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Law Society Northern Territory

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Issue no. 1

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Law Society Northern Territory

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N O T I C E B O A R D L A W S O C I E T Y N T orders that he provide affidavits prior to trial. Privilege may be waived by the actions of a lawyer with the ostensive authority of the person entitled to claim privilege (at [27]). However, here the natural person had not yet filed and served any affidavits. On the face of it, the consent orders were merely an indication of his intention to waive privilege in the future (at [28]). The Ombudsman contended that the natural person waived privilege by his entry into a binding agreement to provide affidavits prior to the trial, relying upon Birrell v Australian National Airlines Commission (1984) 1 FCR 526 at 531-532 per Gray J. Doubt about whether self-incrimination privilege can be waived by contract was expressed by Finkelstein J in ASIC v Mining Projects Pty Ltd (2007) 164 FCR 32; [2007] FCA 1620 at [18]-[21]. Distinguishing the position in Birrell, Rangiah J held at [33] that the Ombudsman provided no consideration for the natural person respondents consent to provide his affidavits prior to trial. Therefore, the agreement to do so was not binding on the natural person respondent and the penalty privilege was not waived by entering into a contract binding him to provide his affidavits prior to trial. The Court made the orders sought by the respondents. P R A C T I C E A N D P R O C E D U R E Application to reopen a case after judgment reserved but not delivered In FYD Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097 (15 September 2017) the Court (White J) considered an application to reopen a hearing after judgment had been reserved but before it had been delivered. The proceeding concerned contractual claims and misleading or deceptive conduct. The trial took placed for five days concluding on 30 March 2017, at which time judgment was reserved. On 27 June 2017, the applicants filed an interlocutory application seeking leave to reopen their case in order to adduce further limited evidence. The need to advance additional evidence and to advance certain claims were attributed to oversights by the applicants legal reprsentatives at the trial (at [10] and [19]). Justice White referred to the settled principles on which the Court acts in deciding whether to grant leave to reopen a case (at [30]-[31]). The overriding principle is the interests of the administration of justice having regard to all the circumstances of the case. Applying those principles, while conscious that the Court ought not readily grant an application to reopen following the reservation of judgment, White J exercised his discretion to permit the applicants to reopen their case (at [45]). DECEMBER R E G U L A T O R Y L A W C I V I L P E N A LT I E S Joint and several liability for a penalty Course of conduct principle Market harm/financial benefit Application by the Full Court itself of the principles for the imposition of a penalty Pecuniary penalties for contraventions of statutory provisions are commonplace in Commonwealth (and state) legislation. Within the Federal Courts jurisdiction there is substantial enforcement litigation resulting in pecuniary penalties under the Competition and Consumer Act 2010 (Cth) (CCA), the Corporations Act 2001 (Cth), the Fair Work Act 2009 (Cth) (FWA) and other legislation (such as the Environment Protection and Biodiversity Conservation Act 1999 (Cth)). The applicable principles for the imposition of civil penalties are well-established (in particular, the oft-cited French factors to be applied to determining an appropriate penalty listed by French J as a Federal Court judge in Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 at 52,152-52,153). However, the High Court has had some important things to say in recent years in this area of the law, such as about agreed penalties (Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482) and the importance of deterrence as the purpose of civil penalties (Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [65]-[66]). The High Court is currently reserved on the question of whether the Federal Court has power to order a party not to indemnify another party in respect of a pecuniary penalty order made under s 546 of the FWA (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Anor, M65/2017, reserved 17/10/2017). Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 59 (5 October 2017) is a recent Full Court judgment (Middleton, Beach and Moshinsky JJ) that is likely to be often cited on some discrete principles relevant to imposition of pecuniary penalties under s 76 of the CCA. It may also have relevance to other statutes providing for pecuniary penalties (allowing for any bespoke differences in the other legislative regimes compared to the CCA). The Full Court upheld the ACCCs appeal, and dismissed a cross-appeal, against the penalties that the trial judge imposed on Cement Australia Pty Ltd (Cement Australia) and its related companies for making and giving effect to anti-competitive agreements.