mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Priestley v Godwin (No 2) [2008] FCA 1453 ; (2008) 171 FCR 493
Outcome: cited
I formed the above view and informed the parties, Mr Priestley, in effect, sought leave to reopen his applications for leave to appeal in order to raise further matters as to why leave should be granted. He raised matters that were the subject of previous decisions by me in relation to the alleged invalidity of s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules ( Priestley v Godwin (No 3) [2008] FCA 1529 ; (2008) 172 FCR 139) and in relation to the applicability of the Human Rights Act 2004 (ACT) ( Priestley v Godwin (No 2) [2008] FCA 1453 ; (2008) 171 FCR 493). He also raised allegations, unsupported by evidence, of what he termed bias and jurisdictional error. I dealt with Mr Priestley's allegations of bias in Priestley v Godwin [2008] FCA 1179. Those allegations were also the subject of an application to the High Court and were described by French CJ as ' not tenable ' ( Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) [2008] HCA 59 ; (2008) 251 ALR 612 at [31] ).
Case: Priestley v Godwin (No 3) [2008] FCA 1529 ; (2008) 172 FCR 139
Outcome: cited
I formed the above view and informed the parties, Mr Priestley, in effect, sought leave to reopen his applications for leave to appeal in order to raise further matters as to why leave should be granted. He raised matters that were the subject of previous decisions by me in relation to the alleged invalidity of s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules ( Priestley v Godwin (No 3) [2008] FCA 1529 ; (2008) 172 FCR 139) and in relation to the applicability of the Human Rights Act 2004 (ACT) ( Priestley v Godwin (No 2) [2008] FCA 1453 ; (2008) 171 FCR 493). He also raised allegations, unsupported by evidence, of what he termed bias and jurisdictional error. I dealt with Mr Priestley's allegations of bias in Priestley v Godwin [2008] FCA 1179. Those allegations were also the subject of an application to the High Court and were described by French CJ as ' not tenable ' ( Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) [2008] HCA 59 ; (2008) 251 ALR 612 at [31] ).
Case: Priestley v Godwin (No 4) [2009] FCA 560
Outcome: cited
applications filed on 3 January 2008, Mr Priestley sought orders pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') that the respondent(s) in each matter prepare and furnish a statement of reasons pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for decisions that he characterised and which he said were made. In each case, the respondent(s) sought orders under s 31A of the Federal Court Act for summary dismissal. I concluded in each case that there was no decision as alleged by Mr Priestley. I dismissed each proceeding pursuant to s 31A of the Federal Court Act ( Priestley v Godwin (No 4) [2009] FCA 560; Priestley v Hawker [2009] FCA 561). The applications for leave to appeal
Case: Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) [2008] HCA 59 ; (2008) 251 ALR 612
Outcome: cited
I formed the above view and informed the parties, Mr Priestley, in effect, sought leave to reopen his applications for leave to appeal in order to raise further matters as to why leave should be granted. He raised matters that were the subject of previous decisions by me in relation to the alleged invalidity of s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules ( Priestley v Godwin (No 3) [2008] FCA 1529 ; (2008) 172 FCR 139) and in relation to the applicability of the Human Rights Act 2004 (ACT) ( Priestley v Godwin (No 2) [2008] FCA 1453 ; (2008) 171 FCR 493). He also raised allegations, unsupported by evidence, of what he termed bias and jurisdictional error. I dealt with Mr Priestley's allegations of bias in Priestley v Godwin [2008] FCA 1179. Those allegations were also the subject of an application to the High Court and were described by French CJ as ' not tenable ' ( Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) [2008] HCA 59 ; (2008) 251 ALR 612 at [31] ).
Case: Priestley v Hawker [2009] FCA 561
Outcome: cited
applications filed on 3 January 2008, Mr Priestley sought orders pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') that the respondent(s) in each matter prepare and furnish a statement of reasons pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for decisions that he characterised and which he said were made. In each case, the respondent(s) sought orders under s 31A of the Federal Court Act for summary dismissal. I concluded in each case that there was no decision as alleged by Mr Priestley. I dismissed each proceeding pursuant to s 31A of the Federal Court Act ( Priestley v Godwin (No 4) [2009] FCA 560; Priestley v Hawker [2009] FCA 561). The applications for leave to appeal
Case: Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157
Outcome: cited
In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008. Subsequent to this date and in light of the Full Court's decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application. 5 In deciding whether the application should be dismissed I have considered s 190F(6) of the Native Title Act , which provides as follows: The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made ... if: (a) the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and (b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed. 6 There is no evidence, and it was not submitted by any party, that this application is likely to be amended at all, never mind in a way that would lead to a different outcome once considered by the Registrar of the National Native Title Tribunal.
Case: Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52
Outcome: referred to
Legal professional privilege has been recognised as a fundamental right in our legal system since the reign of Elizabeth I (see Wigmore on Evidence (McNaughton Rev 1961) Vol VIII, para 2290). In Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52 Wilson J referred to the current principle of legal professional privilege (at 95) as follows: 'The multiplicity and complexity of the demands which the modern state makes upon its citizens underlines the continued relevance of the privilege to the public interest. The adequate protection according to law of the privacy and liberty of the individual is an essential mark of a free society and unless abrogated or abridged by statute the common law privilege attaching to the relationship of solicitor and client is an important element in that protection. It is not only a matter of protection of the client. The freedom to consult one's legal adviser in the knowledge that confidential communications will be safeguarded will often make its own contribution to the general level of respect for and observance of the law within the community see an article by Charles A Miller, "The Challenges to the Attorney Client Privilege" Virginian Law Review , vol. 49 (1963), p.262.' 18 In the same decision Deane J said (at 118): '... I am persuaded that the general and substantive principle underlying legal professional privilege is of fundamental importance to the protection and preservation of the rights, dignity and equality of the ordinary citizen under the law in that it is a precondition of full and unreserved communication with his lawyer.' 23 Saunders concerned a claim for privilege in respect of documents seized by the AFP as part of an ongoing investigation into the taxation affairs of the applicant. It had been submitted by the AFP in that case that because the applicant failed to claim privilege at the time of the execution of the warrant, he had impliedly waived privilege over the seized documents. In that case, the AFP relied on observations of Mason J in Baker v Campbell at 80 to the effect that the authorities seemed to suggest that privilege was lost as soon as a document passed into the hands of another who may tender it in evidence. French J in Saunders said of these observations at 473: 'With respect, these observations of the majority in Baker v Campbell fall a long way short of the suggestion that the seizure under warrant of a document the subject of legal professional privilege which has not been waived causes that privilege to be lost. The fact that the seizure may have occurred in circumstances in which the officer executing the warrant was unaware of the subsistence of legal professional privilege in the relevant document does not, in my opinion, lead to the conclusion that the privilege is lost.'
Case: Benecke v National Australia Bank Ltd (1993) 35 NSWLR 110
Outcome: referred to
In Mann v Carnell , the High Court referred to the case of Benecke v National Australia Bank Ltd (1993) 35 NSWLR 110, a decision of the New South Wales Court of Appeal. In that case, a woman gave evidence concerning her instructions to a barrister in related proceedings, apparently believing that she could prevent the barrister giving his version of the instructions. The Court of Appeal held that privilege had been impliedly waived. The High Court said of that decision (at 13): 'She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver 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; not some overriding principle of fairness operating at large.' 22 However both Mann v Carnell and Benecke involved circumstances where the alleged waiver resulted from a voluntary act by the holder of the privilege, albeit an act which was not intended to waive privilege. The present case involves circumstances where documents were provided under compulsion of law. Several authorities have indicated that the considerations in such cases are likely to be different: see Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 at 473; Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 at 368-9; Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 at 68.
Case: Commissioner of the Police Service v Nirta [2002] 1 Qd R 364
Outcome: discussed
However both Mann v Carnell and Benecke involved circumstances where the alleged waiver resulted from a voluntary act by the holder of the privilege, albeit an act which was not intended to waive privilege. The present case involves circumstances where documents were provided under compulsion of law. Several authorities have indicated that the considerations in such cases are likely to be different: see Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 at 473; Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 at 368-9; Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 at 68. 24 In Saunders , the applicant claimed to have indicated at the time of the execution of the warrant that he reserved his rights to challenge the lawfulness of the seizure. However in Commissioner of the Police Service v Nirta [2002] 1 Qd R 364, Mullins J held that the right to claim legal professional privilege over documents seized pursuant to a search warrant was not lost because a claim was not made at the time of seizure. Mullins J noted two relevant factors: firstly, that the respondent had been wrongfully informed that he could not contact the solicitors who were acting for him; and secondly, that the claim for privilege was made at the first available opportunity after having spoken with the solicitor acting for him.
Case: Goldberg and Anor v Ng and Ors (1995) 132 ALR 57
Outcome: cited
However both Mann v Carnell and Benecke involved circumstances where the alleged waiver resulted from a voluntary act by the holder of the privilege, albeit an act which was not intended to waive privilege. The present case involves circumstances where documents were provided under compulsion of law. Several authorities have indicated that the considerations in such cases are likely to be different: see Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 at 473; Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 at 368-9; Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 at 68.
Case: Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469
Outcome: discussed
However both Mann v Carnell and Benecke involved circumstances where the alleged waiver resulted from a voluntary act by the holder of the privilege, albeit an act which was not intended to waive privilege. The present case involves circumstances where documents were provided under compulsion of law. Several authorities have indicated that the considerations in such cases are likely to be different: see Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 at 473; Commissioner of the Police Service v Nirta [2002] 1 Qd R 364 at 368-9; Goldberg and Anor v Ng and Ors (1995) 132 ALR 57 at 68. 23 Saunders concerned a claim for privilege in respect of documents seized by the AFP as part of an ongoing investigation into the taxation affairs of the applicant. It had been submitted by the AFP in that case that because the applicant failed to claim privilege at the time of the execution of the warrant, he had impliedly waived privilege over the seized documents. In that case, the AFP relied on observations of Mason J in Baker v Campbell at 80 to the effect that the authorities seemed to suggest that privilege was lost as soon as a document passed into the hands of another who may tender it in evidence. French J in Saunders said of these observations at 473: 'With respect, these observations of the majority in Baker v Campbell fall a long way short of the suggestion that the seizure under warrant of a document the subject of legal professional privilege which has not been waived causes that privilege to be lost. The fact that the seizure may have occurred in circumstances in which the officer executing the warrant was unaware of the subsistence of legal professional privilege in the relevant document does not, in my opinion, lead to the conclusion that the privilege is lost.' 24 In Saunders , the applicant claimed to have indicated at the time of the execution of the warrant that he reserved his rights to challenge the lawfulness of the seizure. However in Commissioner of the Police Service v Nirta [2002] 1 Qd R 364, Mullins J held that the right to claim legal professional privilege over documents seized pursuant to a search warrant was not lost because a claim was not made at the time of seizure. Mullins J noted two relevant factors: firstly, that the respondent had been wrongfully informed that he could not contact the solicitors who were acting for him; and secondly, that the claim for privilege was made at the first available opportunity after having spoken with the solicitor acting for him.
Case: Allstate Life Insurance Co v ANZ Banking Group Ltd (No 28) (1996) 64 FCR 55
Outcome: cited
In addition to that material, Mr Stokoe seeks to give evidence about what he says would have happened. I will come to the form of the paragraphs in a moment, but let me put one matter to one side. It was initially said that this was not opinion evidence but, rather, evidence of fact in a hypothetical state of affairs, and some reliance was initially placed on cases such as Hughes Aircraft Systems v Airservices Australia (No 3) (1997) 80 FCR 276 and Allstate Life Insurance Co v ANZ Banking Group Ltd (No 28) (1996) 64 FCR 55. That contention was, correctly in my view, not pressed. The evidence is not evidence of a person stating what her or his state of mind would have been had another event occurred, thereby identifying, in a sense, a true potential or nascent state of mind at the time. It is not the identification of a personal reaction to a state of affairs which might arise in either a negligent or fraudulent representation case or a case under s 52 of the Trade Practices Act 1974 (Cth), or a case otherwise dealing with state of mind such as estoppel. Nor is it a case about what an individual has been caused to do. Rather, it is an attempt to say what customers in the market would have done in an alternative world hypothesis. It was put by Mr Catterns in submission that this was not state of mind, but existing market trends. I think the distinction is elusive, or really non-existent.
Case: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15 ; (1993) 177 CLR 485 
Outcome: referred to
Though the two courts have been dealing with different Evidence Acts, they are in relevantly identical form and spring from the same exercise of law reform conducted in the 1990s. Therefore, they can be seen as coordinate pieces of legislation that were attempts at national legislation, which have failed to obtain universal approval. Nevertheless, they are statutes which are in relatively the same form, springing from the same source and, ordinarily, one would expect a body of coordinate jurisprudence on them conformable with such cases as Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15 ; (1993) 177 CLR 485.
Case: BHP Billiton Iron Ore v National Competition Council (2007) 162 FCR 234
Outcome: discussed
In BHP Billiton Iron Ore v National Competition Council (2007) 162 FCR 234, the Full Court of this Court once again returned to the issue. At [185] in the reasons of Greenwood J, with which Sundberg J agreed, his Honour dealt with the whole question of expert evidence as follows: The appellants contend on appeal that the evidence of the economic experts is inadmissible as irrelevant. The evidence was admitted on the basis of contextual elaboration of the extrinsic material. The evidence is relevant if it is evidence that if accepted could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding ( Evidence Act 1995 (Cth), s 55(1)). Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (s 76(1)) although, if a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge (s 79). The normal role of an expert is to give an opinion based on clearly identified facts ( Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705), almost invariably assumed to be the facts, on the footing that those facts provide a proper foundation for an opinion within the demonstrated discipline or field of specialised knowledge of the expert witness. Although s 79 of the Evidence Act seems to operate on the footing that the opinion of a person wholly or substantially based on specialised knowledge is not precluded by s 76(1) in the absence of proven foundation facts ( Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 [10]; Neowarra v Western Australia (No. 1) [2003] FCA 1399 ; (2003) 134 FCR 208), little or no weight will be given to such an opinion ( Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642) although the central point may simply be the question of admissibility, not weight ( HG v R [1999] HCA 2 ; (1999) 197 CLR 414 at [39] [44]; Trade Practices Commission v Arnott's Ltd (No. 5) (1990) 21 FCR 324 at 327-330). That question does not arise here. In this case, the experts did not seek to offer an economic opinion related to disputed or undisputed facts probative of a matter in issue. They sought to offer an historical or contextual explanation as an elaboration of extrinsic material going to Part IIIA of the Act. It is difficult to see how that evidence is truly admissible except perhaps in that unusual category of 'expert non-opinion evidence' descriptive of a relevant element of the economic discipline concerning the evolution of economic concepts of access to natural monopoly infrastructure, without offering any opinion about facts in issue. In any event, the material is capable of being received by the court and considered by force of Order 10, rule 1(2)(j) of the Federal Court Rules , by way of a submission rather than admissible evidence.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397
Outcome: referred to
In one sense, it goes without saying that he cannot say what any particular individual person would have done on a particular day. However, the evidence of the kind permitted in Red Bull 55 IPR 354, and also dealt with with a degree of generosity in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397, indicates that evidence in which an expert, who has some specialised knowledge which equips him or her to say something about how consumers will behave, is not inadmissible in limine as not being capable of being the subject of expert evidence.