his Honour said at pages 312 and 313 about the need for separate meetings, I conclude that his Honour was dealing with the same essential difficulty, that is, of mixing up the voting of different creditors at different meetings.


case_title: Re Prince (1961) 19 ABC 39


case_title: Re Stainton (1887) 19 QBD 182


case_title: Re Tynan; ex parte Tynan (1997) 16 FCR 307

case_text: The first argument is that the first Naylor proposal was an impermissible joint or unitary composition. Section 73 , it was submitted, did not permit two bankrupts to put a proposal in one document. I do not agree. The proposal was joint and several. Section 73 requires a proposal to the bankrupts' creditors. There is no reason why one proposal cannot be put forward, as long as it was put forward to all three groups of creditors, as it plainly was and was intended to be. The proposal, if put to a meeting of an individual body of creditors, can be seen as a proposal put forward by the bankrupt for his creditors to deal with. It is said that the proposal to each estate cannot come in the same joint form and that three cases stand as authority for that proposition; Re Pepper (1969) 14 FLR 282 , Re Tynan; Ex parte Tynan (1997) 16 FCR 307 and Re Edwards (1987) 14 FCR 113. 67 In Re Tynan 16 FCR 307, French J had a case before him where there were bankrupts who had been partners with no separate bankrupt estate. Some passages of the judgment of French J appear, taken literally, to prevent under s 73 any joint composition to be entered where there is more than one estate. I do not think his Honour's reasons should be so read, especially in the light of the terms of Re Edwards 119 FCR 113 in the same year. By his Honour's reference to Re Pepper 14 FLR 282 and Re Edwards 14 FCR 113 (and through it Re Forbes 24 FLR 97) and via what his Honour said at pages 312 and 313 about the need for separate meetings, I conclude that his Honour was dealing with the same essential difficulty, that is, of mixing up the voting of different creditors at different meetings.


case_title: Theissbacher v MacGregor Garrick & Co [1993] 2 Qd R 223


case_title: Union Club v Battenberg [2006] NSWCA 72 ; (2006) 66 NSWLR 1


case_title: Van Reesema v Official Trustee (1983) 69 FLR 424


case_title: Wenkart v Pantzer [2003] FCA 432

case_text: The next basis was that the first Naylor proposal was vague and uncertain as the proposal had no unconditional finance. The proposal was for a loan from Nation Finance. The full terms of the proposal are annexed. Inquiries of the trustee revealed a certain inadequacy as to the understanding of the finance. In my view, that did not stop there being a proposal, rather it said something as to its attractiveness. It is true, as Beaumont J said in Wenkart v Pantzer [2003] FCA 432 at [26] that s 73(2A) and (4) indicate the following: Both these paragraphs indicate that the trustee is concerned here with matters of substance and not governed by any mechanical form in deciding how to respond. Thus, if the trustee does not have sufficient material upon which the trustee could indicate one way or the other whether a proposal would benefit the bankrupt's creditors generally, then, in my opinion there is no absolut,e and certainly no unconditional obligation on the trustee to call a meeting of creditors. 70 This does not mean, however, that, if a proposal which in all the circumstances the trustee decides is sufficiently formulated to go to creditors with the view of the trustee contemplated by 73(2A), that a resolution accepting or rejecting it by creditors cannot be seen to have taken place. It will be a matter for the trustee to judge whether or not there is sufficient information for there to be a proposal requiring him or her to go to a meeting. A Court may have to assess that at a point in time before any meeting. It is unnecessary to lay down definitional criteria for that beyond the words of the Bankruptcy Act . Each individual case will be different, the circumstances of the estate and the terms of the terms of the proposal will be different.


case_title: Worrall v Westpac Banking Corporation (1994) 51 FCR 304


case_text: These are reasons for judgment in short form for the orders that I gave today allowing in part an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act ") against a decision of the Administrative Appeals Tribunal ("the Tribunal"): for the power to allow such an appeal in part see s 44(4) and (5) of that Act: Commissioner of Taxation v Zoffanies Pty Ltd [2003] FCAFC 236 ; (2003) 132 FCR 523 at 544 and 546-547. 2 The applicant, Biago Giovanni Iacono, was a tax agent whose registration under Part VIIA of the Income Tax Assessment Act 1936 (Cth) ("the 1936 Act ") was suspended pursuant to s 251K(2) of that Act by the Tax Agents' Board of Victoria ("the Board"). Mr Iacono sought review of that decision in the Tribunal which in turn affirmed the Board's decision. 3 Subdivision H of Part VIIA of the 1936 Act has two separate regimes for the cancellation or suspension of a tax agent's registration. Section 251K(1) stipulates that in specified circumstances the Board shall suspend or cancel the registration of a tax agent and in such a case by virtue of s 251K(3B) the period of such a suspension "shall not be less than three months". That particular regime had no application in Mr Iacono's case. His suspension was effected under s 251K(2) which granted the Board a power to suspend or cancel the registration of a tax agent upon being satisfied that one of a number of stipulated matters had been demonstrated to it. Where the Board has determined that a registration should be suspended, s 251K(3) provides for present purposes "a suspension of the registration of the tax agent shall be for such period as the Board concerned thinks fit". 4 As the Tribunal recognised in its Reasons for Decision, the most important issue in the case was whether the correct decision had been made in suspending Mr Iacono's registration, i.e. the s 251K(2) question. In reaching its conclusion on this matter, the Tribunal found that the requirement of s 251K(2) had been satisfied and "accordingly the discretion exercised by the Board to suspend Mr Iacono's tax registration for a period of three months is appropriate". The Tribunal's decision to suspend is not presently in issue. 5 Turning to the question of what was the appropriate duration of the suspension, the Tribunal in its Reasons said: "[26] Mr Athanasiou [the solicitor for the applicant] submitted that Mr Iacono's suspension as a tax agent should be for a period of less than three months. However, s 251K(3B) of the ITAA provides that the period of suspension under subsection (1) shall not be less than three months. [27] Therefore the Board's decision should be affirmed." It is the above paragraph [26] which clearly gives an erroneous reason for rejecting the applicant's submission that was in issue in this appeal.


case_title: Comcare v Moon (2003) 75 ALD 160

case_text: Both parties accept in this matter, as they are clearly obliged to by the weight of authority, that this provision cannot be employed to re-visit the decision made as such. As Mansfield J said in Comcare v Moon (2003) 75 ALD 160 at [65]: "There is power to correct obvious errors in the text of a decision or the reasons under s 43AA , but not to reverse or vary the decision ... Matters of expression, or inconsistency or error in calculation, could be corrected in s 43AA , but not the decision itself." 10 In my view it clearly is the case that, having committed an error of law in the manner in which it rejected the applicant's submission for a lesser suspension than three months and having just fixed the suspension imposed because of that error of law, the Tribunal cannot properly rely upon s 43AA to vary its decision in substance by excising the formal manifestation of that error of law in the manner adopted in the Direction, thus allowing its decision to be sustained inferentially by s 251K(3).


case_text: There was a palpable jurisdictional error in this matter. The Tribunal simply did not address, as it was required to, what was the appropriate suspension under s 251K(3). This being the case that part of the decision is open to be set aside and remitted to the Tribunal for re-determination. Nonetheless the respondent Board has contended that the Tribunal has indicated in the Direction that if it had properly directed itself when making its decision it would have affirmed the Board's decision in any event. So it is said I should exercise my powers under s 44 of the AAT Act to affirm the Tribunal's decision: on the taking of such a course, see generally the decision of Sackville J in Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 ff. This is not a course that I am prepared to take in this matter. 12 When the Tribunal made its decision imposing the suspension that it did, it clearly did so on an improper basis and rejected categorically the applicant's submission by reason of that basis. It would, in my view, do nothing to enhance public confidence in the administration of this part of the Income Tax Assessment Act if the Tribunal having committed a palpable error, was permitted to retrieve its position by later giving a direction not authorised by s 43AA but which in turn, for Morales purposes, would have the effect of rendering remittal futile. No encouragement should be given to misusing s 43AA to such an end. It may well be the case, when the Tribunal reconsiders how it should exercise its discretion in relation to the length of the suspension, that it will arrive at the same decision. Be this as it may, I am not satisfied that that is a necessary or inevitable outcome once the Tribunal properly directs itself in relation to that question and in light of the submissions made to it on that matter: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540.


case_text: When the Tribunal made its decision imposing the suspension that it did, it clearly did so on an improper basis and rejected categorically the applicant's submission by reason of that basis. It would, in my view, do nothing to enhance public confidence in the administration of this part of the Income Tax Assessment Act if the Tribunal having committed a palpable error, was permitted to retrieve its position by later giving a direction not authorised by s 43AA but which in turn, for Morales purposes, would have the effect of rendering remittal futile. No encouragement should be given to misusing s 43AA to such an end. It may well be the case, when the Tribunal reconsiders how it should exercise its discretion in relation to the length of the suspension, that it will arrive at the same decision. Be this as it may, I am not satisfied that that is a necessary or inevitable outcome once the Tribunal properly directs itself in relation to that question and in light of the submissions made to it on that matter: see Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540.


case_title: Bahonko v Nurses Board of Australia [2006] FCA 1817

case_text: Under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) the applicant Ms Stanislawa Bahonko seeks leave to appeal to a Full Court against a decision of Middleton J given on 20 December 2006: Bahonko v Nurses Board of Victoria [2006] FCA 1817. His Honour ordered that further proceedings in the matter be stayed until the Victorian Civil and Administrative Tribunal (VCAT) had determined whether an administrator or guardian, or both, should be appointed for the applicant pursuant to a referral to VCAT by the County Court of Victoria under s 66 of the Guardianship and Administration Act 1986 (Vic). In the substantive proceeding the applicant seeks relief under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for alleged racial discrimination. 2 At that stage his Honour had already reserved judgment on a question relating to the continuation of legal representation engaged by the first respondent. There was also a pending application by the first and second respondents to have the whole proceeding dismissed. However, in granting the stay his Honour decided in effect that those questions should await the hearing and determination of the matter before VCAT: see [15]-[16]. 3 I do not detect any error in the exercise of his Honour's discretion to grant the stay. It does not appear that his Honour has taken into account any irrelevant consideration, or failed to take into account any relevant consideration. His Honour's decision on its face is not unreasonable; indeed, in my respectful opinion, it appears eminently sensible and its correctness is not open to doubt. The question of the proper representation of the applicant should be decided according to the law of Victoria which has now been invoked. There would be no reasonable prospect of success for the proposed appeal, and in such event leave should be refused. 4 It should be noted that the matter has been somewhat complicated by events after his Honour's decision. On 3 January 2007, on the ex parte application of the applicant, Bell J in the Supreme Court ordered that the Registrar of the County Court, amongst others, be restrained from participating in the VCAT proceeding. When the matter came on for hearing in VCAT on 10 January 2007 there was no appearance on behalf of the Registrar and the matter was accordingly dismissed. It appears from a letter from the Office of the Victorian Government Solicitor dated 30 January 2007 that the Registrar of the County Court will be applying in the Supreme Court to dissolve or vary the order of Bell J and then, subject to the outcome of that application, will apply to VCAT to revoke the order dismissing the VCAT proceeding. 5 The applicant asserted from the bar table that she had been told by Middleton J's Associate that the present application to the Court (VID 855 of 2006) would be "automatically reinstated". There is no verification of that assertion and it is not necessary for me to explore it because there can be no doubt that, until set aside or varied, Middleton J's stay order is operative. The events in January having occurred subsequent to his Honour's order they cannot affect its validity. In any event, it seems a matter of commonsense to wait until the procedures in the Victorian courts have worked out their proper course before this matter can resume. 6 The other matter before the Court is a notice of motion, dated 30 January 2007, brought by the applicant. She seeks orders that the proceeding VID 855 of 2006 be reinstated, that Middleton J stand down from hearing the matter further, that Russell Kennedy Lawyers "are removed from acting in the matter", that motions issued by Russell Kennedy with respect to VID 855 of 2006 "cannot affect future proceedings and must be put aside" and that the jurisdiction of the Court in the matter VID 855 of 2006 be "extended by adding relevant and criminal jurisdiction". 7 As I have already mentioned, the stay order is valid and operative, and that means that the notice of motion, being a further step in the proceeding, cannot be brought. It should be mentioned, of course, that it is entirely inappropriate to attempt to challenge the jurisdiction of one judge before another single judge. So the application for leave to appeal will be dismissed with costs, and the notice of motion dated 30 January 2007 will be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 7 February 2007 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: P Hanks QC and T Cordiner Solicitor for the First Respondent: Russell Kennedy Counsel for the Second Respondent: A O'Brien Solicitor for the Second Respondent: Victorian Government Solicitor Date of Hearing: 1 February 2007 Date of Judgment: 1 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/71.html


case_text: Further, the second Tribunal had already reviewed the delegate's decision. Once the Tribunal has delivered its decision free from jurisdictional error, it is functus officio . Once the statutory function is performed, there is no further function authorised under the Act for the Tribunal to carry out and it has no power to reopen the delegate's decision ( Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551 ; (1997) 76 FCR 301 per Goldberg J at 311).


case_text: In Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9 ; (2000) 199 CLR 343 Gleeson CJ, McHugh, Gummow and Hayne JJ noted that the Act contemplates changed circumstances which might found a fresh application to the Tribunal, but imposes the limitations found in ss 48A and 48B. As their Honours said at [30]: It would be inconsistent with that scheme and contrary to the ordinary reading of Div 2 of Pt 7 of the Act to treat the decision of the Tribunal as provisional in nature. In the situation where the Tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate made on 11 October 1995, the Act did not confer upon the Tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.


case_text: I asked the applicant what he would have said to the third Tribunal had he been given the opportunity to address it on the question of jurisdiction. I also asked the applicant to identify any error in the conclusion by Smith FM that the third Tribunal had not erred in finding that it had no jurisdiction to hear his present application. The applicant was unable to make any relevant submission other than his assertion that the second Tribunal made a mistake and he wished to have the second Tribunal decision reconsidered. Therefore, even if there had been a denial of natural justice or procedural fairness, no practical injustice flows from it ( Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 per Gleeson CJ at [37]). As the Minister submits, an opportunity to address the Tribunal on the question of jurisdiction was ' a hollow opportunity '. 40 In the applicant's affidavit he alleges a failure on the part of the third Tribunal to comply with s 424A of the Act. Such a complaint is misconceived in circumstances where the third Tribunal found that it had no jurisdiction to conduct a second review of the delegate's decision. Section 424A is part of those provisions of the Act which govern the procedures to be adopted in the conduct of a review (set out in Part 7 Div 4 of the Act). Those provisions were not engaged. 41 The applicant has not established any purpose in remitting the matter to the Tribunal or any practical consequence arising from any denial of procedural fairness or natural justice. The applicant has not shown any error on the part of the Federal Magistrate nor has he shown that he has any prospects of success in an appeal from that decision. No substantial injustice would result if leave to appeal is not granted. The application for leave to appeal should be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 19 December 2008 The Applicant appeared in person Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 25 November 2008 Date of Judgment: 19 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1940.html


case_text: In SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175 , the applicants sought a further review by the Tribunal of a delegate's decision. Justice Moore said at [16]: In my view, a proper construction of the Act tells against a conclusion that the Tribunal is empowered to again review the delegate's decision in circumstances where the Tribunal's original decision was not attended with jurisdictional error. Treating the Tribunal as authorised to undertake a second review of the delegate's decision would be contrary to the statutory aim of providing a mechanism of review that is "fair, just, economical, informal and quick": see s 420(1) of the Act. 24 As Smith FM said in SZEYK v Minister for Immigration [2008] FCA 1354 at [5] : ... the Tribunal referred to well known authority which establishes that it does not have jurisdiction to review a delegate's decision twice. That line of cases has recently been followed by Cowdroy J in SZCKX v Minister for Immigration & Citizenship [2008] FCA 526 and Moore J in SZBWJ v Minister for Immigration & Citizenship [2008] FCA 1175. 25 For these reasons, Smith FM did not err in his conclusion that the third Tribunal did not have jurisdiction to consider the application to conduct a second review of the delegate's decision. The third Tribunal correctly found that it lacked jurisdiction. 26 The applicant contends that he was denied procedural fairness by the third Tribunal. He claims that when he filed his application he was issued with a standard letter and then received no further correspondence from the third Tribunal (until the letter notifying him of the decision) and was not asked the reason for his repeat application. He claims that the third Tribunal did not give him an opportunity to reply concerning the validity of his application.


case_text: As French J held in Collier Constructions Pty Ltd v Foskett Pty Ltd (1992) 33 FCR 591 at 592, the purpose of the subsection "is to require prospective applicants in proceedings in this Court, when the money sum or damages claim is likely to be modest, to consider the desirability to proceeding in another jurisdiction ..."


case_text: The damages sought by the applicant in this proceeding were far from modest. They amounted to $1,380,000. This was not a case which, had the applicant's principal submissions been accepted, it was likely that the best that could be hoped for by way of damages would have been less than $100,000. Moreover, the issues were complex as evidenced by the engagement, on both sides, of senior counsel and the length of the submissions made on behalf of both parties: cf Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287 at 293. These considerations warrant, in my view, a departure from the general rule. 13 There should, therefore, be an order that costs not be reduced pursuant to O 62 r 36A(1) of the Rules. Save for the addition of this order and the deletion of the words "reduced by one third" in the first of the two orders proposed by the respondent the orders of the Court should be in accordance with those proposed by the respondent. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 12 June 2007 Counsel for the Applicant: Mr M Colbran QC & Mr I Upjohn Solicitor for the Applicant: Scanlan Carroll Counsel for the Respondent: Mr C Macaulay SC & Mr T Woodward Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: (Written Submissions received 23 & 28 May 2007) Date of Judgment: 12 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/878.html


case_text: spoken word is the vehicle used to shape views on radio current affairs programs. The identity of the speaker, if known to the audience, can itself influence their receptivity to what he or she says; as can the speaker's oratorical style and manner of delivery. And, because of its orality, publication in a radio broadcast conveys a transient message. The listener may tune in or turn on the radio part way through a program; he or she may have missed an earlier disclosure announcement by the presenter when he or she returns to a topic that attracts an obligation to make such an announcement. If it is not made, that new listener will not be aware of what the disclosure standard, and the licence, require be conveyed contemporaneously, namely the presenter's sponsorship. Additionally, listeners may not always be attentive to what is being broadcast on radio and may miss the significance, or indeed the occurrence, of an earlier disclosure statement in the same program. That can affect the meaning which the listener understands to have been conveyed by what he or she hears the presenter saying later. These characteristics of transient communications, such as radio or television broadcasts, are also recognised in the common law principles of defamation: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165G-166E per Hunt CJ at CL, Mason P and Handley JA agreeing. Thus, the transience both of what is spoken on-air during a radio broadcast and of the listening audience (who may tune in or out at any time and, when tuned in, may pay closer or lesser degrees of attention) underlie the policy behind the disclosure standard's insistence on the presenter making a disclosure announcement contemporaneously each time one of his or her sponsor's name, products or service is mentioned. The liability in s 140A(3) corresponds to, but is distinct from the criminal liability imposed by s 139(3). The conduct proscribed by each section is the same, namely a breach of a condition of a licence set out in cl 8(1) of Sch 2, including a breach of the disclosure standard. But the objects of the two sections are not the same. One object of s 140A(3) is to create a civil, not criminal, liability so as to enable the Authority to secure compliance with important provisions in the Act more readily than through criminal proceedings. But another object of the section is to reinforce the norm of conduct for licensees in s 139(3) and to provide a means to enforce their compliance with it less drastic than the remedies existing before 2006.


case_text: Victoria v Australian Building Construction Employees' and Builders Labourers' Union [1982] HCA 31 ; (1982) 152 CLR 25 at 98 as Mason J spoke of "... the overriding importance of freedom of discussion and speech", adding "without information, there can be no meaningful discussion": see too Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 139-140 per Mason CJ. It is now established that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is the correlative of the interest in receiving it: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. The media fulfil a vital role in the ability of the Australian community and, in particular, electors to engage in the discussion of government and political matters, and ss 3 and 4(1) of the Act, in part, recognise this.


case_text: Australian Competition and Consumer Commissioner v Qantas Airways Ltd (2008) 253 ALR 89 at 107-108 [25]-[27] Lindgren J identified 11 propositions relating to the fixing of penalties under the Trade Practices Act as flowing from the decisions in NW Foods [1996] FCA 1134 ; 71 FCR 285 and Mobil (2004) ATPR p41-993 (and these were recently applied by Jacobson J in Australian Competition and Consumer Commission v PRK Corporation Pty Ltd [2009] FCA 715 at [20] - [24] ). These included the propositions that: the Court is not obliged to commence its reasoning with the level of the agreed penalty and limit itself to considering whether that penalty is within the range; the Court is entitled to address the question independently at the outset of its reasoning; the admissions and agreed facts should not be approached as if they had been "tailored or modified to reflect the difficulties faced by the [regulator] in proving its case"; the regulator should always explain to the Court the process of reasoning said to justify a discounted penalty.


case_title: Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89


case_text: common law the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence in a criminal proceeding. That is because it is usually evidence of some remorse on the part of the offender, and secondly, an acceptance of responsibility. It may also indicate a willingness to facilitate the course of justice: see Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339 at 343 [11] - [14] per Gaudron, Gummow and Callinan JJ. In Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at 404-405 [73] - [76] , Stone and Buchanan JJ considered the applicability to civil penalty proceedings of the common law principle of affording a discount to a sentence imposed after a plea of guilty. Stone and Buchanan JJ concluded that the rationale for providing a discount for an early plea of guilty in a criminal case did not apply neatly to a case where a civil penalty is sought and the case proceeded on pleadings. They said, that nonetheless, it should be accepted for the same reasons as given in Cameron [2002] HCA 6 ; 209 CLR 339 , that a discount should not be available simply because a respondent has spared the community the cost of a contested trial. They held that the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability, first had indicated an acceptance of wrongdoing and a suitable and credible expression of regret, and or secondly, had indicated a willingness to facilitate the course of justice: Mornington Inn 168 FCR at 405 [76].


case_title: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australia Competitions and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466

case_text: Parliament provided that the civil penalty could match the criminal penalty for the same conduct of a commercial radio broadcasting licensee in breaching a condition of its licence. However, the imposition of a civil penalty under s 140A(3) would not carry the stigma attached to a criminal conviction under s 139(3). And, pursuant to s 205K of the Act the civil penalty could be imposed after a trial using the civil onus of proof (see too s 140 of the Evidence Act 1995 (Cth)): see too Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 at 477-482 [19] - [38] per Weinberg, Bennett and Rares JJ.


case_text: 2UE had a privilege conferred on it under the Act to conduct a broadcasting service on the public radio spectrum. Conditions of its licence required it to ensure that the disclosure standard's requirements were met. Mr Laws had significant and valuable commercial agreements with six different sponsors in 2007. I infer that those sponsors saw considerable benefit to their businesses in having Mr Laws refer to and promote their names and brands, products or services in as favourable light as possible. It can also be safely inferred that he was seen by his sponsors to be able to use Radio 2UE's licence to influence public awareness and opinion with respect to their own products or services (see s 4(1) of the Act). Material which is designed or calculated to draw public attention to a person, product or service or to promote its use may constitute an advertisement: Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5 ; (1990) 168 CLR 594 at 598 per Brennan, Dawson and Gaudron JJ, 605 per Toohey and McHugh JJ. And, Radio 2UE was conscious that Mr Laws was not only able to use its licence in this way, but that he had done so.


case_text: fact that a defendant who is covered by compulsory third party motor vehicle insurance and so will not pay the sum awarded as exemplary damages from his, her or its own pocket, or that the defendant is the insurer, does not restrict the power of the court to award exemplary damages: Lamb 164 CLR at 11; Gray v Motor Accident Commission (1998) 196 CLR 1 at 12-13 [32]-[36] per Gleeson CJ, McHugh, Gummow and Hayne JJ, 29 [87] per Kirby J, 50 [141] per Callinan J.