mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: AWB Ltd v Cole [2006] FCA 571 ; (2006) 152 FCR 382 
Outcome: referred to
the nomenclature in case law often refers to documents it is to be remembered that 'privilege protects confidential communications, and not documents as such. As Dawson J said in Propend at 515 "... to say that a document is privileged is merely a shorthand way of saying that the communication constituted by the document is privileged"' ( AWB Ltd v Cole [2006] FCA 571 ; (2006) 152 FCR 382 per Young J at [102]). Justice Young went on to observe at [103]: The decision in Propend turned fundamentally on the proposition that legal professional privilege protects communications rather than documents. This explains why, as the High Court held in Propend , legal professional privilege can attach to copies of non-privileged documents; the purpose of bringing the copy into existence may be different from the purpose of bringing the original into existence, and may attract legal professional privilege: see Brennan CJ at 507, Gaudron J at 544, McHugh J at 553-554, Gummow J at 571 and Kirby J at 587. The Basis of the Applicants' Claims
Case: AWB v Cole (No. 5) [2006] FCA 1234 ; (2006) 155 FCR 30
Outcome: referred to
determination of the dominant purpose is a question of fact that must be determined objectively. It is not the same as the 'primary' or the 'substantial' purpose ( Grant v Downs at 678). The dominant purpose may be best described as the ruling, prevailing, paramount or most influential purpose ( Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at 336 337). Where the claim is in respect of communications in documents, the court may examine the documents to ascertain the purpose for their creation (Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 70). An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence ( Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 (' Pratt ') at [35] per Finn J, confirmed in AWB v Cole (No. 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44] ). If a court finds on the balance of probabilities that the entirety of the document was created for the requisite purpose, then the entire document attracts the privilege. If a court finds that parts, but not all of the document, were created for this purpose, then those parts will attract the privilege (see GEC Marconi Systems Pty Ltd v BHP Information Technology [2000] FCA 593 at [11] ; Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 43 FCR 408 at 414 417).
Case: Federal Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247 ; 60 ATR 466
Outcome: referred to
dominant purpose for which a document is brought into existence must be determined at the time of its production ( Federal Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247 ; 60 ATR 466 at 478) having regard to the evidence, the nature of the documents and the parties' submissions (supra, at 477). The purpose will ordinarily be that of the maker, although this will not always be the case ( Mitsubishi Electric Australia Pty Ltd at 338; Grant v Downs at 677), and evidence of intention of the document's maker, or the person who authorised or procured it, is not conclusive of purpose ( ACCC v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545).
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology [2000] FCA 593
Outcome: cited
determination of the dominant purpose is a question of fact that must be determined objectively. It is not the same as the 'primary' or the 'substantial' purpose ( Grant v Downs at 678). The dominant purpose may be best described as the ruling, prevailing, paramount or most influential purpose ( Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at 336 337). Where the claim is in respect of communications in documents, the court may examine the documents to ascertain the purpose for their creation (Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 70). An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence ( Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 (' Pratt ') at [35] per Finn J, confirmed in AWB v Cole (No. 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44] ). If a court finds on the balance of probabilities that the entirety of the document was created for the requisite purpose, then the entire document attracts the privilege. If a court finds that parts, but not all of the document, were created for this purpose, then those parts will attract the privilege (see GEC Marconi Systems Pty Ltd v BHP Information Technology [2000] FCA 593 at [11] ; Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 43 FCR 408 at 414 417).
Case: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674
Outcome: referred to
applicants bear the onus of proving that each relevant communication was undertaken, or each relevant document was brought into existence, for the dominant purpose of giving or obtaining legal advice ( Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689). That obligation is not discharged merely by an assertion of privilege in an affidavit verifying a list of documents ( National Crime Authority v S (1991) 29 FCR 203 at 211), nor is it established by the use of a verbal formula or by simple assertion that the communications were undertaken for the dominant purpose of obtaining or giving 'legal advice' ( Grant v Downs at 689). The determination of the dominant purpose is a question of fact that must be determined objectively. It is not the same as the 'primary' or the 'substantial' purpose ( Grant v Downs at 678). The dominant purpose may be best described as the ruling, prevailing, paramount or most influential purpose ( Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at 336 337). Where the claim is in respect of communications in documents, the court may examine the documents to ascertain the purpose for their creation (Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 70). An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence ( Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 (' Pratt ') at [35] per Finn J, confirmed in AWB v Cole (No. 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44] ). If a court finds on the balance of probabilities that the entirety of the document was created for the requisite purpose, then the entire document attracts the privilege. If a court finds that parts, but not all of the document, were created for this purpose, then those parts will attract the privilege (see GEC Marconi Systems Pty Ltd v BHP Information Technology [2000] FCA 593 at [11] ; Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 43 FCR 408 at 414 417). The dominant purpose for which a document is brought into existence must be determined at the time of its production ( Federal Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247 ; 60 ATR 466 at 478) having regard to the evidence, the nature of the documents and the parties' submissions (supra, at 477). The purpose will ordinarily be that of the maker, although this will not always be the case ( Mitsubishi Electric Australia Pty Ltd at 338; Grant v Downs at 677), and evidence of intention of the document's maker, or the person who authorised or procured it, is not conclusive of purpose ( ACCC v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 at 545).
Case: Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 43 FCR 408
Outcome: cited
determination of the dominant purpose is a question of fact that must be determined objectively. It is not the same as the 'primary' or the 'substantial' purpose ( Grant v Downs at 678). The dominant purpose may be best described as the ruling, prevailing, paramount or most influential purpose ( Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at 336 337). Where the claim is in respect of communications in documents, the court may examine the documents to ascertain the purpose for their creation (Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 70). An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence ( Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 (' Pratt ') at [35] per Finn J, confirmed in AWB v Cole (No. 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44] ). If a court finds on the balance of probabilities that the entirety of the document was created for the requisite purpose, then the entire document attracts the privilege. If a court finds that parts, but not all of the document, were created for this purpose, then those parts will attract the privilege (see GEC Marconi Systems Pty Ltd v BHP Information Technology [2000] FCA 593 at [11] ; Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 43 FCR 408 at 414 417).
Case: Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332
Outcome: referred to
determination of the dominant purpose is a question of fact that must be determined objectively. It is not the same as the 'primary' or the 'substantial' purpose ( Grant v Downs at 678). The dominant purpose may be best described as the ruling, prevailing, paramount or most influential purpose ( Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at 336 337). Where the claim is in respect of communications in documents, the court may examine the documents to ascertain the purpose for their creation (Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 70). An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence ( Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 (' Pratt ') at [35] per Finn J, confirmed in AWB v Cole (No. 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44] ). If a court finds on the balance of probabilities that the entirety of the document was created for the requisite purpose, then the entire document attracts the privilege. If a court finds that parts, but not all of the document, were created for this purpose, then those parts will attract the privilege (see GEC Marconi Systems Pty Ltd v BHP Information Technology [2000] FCA 593 at [11] ; Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 43 FCR 408 at 414 417). The exception to this general proposition was where confidential communications passed between a legal advisor or his or her client and a third party (who was not an agent for the client), provided it was made for the dominant purpose of use in or in relation to litigation then existing, anticipated or in contemplation: Wheeler v Le Marchant , supra. As was pointed out by Batt JA in Mitsubishi Electric Australia Pty Ltd at [8], this aspect of legal professional privilege was called litigation privilege as distinct from legal advice privilege.
Case: National Crime Authority v S (1991) 29 FCR 203
Outcome: cited
applicants bear the onus of proving that each relevant communication was undertaken, or each relevant document was brought into existence, for the dominant purpose of giving or obtaining legal advice ( Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689). That obligation is not discharged merely by an assertion of privilege in an affidavit verifying a list of documents ( National Crime Authority v S (1991) 29 FCR 203 at 211), nor is it established by the use of a verbal formula or by simple assertion that the communications were undertaken for the dominant purpose of obtaining or giving 'legal advice' ( Grant v Downs at 689).
Case: National Employers' Mutual General Insurance Association v Waind [1979] HCA 11 ; (1979) 141 CLR 648
Outcome: cited
subsequent provision of that document to solicitors for advice is not determinative of the purpose for which it was created. This purpose is to be differentiated from the purpose for which the information is obtained (see National Employers' Mutual General Insurance Association v Waind [1979] HCA 11 ; (1979) 141 CLR 648 at 654). As Brennan CJ said in Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 508: The test is anchored to the purpose for which the document was brought into existence ; the use to which a document is put after it is brought into existence is immaterial. (Emphasis added)
Case: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 
Outcome: referred to
determination of the dominant purpose is a question of fact that must be determined objectively. It is not the same as the 'primary' or the 'substantial' purpose ( Grant v Downs at 678). The dominant purpose may be best described as the ruling, prevailing, paramount or most influential purpose ( Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at 336 337). Where the claim is in respect of communications in documents, the court may examine the documents to ascertain the purpose for their creation (Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 at 70). An appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence ( Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 (' Pratt ') at [35] per Finn J, confirmed in AWB v Cole (No. 5) [2006] FCA 1234 ; (2006) 155 FCR 30 at [44] ). If a court finds on the balance of probabilities that the entirety of the document was created for the requisite purpose, then the entire document attracts the privilege. If a court finds that parts, but not all of the document, were created for this purpose, then those parts will attract the privilege (see GEC Marconi Systems Pty Ltd v BHP Information Technology [2000] FCA 593 at [11] ; Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 43 FCR 408 at 414 417).
Case: Australian Securities and Investments Commission v ACN 102 556 098 Pty Ltd (2003) 48 ACSR 350
Outcome: followed
sentiments are evident in the speech of Lord Cross in F Hoffman la roche &amp; Co AG &amp; Ors v Secretary of State for Trade and Industry [1975] AC 295 at 371: "... if the Crown is taking proceedings under a statutory provision ... the court in considering whether or not to make the grant of an interim injunction conditional of the giving of an undertaking in damages has to bear in mind the interest which the public and in particular any section of it which will benefit directly thereby has in seeing that the law in question is enforced. Authorities in this country which evidence a similar position are Australian Securities and Investments Commission v ACN 102 556 098 Pty Ltd (2003) 48 ACSR 350 at 352 and Director of Public Prosecutions (WA) v Mansfield &amp; Ors [2006] WASC 225 at [14] .
Case: Brigginshaw v Brigginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: cited
delay to which the remaining Respondents point is principally that which preceded the institution of proceedings late last year. I do not regard that as a material basis for refusing interlocutory injunctive relief in this case. Prima facie, Mr Weber's affidavits show a continuum of conduct. Further, it is quite apparent from his affidavits that there has necessarily been both an intensive and extensive investigation in order to bring matters to the point where they were fit for the institution of proceedings in this Court. It is to be remembered that, though a criminal standard of proof is not required in order to find contraventions which sound in civil penalties, nonetheless inexact proofs and indirect references are not sufficient: Brigginshaw v Brigginshaw [1938] HCA 34 ; (1938) 60 CLR 336. I have already passed comment as to the breadth of the interlocutory injunctive relief sought by ACMA. It is a serious thing at a such stage of a proceeding to interfere with the lawful conduct of a business or with the ability lawfully to institute other businesses. Subject to one qualification, I consider that the undertakings proffered by the remaining Respondents sufficiently meet the case for interlocutory injunctive relief that ACMA has established. That qualification relates to Winning's undertaking only that it will "use reasonable endeavours" to remove or otherwise deactivate, or cause to be removed or deactivated, any fictitious profiles on dating websites or social networking websites it has registered or otherwise placed on those websites, whether by itself, its servants or agents. Winning seems, prima facie , to have control in respect of such websites. ACMA, in my opinion, has established a case for an interlocutory order that Winning remove or deactivate the websites concerned. If it transpires, for some unforeseen reason, that Winning cannot, notwithstanding what it shows to be endeavours which the Court regards as reasonable effect removal or deactivation, it and its officers would not be found guilty of a contempt. That though is to anticipate. Further, what, prospectively, amounts to "reasonable endeavours" may be a subject upon which reasonable people might reasonably differ. It is undesirable, in my opinion, that that degree of imprecision attend either an interlocutory injunction or an undertaking which upon acceptance will have the same practical effect.
Case: Director of Public Prosecutions (WA) v Mansfield &amp; Ors [2006] WASC 255
Outcome: followed
sentiments are evident in the speech of Lord Cross in F Hoffman la roche &amp; Co AG &amp; Ors v Secretary of State for Trade and Industry [1975] AC 295 at 371: "... if the Crown is taking proceedings under a statutory provision ... the court in considering whether or not to make the grant of an interim injunction conditional of the giving of an undertaking in damages has to bear in mind the interest which the public and in particular any section of it which will benefit directly thereby has in seeing that the law in question is enforced. Authorities in this country which evidence a similar position are Australian Securities and Investments Commission v ACN 102 556 098 Pty Ltd (2003) 48 ACSR 350 at 352 and Director of Public Prosecutions (WA) v Mansfield &amp; Ors [2006] WASC 225 at [14] .
Case: F Hoffman la roche &amp; Co AG &amp; Ors v Secretary of State for Trade and Industry [1975] AC 295
Outcome: followed
sentiments are evident in the speech of Lord Cross in F Hoffman la roche &amp; Co AG &amp; Ors v Secretary of State for Trade and Industry [1975] AC 295 at 371: "... if the Crown is taking proceedings under a statutory provision ... the court in considering whether or not to make the grant of an interim injunction conditional of the giving of an undertaking in damages has to bear in mind the interest which the public and in particular any section of it which will benefit directly thereby has in seeing that the law in question is enforced. Authorities in this country which evidence a similar position are Australian Securities and Investments Commission v ACN 102 556 098 Pty Ltd (2003) 48 ACSR 350 at 352 and Director of Public Prosecutions (WA) v Mansfield &amp; Ors [2006] WASC 225 at [14] .
Case: Foster v Australian Competition and Consumer Commissioner [2006] FCAFC 21 ; (2006) 149 FCR 135
Outcome: followed
submits that, in an appropriate case, this Court's jurisdiction to grant injunctive relief under s 80 of the TPA does extend to prohibiting a person from engaging altogether in a particular field of commercial activity or industry if that is required to protect the public from conduct of the kind which constituted the contravention of that Act found by the Court. A Full Court of this Court has held as much: Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 ; (2006) 149 FCR 135 at 149, [35] . Foster concerned final injunctive relief granted in circumstances which were sufficiently serious to move the trial judge to impose what he regarded as a pecuniary penalty "at the high end of the scale". Accepting though, as I conceive I must, that s 80 confers such a power in respect of injunctive relief, the facts would, in my opinion, have to be very singular and serious indeed and an applicant's case overwhelming to warrant the granting of relief of such breadth. There is a basis, apparent from the affidavits of Mr SJ Weber, ACMA's senior investigator in this matter, for believing that, either or each of Messrs Salcedo and Maughan, on behalf of Mobilegate, have provided a provisioning form for the provision of a premium short code 19724253 for use in a subscription service known as "Australian Singles On-line" and of an additional short code 19753787. ACMA, so Mr Weber deposes, has received and continues to receive complaints from mobile phone users and dating website operators in relation to the short code 19724253. Mr Weber also deposes to the current use of additional short codes allocated to Mobilegate and Winning respectively, apparently being used for the sending of messages of the kind referred to in the statement of claim. There has been no affidavit material read on behalf of any of the remaining the Respondents as to these matters. Their solicitor has though deposed to the conduct of a business by Winning known as "Winning Bid Reverse Auction". That business is said to be independent from the activities the subject of the present proceedings. ACMA does not submit otherwise. Indeed, it seeks to exclude from the purview of any interlocutory injunctive relief anything which would prevent Winnings conducting that particular business.