mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Billinudgel Pastoral Co Pty Ltd v Westpac Banking Corporation (Unreported, FCA, Cooper J, 27 March 1998)
Outcome: followed
The Affidavit as filed by the Appellant on 16 July 2008 opposing an order dismissing the proceeding provides no reason for not making that order and provides no explanation as to why the orders previously made have not been complied with. The fact remains, however, and is readily acknowledged by the Appellant, that she is in no better position today than she was on 4 April 2008 to meet any order requiring the provision of security. The Affidavit merely sets forth the concerns of the Appellant and the issues that she wishes to continue to pursue. As noted by Black CJ, Sheppard and Einfeld JJ in Microbio Resources Inc v Betatene Ltd (Unreported, FCA, 8 October 1993): The Court is careful to see that orders for security for costs do not work injustice to parties against whom such orders are made, but if those parties do not comply with the orders and give no evidence or explanation as to why they have not complied with them, they cannot be heard to complain of injustice if, after a considerable length of time, and extensions of time, the ultimate sanction of dismissal is applied. It is incumbent upon parties in such circumstances to provide evidence of their position. See also: Billinudgel Pastoral Co Pty Ltd v Westpac Banking Corporation (Unreported, FCA, Cooper J, 27 March 1998); Cosdean Investments Pty Ltd v Football Federation Australia Ltd (No 3) [2007] FCA 766 at [3] per Mansfield J.
Case: Capital Webworks Pty Ltd v Adultshop.com.Limited [2008] FCA 40
Outcome: followed
Had there been a change in the circumstances of the Appellant or any prospect that the Appellant could provide security if further time were permitted, the proceeding may well have been stayed and the time previously ordered extended. The Court undoubtedly has power to vary orders previously made, including a power to vary the time at which security is to be provided: Federal Court of Australia Act 1976 (Cth), s 56(3) ; Federal Court Rules , O 28, r 5(2). As to the practice of the Court and the circumstances in which that power may be exercised, in Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603 , Hely J observed: [11] It is clear from the terms of O28 r5(2) that the Court has power to set aside or vary the original security for costs order. The Court retains jurisdiction, because of the very nature of an interlocutory order, to set aside, vary or discharge it up to the time of the final disposition of the proceedings. However, as McLelland J recognised in Brimaud v Honeysett Instant Print Pty Ltd (1988) 6 ACLC 942 , it would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will. Hence the ordinary practice is that an application to set aside, vary or discharge an order of a substantive nature made after a contested hearing in contemplation that it would operate until a final disposition of the proceedings, must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application. That principle was applied by a Full Court of this Court in Darling Harbourside (Sydney) Pty Ltd v Sanirise Pty Ltd (unreported, Beaumont, Carr, Sackville JJ, 17 May 1996) to an order for the provision of security for costs. The Full Court set aside an order varying an order for the provision of security upon the basis that there had been no material change in circumstances established so as to warrant a variation of the original order. See also: Capital Webworks Pty Ltd v Adultshop.com.Limited [2008] FCA 40 at [12] per McKerracher J.
Case: Cosdean Investments Pty Ltd v Football Federation Australia Ltd (No 3) [2007] FCA 766
Outcome: followed
The Affidavit as filed by the Appellant on 16 July 2008 opposing an order dismissing the proceeding provides no reason for not making that order and provides no explanation as to why the orders previously made have not been complied with. The fact remains, however, and is readily acknowledged by the Appellant, that she is in no better position today than she was on 4 April 2008 to meet any order requiring the provision of security. The Affidavit merely sets forth the concerns of the Appellant and the issues that she wishes to continue to pursue. As noted by Black CJ, Sheppard and Einfeld JJ in Microbio Resources Inc v Betatene Ltd (Unreported, FCA, 8 October 1993): The Court is careful to see that orders for security for costs do not work injustice to parties against whom such orders are made, but if those parties do not comply with the orders and give no evidence or explanation as to why they have not complied with them, they cannot be heard to complain of injustice if, after a considerable length of time, and extensions of time, the ultimate sanction of dismissal is applied. It is incumbent upon parties in such circumstances to provide evidence of their position. See also: Billinudgel Pastoral Co Pty Ltd v Westpac Banking Corporation (Unreported, FCA, Cooper J, 27 March 1998); Cosdean Investments Pty Ltd v Football Federation Australia Ltd (No 3) [2007] FCA 766 at [3] per Mansfield J.
Case: Lawrance v Commonwealth [2008] FCA 417
Outcome: cited
Orders were previously made in this proceeding on 4 April 2008 requiring the Appellant to provide security for costs: Lawrance v Commonwealth [2008] FCA 417. Those orders required security to be provided at two stages -- the first stage required 50% of the security to be provided within 21 days of those orders being made; the second stage required the balance of the security to be provided 21 days prior to the hearing of the appeal to this Court from a decision of the Federal Magistrates Court: Lawrance v Commonwealth (No 5) [2007] FMCA 1934. 8 Today the Appellant has frankly -- and quite properly -- conceded that she remains unable to meet any order requiring security to be provided. Her position is that the present proceeding should remain stayed as she may ultimately prevail in a number of other proceedings she is pursuing in the Federal Magistrates Court. If ultimately successful in those other proceedings, she contends that it would be unjust to have the present proceeding in this Court dismissed. Whatever success the Appellant may or may not have in those other proceedings, however, is a matter to be resolved in those other proceedings. Appropriate orders will be made by the Federal Magistrates Court to resolve those proceedings. They have no relevance to the present proceeding, other than to possibly support a submission advanced by the Respondents that the continued pursuit of the present proceeding is either vexatious or an abuse of process. It is, however, unnecessary to resolve those submissions. For present purposes it is sufficient to note that in the reasons for decision as published on 4 April 2008 it was then concluded that none of the grounds of appeal sought to be pursued in this Court had " any real prospects of success ": [2008] FCA 417 at [26] . There is no reason to revisit that conclusion or vary it -- even if it were permissible to do so. 9 It is considered that the proceeding should now be dismissed pursuant to O 28, r 5(1)(b) of the Federal Court Rules . There has been non-compliance with the orders requiring security for costs and there is no prospect that such security could be provided if further time were permitted.
Case: Lawrance v Commonwealth (No 5) [2007] FMCA 1934
Outcome: cited
Orders were previously made in this proceeding on 4 April 2008 requiring the Appellant to provide security for costs: Lawrance v Commonwealth [2008] FCA 417. Those orders required security to be provided at two stages -- the first stage required 50% of the security to be provided within 21 days of those orders being made; the second stage required the balance of the security to be provided 21 days prior to the hearing of the appeal to this Court from a decision of the Federal Magistrates Court: Lawrance v Commonwealth (No 5) [2007] FMCA 1934.
Case: Mary River Cattle Station Pty Ltd v Northern Territory [2002] NTSC 11
Outcome: followed
In the absence of any change in the position of the Appellant since the time when the orders were first made, and in the absence of any prospect that security could be provided, it is considered that the Respondents are entitled to the certainty that they seek. As also observed by Hely J in Truth about Motorways : [28] It is a serious thing to terminate proceedings when there has not been a hearing on the merits, however, there is a public interest in the conduct of judicial proceedings in conformity with orders made by the Court... See also: Mary River Cattle Station Pty Ltd v Northern Territory [2002] NTSC 11 at [26] per Martin CJ.
Case: Microbio Resources Inc v Betatene Ltd (Unreported, FCA, Black CJ, Sheppard and Einfeld JJ, 8 October 1993)
Outcome: followed
The Affidavit as filed by the Appellant on 16 July 2008 opposing an order dismissing the proceeding provides no reason for not making that order and provides no explanation as to why the orders previously made have not been complied with. The fact remains, however, and is readily acknowledged by the Appellant, that she is in no better position today than she was on 4 April 2008 to meet any order requiring the provision of security. The Affidavit merely sets forth the concerns of the Appellant and the issues that she wishes to continue to pursue. As noted by Black CJ, Sheppard and Einfeld JJ in Microbio Resources Inc v Betatene Ltd (Unreported, FCA, 8 October 1993): The Court is careful to see that orders for security for costs do not work injustice to parties against whom such orders are made, but if those parties do not comply with the orders and give no evidence or explanation as to why they have not complied with them, they cannot be heard to complain of injustice if, after a considerable length of time, and extensions of time, the ultimate sanction of dismissal is applied. It is incumbent upon parties in such circumstances to provide evidence of their position. See also: Billinudgel Pastoral Co Pty Ltd v Westpac Banking Corporation (Unreported, FCA, Cooper J, 27 March 1998); Cosdean Investments Pty Ltd v Football Federation Australia Ltd (No 3) [2007] FCA 766 at [3] per Mansfield J.
Case: Sluggett v Human Rights &amp; Equal Opportunity Commission [2002] FCA 1060
Outcome: considered
The First and Third to Thirteenth Respondents sought a costs order for a " gross sum " as permitted by O 62, r 4(2)(c) of the Federal Court Rules . It is considered appropriate to make such an order. The making of such an order in the present proceeding would avoid the additional expense and delay inevitably involved in taxation: cf Beach Petroleum NL v Johnson (1995) 57 FCR 119 at 120. An Affidavit as filed today quantifies the costs to date incurred by those Respondents as being in excess of $10,000; the " gross sum " for which an order is sought is $7,500. There is not considered to be any real prospect that the Appellant would obtain on taxation a lesser quantification: cf Sluggett v Human Rights &amp; Equal Opportunity Commission [2002] FCA 1060. It is thus appropriate to make an order in that amount.
Case: Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603
Outcome: followed
Had there been a change in the circumstances of the Appellant or any prospect that the Appellant could provide security if further time were permitted, the proceeding may well have been stayed and the time previously ordered extended. The Court undoubtedly has power to vary orders previously made, including a power to vary the time at which security is to be provided: Federal Court of Australia Act 1976 (Cth), s 56(3) ; Federal Court Rules , O 28, r 5(2). As to the practice of the Court and the circumstances in which that power may be exercised, in Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603 , Hely J observed: [11] It is clear from the terms of O28 r5(2) that the Court has power to set aside or vary the original security for costs order. The Court retains jurisdiction, because of the very nature of an interlocutory order, to set aside, vary or discharge it up to the time of the final disposition of the proceedings. However, as McLelland J recognised in Brimaud v Honeysett Instant Print Pty Ltd (1988) 6 ACLC 942 , it would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will. Hence the ordinary practice is that an application to set aside, vary or discharge an order of a substantive nature made after a contested hearing in contemplation that it would operate until a final disposition of the proceedings, must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application. That principle was applied by a Full Court of this Court in Darling Harbourside (Sydney) Pty Ltd v Sanirise Pty Ltd (unreported, Beaumont, Carr, Sackville JJ, 17 May 1996) to an order for the provision of security for costs. The Full Court set aside an order varying an order for the provision of security upon the basis that there had been no material change in circumstances established so as to warrant a variation of the original order. See also: Capital Webworks Pty Ltd v Adultshop.com.Limited [2008] FCA 40 at [12] per McKerracher J. 11 In the absence of any change in the position of the Appellant since the time when the orders were first made, and in the absence of any prospect that security could be provided, it is considered that the Respondents are entitled to the certainty that they seek. As also observed by Hely J in Truth about Motorways : [28] It is a serious thing to terminate proceedings when there has not been a hearing on the merits, however, there is a public interest in the conduct of judicial proceedings in conformity with orders made by the Court... See also: Mary River Cattle Station Pty Ltd v Northern Territory [2002] NTSC 11 at [26] per Martin CJ.
Case: Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48 ; [2005] 1 AC 610
Outcome: referred to
In civil litigation there is a general predisposition towards 'all cards being placed on the table'. The public interest in the due administration of justice requires that all relevant material should be available to be taken into account so that an applicant will succeed if he is entitled to do so and will fail if he is not (see Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48 ; [2005] 1 AC 610 ('Three Rivers District Council') at 647). 19 Having said that, it is also in the interests of the whole community that lawyers give their clients sound advice, accurate as to the law and sensible as to their conduct (see Three Rivers District Council at 659). In this regard, a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests (per Lord Taylor of Gosforth CJ in his speech in Regina v Derby Magistrates' Court, Ex parte B [1996] 1 AC 487 at 507). 21 If a communication qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client entitled to it, and it can be overridden by statute, but it is otherwise absolute. There is no balancing exercise that has to be carried out (per Lord Scott of Foscote in Three Rivers District Council at 646 [25]; see also per McHugh J in Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501 at 552).
Case: Regina v Derby Magistrates' Court, Ex parte B [1996] 1 AC 487
Outcome: referred to
Having said that, it is also in the interests of the whole community that lawyers give their clients sound advice, accurate as to the law and sensible as to their conduct (see Three Rivers District Council at 659). In this regard, a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests (per Lord Taylor of Gosforth CJ in his speech in Regina v Derby Magistrates' Court, Ex parte B [1996] 1 AC 487 at 507).
Case: Esso Australia Resources Limited v Commissioner of Taxation of The Commonwealth of Australia [1999] HCA 67 ; (1999) 201 CLR 49
Outcome: referred to
The obvious tension between the policy of encouraging full and frank disclosure by clients to their lawyers without the apprehension of being prejudiced by subsequent disclosure of the relevant communication, and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of client legal professional privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information (per Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Limited v Commissioner of Taxation of The Commonwealth of Australia [1999] HCA 67 ; (1999) 201 CLR 49 ('Esso') at [35]). 27 It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence (per Stephen, Mason (as his Honour then was) and Murphy JJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689; see also per Gleeson CJ, Gaudron and Gummow JJ in Esso at [52]).
Case: Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501
Outcome: referred to
If a communication qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client entitled to it, and it can be overridden by statute, but it is otherwise absolute. There is no balancing exercise that has to be carried out (per Lord Scott of Foscote in Three Rivers District Council at 646 [25]; see also per McHugh J in Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501 at 552).
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: referred to
At common law, what brings about a waiver of privilege 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 (per Gleeson CJ, Gaudron, Gummow and Callinan JJ in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [28] and [29]). 23 The above principle was preceded by the following passage in the decision of the High Court in Mann v Carnell at [29], which was cited with approval by the Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [43] . The High Court said: '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.'
Case: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341
Outcome: referred to
The above principle was preceded by the following passage in the decision of the High Court in Mann v Carnell at [29], which was cited with approval by the Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [43] . The High Court said: '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.' 47 As I have said, it is unnecessary for me to reach any concluded view in relation to this aspect of the matter. It is not inappropriate, however, to refer to the observations of Gleeson CJ, then sitting as the Chief Justice of New South Wales, in Benecke v National Australia Bank (1993) 35 NSWLR 110 at 111; see also Commissioner of Taxation v Rio Tinto Ltd at [49] and [61].