mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598
Outcome: discussed
issue is not whether the ACC Act has, by s 30, abrogated the privilege against self-incrimination. That has been decided by cases such as A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ; Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ; Loprete v Australian Crime Commission [2004] FCA 1476 ; X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 ; CC v Australian Crime Commission [2005] FCA 754. The decision in Hammond has been considered in other decisions of this Court where there has been an examination conducted under the ACC Act which has been sought to be constrained. A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ( Boulton ) concerned a challenge similar to the present one, but where no criminal charge had in fact been laid. Weinberg J regarded that as a significant point of difference from the facts considered in Hammond . His Honour was not satisfied that the applicant in that case was either charged with, or about to be charged with, a criminal offence. Nevertheless, his Honour agreed with the observations of Carr J in Mansfield v Australian Crime Commission [2003] FCA 1059 ; (2003) 132 FCR 251 ( Mansfield ) at 263, [65] that the ACC Act, by s 30 and in particular s 30(5), did not by necessary implication authorise the conducting of an examination in contempt of court. That decision was upheld by the Full Court: A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420 (Beaumont, Dowsett and Kenny JJ), but it appears that the principal issue on the appeal was whether the privilege against self-incrimination had been abrogated by s 30 of the ACC Act: see at 430.
Case: Barnes v Boulton [2004] FCA 1219 ; (2004) 139 FCR 356
Outcome: cited
it is true, as Finn J said in Barnes v Boulton [2004] FCA 1219 ; (2004) 139 FCR 356 at [47] , that the use immunity in s 30(5) puts an accused person in much the same position as if that person had not been compelled to answer the questions, his Honour also said, that outcome applies to a considerable degree and not absolutely. There is no assurance offered by the examiner that questions directly relevant to the charge would not be asked. The contrary is the case. Such questions are proposed to be put. There are no assurances by the examiner (even if such could be given, as to which I make no comment) that any non-publication orders made under s 25A(9) would continue notwithstanding the nature of the information procured, and notwithstanding its significance to the special investigation, either in the short term or in the longer term, or its significance to the head of the special investigation or to the CEO, and the use to which they respectively put such information, according to their respective responsibilities or powers under the ACC Act. Senior counsel for the ACC finally submitted that there are competing public interests, namely the administration of justice and the public interest in the continuation of the special investigation, and that there should be a balancing of these competing interests before granting the relief sought. That is a matter relevant to whether the ACC Act by necessary implication authorises questions, and obliges answers, in respect of which there is a real risk of interfering with the administration of justice. I have determined that matter adversely to the ACC's contention for the reasons expressed above.
Case: Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51
Outcome: discussed
issue is not whether the ACC Act has, by s 30, abrogated the privilege against self-incrimination. That has been decided by cases such as A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ; Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ; Loprete v Australian Crime Commission [2004] FCA 1476 ; X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 ; CC v Australian Crime Commission [2005] FCA 754. The issue also arose in a slightly different guise in Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ( Hak Song Ra ). The applicants, and others, had been charged with importing heroin, in contravention of provisions of the Criminal Code Act 1995 (Cth) and the Customs Act 1901 (Cth). At a committal hearing, on 5 March 2004, the applicants were discharged on the ground of insufficiency of evidence against them. An ACC special investigation had meanwhile commenced by resolution of the ACC Board. In my judgment, the first contention of senior counsel for the ACC should be rejected. That is the basis of the decision in Mansfield . That case applied the well accepted principles discussed by the High Court in Sage and in Hammond , and applied by the Full Court of this Court in another context in De Vonk . There are considered dicta of Weinberg J in Boulton and of Merkel J in Hak Song Ra , consistent with the conclusion of Carr J in Mansfield .
Case: Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486
Outcome: discussed
counsel for the ACC submitted that the decision in Hammond is distinguishable from the present circumstances, and secondly and alternatively, that the ACC Act has by necessary implication qualified the principle established in that case, so that the applicant was obliged to answer questions directly relevant to the charge in any event. She also put the contention that, by reason of the remarks of Dawson J in Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 ( Hamilton ) at 509, Hammond should be taken as an authority confined as narrowly as possible to its particular facts. The last mentioned submission was put, appropriately, cautiously. It is correct that, in Hamilton , Dawson J at 508-9 gave reasons why the decision in Hammond should not apply in respect of an examination of a director of a company under s 541(3) of the Companies Code (NSW) (with similar provisions now in s 596B of the Corporations Act 2001 (Cth)). However, the High Court did not there indicate that Hammond should not be followed. It is necessary that I should do so. Toohey J in Hamilton at 515 referred to the circumstance in Hammond that the questions were designed to establish that the plaintiff was guilty of the offence charged. See also the remarks of Toohey J in Huston v Costigan (1982) 45 ALR 559 at 563.
Case: Huston v Costigan (1982) 45 ALR 559
Outcome: cited
last mentioned submission was put, appropriately, cautiously. It is correct that, in Hamilton , Dawson J at 508-9 gave reasons why the decision in Hammond should not apply in respect of an examination of a director of a company under s 541(3) of the Companies Code (NSW) (with similar provisions now in s 596B of the Corporations Act 2001 (Cth)). However, the High Court did not there indicate that Hammond should not be followed. It is necessary that I should do so. Toohey J in Hamilton at 515 referred to the circumstance in Hammond that the questions were designed to establish that the plaintiff was guilty of the offence charged. See also the remarks of Toohey J in Huston v Costigan (1982) 45 ALR 559 at 563.
Case: Loprete v Australian Crime Commission [2004] FCA 1476
Outcome: cited
issue is not whether the ACC Act has, by s 30, abrogated the privilege against self-incrimination. That has been decided by cases such as A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ; Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ; Loprete v Australian Crime Commission [2004] FCA 1476 ; X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 ; CC v Australian Crime Commission [2005] FCA 754.
Case: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460
Outcome: cited
question whether there is a real risk of interfering with the administration of justice is one of fact. In Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460 at 468, Gibbs CJ (with whom Brennan J agreed) said: [N]ot every investigation into facts which are the subject of pending proceedings constitutes a contempt of court: [citation omitted]. In the present case it was not shown that the person who gave the notice had any intention to interfere with the course of justice, or that there was a real risk that the exercise of the powers under s 155 would in the circumstances have that effect.
Case: Sorby v Commonwealth [1983] HCA 10 ; (1983) 152 CLR 281
Outcome: cited
Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 ( Hammond ), the issue arose as to the obligation of a witness before a Royal Commission to answer questions about a matter in relation to which he had been charged. Section 16(b) of the Evidence Act 1958 (Vic) made it an offence to refuse to answer any question on the subject matter of the inquiry. Section 29 of that Act removed the privilege against self-incrimination, but (like s 30(5) of the ACC Act) s 30 of that Act then prohibited the use of such answers in any civil or criminal proceedings against the person. Sections 6 and 6DD of the Royal Commissions Act 1902 (Cth) also apparently contained terms to much the same effect, as was later decided in Sorby v Commonwealth [1983] HCA 10 ; (1983) 152 CLR 281.
Case: Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (No 2) [1982] HCA 57 ; (1982) 152 CLR 179
Outcome: cited
case clearly confronted the question whether, on the facts, there was a real risk that requiring answers to the question objected to would interfere with the administration of justice. The principle recognised in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (No 2) [1982] HCA 57 ; (1982) 152 CLR 179 and applied in De Vonk was not in issue.
Case: X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413
Outcome: cited
issue is not whether the ACC Act has, by s 30, abrogated the privilege against self-incrimination. That has been decided by cases such as A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ; Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ; Loprete v Australian Crime Commission [2004] FCA 1476 ; X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 ; CC v Australian Crime Commission [2005] FCA 754.
Case: SZIFJ v Minister for Immigration [2008] FMCA 1170
Outcome: cited
30 January 2006, an application was made to the Federal Magistrates Court for the judicial review of the Tribunal's decision of 22 April 2003. In the result, that application was successful: see the reasons for judgment of the Federal Magistrates Court in SZIFJ v Minister for Immigration [2008] FMCA 1170 , delivered 25 August 2008. As a result of that successful challenge, the case was remitted for hearing afresh on the merits in the Tribunal.
Case: SZIFJ v Minister for Immigration [2009] FMCA 501
Outcome: cited
30 December 2008, a differently constituted Tribunal affirmed, once again, the decision of the Minister's delegate not to grant the Appellant a protection visa. A further challenge by way of judicial review proceedings in the Federal Magistrates Court followed. On this occasion, the Appellant was unsuccessful. On 27 May 2009, the Federal Magistrates Court dismissed the Appellant's application for judicial review: see SZIFJ v Minister for Immigration [2009] FMCA 501.
Case: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43
Outcome: applied
that regard it should not be assumed that these grounds also can be advanced as of right. On behalf of the Minister it was highlighted, correctly, with respect, that, not having been bases of challenge in the Federal Magistrates Court to the second Tribunal's decision, leave to raise these grounds was necessary: see H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. In their joint judgement in that case (at para 7, p 45) Branson and Katz JJ draw attention to an observation earlier made in the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so, the main area for the settlement of disputes would move from the court of first instance to the appellate court tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: cited
that regard it should not be assumed that these grounds also can be advanced as of right. On behalf of the Minister it was highlighted, correctly, with respect, that, not having been bases of challenge in the Federal Magistrates Court to the second Tribunal's decision, leave to raise these grounds was necessary: see H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 ; (2000) 63 ALD 43. In their joint judgement in that case (at para 7, p 45) Branson and Katz JJ draw attention to an observation earlier made in the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so, the main area for the settlement of disputes would move from the court of first instance to the appellate court tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
Case: SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 ; (2008) 103 ALD 589
Outcome: followed
basis upon which the second Tribunal decision was challenged before the Federal Magistrates Court was apprehended bias on the part of the Tribunal. In this Court that ground is not repeated in the notice of appeal. Rather the notice of appeal contains two grounds which are as follows: His Honour erred in failing to find that the Second Respondent failed to take into account relevant considerations. Particulars (a) The Second Respondent failed to consider whether or not the Appellant, by reason of his status as a repatriated asylum seeker, member of the ethnic majority belonged to a particular social group for the purposes of the Convention. His Honour, bound by authorities of this Court, erred in failing to find that the Second Respondent breached section 424AA of the Migration Act and in failing to find that the Second Respondent's breach of section 424AA gave rise to jurisdictional error. Particulars (a) The Appellant asserts that a number of matters decided by this Court were wrongly decided in relation to this point, including, but not limited to SZLXI v Minister for Immigration [2008] FCA 1270 and SZLWI v Minister for Immigration [2008] FCA 1330. As to ground 2, there are decisions of judges of this Court in respect of s 424AA which hold that the extending of an oral invitation to provide information in response to particulars furnished by the Tribunal is permissive, rather than a matter of obligation. See SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 ; (2008) 103 ALD 589 ; and SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 ; (2008) 171 FCR 134. The ground of appeal invites me not to follow those decisions. I would only do that if I were persuaded that they are clearly wrong. On its face, the language of s 424AA is eloquent in the contrast between the use of the word "may" in para (a), and the use of the word "must" in para (b). As a matter of construction, it seems to me that para (a) of s 424AA is, indeed, permissive. I am not persuaded, on the basis of that examination, that either of the decisions mentioned should not be followed.
Case: SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 ; (2008) 171 FCR 134
Outcome: followed
basis upon which the second Tribunal decision was challenged before the Federal Magistrates Court was apprehended bias on the part of the Tribunal. In this Court that ground is not repeated in the notice of appeal. Rather the notice of appeal contains two grounds which are as follows: His Honour erred in failing to find that the Second Respondent failed to take into account relevant considerations. Particulars (a) The Second Respondent failed to consider whether or not the Appellant, by reason of his status as a repatriated asylum seeker, member of the ethnic majority belonged to a particular social group for the purposes of the Convention. His Honour, bound by authorities of this Court, erred in failing to find that the Second Respondent breached section 424AA of the Migration Act and in failing to find that the Second Respondent's breach of section 424AA gave rise to jurisdictional error. Particulars (a) The Appellant asserts that a number of matters decided by this Court were wrongly decided in relation to this point, including, but not limited to SZLXI v Minister for Immigration [2008] FCA 1270 and SZLWI v Minister for Immigration [2008] FCA 1330. As to ground 2, there are decisions of judges of this Court in respect of s 424AA which hold that the extending of an oral invitation to provide information in response to particulars furnished by the Tribunal is permissive, rather than a matter of obligation. See SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 ; (2008) 103 ALD 589 ; and SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 ; (2008) 171 FCR 134. The ground of appeal invites me not to follow those decisions. I would only do that if I were persuaded that they are clearly wrong. On its face, the language of s 424AA is eloquent in the contrast between the use of the word "may" in para (a), and the use of the word "must" in para (b). As a matter of construction, it seems to me that para (a) of s 424AA is, indeed, permissive. I am not persuaded, on the basis of that examination, that either of the decisions mentioned should not be followed.
Case: Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101
Outcome: followed
In Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101, legal representatives of the Australian Customs Service ('Customs') stated that they had given advice to Customs that a particular regulation did not prohibit all public comment by an officer on matters of public administration. Gyles J, with whom Tamberlin J agreed, considered that the primary Judge had erred in drawing a distinction between the conclusion expressed in legal advice, on the one hand, and the reasons for that conclusion, on the other. This distinction had led the primary judge to the incorrect holding that disclosure of the conclusion did not involve disclosure of the reasons (at [62]). 14 Gyles J referred to a number of authorities supporting the proposition that a party who expresses a particular legal conclusion and asserts that it has received legal advice endorsing that view, will be taken to have waived privilege in the legal advice. Gyles J expressed agreement with this reasoning (at [65]): ' The voluntary disclosure of the gist or conclusion of the legal advice amounts to waiver in respect of the whole of the advice to which reference is made including the reasons for the conclusion. The primary judge was in error in drawing a distinction between conclusion and reasoning in the context of such a disclosure. ' 16 In agreeing with the analysis of Gyles J, Tamberlin J observed (at [6]) that the position in the case before the Full Court may have been different if the legal advisors to Customs had simply asserted that the client had taken legal advice and had adopted a particular position having considered that advice. Tamberlin J pointed out that in these circumstances, the substance of the advice is not disclosed, but only the fact that some advice had been given and had been considered. His Honour went on: 'However, once the conclusion in the advice is stated, together with the effect of it, then in my view, there is imputed waiver of the privilege. The whole point of an advice is the final conclusion.' Later in the judgment, his Honour observed (at [14]): ' Disclosure of one conclusion but not others in an advice does not necessarily amount to waiver in respect of the non-disclosed conclusions. However, if the conclusions and reasoning are so interconnected that they cannot be separated or isolated, then it may be that the whole of the advice on which all those conclusions are based, must be considered to have been waived. '
Case: Rio Tinto Ltd v Commissioner of Taxation (2005) 224 ALR 299
Outcome: cited
The principle stated in Bennett v CEO, was applied by Sundberg J in Rio Tinto Ltd v Commissioner of Taxation (2005) 224 ALR 299. In that case, the Commissioner produced, in response to an application under the Freedom of Information Act 1982 (Cth), an audit report. The audit report stated that the Commissioner would be relying upon certain specific grounds 'supported by ... opinions obtained from counsel.' Sundberg J held (at [49]) that: 'The conduct of the [Commissioner] in twice providing to the applicant an Audit Report that discloses the "gist" or "substance" of the privileged Audit Report documents is inconsistent with the maintenance of legal professional privilege over those documents and thus effects a waiver of the privilege. ' 19 I should add that I have not been invited to examine the legal advice in order to determine whether it deals with discrete issues, other than those in respect of which the Alchemy Paper records the conclusion reached. Mr Sheahan SC, on behalf of the applicants, accepted that if Optus claims that privilege in parts of the legal advice has not been waived because those parts relate to discrete issues, it may be appropriate for Optus to have an opportunity to test that claim. However, in that event, given my role in the substantive proceedings, it will be necessary for another Judge to inspect the legal advice in order to rule on Optus' claims. 20 For the reasons I have given , subject to what is said in the previous paragraph, I consider that any privilege in the legal advice referred to in the Alchemy Paper has been waived by Optus. The waiver, in my view, extends to legal advice on any of the issues identified in par 5, above. Accordingly, Optus' motion must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 3 April 2006 Counsel for the sixteenth and twenty-second respondents: Mr A Bannon SC with Mr M Leeming and Mr J Hewitt Solicitors for the sixteenth and twenty-second respondents: Atanaskovic Hartnell Counsel for the applicants: Mr J Sheahan SC with Mr M Darke Solicitors for the applicants: Freehills Date of hearing: 30 March 2006 Date of judgment: 3 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/348.html
Case: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 ; (2004) 217 CLR 424
Outcome: followed
Moreover, if the provisions of Part C of the POSA are ambiguous, so that they could be construed either as I consider them to read or as BP contends, then the ambiguity should be resolved in favour of the guarantors, because of the rule that their liability is strictissimi juris: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 ; (1987) 162 CLR 549 at 561 per Mason ACJ, Wilson, Brennan and Dawson JJ. And this principle is also relevant in the construction of the indemnity in cl C4.1: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 ; (2004) 217 CLR 424 at 433-437 [17] - [23] esp at 437 [23] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.