mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Medi-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No. 3) [2008] FCA 976
Outcome: referred to
opposed the tender of those paragraphs of the Lee Outline and the attachments, the subject of the grant of leave to use referred to in [41] above, on the ground that they were privileged, but fairly conceded that the weight of authority, in particular authority binding on me, was against its submission. The prevailing authority in this Court is in favour of the filing and service of an outline of evidence being a full waiver of privilege, such that the outline is then protected only by the implied undertaking to the Court not to use the document other than for the purpose of the proceeding without the leave of the Court: Liberty Funding Pty Ltd v Phoenix Capital Limited (2005) 218 ALR 283 at [20] [23]; Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 ; (2008) 246 ALR 137 at [15] [19] per Gordon J; ACCC v Construction, Forestry, Mining and Energy Union [2008] FCA 678 at [122] [130] per Finn J; Australian Medi-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No. 3) [2008] FCA 976 at [15] per Lander J. Once leave is granted to use the document, the party seeking to do so is released from the implied undertaking and may use it accordingly.
Case: Bennett v Chief Executive of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 
Outcome: cited
counsel for Telstra submitted that there was no voluntary disclosure because the Rules (O 16 r 2(2)(b)) mandated the verification of the answers by affidavit; indeed, he submitted that the disclosure was made under compulsion of law and so fell within the exception specifically referred to in [63] above. He further submitted that he was not seeking to read Ms Paatsch's affidavit and that contrary to Optus' submission, he was not deploying an answer, based on privileged communications, 'for forensic or commercial purposes'; Bennett v Chief Executive of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 at [68] per Gyles J. On the other hand, I think there is a more fundamental response to Optus' submission that there has been a waiver of any privilege in the documents referred to in [62] above. First, para 3 of Ms Paatsch's affidavit says no more than that Telstra's answers to the interrogatories are based on her review of relevant documents and enquiries of current and former employees of Telstra.
Case: Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 ; (2008) 246 ALR 137
Outcome: referred to
opposed the tender of those paragraphs of the Lee Outline and the attachments, the subject of the grant of leave to use referred to in [41] above, on the ground that they were privileged, but fairly conceded that the weight of authority, in particular authority binding on me, was against its submission. The prevailing authority in this Court is in favour of the filing and service of an outline of evidence being a full waiver of privilege, such that the outline is then protected only by the implied undertaking to the Court not to use the document other than for the purpose of the proceeding without the leave of the Court: Liberty Funding Pty Ltd v Phoenix Capital Limited (2005) 218 ALR 283 at [20] [23]; Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 ; (2008) 246 ALR 137 at [15] [19] per Gordon J; ACCC v Construction, Forestry, Mining and Energy Union [2008] FCA 678 at [122] [130] per Finn J; Australian Medi-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No. 3) [2008] FCA 976 at [15] per Lander J. Once leave is granted to use the document, the party seeking to do so is released from the implied undertaking and may use it accordingly.
Case: Hadley v Baxendale (1854) 9 Exch 341
Outcome: referred to
the end of the day, senior counsel for Optus conceded that if there was no breach of contract, specifically cl 15 of the Access Agreement (as to which see [26] [31] below), neither of the alternative causes of action pleaded breach of confidence under general law principles and unconscionable conduct in contravention of s 51AA of the TPA had any 'legs'. I think this concession was correctly made. On the other hand, he said that if breach of contract is established, the equitable cause is still relevant to Optus' claim for an account of profits and that damages under s 82 of the TPA may be not the same as the claim for ' Hadley v Baxendale ' ((1854) 9 Exch 341) damages in contract, although it is difficult to see how Optus could do better in damages under s 82 of the TPA for contravention of s 51AA, than it could do on the contract claim. So articulated and confined, the ultimate issue as pleaded has the following underlying issues, the answers to which will determine the answer to the ultimate issue: (1) What information did Telstra use in the preparation of the market share reports? (2) If Telstra used Optus' traffic information in the preparation of the market share reports, was that the use of Confidential Information of Optus for the purposes of the Access Agreement? (3) If the answer to issue 2. is 'yes', is Telstra's use of Optus' traffic information a permissible use of such information under the Access Agreement? (4) If the answer to issue 2. is 'no', is Telstra's use of Optus' traffic information a permissible use of such information under the Access Agreement? (5) Did the market share reports themselves contain Confidential Information of Optus for the purposes of the Access Agreement? (6) If the answer to issue 5. is 'yes', is the use to which the market share reports are proven to be put a permissible use of such information under the Access Agreement? (7) If the answer to issue 5. is 'no', is the use to which the market share reports are proven to be put a permissible use of such information under the Access Agreement? In respect of all but the first underlying issue, there are two collateral issues to be addressed: (1) The proper construction of the relevant provisions of the Access Agreement; and (2) the proper application of these provisions to the facts.
Case: Lansing Linde Ltd v Kerr (1990) 21 IPR 529
Outcome: referred to
information is 'of a confidential nature'. The law recognises the information of a business concerning its customers as an established category of confidential information which attracts the protection of the Courts at general law: see, e.g., Lansing Linde Ltd v Kerr (1990) 21 IPR 529 at 536 per Staughton LJ. Second, provisions of the Access Agreement expressly provide that traffic information is subject to confidentiality restrictions on use and disclosure imposed by cl 15. Clauses 10.1 (obligations to provide information under the agreement are subject to the requirements of confidentiality imposed by cl 15), 10.4 (the parties must provide each other with certain traffic information), 10.7 (the information provided under the agreement may only be used for the purpose for which it was given) and 10.10 (establishing a limitation on the obligation to provide certain traffic information), as well as cl 15.1 itself; all make express provision. Third, the evidence to be given by the witnesses would confirm that such traffic information is of a confidential nature, and was intended by the parties to be subject to the restrictions imposed by cl 15. Optus referred to the nature and context of the negotiations that led up to the entry into the Access Agreement, which was dealt with in evidence by Mr Petts. Optus also relied upon the fact that the traffic information is not released or disclosed by Optus other than pursuant to the provisions of the Access Agreement.
Case: Liberty Funding Pty Ltd v Phoenix Capital Limited (2005) 218 ALR 283
Outcome: referred to
opposed the tender of those paragraphs of the Lee Outline and the attachments, the subject of the grant of leave to use referred to in [41] above, on the ground that they were privileged, but fairly conceded that the weight of authority, in particular authority binding on me, was against its submission. The prevailing authority in this Court is in favour of the filing and service of an outline of evidence being a full waiver of privilege, such that the outline is then protected only by the implied undertaking to the Court not to use the document other than for the purpose of the proceeding without the leave of the Court: Liberty Funding Pty Ltd v Phoenix Capital Limited (2005) 218 ALR 283 at [20] [23]; Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 ; (2008) 246 ALR 137 at [15] [19] per Gordon J; ACCC v Construction, Forestry, Mining and Energy Union [2008] FCA 678 at [122] [130] per Finn J; Australian Medi-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No. 3) [2008] FCA 976 at [15] per Lander J. Once leave is granted to use the document, the party seeking to do so is released from the implied undertaking and may use it accordingly.
Case: Lyall v Kennedy (1884) 27 CLD 1 
Outcome: considered
on the question of the sufficiency of an answer to an interrogatory, it was established 125 years ago that the whole of the affidavit in answer had to be referred to, not just the answer to a particular interrogatory: Lyall v Kennedy (1884) 27 CLD 1 at 15 per Cotton LJ. In the present case, the interrogatory in para 1(e) relevantly read: 1A. Look at paragraphs 12(b), 16(a), 18(a), 22(a), 25(a), 28(a), 30(a) and 33(a) of the Defence to the Third Consolidated Amended Statement of Claim filed 5 March 2007 (' Defence' ) and answer the following in respect of each such paragraph: ... (e) Were any of the Market Share Reports referred to in that paragraph used: (i) for the purpose of marketing, including considering or developing strategy for marketing, products or services of Telstra to existing or prospective customers? Or (ii) for the purpose of promotion, including considering or developing strategy for promotion, of products or services of Telstra to existing or prospective customers? Or (iii) for the purpose of selling, including considering or developing strategy for selling, products or services of Telstra to existing or prospective customers? The answer relevantly read: 1B. Having made enquiries of: for the purposes of paragraphs 1B(a) to 1B(d) of the Interrogatories, current and former employees and contractors of the Respondent including those who have knowledge of Telstra's systems and processes; and for the purposes of paragraph 1B(e) of the Interrogatories, current and former employees of the Respondent including those who received Market Share Reports as defined in paragraph 10 of the Defence, the Respondent, in respect of each of paragraphs 12(b), 16(a), 18(a), 22(a), 25(a), 28(a), 30(a) and 33(a) of the Defence, answer as follows: ... (e) Yes. The sufficiency of the answer to the interrogatory in para 3(e) has to be read in this context, that is, in the context of the answer to the interrogatory in para 1(e) and so read, there cannot be any doubt, in my mind, as to its sufficiency. In determining whether a party should be required to make further answer to interrogatories the court considers whether the existing answer is sufficient and not whether it is truthful: Lyall v Kennedy at 21; McBride v Sandland [1917] SALR 249 at 262. The requirement of sufficiency is now embodied in O 16 r 8 of the Rules.
Case: McBride v Sandland [1917] SALR 249
Outcome: considered
determining whether a party should be required to make further answer to interrogatories the court considers whether the existing answer is sufficient and not whether it is truthful: Lyall v Kennedy at 21; McBride v Sandland [1917] SALR 249 at 262. The requirement of sufficiency is now embodied in O 16 r 8 of the Rules.
Case: Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341
Outcome: considered
are a form of discovery. An affidavit verifying answers to interrogatories has the same status as an affidavit as to documents verifying discovery. The general rule in relation to such an affidavit is that it is conclusive unless it is self-evident that the discovery is insufficient: see Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341 at 343 per Menzies J. That is not this case. I agree with Telstra's submission that the issue of the notice to produce was a 'backdoor' attempt to overcome the conclusiveness of Ms Paatsch's affidavit; in substance, an abuse of process and on that ground alone I set it aside, para 2 of the notice no longer being in issue. While it was not material to my conclusion, I would add that contrary to the submission that was pressed on me by senior counsel for Optus, I am not persuaded that Ms Paatsch's verification of the answers to the interrogatories by affidavit in accordance with O 16 r 2(2)(b) of the Rules works some waiver, under s 122 of the Evidence Act 1995 (Cth), of the privilege attaching to documents regarding or being the enquiries referred to by Ms Paatsch in paras 3(c) and (d) of her affidavit and communications between Ms Paatsch and any other person made for the purposes of responding to the interrogatories. Under s 122 of the Evidence Act , privilege will be waived where the party concerned consented to the document being adduced, or if the party 'knowingly and voluntarily disclosed to another the substance of the evidence'. Certain exceptions apply to the latter, including (but not limited to) if the disclosure was under compulsion of law (s 122(5)(a)(iii)).
Case: Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607
Outcome: cited
The power conferred on the Court by s 447A is broad. Its scope was foreshadowed in the Report of the Law Reform Commission of Australia on the General Insolvency Inquiry (ALRC) which led to the enactment of Pt 5.3A in July 1993. The ALRC recommended that the Court should have: '... a broad power to make orders for the effective operation of the (voluntary administration) procedure.' See Cawthhorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607; Milankov Pty Ltd v Roycol Ltd (1994) 124 ALR 391; Re I &amp; J Foods Ltd (1995) 58 FCR 92 at 94; Hamilton v National Australia Bank Ltd (1996) 66 FCR 12. 38 In Cawthorn, Young J extended the life of a deed which had been terminated. In Re Madden (1996) 26 ACSR 10 at 15 his Honour said that the section was wide enough to allow the Court, in an appropriate case, to disregard the fact that an administration may have ceased because of a mistake in carrying out steps under Pt 5.3A. The court could extend the period for convening a meeting as though the administration were still in force.
Case: Milankov Pty Ltd v Roycol Ltd (1994) 124 ALR 391
Outcome: cited
The power conferred on the Court by s 447A is broad. Its scope was foreshadowed in the Report of the Law Reform Commission of Australia on the General Insolvency Inquiry (ALRC) which led to the enactment of Pt 5.3A in July 1993. The ALRC recommended that the Court should have: '... a broad power to make orders for the effective operation of the (voluntary administration) procedure.' See Cawthhorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607; Milankov Pty Ltd v Roycol Ltd (1994) 124 ALR 391; Re I &amp; J Foods Ltd (1995) 58 FCR 92 at 94; Hamilton v National Australia Bank Ltd (1996) 66 FCR 12.
Case: Re I &amp; J Foods Ltd (1995) 58 FCR 92
Outcome: cited
The power conferred on the Court by s 447A is broad. Its scope was foreshadowed in the Report of the Law Reform Commission of Australia on the General Insolvency Inquiry (ALRC) which led to the enactment of Pt 5.3A in July 1993. The ALRC recommended that the Court should have: '... a broad power to make orders for the effective operation of the (voluntary administration) procedure.' See Cawthhorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607; Milankov Pty Ltd v Roycol Ltd (1994) 124 ALR 391; Re I &amp; J Foods Ltd (1995) 58 FCR 92 at 94; Hamilton v National Australia Bank Ltd (1996) 66 FCR 12.
Case: Hamilton v National Australia Bank Ltd (1996) 66 FCR 12
Outcome: cited
The power conferred on the Court by s 447A is broad. Its scope was foreshadowed in the Report of the Law Reform Commission of Australia on the General Insolvency Inquiry (ALRC) which led to the enactment of Pt 5.3A in July 1993. The ALRC recommended that the Court should have: '... a broad power to make orders for the effective operation of the (voluntary administration) procedure.' See Cawthhorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607; Milankov Pty Ltd v Roycol Ltd (1994) 124 ALR 391; Re I &amp; J Foods Ltd (1995) 58 FCR 92 at 94; Hamilton v National Australia Bank Ltd (1996) 66 FCR 12.
Case: Re Brashs Pty Ltd (1994) 15 ACSR 477
Outcome: cited
The section empowers the Court to do more than just fill in gaps in the legislative scheme or add to the provisions of Pt 5.3A Re Brashs Pty Ltd (1994) 15 ACSR 477 at 481 (Hayne J). It empowers the Court 'to make orders which alter what would otherwise be the operation of Pt 5.3A in relation to a particular company' Brash Holdings Ltd (Administrator Appointed) v Katile Pty Ltd (1996) 1 VR 24.
Case: Brash Holdings Ltd (Administrator Appointed) v Kantile Pty Ltd (1996) 1 VR 24
Outcome: cited
The section empowers the Court to do more than just fill in gaps in the legislative scheme or add to the provisions of Pt 5.3A Re Brashs Pty Ltd (1994) 15 ACSR 477 at 481 (Hayne J). It empowers the Court 'to make orders which alter what would otherwise be the operation of Pt 5.3A in relation to a particular company' Brash Holdings Ltd (Administrator Appointed) v Katile Pty Ltd (1996) 1 VR 24.
Case: Re Pasminco Ltd (No 2) (2004) 49 ACSR 470
Outcome: cited
As to the variation of the Deed there is no doubt that the Court has power to order a variation. The power of the Court to make such an order was considered by Finkelstein J in Re: Pasminco Ltd (No 2) (2004) 49 ACSR 470. In that case his Honour said (at [35]): 'The Corporations Act contemplates that a deed of company arrangement may be varied by creditors at a meeting convened under s 445F. The administrators, however, wish to short cut this procedure and have the deed varied by an order made under s 447A. In Milankov Nominees Pty Ltd v Roycol Ltd (1994) 52 FCR 378, 388 Lee J suggested that this could be done. In two decisions in the following year Branson J expressly found the power to exist. The decisions are Re Giga Investments Pty Ltd (Admin Apptd) (No 2) (1995) 13 ACLC 1,185, 1,187 and Mulvaney v Rob Wintulich Pty Ltd (1995) 60 FCR 81, 83. Many cases have followed these decisions. On the basis of these authorities I am satisfied that the power to make variation exists.' 42 In my opinion in this case the variation order sought ought to be made. It appears on the face of it to offer some benefit to creditors. None object, and there is the possibility, although it does not seem great, that Messrs. Forrest and Richardson may be able to revive the company's fortunes. I will therefore make the variation order but in prospective terms rather than the apparently retrospective terms sought by the applicants. 43 For the preceding reasons I will terminate the winding up of Euco, set aside the termination of the Deed and direct that it be varied in accordance with the proposal submitted to the creditors' meeting of 24 March 2006. I will require notice to be given to all creditors of these orders and allow liberty to apply within 28 days for any variation of the order setting aside the termination of the Deed to the extent that it may impinge upon accrued rights. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 21 July 2006 Counsel for the Applicants: Mr P Robinson Solicitor for the Applicants: Williams &amp; Hughes Date of Hearing: 17 July 2006 Date of Judgment: 24 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/935.html
Case: Adnyamathanha People No 1 v South Australia (2004) 208 ALR 91
Outcome: referred to
In particular, I see no reason why the Court's incidental power to grant a person leave to appear by a non-lawyer and the power to do so under s 85 of the NTA should not involve similar considerations, particularly in the current context. In Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871 , Lindgren J stated at [20] in relation to an application for leave under s 85: 'What should be clearly understood is that leave is required because it is not to be taken for granted that a person who is not a solicitor or barrister will be allowed to represent a party. Perhaps Dolly Walker thinks that leave is granted as a matter of course, just for the asking. This is not so and for good reason. Solicitors and barristers are qualified by education and training to represent parties and are subject to professional and curial disciplines and responsibilities. The requirement of leave is imposed for the reason that the Court must be satisfied that it is in the interests of the administration of justice in all the circumstances that a party be represented by a person who is not a solicitor or barrister.' See also, Adnyamathanha People No 1 v South Australia (2004) 208 ALR 91 at [9] et seq.
Case: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760
Outcome: referred to
In Daniel v Western Australia (2002) 194 ALR 278 (' Daniel ') at [17], French J drew from s 66B the following conditions that must be met for an order under the section to be made: 1. There is a claimant application. 2. Each applicant for an order under s 66B is a member of the native title group. 3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. 4. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group. 5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it. See also, Holborow v State of Western Australia [2002] FCA 1428 ; Ward v Northern Territory of Australia (2003) 196 ALR 32; Lawson ; and Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760.
Case: Daniel v Western Australia (2002) 194 ALR 278
Outcome: applied
In Daniel v Western Australia (2002) 194 ALR 278 (' Daniel ') at [17], French J drew from s 66B the following conditions that must be met for an order under the section to be made: 1. There is a claimant application. 2. Each applicant for an order under s 66B is a member of the native title group. 3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. 4. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group. 5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it. See also, Holborow v State of Western Australia [2002] FCA 1428 ; Ward v Northern Territory of Australia (2003) 196 ALR 32; Lawson ; and Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760. 29 It is pertinent to note, however, that the Court retains a discretion not to make the orders sought under s 66B of the NTA: see Ward v Northern Territory [2002] FCA 171 (' Ward ') at [16] and Daniel at [18].