mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Wan v McDonald (1992) 33 FCR 491
Outcome: cited
the purposes of this case, the controversy concerning the duty of loyalty, and whether it extends beyond termination of the retainer, can be put to one side. Counsel for the Dean interests does not contend that his clients were formerly clients of Vogrig or WVL. No question arises of confidential information or its potential misuse. As I have already mentioned, the sole ground for injunctive relief is the third ground identified in Spincode , namely the inherent power of the court to restrain its officers from acting for a particular client in litigation when such a restraint is required by the interests of justice. There is, accordingly, no need for me to consider whether the weight of authority in the Federal Court supports the Victorian approach rather than that adopted in New South Wales: see Wan v McDonald (1992) 33 FCR 491 at 512-513; PhotoCure ASA v Queen's University at Kingston (2002) 56 IPR 86 ( 'PhotoCure' ); Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 98 at [10] ; Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards) [2002] FCA 588 at [18] ; and Lincoln v Holmesglen Institute of TAFE [1999] FCA 601 ( 'Lincoln' ).
Case: Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 98
Outcome: cited
the purposes of this case, the controversy concerning the duty of loyalty, and whether it extends beyond termination of the retainer, can be put to one side. Counsel for the Dean interests does not contend that his clients were formerly clients of Vogrig or WVL. No question arises of confidential information or its potential misuse. As I have already mentioned, the sole ground for injunctive relief is the third ground identified in Spincode , namely the inherent power of the court to restrain its officers from acting for a particular client in litigation when such a restraint is required by the interests of justice. There is, accordingly, no need for me to consider whether the weight of authority in the Federal Court supports the Victorian approach rather than that adopted in New South Wales: see Wan v McDonald (1992) 33 FCR 491 at 512-513; PhotoCure ASA v Queen's University at Kingston (2002) 56 IPR 86 ( 'PhotoCure' ); Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 98 at [10] ; Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards) [2002] FCA 588 at [18] ; and Lincoln v Holmesglen Institute of TAFE [1999] FCA 601 ( 'Lincoln' ).
Case: Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards) [2002] FCA 588
Outcome: cited
the purposes of this case, the controversy concerning the duty of loyalty, and whether it extends beyond termination of the retainer, can be put to one side. Counsel for the Dean interests does not contend that his clients were formerly clients of Vogrig or WVL. No question arises of confidential information or its potential misuse. As I have already mentioned, the sole ground for injunctive relief is the third ground identified in Spincode , namely the inherent power of the court to restrain its officers from acting for a particular client in litigation when such a restraint is required by the interests of justice. There is, accordingly, no need for me to consider whether the weight of authority in the Federal Court supports the Victorian approach rather than that adopted in New South Wales: see Wan v McDonald (1992) 33 FCR 491 at 512-513; PhotoCure ASA v Queen's University at Kingston (2002) 56 IPR 86 ( 'PhotoCure' ); Waiviata Pty Ltd v New Millennium Publications Pty Ltd [2002] FCA 98 at [10] ; Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards) [2002] FCA 588 at [18] ; and Lincoln v Holmesglen Institute of TAFE [1999] FCA 601 ( 'Lincoln' ).
Case: McVeigh v Linen House Pty Ltd [1999] VSCA 138 ; [1999] 3 VR 394
Outcome: cited
Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561 ( 'Kallinicos' ), Brereton J undertook a comprehensive examination of the authorities concerning the court's supervisory jurisdiction over solicitors. His Honour concluded that there are many authorities which maintain the same view of the court's supervisory jurisdiction as that which had been expressed in the cases prior to Bolkiah : see eg McVeigh v Linen House Pty Ltd [1999] VSCA 138 ; [1999] 3 VR 394, Oceanic Life Ltd v HIH Casualty &amp; General Insurance Ltd (1999) 10 ANZ Ins Cas 61-438; Newman v Phillips Fox (a firm) (1999) 21 WAR 309; Bowen v Stott [2004] WASC 94 (Hasluck J) ( 'Bowen v Stott' ); see also Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264.
Case: Oceanic Life Ltd v HIH Casualty &amp; General Insurance Ltd (1999) 10 ANZ Ins Cas 61-438
Outcome: cited
Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561 ( 'Kallinicos' ), Brereton J undertook a comprehensive examination of the authorities concerning the court's supervisory jurisdiction over solicitors. His Honour concluded that there are many authorities which maintain the same view of the court's supervisory jurisdiction as that which had been expressed in the cases prior to Bolkiah : see eg McVeigh v Linen House Pty Ltd [1999] VSCA 138 ; [1999] 3 VR 394, Oceanic Life Ltd v HIH Casualty &amp; General Insurance Ltd (1999) 10 ANZ Ins Cas 61-438; Newman v Phillips Fox (a firm) (1999) 21 WAR 309; Bowen v Stott [2004] WASC 94 (Hasluck J) ( 'Bowen v Stott' ); see also Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264.
Case: Newman v Phillips Fox (a firm) (1999) 21 WAR 309
Outcome: cited
Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561 ( 'Kallinicos' ), Brereton J undertook a comprehensive examination of the authorities concerning the court's supervisory jurisdiction over solicitors. His Honour concluded that there are many authorities which maintain the same view of the court's supervisory jurisdiction as that which had been expressed in the cases prior to Bolkiah : see eg McVeigh v Linen House Pty Ltd [1999] VSCA 138 ; [1999] 3 VR 394, Oceanic Life Ltd v HIH Casualty &amp; General Insurance Ltd (1999) 10 ANZ Ins Cas 61-438; Newman v Phillips Fox (a firm) (1999) 21 WAR 309; Bowen v Stott [2004] WASC 94 (Hasluck J) ( 'Bowen v Stott' ); see also Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264.
Case: Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264
Outcome: cited
Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561 ( 'Kallinicos' ), Brereton J undertook a comprehensive examination of the authorities concerning the court's supervisory jurisdiction over solicitors. His Honour concluded that there are many authorities which maintain the same view of the court's supervisory jurisdiction as that which had been expressed in the cases prior to Bolkiah : see eg McVeigh v Linen House Pty Ltd [1999] VSCA 138 ; [1999] 3 VR 394, Oceanic Life Ltd v HIH Casualty &amp; General Insurance Ltd (1999) 10 ANZ Ins Cas 61-438; Newman v Phillips Fox (a firm) (1999) 21 WAR 309; Bowen v Stott [2004] WASC 94 (Hasluck J) ( 'Bowen v Stott' ); see also Westgold Resources NL v St Barbara Mines Ltd [2002] WASC 264.
Case: Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015
Outcome: cited
the course of his examination of the authorities, Brereton J referred to the observations of Bergin J in Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 ( 'Mitchell' ), Heenan J in Holborow v MacDonald Rudder [2002] WASC 265 ( 'Holborow' ) and Hasluck J in Bowen v Stott . In Mitchell , Bergin J stated that, as an incident of its inherent jurisdiction, the court may decide upon the propriety of a legal practitioner representing a party in a particular case to ensure justice and the appearance of justice: at [34]. In Holborow , Heenan J said that this power had been invoked in cases where there was a potential that the legal practitioner might be a witness; where the subject matter of the litigation was likely to involve an evaluation of the conduct of the solicitor; and where the efficacy of documents prepared by the solicitor was likely to be in issue: at [23]. In Bowen v Stott , Hasluck J said that it may be appropriate to invoke the inherent power in cases where the solicitor had some direct pecuniary interest in the outcome of the case, where the solicitor might feel impelled to justify or defend his conduct in representing a client, or where the practitioner's credibility is at stake as a potential witness: at [47], [53] and [55].
Case: Holborow v MacDonald Rudder [2002] WASC 265
Outcome: cited
the course of his examination of the authorities, Brereton J referred to the observations of Bergin J in Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015 ( 'Mitchell' ), Heenan J in Holborow v MacDonald Rudder [2002] WASC 265 ( 'Holborow' ) and Hasluck J in Bowen v Stott . In Mitchell , Bergin J stated that, as an incident of its inherent jurisdiction, the court may decide upon the propriety of a legal practitioner representing a party in a particular case to ensure justice and the appearance of justice: at [34]. In Holborow , Heenan J said that this power had been invoked in cases where there was a potential that the legal practitioner might be a witness; where the subject matter of the litigation was likely to involve an evaluation of the conduct of the solicitor; and where the efficacy of documents prepared by the solicitor was likely to be in issue: at [23]. In Bowen v Stott , Hasluck J said that it may be appropriate to invoke the inherent power in cases where the solicitor had some direct pecuniary interest in the outcome of the case, where the solicitor might feel impelled to justify or defend his conduct in representing a client, or where the practitioner's credibility is at stake as a potential witness: at [47], [53] and [55].
Case: Western Australia v Ward (1997) 76 FCR 492
Outcome: applied
this Court, there is unambiguous authority that the Federal Court has the inherent power to restrain solicitors or counsel acting in a particular matter for a particular client where such a course is required by the interests of justice. In the Full Court's decision in Western Australia v Ward (1997) 76 FCR 492, Hill and Sundberg JJ said at 498: 'Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice. The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information and a real risk of lack of objectivity and of conflict of interest and duty: Grimwade v Meagher . The present case is only another example of situations in which the "integrity of the judicial process", the "interests of justice", and the "need to preserve confidence in the judicial system", to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice. That public interest is "an important value": Black v Taylor at 408.' In Lincoln , Goldberg J referred to this passage with approval and applied the test stated by Mandie J in Grimwade : at [10]. His Honour did not doubt that this Court has inherent jurisdiction in an appropriate case to prevent practitioners appearing for a particular party in order that justice should not only be done but should be seen to be done.
Case: Yunghanns v Elfic Ltd (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998)
Outcome: cited
crucial question, therefore, is whether on the evidence before me a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Vogrig and WVL be restrained from acting for GSS in these proceedings. In answering this question it must be borne in mind that this is an application for a permanent injunction: Yunghanns v Elfic Ltd (unreported, Supreme Court of Victoria, Gillard J, 3 July 1998). It must also be borne in mind that the Court's jurisdiction is an exceptional one; it is to be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the solicitor of its choice without due cause. In a very real sense, the dispute that lies at the heart of this litigation represents a dispute between the Dean interests and the Landmark interests, including the Porchs. The dispute erupted in about August 2005 as the business operations of the joint venture were being wound down. Under the Heads of Agreement, it was agreed that the jointly owned land would be sold and that GSS would be wound up. But there was no express agreement between the joint venturers about what would happen once GSS ceased to operate concerning GSS' business records or its former clients. The nub of the dispute concerns what happened to these records and clients. At that time that GSS' business was being shut down, Vogrig personally acted for Landmark and the Porchs. He also purported to act for GSS when he must have known that he had no proper authority from the board of directors of GSS to do so. When HAL protested on behalf of the Deans that he had no authority to act for GSS, he gave the disingenuous response that his then firm had never received instructions to act for GSS in any capacity. That proposition is denied by the correspondence which is in evidence in these proceedings.
Case: Re Homer District Consolidated Gold Mines; Ex parte Smith (1888) 39 Ch D 546
Outcome: cited
June 2006, Vogrig had joined the firm of WVL. I infer that Vogrig advised the Porchs in relation to the meeting of the board of directors of GSS that was notified for 16 June 2006. WVL forwarded the notice of meeting which allowed only one week's notice for the convening of the meeting. He rejected, or on his advice the Porchs rejected, the Deans' request for an adjournment of the meeting until 20 July 2006 or a mutually convenient date thereafter. The articles of GSS do not prescribe any time for the convening of directors' meetings. In such a case, the law requires that the period of notice for the convening of the meeting be fair and reasonable: Re Homer District Consolidated Gold Mines; Ex parte Smith (1888) 39 Ch D 546; Toole v Flexihire Pty Ltd (1991) 6 ACSR 455 at 461 ( 'Toole' ); Bell v Burton (1993) 12 ACSR 325 at 329. In deciding what is fair and reasonable, the nature of the company and its practices are important factors. So too is the nature of the business to be transacted at the meeting: Toole at 461. Proper notice is a prerequisite of a validly constituted meeting: Barren v Potter [1914] 1 Ch 895.
Case: Toole v Flexihire Pty Ltd (1991) 6 ACSR 455
Outcome: cited
June 2006, Vogrig had joined the firm of WVL. I infer that Vogrig advised the Porchs in relation to the meeting of the board of directors of GSS that was notified for 16 June 2006. WVL forwarded the notice of meeting which allowed only one week's notice for the convening of the meeting. He rejected, or on his advice the Porchs rejected, the Deans' request for an adjournment of the meeting until 20 July 2006 or a mutually convenient date thereafter. The articles of GSS do not prescribe any time for the convening of directors' meetings. In such a case, the law requires that the period of notice for the convening of the meeting be fair and reasonable: Re Homer District Consolidated Gold Mines; Ex parte Smith (1888) 39 Ch D 546; Toole v Flexihire Pty Ltd (1991) 6 ACSR 455 at 461 ( 'Toole' ); Bell v Burton (1993) 12 ACSR 325 at 329. In deciding what is fair and reasonable, the nature of the company and its practices are important factors. So too is the nature of the business to be transacted at the meeting: Toole at 461. Proper notice is a prerequisite of a validly constituted meeting: Barren v Potter [1914] 1 Ch 895.
Case: Bell v Burton (1993) 12 ACSR 325
Outcome: cited
June 2006, Vogrig had joined the firm of WVL. I infer that Vogrig advised the Porchs in relation to the meeting of the board of directors of GSS that was notified for 16 June 2006. WVL forwarded the notice of meeting which allowed only one week's notice for the convening of the meeting. He rejected, or on his advice the Porchs rejected, the Deans' request for an adjournment of the meeting until 20 July 2006 or a mutually convenient date thereafter. The articles of GSS do not prescribe any time for the convening of directors' meetings. In such a case, the law requires that the period of notice for the convening of the meeting be fair and reasonable: Re Homer District Consolidated Gold Mines; Ex parte Smith (1888) 39 Ch D 546; Toole v Flexihire Pty Ltd (1991) 6 ACSR 455 at 461 ( 'Toole' ); Bell v Burton (1993) 12 ACSR 325 at 329. In deciding what is fair and reasonable, the nature of the company and its practices are important factors. So too is the nature of the business to be transacted at the meeting: Toole at 461. Proper notice is a prerequisite of a validly constituted meeting: Barren v Potter [1914] 1 Ch 895.
Case: Barren v Potter [1914] 1 Ch 895
Outcome: cited
June 2006, Vogrig had joined the firm of WVL. I infer that Vogrig advised the Porchs in relation to the meeting of the board of directors of GSS that was notified for 16 June 2006. WVL forwarded the notice of meeting which allowed only one week's notice for the convening of the meeting. He rejected, or on his advice the Porchs rejected, the Deans' request for an adjournment of the meeting until 20 July 2006 or a mutually convenient date thereafter. The articles of GSS do not prescribe any time for the convening of directors' meetings. In such a case, the law requires that the period of notice for the convening of the meeting be fair and reasonable: Re Homer District Consolidated Gold Mines; Ex parte Smith (1888) 39 Ch D 546; Toole v Flexihire Pty Ltd (1991) 6 ACSR 455 at 461 ( 'Toole' ); Bell v Burton (1993) 12 ACSR 325 at 329. In deciding what is fair and reasonable, the nature of the company and its practices are important factors. So too is the nature of the business to be transacted at the meeting: Toole at 461. Proper notice is a prerequisite of a validly constituted meeting: Barren v Potter [1914] 1 Ch 895.
Case: Petsch v Kennedy [1971] 1 NSWLR 494
Outcome: cited
the limited evidence before me, there is a serious question as to the validity of the meeting and the resolution passed at it. The proposed resolution involved a grave matter and required consideration of a detailed set of allegations in the draft statement of claim. The correspondence does not disclose any compelling reason why the request for an adjournment until 20 July was not acceded to or any difficulties that would arise for the Porchs if the meeting were to be adjourned as requested. In their letter of 15 June 2006, HAL drew the relevant legal requirements to the attention of WVL, pointing out that reasonable notice must be given of any directors' meeting, and that what is reasonable must be determined in the light of the company's particular structure, practice and affairs (citing Petsch v Kennedy [1971] 1 NSWLR 494). The letter from HAL to WVL of 15 June 2006 foreshadowed that an application may be made to the Court for an order restraining any party from acting on any purported resolution of GSS passed at the meeting of 16 June 2006. No such application has been made. At this stage, the Deans' defence in these proceedings does not contain any allegation that the resolution that purported to authorise the institution of these proceedings by GSS was invalid. There is no counterclaim to that effect by the Deans. However, counsel for the Deans foreshadowed that the claim would be raised in these proceedings. He also said that his clients proposed to take separate proceedings to apply for a winding up order against GSS.
Case: Bienstein v Bienstein (2003) 195 ALR 225
Outcome: cited
FM Cameron embarked upon a consideration of whether the amended grounds and supporting submissions raised an arguable ground of error in the exercise of the Tribunal's statutory jurisdiction, the Federal Magistrates Court did not determine the merits of the principal application filed on 19 November 2007 in any dispositive or final sense. There was no final adjudication of the merits. The decision to refuse to set aside the dismissal order was an interlocutory decision of the Federal Magistrates Court: Bienstein v Bienstein (2003) 195 ALR 225 at 230 per McHugh, Kirby and Callinan JJ; Thomas Borthwick &amp; Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 per Bowen CJ, Lockhart and Sheppard JJ; Re Luck (2003) 203 ALR 1.
Case: Thomas Borthwick &amp; Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424
Outcome: cited
FM Cameron embarked upon a consideration of whether the amended grounds and supporting submissions raised an arguable ground of error in the exercise of the Tribunal's statutory jurisdiction, the Federal Magistrates Court did not determine the merits of the principal application filed on 19 November 2007 in any dispositive or final sense. There was no final adjudication of the merits. The decision to refuse to set aside the dismissal order was an interlocutory decision of the Federal Magistrates Court: Bienstein v Bienstein (2003) 195 ALR 225 at 230 per McHugh, Kirby and Callinan JJ; Thomas Borthwick &amp; Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 per Bowen CJ, Lockhart and Sheppard JJ; Re Luck (2003) 203 ALR 1.
Case: Re Luck (2003) 203 ALR 1
Outcome: cited
FM Cameron embarked upon a consideration of whether the amended grounds and supporting submissions raised an arguable ground of error in the exercise of the Tribunal's statutory jurisdiction, the Federal Magistrates Court did not determine the merits of the principal application filed on 19 November 2007 in any dispositive or final sense. There was no final adjudication of the merits. The decision to refuse to set aside the dismissal order was an interlocutory decision of the Federal Magistrates Court: Bienstein v Bienstein (2003) 195 ALR 225 at 230 per McHugh, Kirby and Callinan JJ; Thomas Borthwick &amp; Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 per Bowen CJ, Lockhart and Sheppard JJ; Re Luck (2003) 203 ALR 1.
Case: D&eacute;cor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 104 ALR 621
Outcome: cited
principles governing granting or withholding leave to appeal are well known: D&eacute;cor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 104 ALR 621 at 622 per Sheppard, Burchett and Heerey JJ; MZXPW v Minister for Immigration and Citizenship [2008] FCA 689 per Tracey J; MZXPF v Minister for Immigration and Citizenship [2007] FCA 1765 per Spender J; SZDWE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1498 per Jacobson J at [4] and [5]. There are two questions. First, whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court. Second, whether substantial injustice would be done if leave were refused supposing the decision to be wrong. In the present case, the question is whether the exercise of the discretion by the Federal Magistrates Court conferred by rule 16.05(2)(a) of the Federal Magistrates Court Rules to set aside (or not) orders made in the absence of a party, miscarried. The exercise of the discretion was informed by three considerations: whether the absence of the applicant from the hearing was satisfactorily explained; whether arguable grounds of jurisdictional error were demonstrated; and whether any prejudice might arise to the respondent in setting aside the dismissal order. The final question did not arise in the opinion of FM Cameron having regard to his findings in relation to the first two questions which were that the failure to appear was not satisfactorily explained and arguable grounds of jurisdictional error were not demonstrated. Background