case_text: Whether Mama's had reasonable grounds for believing the truth of representations about a future matter involves an objective test. The same is not true of the alleged personal accessories: the applicants must "demonstrate that such a person: • knew that the representation was made, and either: • knew that it was misleading; or • knew that the corporation had no reasonable grounds for making it": Australian Competition & Consumer Commission v Michigan Group Pty Ltd (ACN 065 378 029) [2002] FCA 1439 at [303] per Dowsett J. Nor, unlike the corporation involved (cf s 51 TPA) does a natural person bear any onus. 150 I accept the applicants' submissions that: • The following representations can be characterised as representations as to future matters: (a) if not satisfied and provided a 6 or 12 month period had expired since the oven was supplied, the proprietor had a right to require Mama's to take the oven back whereupon they would be released from all financial obligations in respect of the oven; (b) if not satisfied and provided a 6 or 12 month period had expired since the oven was supplied, the proprietor had a right to require Mama's to cancel the lease with the financier whereupon they would be released from all financial obligations in respect of the oven; (c) the supply of the oven was financially risk free. • There is no evidence that Mama's had reasonable grounds for believing that any of those representations was true. As to Mr Hilder and Mr Soo respectively, to the extent that each was involved, he knew that the representation was made and either knew that it was misleading or that Mama's had no reasonable grounds for making it. • There is no doubt that the representations were misleading and deceptive: (i) the oven recipient would not be released from all financial obligations in respect of the oven upon its return after the nominated trial period; (ii) Mama's was legally unable to cancel the lease with the financier upon such return; and (iii) the acceptance of the oven from Mama's was far from financially risk-free: any such freedom depended on Mama's willingness, if need be, to sustain a substantial loss in respect of the oven and, at least, to put itself heavily out of pocket in relation to the oven until a resale of the oven and, in reality, permanently out of pocket to some degree, even assuming the willingness of the financier to finance a resale or to accept termination of its lease arrangement. 151 Quite apart from these in limine ways in which the representations were misleading and deceptive, there are other grounds for so concluding: • In none of the five cases was the oven taken back as requested or provided. Nor were the oven operators released from their financial obligations to the financiers. They were landed with an overpriced oven which, on the respondents' recommended system, had proven unprofitable, and were subject to substantial credit charges under a long-term contract. That is a long way from supposedly having entered into a financially risk-free arrangement. • Neither Mama's nor Mr Hilder had any arrangement with the financiers that envisaged a six (or 12) month trial period or a release of the lessee from obligations after 6 (or 12) months for any reason whatsoever. • Both Mr Hilder and Mr Soo (especially Mr Hilder but, quite firmly in my mind, also Mr Soo) well knew that they were at least gilding the lily. They both knew the propensity of financiers to insist upon the performance of obligations to them by their borrowers and quasi-borrowers. They both knew that what they were telling their prospects who became oven recipients was not in accordance with the realities of loan financing and the ease of resale of a second-hand oven originally sold at greatly over value. • They both knew all the essential ingredients of the misleading and deceptive aspect of the transactions which I have identified. Mr Soo understood the financing arrangements. He knew that, as between the oven "owners" and the financiers, there was a 60 month deal, not one for a risk free 6 month trial. Mr Hilder negotiated the financing. • Mr Hilder preferred not to face up to the complainants. Mama's entire system of operations was his invention.


case_outcome: applied

case_text: Both personal respondents have experience in selling food preparation equipment to food retailers, and may be expected to wish to continue to do so. In any case s 80 has given the Court, as Lockhart J put it in ICI Australia Operations Pty Ltd v Trade Practices Commission [1991] FCA 527 ; (1992) 38 FCR 248 at 256: "the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly". 158 In the same case, French J pointed out, at 268: There is room within the statutory framework and the policy that underlies it for an injunction which is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence. That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court. 159 In my view, it is desirable in this case to have regard to such likely deterrent effect of injunctions. I will issue appropriate injunctions. 160 Section 83 of the TPA provides (and its ASIC Act analogue provides in substance): In a proceeding against a person under section 82 or in an application under subsection 87(1A) for an order against a person, a finding of any fact by a court made in proceedings under section 77, 80, 81, 86C or 86D, or for an offence against a provision of Part VC, in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of Part IV, IVA, IVB, V or VC is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.


case_outcome: discussed

case_text: Section 83 is an evidentiary aid to the proof of facts. There are other proceedings on foot against the respondents and there may well be more to come. The applicants, however, appear to conceive that s 83 is the source of a positive remedy for the instant applicants , presumably for members of the public generally. They seek "findings of fact against [Mr Hilder and Mr Soo] pursuant to s 83 ... and under its ASIC analogue ..." (emphasis added). In ACCC v Leahy Petroleum (No 2) [2005] FCA 254 (at [74]) it appears from Merkel J's judgment that the ACCC "sought an order under s 83 ... that the findings of fact contained in my reasons of judgment be findings of fact for the purposes of s 83".


case_text: In Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2006] FCA 244 Nicholson J, apparently following his line of thought, considered that the Court should formally record findings of fact in its orders.


case_text: The applicants say that such a practice reduces the difficulty for other courts in deciding whether a passage in reasons for judgment amounts to or contains a finding of fact, cf Australian Competition & Consumer Commission v Emerald Ocean Distributors Pty Ltd [2004] FCA 303 at [17] per Nicholson J. Merkel J had declined to do this. He thought it was enough (but, it seems, necessary) to order that a copy of the reasons "be under the seal of the Court and be held in the Melbourne Registry...". Nicholson J thought (and on this scope I agree with him) that such an order was unnecessary. 164 While s 83 occurs in Part VI of the TPA, entitled "Enforcement and Remedies", I do not see it as having been intended to provide a present applicant with a positive present remedy, even for other misled or deceived people, except insofar as that applicant might, like anyone else, wish to take advantage of the evidentiary help which the section provides of its own force to people at large against an erring respondent. It is to be contrasted with s 86C. In particular cases, it may indeed be generally helpful for the Court to collect and formalise its findings of fact. There is however no requirement for a busy court to do so. The suggested practice may also actually run up costs in some cases by causing debate (or even appeal) about the precise content of the proposed formal findings of fact. What degree of formality the findings of fact should take should be left to the good sense of the judge in the particular case. 165 I have, I hope, expressed myself with reasonable clarity. This case does not depend on fine distinctions. I do not intend to follow the course suggested. 166 The applicants seek orders under s 86C that Mr Hilder and Mr Soo each: (1) disclose the persons to whom they have supplied food preparation equipment; (2) tell all such persons of my judgment and orders and advise them of TPA or ASIC Act rights they may have; (3) publicly advertise the information referred to in (1) and (2); (4) identify financiers of such supplied equipment; (5) verify their compliance with the foregoing orders; (6) attend, and verify attendance at, seminars on Part V TPA and Part 2 Div 2 ASIC Act compliance. 167 I will make the requested orders referred to as (1) to (5) inclusive above. I will however allow liberty to the second and third respondents to apply in relation to any bona fide difficulty either of them may face in complying with the orders as framed.


case_outcome: referred to

case_text: of the orders sought in the application is an order that leave be granted to any person claiming to be interested to make an application to vary these orders. In Re Diamond Press Australia Pty Ltd [2001] NSWSC 313 at [12] , Barrett J observed that this is a sensible precaution. It was one which was followed by Lindgren J in Re Double V Marketing Pty Ltd [1995] FCA 1151 ; (1995) 16 ACSR 498.


case_title: Re Double V Marketing Pty Ltd [1995] FCA 1151 ; (1995) 16 ACSR 498


case_text: seems to me that the proper approach to this application is to permit the creditors to adjourn the date of the second meeting. I refer to [15] of Ex parte Vouris and to the observations of Barrett J in Re Porter and Another as joint administrators of Priceright Construction Pty Limited (2006) 57 ACSR 206, in which his Honour observed that it is now well recognised that the Court has power to extend the convening period under section 447A in a way that section 439A does not allow.


case_title: Ex parte Vouris; in the matter of Marrickville Bowling & Recreation Club Ltd (under administration [2008] FCA 622

case_text: is an application under section 447A of the Corporations Act 2001 (Cth) ("the Act") to permit the creditors of the company to adjourn the date of the second meeting of creditors. I dealt with such an application in the matter of Ex parte Vouris; in the matter of Marrickville Bowling & Recreation Club Ltd (under administration) [2008] FCA 622. However, the present application is not quite as straight forward as that with which I dealt in Ex parte Vouris . The circumstances in which the application is made are set out in an affidavit of Mr Geoffrey Philip Reidy, who is the administrator of Collective Olive Groves Limited ("COGL"). Mr Reidy was appointed administrator on 19 November 2008. COGL owns a substantial parcel of land at Speers Creek Road, Stonehenge, Queensland upon which olives are grown. The land forms part of the assets of a managed investment scheme. A company known as Australian Olives Limited ("AOL") was at one stage responsible for the management of the land. It seems to me that the proper approach to this application is to permit the creditors to adjourn the date of the second meeting. I refer to [15] of Ex parte Vouris and to the observations of Barrett J in Re Porter and Another as joint administrators of Priceright Construction Pty Limited (2006) 57 ACSR 206, in which his Honour observed that it is now well recognised that the Court has power to extend the convening period under section 447A in a way that section 439A does not allow. It seems to me that on the sketchy information which has been provided to me, this period is too long. I dealt with the authorities relating to the appropriate extension of time in [16] and [17] of Ex parte Vouris . In my view, the adjournment which should be permitted should be not more than 20 business days from Monday 23 February 2009. I have selected that date as the date from which to measure the time because that was the date to which the second meeting was adjourned. I will make orders in terms of the six orders that are set out in the Application, but inserting in the paragraph numbered 3 after the words "extend beyond" the words "20 March 2009". I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 19 February 2009 Counsel for the Plaintiffs: B. DeBuse Solicitor for the Plaintiffs: Truman Hoyle Date of Hearing: 19 February 2009 Date of Judgment: 19 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/177.html


case_outcome: followed

case_text: It has been said on behalf of the Applicants that whatever privilege may have attached to this advice has been waived. Reliance is placed by the Applicants upon Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at 13, where it was observed: Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege.... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality... 12 The " inconsistency " relied upon by the Applicants is said to arise from the following two paragraphs of an Affidavit sworn by Mr William Beilby on 9 January 2008, wherein the deponent said: On 8 January 2008 I forwarded an Advice from Naomi Sharp of counsel dated 20 December 2007 to my client who resides in The Netherlands for his further instruction. On 9 January 2008 I received instructions from my client to file an Appeal against the decision of Justice Flick dated 29 November 2008 [sic] which provides that the Respondent attend Australia to be cross-examined on 1 and 2 May 2008. 13 It is not considered that there is any inconsistency and that there has been no waiver of the privilege otherwise attaching to the advice of Naomi Sharp. Accordingly, production is not ordered of that advice.


case_text: The share account statements referred to in paragraph 47 of the affidavit of Ian Carey dated 5 November 2007. The Respondent's Notice of Motion seeking to set aside this Notice to Produce is that filed on 14 December 2007. 2 Also before the Court is an oral application made by the Respondent seeking to set aside a second Notice to Produce served by the Applicants and dated 1 February 2008. That Notice to Produce seeks the production of: Advice from Naomi Sharp dated 20 December 2007. 3 The first Notice to Produce , dated 29 November 2007, invokes Order 15A, rule 6 of the Federal Court Rules 1979 (Cth), which provides as follows: Discovery from prospective respondent Where: (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision; the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c). The present provision of relevance is paragraph (c) and the discretion conferred. 4 Argument this morning proceeded upon the basis that the success or failure of the Motion could be tested by looking at the first document described in the Notice to Produce , namely, the statement of the two accounts. The Affidavit of Ian Carey referred to in the Notice to Produce , being that sworn on 5 November 2007, provided in paragraph 10 as follows: In January 2000, the deposit from the sale of the 37 Carr Street property (after deduction of the agent's commission) of $120,432 had been paid into my bank account at Bank of Melbourne by mistake. This account was later closed and the funds transferred to another account of mine in Australia. 5 On behalf of the Respondent it was submitted that Rule 6(c) required a three stage progression namely: 1) an inquiry as to whether there was " reasonable cause to believe "; 2) whether there were any documents in the possession of his client, or likely to have been in the possession of his client, relating to the question of whether the Applicants had a " right to obtain the relief "; and 3) the exercise of the Court's discretion, that discretion being conferred by the phrase " the Court may order ". Left to one side has been the resolution of any question as to whether compliance with previous orders of this Court, or non-compliance, could contribute to the Court forming a view that there was a " reasonable cause to believe ". 6 For present purposes it was accepted by the Respondent that the bank accounts referred to in paragraph 10 of the Affidavit indicated that there were documents likely to have been in the possession of the Respondent, and that such documents could " relat [e] to " the question of whether the Applicants had a " right to obtain the relief ". Attention on behalf of the Respondent was thus focused upon the exercise of the Court's discretion. 7 Considerable caution must be exercised in ordering the production of documents in circumstances where the application before the Court is an order under Order 15A of the Federal Court Rules . In SmithKline Beecham PLC v Alphapharm Pty Ltd [2001] FCA 271 Finkelstein J observed: [19] O15A is designed to enable a person to determine whether he has a good cause of action against a prospective defendant. It is not designed to secure for a prospective plaintiff all the documents and other information that would be discoverable if a proceeding were commenced against the defendant. Nevertheless, some "fishing" must be permitted, for otherwise there will be little scope for the operation of the rule. Speaking generally, however, once a person is in a position to make a decision whether he has a good (or perhaps arguable) cause of action, the criteria to be satisfied before an order can be made under O15A, r6 will not be satisfied. 8 In the circumstances of the present case, however, it is considered that the Applicants fall within the ambit of Order 15A, rule 6 and that the discretion should be exercised in their favour. Relevant to the exercise of the discretion is the potential importance of the documents which have been sought in the resolution of the question as to whether the Applicants have a right to obtain relief. The statements of the two accounts referred to in paragraph 10 of the Respondent's Affidavit , it is considered, are of considerable potential importance. 9 In the absence of any distinction being drawn between the documents identified in paragraph 1, as opposed to the Notice to Produce generally, it is thus considered that production should be ordered of all of those documents identified in paragraphs 1 7 of the first Notice to Produce . 10 The second Notice to Produce , dated 1 February 2008, seeks the production of an advice from Naomi Sharp of counsel.


case_outcome: cited

case_text: I will revert to this matter specifically when dealing with the proposed pecuniary penalty, I should emphasise at the outset, and the parties themselves acknowledge, that the Court retains the responsibility for imposing penalties and for making orders, the parties' agreement notwithstanding. That responsibility derives ultimately from s 71 of the Constitution and cannot be circumscribed by private agreement: see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 at [18] . This said, the Court has long recognised the propriety of encouraging fair and appropriate settlements so reducing the burden of litigation on public and private resources: see eg Australian Competition and Consumer Commission v Econovite Pty Ltd [2003] FCA 964 at [11] ; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290-291. CONSIDERATION The Declarations Sought


case_text: I will revert to this matter specifically when dealing with the proposed pecuniary penalty, I should emphasise at the outset, and the parties themselves acknowledge, that the Court retains the responsibility for imposing penalties and for making orders, the parties' agreement notwithstanding. That responsibility derives ultimately from s 71 of the Constitution and cannot be circumscribed by private agreement: see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 at [18] . This said, the Court has long recognised the propriety of encouraging fair and appropriate settlements so reducing the burden of litigation on public and private resources: see eg Australian Competition and Consumer Commission v Econovite Pty Ltd [2003] FCA 964 at [11] ; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290-291. CONSIDERATION The Declarations Sought As to the first of the above, I am with some hesitation prepared to make the orders proposed. On the material before me only Mr Fields has been shown to have been engaged in the conduct founding the contravention; the company has less than 10 employees; and there is no evidence as to the respective responsibilities of those employees such as to permit a judgment to be made as to the utility of making the relatively elaborate orders proposed. Nonetheless, because Hobie has consented to what is proposed; because the orders, in intent at least, have both preventative and educational purposes and this is reflected in their design: cf Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881 at [267] ; and because the programme is one to be tailored to Hobie's circumstances (notwithstanding the reference to the Australian Standard on Compliance Programs AS3806: cf Econovite at [17]), I am prepared to make the proposed compliance programme orders.


case_outcome: considered

case_text: I will revert to this matter specifically when dealing with the proposed pecuniary penalty, I should emphasise at the outset, and the parties themselves acknowledge, that the Court retains the responsibility for imposing penalties and for making orders, the parties' agreement notwithstanding. That responsibility derives ultimately from s 71 of the Constitution and cannot be circumscribed by private agreement: see Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 at [18] . This said, the Court has long recognised the propriety of encouraging fair and appropriate settlements so reducing the burden of litigation on public and private resources: see eg Australian Competition and Consumer Commission v Econovite Pty Ltd [2003] FCA 964 at [11] ; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290-291. CONSIDERATION The Declarations Sought I have referred already to the requirements of s 76(1) and to the considerations it includes amongst matters relevant for the Court to have regard to in determining an appropriate pecuniary penalty. I need not repeat them. Additionally, a considerable body of authority has enlarged upon the principles governing the imposition of pecuniary penalties. Those principles were helpfully distilled by Kenny J in Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859 at [16] . Her Honour there said: "The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 at [60] - [75] ; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission [1996] FCA 1134 ; (1997) 71 FCR 285 at 290-295; J McPhee & Son (Aust) Pty Ltd v Australian Consumer and Competition Commission [2000] FCA 365 ; (2000) 172 ALR 532 ; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] - [58] . These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 at [51] ; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 at [70] ; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 at [303] ." Before analysing the circumstances revealed in this matter in light of the considerations and principles referred to in s 76(1) and in the above extract, it is appropriate to note the observations of Burchett and Kiefel JJ in the Full Court in NW Frozen Foods . Having referred to the "unity" in the case law affirming the public interest in the promotion of settlements, especially in this area where litigation is likely to be very lengthy, their Honours observed (at 298-299): "We agree with the statement made in several of the cases cited that it is not actually useful to investigate whether, unaided by the agreement of the parties, we would have arrived at the very figure they propose. The question is not that; it is simply whether, in the performance of the Court's duty under s 76 , this particular penalty, proposed with the consent of the corporation involved and of the Commission, is one that the Court should determine to be appropriate." In considering the appropriateness of the proposed quantum of pecuniary penalty it is necessary to have regard to the various considerations to which I have referred above and to which I now turn. (i) The nature and extent of the contravening conduct and the circumstances in which it took place: s 76(1) The contravening conduct was born of Mr Fields' decision in August 2004 and was thereafter implemented in all of its dealership agreements until revoked at the end of 2007. It was directed at all of Hobie's sail boat and kayak dealers across Australia. It was the product of the unilateral action of Mr Fields which was taken without legal advice. Its documentary expression was clear and unequivocal in its purport: Hobie did not want its dealers to discount Hobie products. (ii) The amount of loss or damage occasioned: s 76(1) While the parties have provided me with a list of the pecuniary penalties imposed in cases dealing solely with s 48 contraventions for the period 1996 to 2007, I would have to say that "the parity principle" has yielded little by way of direct assistance. Such is not uncommon in cases concerned with TP Act contraventions: cf the observations of Burchett and Kiefel JJ in NW Frozen Foods at 295.


case_text: is unnecessary for me to rehearse the principles governing the award of declaratory relief particularly in cases of public interest such as the present; see generally Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329. I am satisfied that there is utility in making the declarations both to publicise the types of conduct that can give rise to contravention of s 48 and also to provide the basis for the orders by way of injunction and pecuniary penalty. I equally am satisfied with the form in which the declaratory orders have been cast. Injunctive Relief


case_text: injunctions sought clearly fall within the requirements of s 80 of the Act. They relate directly to the contraventions found to have occurred and against which injunctive relief can be granted: cf ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 at 267. Further they have been formulated with sufficient precision so as to be capable of being complied with without the continual supervision of the Court. I am satisfied they are consistent with the public interest in the matter. Notwithstanding that Hobie has ceased to engage in contravening conduct, it nonetheless continues to wholesale Hobie products within Australia. The three year duration of the injunction parallels the proposed order relating to the compliance programme and will assist in preventing a recurrence of contravening conduct notwithstanding that such a recurrence is not now reasonably to be anticipated: cf s 80(4)(a). The Proposed s 86C Orders Two distinct species of order are sought under this section. The first, which embodies a number of interlocking orders, requires the establishment and implementation of a trade practices compliance programme which is to be maintained for three years and relatedly imposes periodic reporting obligations to the ACCC. The second would require Hobie to provide information to all of its dealers in letter format concerning this proceeding and its outcome in terms annexed to the proposed consent order.


case_text: to the first of the above, I am with some hesitation prepared to make the orders proposed. On the material before me only Mr Fields has been shown to have been engaged in the conduct founding the contravention; the company has less than 10 employees; and there is no evidence as to the respective responsibilities of those employees such as to permit a judgment to be made as to the utility of making the relatively elaborate orders proposed. Nonetheless, because Hobie has consented to what is proposed; because the orders, in intent at least, have both preventative and educational purposes and this is reflected in their design: cf Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881 at [267] ; and because the programme is one to be tailored to Hobie's circumstances (notwithstanding the reference to the Australian Standard on Compliance Programs AS3806: cf Econovite at [17]), I am prepared to make the proposed compliance programme orders.


case_text: have referred already to the requirements of s 76(1) and to the considerations it includes amongst matters relevant for the Court to have regard to in determining an appropriate pecuniary penalty. I need not repeat them. Additionally, a considerable body of authority has enlarged upon the principles governing the imposition of pecuniary penalties. Those principles were helpfully distilled by Kenny J in Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859 at [16] . Her Honour there said: "The relevant principles governing the imposition of pecuniary penalties are discussed in Australian Consumer and Competition Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146 at [60] - [75] ; Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,151-52, 154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission [1996] FCA 1134 ; (1997) 71 FCR 285 at 290-295; J McPhee & Son (Aust) Pty Ltd v Australian Consumer and Competition Commission [2000] FCA 365 ; (2000) 172 ALR 532 ; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] - [58] . These authorities indicate that further relevant matters include: (a) the size of the contravening company; (b) the degree of power the company has, as evidenced by its market share and ease of entry into the market; (c) whether the conduct was systematic, deliberate, or covert; (d) the period over which the conduct occurred; (e) the effect on the functioning of the market and other economic effects of the conduct; (f) whether the contravention arose out of the conduct of senior management or at a lower level; (g) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and discipline, or other corrective measures in response to an acknowledged contravention; and (h) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. See also Australian Consumer and Competition Commission v Jurlique International Pty Ltd [2007] FCA 79 at [51] ; Australian Consumer and Competition Commission v Knight [2007] FCA 1011 at [70] ; and Australian Consumer and Competition Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 at [303] ."


case_text: attempt has been made to quantify loss or damage caused by Hobie's conduct either to consumers or to its dealers. This said, I do not consider the absence of such evidence in the circumstances to be either a mitigating or an aggravating factor: cf Trade Practices Commission v ICI Operations Pty Ltd [1991] FCA 527 ; (1991) 105 ALR 115 at 119. (iii) Prior Contraventions: s 76(1) Hobie has not been found previously to have contravened the Act. (iv) Hobie's size, resources and market power


case_text: Hobie is a significant participant in the recreational watercraft market I am prepared to assume for present purposes that such was the market and has a well recognised brand and high quality products, it is only a small to medium enterprise. Nonetheless, the evidence indicates it has substantial and growing revenue and net profits. There is no evidence of its market power or of the commercial impact of its conduct on the market. Even if that impact (if measurable with any precision at all) was slight, it would be no less blameworthy for that reason: cf Australian Competition and Consumer Commission v Dermalogica Pty Ltd [2005] FCA 152 ; (2005) 215 ALR 482 at [81] . (v) Was the conduct systematic, deliberate or covert? The decision taken by Mr Fields and its implementation was intentional and purposive but it involved no knowing (or deliberate) contravention of the Act. It was systematic in the sense that there was no differentiation between dealers, but it was not covert in that on the evidence before me it simply cannot be said that it did other than represent Hobie's terms of trade with any prospective dealer. (vi) The period over which the conduct occurred In the case of Glascraft, the conduct commenced in August 2004 and ceased on the termination of Glascraft's relationship with Hobie on 25 August 2006 for reasons unrelated to Hobie's price/advertising requirements. In relation to all other dealers, the only conduct relied upon occurred between September 2005 and September 2006. (vii) The involvement of senior management


case_text: determining whether the proposed pecuniary penalty is appropriate, it is of course important to recognise that the sum agreed represents a settlement between the parties: cf Trade Practices Commission v Milreis Pty Ltd (No 2) [1978] FCA 20 ; (1978) 32 FLR 234 at 243. However, it is also important to acknowledge the deterrent function, specific and general, of such a penalty. As Goldberg J observed in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301 at [39] : "The penalty imposed must be substantial enough that the party realises the seriousness of its conduct and is not inclined to repeat such conduct. Obviously the sum required to achieve this object will be larger where the Court is setting a penalty for a company with vast resources. However, as specific deterrence is only one element and general deterrence must also be achieved, consideration of the party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention."


case_title: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301


case_text: 27 r 4 of the Federal Court Rules empowers the Court to set aside a subpoena in whole or in part on the application of any party or person having a sufficient interest. Ms Chaloner is clearly such a person. Grounds upon which subpoenas are traditionally set aside include the excessive width of documents sought or whether the subpoena on its face is oppressive. Relevantly, Deane and Gaudron JJ in Hamilton v Oades [1989] HCA 21 ; (1989) 85 ALR 1 at 11 said: The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice... In this context injustice is not simply a question of the purpose for which the relevant proceedings were instituted but includes a consideration of the consequences for the person invoking the power. The terms oppressive and vexatious are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in an appropriate context, the meaning that the proceedings are seriously and unfairly burdensome, prejudicial or damaging and productive of serious and unjustified trouble and harassment. In the circumstances before me I am not prepared to set aside the subpoena served on Ms Chaloner. I take this view for the following reasons: The appropriate order is that the notice of motion be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 22 June 2009 Solicitor for the Applicant: Mr SC Russell of Russell and Company Counsel for the First and Second Respondents: Mr P Telford Solicitor for the First and Second Respondents: BCI Lawyers Date of Hearing: 11 June 2009 Date of Judgment: 11 June 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/639.html


case_text: The first was the issue of performance risk. This is an issue which has been raised in a number of cases to which Mr Jackman referred. The most recent case is Re APN News & Media Limited [2007] FCA 770 at [23] . 6 I was satisfied that the "performance risk" was sufficiently addressed in relation to each of the Schemes for the reasons set out in the written submissions. 7 The second matter to which reference was made was an exclusivity provision contained in clause 19 of the Merger Implementation Agreement. This contained a "no shop restriction", a "no talk restriction" and a "no due diligence restriction".


case_text: Each of the concerns in relation to exclusivity clauses expressed by Santow J in Re Arthur Yates & Co Ltd [2001] NSWSC 40 ; (2001) 36 ACSR 758 at [9] was addressed in the written submissions. 9 The third issue to which Mr Jackman referred was the question of a break fee of $100 million provided for in cl 20.2 of the Merger Implementation Agreement.


case_text: The fourth issue was the deemed warranty in cl 4.5 of the Share Scheme that the shares be free from encumbrances. Mr Jackman referred me to the view which is accepted in this Court as stated in Re Hostworks Group Ltd (2008) 26 ACLC 137 at [41]. This view has been followed in the Supreme Court of New South Wales by Barrett J in Macquarie Private Capital A Ltd (2008) 26 ACLC 366. The clause was therefore in accordance with established authority and it was drawn to the attention of scheme participants: see further Re APN News & Media Ltd at [63]. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 11 December 2008 Counsel for the Plaintiff: Mr I Jackman SC Solicitor for the Plaintiff: Allens Arthur Robinson Counsel for Westpac Banking Corporation: Mr T F Bathurst QC with A J Payne Solicitors for Westpac Banking Corporation: Gilbert & Tobin Date of Hearing: 29 September 2008 Date of Judgment: 29 September 2008 Date of Publication of Reasons for Judgment: 3 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1839.html


case_title: Macquarie Private Capital A Ltd (2008) 26 ACLC 366


case_title: Re SFE Corporation Ltd [2006] FCA 670

case_text: I was satisfied that the break fee provision did not offend the principles stated in the authorities including Re SFE Corporation Ltd [2006] FCA 670 at [6] [7].


case_outcome: related

case_text: This appeal from a decision of the Federal Magistrates Court ( SZKJI v Minister for Immigration & Anor [2007] FMCA 1998) refusing relief in relation to a decision of the Refugee Review Tribunal (the Tribunal) came on for hearing before me on 28 May last. The appellant is unrepresented. The only point of substance which appeared to me to arise out of the appellant's case was an argument that s 425 of the Migration Act 1958 (Cth) (the Act) had not been complied with. The appellant had been afforded a hearing by the Tribunal member then constituting the Tribunal. Following that hearing, the Tribunal was reconstituted and another member substituted. That Tribunal member refused the appellant's request for a hearing. The appellant, in addition to making a general request, had made particular criticisms of the manner in which the previous hearing had been conducted. Counsel for the first respondent submitted that, although some divergence had emerged between various single judge decisions about the application of s 425 , the circumstances of this case were, so far as is relevant, indistinguishable from those the subject of the Full Court decision in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 ; (2001) 113 FCR 541 and the appeal was bound to fail.


case_text: Federal Magistrate was also of the view that the finding that the appellant had engaged in delaying tactics did not constitute " Wednesbury " ( Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 233) unreasonableness in the sense that the Tribunal had acted unreasonably in not making enquiries of Dr Crimmins. The Federal Magistrate said there was no obligation on the Tribunal to embark on an open ended enquiry as to the fitness of an applicant to appear applying Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at par [43]. The Federal Magistrate held that the Tribunal's invitation in accordance with s 425 had been meaningful. At [64] of the judgment, the Federal Magistrate concluded: "The primary reason for rejecting the applicant's claims was their inconsistency with the evidence. The issue of whether the applicant was medically unfit to attend a hearing or provide responses to s.424A letters was a matter of subsidiary importance, and the Tribunal dealt with the matter in a reasonable manner." By a notice of appeal filed on 21 October 2008, the appellant appealed from the decision of the Federal Magistrate on the grounds that the Federal Magistrate erred in: "(a) Improperly construing or misdirecting itself as to the appellant's first ground of review as seeking to challenge a finding of fact by the Tribunal that "the applications for extensions of time and rescheduling of hearings were delaying tactics" (b) Failing to properly apply sections 425 and 426A of the Migration Act in determining whether the Tribunal failed to properly exercise its discretion to reschedule the applicant's appearance before it, or from delaying its discretion on the review to enable the applicant's appearance before it to be rescheduled (c) Failing to properly apply the [ Wednesbury ] principle to the Tribunal's decision in that the Tribunal in arriving at the Tribunal's decision acted so unreasonably in failing to make limited inquiries with Dr Bernard Crimmins on a critical issue which the Tribunal knew or ought to reasonably know was readily available that no reasonable decision maker would have proceeded to make a decision without such information. (d) Failing to properly apply sections 425 and 424A of the Migration Act in that the Tribunal failed to take such steps so as to provide a real or meaningful opportunity to the appellant to respond to the s.424A letters or to attend a hearing to give evidence and present arguments pursuant to s.425 of the Migration Act ."


case_text: appellant submitted that ground (c) of his Notice of Appeal was made out as the Tribunal failed to make enquiries of Dr Crimmins. The appellant submitted that the present circumstances were "exceptional" so as to render such a failure a ground of jurisdictional error because the ensuing decision was "unreasonable" in the Wednesbury sense. The appellant relied on the decision of Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169 for the proposition that a decision-maker's failure to obtain important information on a critical issue which the decision-maker knows or ought to reasonably know is readily available, can be characterised as so unreasonable that no reasonable decision-maker would proceed to decision without making such inquiry. However, it must be remembered that in that case Wilcox J said at 169-170: "The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries."


case_text: do not consider that the present circumstances fall into the category of a rare and exceptional circumstance which is an exception to the well accepted proposition that the Tribunal is not bound to initiate or make its own enquiries: Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at 73-74; Minister for Immigration and Citizenship v Le (2007) (supra) at 174-176. The Tribunal was under no obligation to call Dr Crimmins and clarify the appellant's capacity to attend the hearing or respond to questions having regard to the content of his letter and the previous communications to the appellant and his solicitor. This was not a matter which constituted "some obvious omission or obscurity that needs to be resolved before a decision is made": Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J.


case_text: appellant accepted that there is no general obligation on the Tribunal to initiate enquiries or to make out an appellant's case but submitted that there was authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision unreasonable in the sense used in Wednesbury (supra). The appellant relied on Minister for Immigration and Citizenship v Le [2007] FCA 1318 ; (2007) 164 FCR 151. In Le , the primary decision-maker relied on a mistranslated version of the applicant's statement. The Tribunal's failure to allude to this and failure to make enquiries of the relevant department gave rise to a jurisdictional error. The circumstances in the present case are quite different. Given the background of the communications between the Tribunal and the appellant's representative prior to Dr Crimmins' letter and its contents, it was not unreasonable for the Tribunal to assume that Dr Crimmins had said all that he could relevantly say and that there was no point in making any enquiry of Dr Crimmins. I do not consider that the present circumstances fall into the category of a rare and exceptional circumstance which is an exception to the well accepted proposition that the Tribunal is not bound to initiate or make its own enquiries: Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at 73-74; Minister for Immigration and Citizenship v Le (2007) (supra) at 174-176. The Tribunal was under no obligation to call Dr Crimmins and clarify the appellant's capacity to attend the hearing or respond to questions having regard to the content of his letter and the previous communications to the appellant and his solicitor. This was not a matter which constituted "some obvious omission or obscurity that needs to be resolved before a decision is made": Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J.


case_title: Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167


case_text: As I observed in Australian Competition and Consumer Commission v McCaskey [2000] FCA 1037 ; (2000) 104 FCR 8 at 21 ([30]): The approach of the Court to the making of consent orders is informed by a general principle of judicial restraint. It is not the function of the Court to impede settlements between parties who are legally represented and able to understand and evaluate the desirability of agreeing to a settlement. Nor will the Court refuse to give effect to the terms of a settlement by refusing to make orders or accept undertakings where they are within jurisdiction and otherwise unobjectionable. The Court will not substitute orders which it thinks appropriate if those proffered are within power and within the range of appropriate dispositions of the case. But in making orders by consent or otherwise, the Court must ensure that the orders are within power and appropriate for it is exercising a public function in doing so and must have regard to the public interest: Australian Competition and Consumer Commission v Real Estate Institute (WA) Inc [1999] FCA 1387 ; (1999) 95 FCR 114 at 131. 19 I consider I should take a similar approach to these unopposed orders. In this case I do not doubt their appropriateness. The only question is whether they are within power in the sense that they are supportable on the basis of the undisputed facts having regard to the legal submissions which have been made. 20 The undisputed facts are that the applicants made an application for registration in respect of years of income including 1993/94. Given that the Board was prepared to grant registration for the years 1994/95 onwards there was nothing on the materials before it to indicate any relevant distinction between expenditure in the years 1993/94 and the successive financial years. Nor was there anything in the response given by the Board to the applicants to indicate such a distinction. In my opinion the failure of the Board to include the 1993/94 year in its registration of the syndicate was a slip and the Board's decision was intended to cover that year. It is frankly surprising that this matter was not able to be resolved administratively and at far less expense to the public purse a long time ago. The rather equivocal attitude adopted by the Board before the Court was, in the circumstances, puzzling. The orders proposed do not come before the Court as consent orders. They are simply not opposed by the Board. Nevertheless, having regard to the agreed facts and in the absence of opposition, I am satisfied that the proposed declaration reflects the factual and legal realities. It would seem to follow that the purported decision of 2 July 2001 and 18 September 2001 refusing registration and confirming that refusal were of no force or effect. I will therefore make the declarations which are proposed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 14 June 2007 Counsel for the Applicant: Mr BJ Sullivan SC and Mr TM Thawley Solicitor for the Applicant: Norton & Smailes Counsel for the Respondent: Dr G Flick Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 June 2007 Date of Judgment: 14 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/914.html


case_text: As the respondent acknowledged, the Minister doubtless knew that, if the applicant were removed from Australia, he would be returned to China since he was a citizen of that country. It might reasonably be assumed that, on his return, he would be arrested and face the charges to which the Interpol Red Notice referred. It does not follow from this, however, that the Minister's purpose in cancelling the applicant's visa under s 501(3) was to effect his extradition to China. Unless it can be said that the Minister's purpose in exercising power under s 501(3) was to bring the applicant to justice in China, the exercise of power was not an improper one: see Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 at 731 per Wilcox and French JJ. In Schlieske 84 ALR at 731, a case concerned with the lawfulness of a Ministerial deportation order, their Honours said: The golden rule is that the Australian authorities are entitled, notwithstanding their knowledge that a particular deportee is wanted in the country of destination, to do everything which is necessary for the enforcement of the Migration Act ... But they are not entitled to go beyond that, and in purported exercise of powers under that Act, to take steps whose only purpose is the bringing to justice of the deportee in a foreign country. At that stage the Australian authorities would not be exercising deportation powers; they would be involved in an unlawful extradition.


case_text: The reasons that the Minister gave for the decision to cancel the applicant's visa under s 501(3) do not provide any sufficient basis for an inference of improper purpose. The cogency and weight of the material before the Minister was for the Minister to assess. Provided there was a probative basis for the decision, it is not open to the Court to second-guess the Minister in this regard and, in so doing, impute an improper purpose. Further, the fact that the Minister's decision followed almost immediately on the decision of the Migration Review Tribunal cannot be regarded as indicative of improper purpose since the Minister's powers under s 501 of the Migration Act are separate and distinct from those of the Tribunal: see Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408-09 per Heerey, Lindgren and Emmett JJ, approved in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at 535 per Gleeson CJ and Gummow J; also 565 per Hayne J. The applicant's reference to "an international treaties obligations assessment" is, as the respondent observes, irrelevant in the present connection.


case_title: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507


case_text: Section 501 of the Migration Act confers a very wide discretion, which permits the Minister to take into account a variety of matters, providing they are within the subject-matter, scope and purpose of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256 ; (2004) 139 FCR 505 at 523 per Kiefel and Bennett JJ; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 310 per Tamberlin, Sackville and Stone JJ; Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580 at 595 per Ryan, Lander and Crennan JJ; and Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 ; (2005) 142 FCR 402 at 423 per Ryan and Tamberlin JJ. In exercise of the discretion that s 501 confers, the Minister may consider such matters as the protection of the community and community expectations. As the discussion concerning ground 1 shows, the Minister had a basis for regarding as relevant the fact that the applicant had not attempted to dispute the allegations with the authorities in China. The consideration was not irrelevant in the sense that it did not lie within the subject-matter, scope and purpose of the statutory power. It was for the Minister to determine whether she would have regard to the consideration and, if so, how much weight should be given to it.


case_title: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292


case_title: Howells v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 327 ; (2004) 139 FCR 580


case_title: Shaw v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 106 ; (2005) 142 FCR 402


case_text: Further, the Wednesbury unreasonableness ground, as stated by Brennan CJ in Kruger v The Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 36, relies upon the proposition that "when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised": see also Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650 per Gummow J. Where a body fails to act in this way, the body acts beyond power. I am inclined to accept that, as the respondent submitted, the applicant's challenge is directed to a strand in the process of the Minister's reasoning, as opposed to the actual exercise of discretion. That is, the nature of the applicant's challenge is not one that falls within the principle of Wednesbury unreasonableness.


case_title: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611


case_text: As the respondent contended, however, the principle in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 was applicable to this proceeding and, unless there were special circumstances shown, the applicant was estopped from bringing this further judicial review proceeding. 61 It will be recalled that the applicant had previously sought judicial review of the Minister's cancellation and non-revocation decisions in the Federal Magistrates Court on the ground that the decisions disclosed jurisdictional error in that the Minister: (1) failed to take into account a relevant matter; and (2) breached the rules of natural justice. Further, the applicant alleged jurisdictional error in that: Given the circumstances surrounding the allegations against the Applicant and the absence over a seven and a half year period of any attempt to execute the warrants or initiate extradition proceedings, each of the decisions amounted to a misuse of the cancellation power. 62 A Federal Magistrates dismissed the judicial review application on 26 May 2006, and the applicant did not seek to appeal against the judgment. In the circumstances, the Anshun principle applied: see Anshun [1981] HCA 45 ; 147 CLR 589 at 602. The applicant submitted, however, that he ought not be precluded from raising new grounds of judicial review as there were "special circumstances" within the meaning of the Anshun principle to justify him doing so. 63 These special circumstances included that: (a) There was no special disadvantage for the respondent but there was a significant adverse consequence for the applicant, being "a real risk to his life and liberty". (b) The Minister did not take into account the applicant's concerns, including his complaints about the application of s 503A, although the applicant had raised them with the Minister. (c) There was a public interest in ensuring that the process of cancellation was a fair one. In this case, the Minister's decision was vitiated as a "disguised extradition" or for unreasonableness. (d) The Minster and/or her department became aware of these serious allegations in 1998 but they were not put to the applicant until 2004. (e) The applicant had unsuccessfully sought redress through other legal avenues. (f) The applicant had been in immigration detention since May 2005 and had been diagnosed as having a major depressive disorder.


case_text: For the following reasons, I consider that this submission should be rejected. First, as the Court said in Wong v Minister for Immigration and Indigenous Affairs [2004] FCA 51 ; (2004) 146 FCR 10 at 20: There may be sound reasons of policy for arguing that Anshun estoppel not apply for the benefit of the executive government and its representatives, but only to individuals. This is because the executive is a respondent by force of statute or of the Constitution and is not subject to the same psychological burden that may weigh on individual litigants; they cannot be "vexed" in the same way by instigation of subsequent proceedings. That may be a more appropriate basis, namely that of accepted public policy, to ensure that representatives of the executive government cannot rely on the principle of Anshun estoppel to frustrate, in effect, the intended legislative mandate. However that proposition does not sit well with the authorities that apply the principle of Anshun estoppel equally to judicial review of administrative action.


case_text: Secondly, the grounds of review upon which the applicant would seek to rely were available to him when the Federal Magistrate heard the earlier proceeding. There was no relevant uncertainty in the law, which might explain and justify the failure to raise them at the earlier time: compare BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [31] - [37] per Carr, Tamberlin and Conti JJ. Further, although the applicant's written submissions questioned the application of s 503A, the applicant abandoned this argument at the hearing: see also Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450 at [72] - [91] per Jacobson and Bennett JJ. It is also to be borne in mind that, in the Federal Magistrates Court, although not the subject of oral submissions, the applicant's amended application included a ground that resembled the "disguised extradition" ground, which the applicant sought to raise in this proceeding (see [61] above).


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450


case_text: Given that the applicant is estopped from bringing this application, it is probably unnecessary to say much about the time limits made applicable by the order remitting the proceeding to this Court. The applicant applied in the High Court for orders to show cause why writs of certiorari, prohibition and mandamus should not issue, although he did not include a claim for mandamus in his amended application filed on 4 August 2008. The High Court Rules 2004 relevantly limit the time for making application for certiorari and mandamus. Rule 25.06.01 provides that an application for an order to show cause why a writ of certiorari should not issue must be made within six months after the date of the relevant judgment, order, conviction or other proceeding. Rule 25.07.2 provides that an application for an order to show cause why a writ of mandamus should not issue to a judicial tribunal must be made within two months of the date of the refusal to hear or within such time as is, under special circumstances, allowed by the Court or a Justice. Assuming that the time limits in rule 25.06.01 and 25.07.2 apply (see Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 234 ALR 114 at 120 indicating that r 25.07.2 does not), they may be enlarged under rule 4.02.


case_text: The application was made in the High Court some two years after the Minister made her decision not to revoke her cancellation decision. The applicant conceded that he had given no satisfactory explanation for the delay: see Re Commonwealth; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 495 per McHugh J. Further, the applicant did not proffer any explanation as to why the grounds pursued in this proceeding were not pursued in the earlier proceeding in the Federal Magistrates Court. Just as importantly, as the forgoing discussion shows, the prospects of success on the application are not such as to warrant an extension of time. An extension of time for seeking relief of this kind "can only be granted if it is necessary to do justice between the parties": see Marks 177 ALR at 495. An extension of time is not necessary to do justice in this case. Accordingly, I would refuse the application for an enlargement of time. 70 For the reasons stated, the application should be dismissed, with costs. Application to enlarge time should also be refused. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 5 December 2008 Counsel for the Applicant: Mr J Montgomery SC with Ms N Karapanagiotidis Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the Respondent: Mr P Gray Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 31 July 2008 Date of Judgment: 5 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1838.html


case_text: made under s 87A of the Act not only take effect inter-parties in the resolution of the claims made in the proceedings but represent an independent judicial determination, in the exercise of the judicial power of the Commonwealth, that may be asserted, as a matter of law, against anyone. Although the Act by s 223(1)(c) in part defines native title or native title rights and interests by reference to the rights and interests recognised by the common law of Australia, a determination of native title expresses the recognition and protection of those rights and interests in relation to land and waters defined and described in s 223 of the Act which find their origin in traditional laws and customs, not the Act ( Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 at [75] and [76] per Gleeson CJ, Gummow and Hayne JJ). I am satisfied that the proposed orders are consistent with the proposed determination and within power. A number of considerations are to be taken into account in determining whether the proposed orders appear appropriate to the Court. Firstly, the Act recognises and encourages the resolution of applications by mediation, negotiation and ultimately agreement without the need for a hearing and the assessment of evidence and fact-finding by the Court necessary in the course of resolving a controversy. Similarly, the Act recognises and encourages the determination of native title in relation to an area within the area covered by an application, by mediation, negotiation and ultimately agreement without the need for a hearing. Section 94A of the Act requires that an order for a determination of native title must set out details of the matters mentioned in s 225 of the Act which must be read together with s 223 of the Act. These sections give meaning to the terms "determination of native title" and "native title" and "native title rights and interests". In Members of the Yorta Yorta Aboriginal Community v State of Victoria (supra) at [76], Gleeson CJ, Gummow and Hayne JJ treated the statutory elements contained in s 223 as central. The mandatory requirements for a determination of native title are these. The native title rights and interests must be communal, group or individual. They must be rights and interests in relation to land or waters. They must be possessed under the traditional laws acknowledged and the traditional customs observed by Aboriginal peoples; Aboriginal people by their law and customs must have a connection with the land or waters; and the native title rights and interests must be recognised by the common law of Australia. I am satisfied that the anthropological material demonstrates that the Kowanyama People are descended from a society of Aboriginal people who were in occupation of the land and waters of the Determination Area, being a part of the claim area, at sovereignty and who formed a society united by their acknowledgement and observance of a normative body of traditional laws, customs and beliefs. Through their continued acknowledgement and observance of these normative laws and customs, the Kowanyama People have, since sovereignty, maintained a connection with the Determination Area. I am satisfied that the content of those native title rights and interests which derive from the practice of traditional laws and customs have been identified and established through the anthropological material. The agreement provides for orders entirely consistent with the anthropological material. I am satisfied the proposed orders address each of the elements of s 225 of the Act. Thus, I am satisfied that the orders appear appropriate in accordance with s 87A of the Act.


case_title: Wik and Wik Way Native Title Claim Group v State of Queensland [2009] FCA 789 ; (2009) 258 ALR 306

case_text: although it is not necessary for the Court to consider the body of material that would be available to it in the course of a contested hearing, the Court ought to have regard to sufficient material which is capable of demonstrating that the agreement and the proposed orders are "rooted in reality" (" Native Title A Constitutional Shift? ", University of Melbourne Law School, JD Lecture Series, Chief Justice French, 24 March 2009): Wik and Wik Way Native Title Claim Group v State of Queensland [2009] FCA 789; (2009) 258 ALR 306. In that sense, the Court ought to be satisfied that the proposed orders are prima facie appropriate in order to satisfy the test under s 87A(4) of the Act. In this case, the parties to the proposed determination are represented by lawyers experienced in the conduct of native title proceedings and the analysis of issues arising in such proceedings. During the course of the processes leading to the proposed consent determination, the State of Queensland has been provided with extensive material between May 1996 and August 2009. It is not necessary to set out the content of that material in these reasons. Some of that material has been considered by other respondents with an interest in the proposed determination area. I am entirely satisfied that the parties to the Part A agreement have been represented by lawyers experienced in these issues and that the parties have come to a fully informed agreement. In addition, the State of Queensland has had a long engagement with the Aboriginal people of the Determination Area. In this application the applicants have been assisted by Dr John Taylor. Dr Taylor has been retained as an anthropological consultant in relation to the Kowanyama native title claim since 1997. More importantly, Dr Taylor has carried out studies of the Kowanyama native title claim group and worked with members of the group and their predecessors since 1971. During the course of his studies of the Kowanyama native title claim group, Dr Taylor has carried out research into the anthropological, historical, linguistic, genealogical and cultural materials that relate to members of the group and their predecessors in the Kowanyama region. Dr Taylor has mapped Aboriginal landscapes and ownership patterns which has involved extensive site mapping and the study of the principles of land ownership in the Kowanyama region. The nature and extent of Dr Taylor's research work in relation to the Kowanyama region including the land and waters the subject of the primary application is the subject of a document described as "Overview of Connection Materials in support of the Kowanyama Part A Native Title Determination". That report was filed in the Court on 28 September 2009. Dr Taylor in his affidavit filed on 28 September 2009 expresses this opinion at paragraph 12: I am of the opinion that the research conducted in relation to the Kowanyama native title claim group's determination application demonstrates that: (a) the members of the Kowanyama native title claim group are descended from the traditional society in occupation of the land and waters identified as the determination area at the time of sovereignty; (b) the society in occupation of the determination area at the time of sovereignty observed traditional laws and customs which have continued to be acknowledge and observed by the members of the Kowanyama native title claim group and their predecessors; (c) through the continued acknowledgement and observation of the traditional laws and customs, the members of the Kowanyama native title claim group and their predecessors have maintained a connection to the determination area; (d) the activities undertaken by the members of the Kowanyama native title claim group on the determination area are referable to the rights and interests identified in the proposed consent determination of native title, as regulated by their traditional laws and customs.


case_text: Mr Bannon submitted that this construction of s 45(2)(b)(ii) of the TP Act was supported by several matters. • First, s 45(4) of the TP Act, a deeming provision, assumes that a corporation which is potentially the subject of an allegation that it has contravened s 45(2)(b)(ii) must have been party to the original arrangement. • Secondly, the definition of ' give effect to ' in s 4 of the TP Act also appears to be drafted on the assumption that only a party to the arrangement can do an act in pursuance of or in accordance with a provision of the arrangement. • Thirdly, the authorities indicate that a corporation can give effect to a provision in an arrangement independently of that corporation's motive. It would create an unrealistic burden on corporations (so Mr Bannon argued) if their conduct could give effect to an anti-competitive provision in an arrangement without the corporation being a party to the arrangement or realising that its actions constitute a contravention of the TP Act: Tradestock Pty Ltd v TNT (Management) Pty Ltd (1978) 32 FLR 420, at 432, per Smithers J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678 , at [294], per Merkel J.


case_text: It is sometimes appropriate to decide a pure question of law on a strike out motion: Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241. But the authorities do not suggest that a court is bound to do so ( Morgan v Union Shipping (Nz) Ltd [2001] NSWSC 325 , at [9], per Sperling J and authorities cited there). Mr Bannon did not submit otherwise.


case_title: Morgan v Union Shipping (Nz) Ltd [2001] NSWSC 325


case_text: None of the Patrick Respondents is an individual. Mr Bathurst, however, argued that the problems identified by Mr Hutley are even more acute so far as Mr Burgess and other individual respondents are concerned. He also pointed out that there is no allegation that Mr Burgess was aware of the precise material facts and circumstances constituting the contraventions of s 45(2): see Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 , at 283 [162], per curiam. 66 In answer to these submissions, Mr Burnside used the pleaded allegations of accessorial liability against Mr Burgess to illustrate the argument. Mr Burnside contended that a number of specific allegations are made about the extent of Mr Burgess' knowledge of relevant matters. In response to a question, Mr Burnside stated that the case against Mr Burgess does not depend on which of the P&O Respondents happened to be a party to the pleaded arrangements, or to have given effect to the provisions of the pleaded arrangements. 67 I expressed the view ( Ts 136 ) that if this was the ACCC's case, the Statement of Claim should be amended to make it quite clear. The pleading should explicitly allege that by reason of specific matters known to Mr Burgess, he aided and abetted, or was knowingly concerned in, any contraventions that might be established against either or both of the P&O Respondents. The pleading should also identify unambiguously the matters known to Mr Burgess and the other individual respondents that are said to show that each was aware of the material facts and circumstances constituting the contraventions of s 45(2) of the TP Act.


case_text: Mr Bannon submitted that this construction of s 45(2)(b)(ii) of the TP Act was supported by several matters. • First, s 45(4) of the TP Act, a deeming provision, assumes that a corporation which is potentially the subject of an allegation that it has contravened s 45(2)(b)(ii) must have been party to the original arrangement. • Secondly, the definition of ' give effect to ' in s 4 of the TP Act also appears to be drafted on the assumption that only a party to the arrangement can do an act in pursuance of or in accordance with a provision of the arrangement. • Thirdly, the authorities indicate that a corporation can give effect to a provision in an arrangement independently of that corporation's motive. It would create an unrealistic burden on corporations (so Mr Bannon argued) if their conduct could give effect to an anti-competitive provision in an arrangement without the corporation being a party to the arrangement or realising that its actions constitute a contravention of the TP Act: Tradestock Pty Ltd v TNT (Management) Pty Ltd (1978) 32 FLR 420, at 432, per Smithers J; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678 , at [294], per Merkel J. 29 In the present case, I do not think it appropriate to attempt to resolve the question of law presented by Mr Bannon on behalf of AAT. The contention is arguable, but its correctness is by no means self-evident. The authorities recognise, for example, that the expression ' in accordance with ' in the definition of ' give effect to ' in s 4 of the TP Act : 'are intended to cover the situation where what is done is or may be done for reasons other than to implement the understanding.' Tradestock v TNT, at 432. In other words, the expression indicates that a corporation may give effect to an arrangement otherwise than by implementing it. The statutory language may suggest, therefore, that a corporation can give effect to a provision of an arrangement even though it is not party to the arrangement. 30 In any event, the question of construction raised by AAT ultimately may be resolved by reference to the particular facts of the case which, of course have not yet been found. AAT is not in the same situation as a third party which has no involvement with an alleged arrangement but which subsequently does something that happens to be connected to the goals sought to be achieved by the parties to the arrangement. The ACCC alleges that the very point of the two of the pleaded arrangements was to allow the Patrick Respondent and the P&O Corporations to utilise AAT as the vehicle for carrying into effect the anti-competitive elements of the arrangement. AAT may well be in quite a different position to a third party that had no prior knowledge of the arrangement and was never intended to have any particular role to play in implementing the anti-competitive provisions of the arrangement. 31 For these reasons, it is not appropriate to resolve the question of law raised by AAT on the strike out application. The question is arguable and should be resolved at the trial.


case_text: The Patrick Respondents point out that the Statement of Claim alleges that each of the Patrick Respondents aided and abetted and was knowingly concerned in the contraventions of each of the others. They submit that the Statement of Claim fails to plead material facts, including the knowledge of the essential elements of the contravention and intentional participation: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661. Mr Hutley, in his oral argument, pointed out that the complaint is of practical importance since Patrick is now a subsidiary of Toll, but the other four Patrick Respondents are within another corporate group. 62 Mr Hutley illustrated the point by reference to the pleading alleging contraventions by Patrick. Paragraph 260 pleads that ' in the premises ' Patrick: '260.1 by entering into the first arrangement, made an arrangement ... containing provisions which had the purpose ... or likely effect of substantially lessening competition in each of [twelve markets]. and thereby contravened [s 45(2)(a)(ii) of the TP Act ]; or alternatively 260.2 aided and abetted, or was knowingly concerned in: 260.2.1 the contravention by Patrick Holdings in making the first arrangement...; 260.2.2 the contravention by Patrick Operations in making the first arrangement ...; 260.2.3 the contravention by Patrick Operations No 2 in making the first arrangement...'. 63 The pleadings follow a similar pattern in relation to Patrick's alleged contravention of s 45(2)(b)(ii) of the TP Act and its knowing participation in the contraventions of that sub-paragraph by each of the other three named Patrick Respondents (para 261). They also follow a similar pattern in relation to the second arrangement (paras 262-263). The same form of pleading is repeated for each of those three Patrick Respondents.


case_text: Banks are respondents and potentially liable in their own right. ONGC is not a necessary party to the claim against them. It is not necessary for Clough to join ONGC in order to establish its claims against the Banks : Matheson Engineers Pty Limited v El Raghy [1992] FCA 417 ; (1992) 37 FCR 6 at 9; Australian Competition and Consumer Commission v Albert (2005) 223 ALR 467 at [34]. Of course ONGC, whilst not a necessary party, is amenable as a "proper" party to be joined if in the jurisdiction. A "proper", as distinct from a "necessary" party, is a person who has sufficient connexion to the controversy that he or she might be joined, "but whose absence will not affect the constitution of the action": Edge, in the matter of Eco Panels Australasia Pty Ltd (in liq) [2007] FCA 30 at [12] . As a person who would be a proper party if it were in the jurisdiction, ONGC would be thus amenable to the courts jurisdiction under FCR O 8 r 2, Item 18 (like the former FCR O 8 r 1(g)): Quinlan v Safe International Försäkrings AB [2005] FCA 1362 at [24] , applying Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305.


case_text: to this, it should be recognised that equity will generally intervene to ameliorate the application of a legal right if it is employed capriciously or unreasonably or harshly, or oppressively such as to be unconscionable: Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 at 587-588 and 590-591; NC Seddon & MP Ellinghaus, Cheshire & Fifoot's Law of Contract (8 th Aust. ed) (2002), [20.9]. This doctrine, although distinct from, is very similar to, the implied contractual duty of good faith: Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557 , [93]-[96], esp. [96]; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301. Section 51AA of the TPA likewise may afford relevant protection. This however does not mean that the entitlement at law to call on the whole amount under the performance guarantees should be read down from what is otherwise a construction which is in harmony with the contract as a whole and which in its context produces a commercially sensible meaning. Furthermore, to the extent that the calling up of the performance guarantees resulted in an overpayment to ONGC then there would be an entitlement in Clough to an 'accounting' in due course from ONGC: Cargill International SA Antigua Geneva Branch v Bangladesh Sugar & Food Industries Corporation [1996] 4 All ER 563 at 571.


case_title: Bachmann Pty Ltd v B.H.P Power New Zealand Ltd [1998] VSCA 40 ; [1999] 1 VR 420

case_text: Pty Ltd v B.H.P Power New Zealand Ltd [1998] VSCA 40 ; [1999] 1 VR 420 involved consideration of a letter of credit. The supplier in Bachmann did not seek to establish any case of fraud on the purchaser's part but relied only on the contractual qualification upon the purchaser's powers under the general conditions of the underlying contract to demand payment under the letter of credit. It was conceded that the clause referred to constituted a contractual qualification on the purchaser's powers in relation to the security. This is to be contrasted with earlier Australian cases where the initial question was whether the underlying contract, on its proper construction, qualified the security holder's powers to claim under the security. The only point in the appeal as his Honour put it was as to the content of the qualification at [30].


case_title: Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317

case_text: relation to the application to set aside service of the Amended Application on ONGC, an application under O 9 r 7 of the Federal Court Rules (FCR) results in a review of the original decision to grant leave to serve ex juris and is a rehearing conducted on the basis of additional materials, recognising that a respondent should have "the opportunity to put before the Court any additional facts or arguments which might suggest that leave ought not to have been granted": Tycoon Holdings Limited v Trencor Jetco Inc [1992] FCA 25 ; (1992) 34 FCR 31 at 33; Bray v F Hoffmann-La Roche Limited (2003) 130 FCR 317 at [53] per Carr J. The onus remains on the applicant to satisfy the Court, in light of those additional materials and facts and arguments, that leave should have been granted: Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538 at 564. The task of the Court, at this early stage of the proceedings, does not require evidence to justify a "finding" of the alleged TPA contravention: Bray v F Hoffman-La Roche Ltd at [96].


case_title: Cargill International SA Antigua Geneva Branch v Bangladesh Sugar & Food Industries Corporation [1996] 4 All ER 563


case_text: claims against the Banks concern their intention to pay under the performance guarantees where such payment would constitute the Bank's being, directly or indirectly, knowingly concerned in ONGC's contraventions of the TPA. Injunctive relief is available against the Banks under s 80 of the TPA: Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd (No. 2) [2007] FCA 927 at [11] - [14] . Injunctive and other relief would also be available under s 87(1A) of the TPA. The orders, including injunctive orders, previously obtained by Clough against ONGC were obtained on an ex parte basis, and supported by affidavit material which was uncontested. ONGC had not entered an appearance at that time. Only ONGC could contradict Clough's case that Clough was not in breach of the Construction Contract, or where it was in breach, that this was occasioned by ONGC's breach. Accordingly, the claim by Clough, that ONGC was in contravention of s 51AA of the TPA, proceeded on the basis of unchallenged fact, namely, that ONGC had called for payment under the performance guarantees when there was no proper foundation for doing so, because Clough was not in breach of the Construction Contract or if it was, then this was as a direct consequence of breaches by ONGC: Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd (No. 2) at [7] and [39]. It was not necessary, then, to consider the question of whether a call by ONGC under the performance guarantees could be made merely upon the basis of a bona fide claim of breach or whether it required, by admission or by curial or arbitral determination, a demonstrated actual breach. This was because, whatever the proper construction of cl 3.3.3, on the uncontroverted facts, a prima facie case, or serious issue that s 51AA had been contravened was made out. Accordingly, I expressly left that question open: Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd (No. 2) at [45]. For the first time in these proceedings, the question of construction requires to be considered. It is fundamental to the disposition of the Motion. In the reasons for judgment in Clough Engineering Limited v Oil and Natural Gas Corporation Ltd [No 2] [2007] FCA 927 at [46] - [66] , I concluded that the balance of convenience strongly favoured the grant of injunctive relief. As I have said, ONGC, although a party, had not then appeared. This, importantly, meant that there was no party to contradict the existence of serious issues to be tried, as contended for by Clough. I formed the view that to have discharged the injunctions could very well lead to irreparable harm to Clough, its shareholders, employees and third parties. I concluded that damages would not be an adequate remedy. [66] The position has now changed. ONGC has appeared, put on evidence, cross-examined and advanced submissions through counsel. Clough's financial circumstances have also changed. The changed position is disclosed by a further affidavit of Mr Simons sworn on 7 September 2007. The expression "G1 contract" as used in this affidavit is a reference to the Construction Contract. It is to the following effect: (a) Clough's annual results for the financial year ended 30 June 2007 reported an audited loss of $105.3 million, which ' loss directly resulted from provisions taken on the BassGas and G1 contracts ', such that Clough is materially in default of its secured debt facilities with the Banks [3]-[5]; (b) each of the Banks want Clough to repay all secured debt facilities and because of Clough's defaults and because of the legal action threatened by ONGC, the Banks will not allow the use of current facilities or extend any further facilities to Clough ' until such time as the injunction and the related matters are dissolved or otherwise dispensed with ' [6], such that Clough will not have sufficient available debt facilities to fund the encashment of the performance guarantees [7]; (c) the announced capital raising ' will provide new liquidity to replace the cash that has been utilised in funding the costs on the G1 contract which have not been reimbursed or paid to Clough by ONGC ' [10]; (d) Clough has paid creditors of US$167.4 million on the G1 contract, but has received payments from ONGC of only US$139.4 million, a cash short fall of US$28 million [11], and Clough still owed some A$52.4 million to creditors on the G1 contract [13]; (e) between 1 July 2007 and 4 September 2007, Clough has paid G1 contract creditors about A$31.2 million, leaving a balance of A$21.2 million, which will need to be paid from cash flow [14]; (f) the payments to G1 contract creditors is causing significant strain [15]; (g) to replace Clough's cash deposits that have been depleted by reason of the G1 contract, Clough proposes to recapitalise to enable it to make payments to the remaining G1 contract creditors and fund its capital expansion [16]; (h) the recapitalisation is not directed to funding the encashment of the performance guarantees but is for paying the G1 creditors, funding capital expansion and repaying the Banks [17] and, importantly, if the performance guarantees were paid, Clough would be prevented from some or all of these objectives, with the consequences described in Mr Simons' 28 May 2007 affidavit [18]; (i) the proposed recapitalisation will not be completed until the end of December 2007 and is dependent upon shareholder approval [19]-[20]. Against that, in cross-examination, Mr Simons conceded that Clough's capital expansion program will be secured by the Murray and Roberts funding and the recapitalisation and that there will be no need to retrench staff. This is a very different position to that which existed at the time that I refused the application of the Banks to discharge the injunction: Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd [No 2] [2007] FCA 927 at [54] - [63] . There is no evidence to establish specific irreparable damage to Clough. Consequences of the kind that I have referred to are not uncommon in such matters and indeed are often the probable consequences. Certainly, Mr Simons accepted that such consequences, broadly, were in the anticipation of Clough when the performance guarantees were given. I have also considered Clough's claims that payment under the performance guarantees will adversely affect its commercial reputation. As to that I accept the submissions of ONGC which derive their factual foundation from the second affidavit of Mr Simons, his cross-examination and various media reports admitted into evidence. The market knows of Clough's dispute with ONGC, and it has been the subject of public disclosure to the ASX by Clough. Clough's Board has told the market that it considers the claims to be "spurious" and uses public relations to protect its position.


case_text: maintain service ex juris , Clough needs to demonstrate a prima facie case for the relief claimed: FCR O 8, r 3(2)(c). The threshold for demonstrating a prima facie case is not high. It is whether on the material before the Court, inferences are open which, if translated into findings of fact, would support the relief claimed: Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd [2007] FCA 881 at [36] ; Western Australian v Vetter Tritter (1991) 30 FCR 102 at 110; Puccini Festival Australia Pty Ltd v Nippon Express (Australia) Pty Ltd [2007] VSC 288. It requires the demonstration of an "arguable case", bearing in mind that this requirement is to be met at the outset of the action, "without the advantage of discovery and other procedural aids to the making out of a case": Ho v Akai Pty Limited (in liquidation) [2006] FCAFC 159 at [10] , [12], [37], [43].


case_title: Costa Vraca Pty Ltd v Bell Regal Pty Ltd [2003] FCAFC 305


case_text: one consideration that might be brought to bear in deciding whether a claimed or asserted entitlement to payment is intended to be sufficient, is where the claimed or asserted entitlement is made in the context of an independent party having first certified that a certain state of affairs exists. Where the parties have entrusted, by agreement, an independent person with the task of being satisfied and certifying that a certain state of affairs exists, and the contract then provides for the payment of money if that state of affairs exists, a claimed entitlement to payment may be inferred to be sufficient: Fletcher Construction Australia Ltd v Varnsdorf Pty Ltd (1998) 3 VR 812 at 822. It would be unusual, it was said, for an entitlement, particularly for A$25 million, to arise on mere assertion of breach, unconnected with some specific independent certification process, subject to one matter, discussed below. Thirdly, another consideration is that if the contract provides, expressly, for a right to deduct certain moneys, i.e. a right of self-help, it may be inferred that those particular moneys may be payable on an asserted or claimed entitlement: Fletcher v Varnsdorf at 822. There are, in this contract, specific provisions giving ONGC the right to deduct moneys in the period prior to practical completion. They are found in cll 5.9.7.2 and 7.3.9. Notwithstanding the absence of a certification provision, and the onerous terms of cl 5.9.7.2, it may be inferred that the parties intended Clough to pay those amounts on assertion of breach, and for the performance guarantees to be called for that purpose, leaving Clough out of pocket whilst it fought out any dispute about that in an arbitration. Fourthly, in the period after practical completion, a specific provision, similar to cl 5.9.7.2, also requires Clough to pay moneys to ONGC irrespective, it seems, of any dispute as to the validity of ONGC's claim. This is cl 6.1.2. Again, the provision is onerous in that it purports to require Clough to pay costs associated with reinstatement of the works simply upon a complaint of non-conformity by ONGC. Again, that clause gives ONGC a right to deduct moneys, irrespective of the pendency of any unresolved dispute (by arbitration or otherwise), concerning ONGC's claims that the works are non-conforming. Again, the guarantees are likely to have been intended by the parties to operate on the strength of a claimed entitlement in this circumstance. Fifthly, cl 6.3.2 is another provision which gives a right to deduct. In the present circumstances, because there has been no agreed extended date for practical completion, it applies where there is an agreement or arbitral or other determination that ONGC has a right to recover liquidated damages. Sixthly, the magnitude of the guarantees, totalling A$25 million, needs to be considered in the context of a construction which requires that any asserted breach, however trivial, or ephemeral, could see the contractor deprived of A$25 million working capital. That, it is said, would be a peculiar result. Seventhly, bearing in mind the above considerations, cl 3.3.3 operates to allocate risk to Clough in specified circumstances, and otherwise provides ONGC with substantial security by way of recourse to the Banks, in the event that Clough is slow to, or is unable or unwilling, to pay ONGC, where ONGC has established that Clough has failed to honour its commitments under the contract. Accordingly, the demands in this case are equivalent to the certificate provided by the National Australia Bank (NAB) to HSBC, certifying in effect that the conditions of the letter of credit had been met: Ideas Plus Investments Ltd v National Australia Bank Ltd (2006) 32 WAR 467 at [14]. The Western Australian Court of Appeal held that the certificate "amounted to no more than an implied representation that it had reasonable grounds for issuing the certificate" at [51]. The reasonable grounds were the bona fide belief by NAB that the conditions were satisfied at [55]. The written demands are also analogous to the requisite statutory declaration in Fletcher Construction v Varnsdorf at p 830 to the effect that the amount claimed represented an amount(s) remaining unpaid to the owner. This was so even where the amount was disputed by the contractor.