mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1712
Outcome: cited
of the kind sought by the applicant have been previously made ( Kennedy v Queensland (2002) 190 ALR 707; Deniliquin Local Aboriginal Land Council [2001] FCA 609 ; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1712 ; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1713).
Case: Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1713
Outcome: cited
of the kind sought by the applicant have been previously made ( Kennedy v Queensland (2002) 190 ALR 707; Deniliquin Local Aboriginal Land Council [2001] FCA 609 ; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1712 ; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1713).
Case: Allanson v Midland Credit Ltd and Anor (1977) 30 FLR 108
Outcome: applied
The affidavit evidence discloses that there are intricate factual and legal matters, involving numerous parties, arising in the Supreme Court proceedings. This Court may grant leave under s 58(3) of the Bankruptcy Act if it considers that the issues would be better and more comprehensively dealt with by a contested trial of the action in the Supreme Court than would be the case if the applicants were required to lodge a proof of debt in respect of the bankrupt estate: see Allanson v Midland Credit Limited and Anor (1977) 30 FLR 108 at 114 per Bowen CJ, Riley and Deane JJ; Macquarie Bank Ltd v Bardetta and Ors (2005) 216 ALR 670 at [19]-[21] per Conti J.
Case: Macquarie Bank Ltd v Bardetta and Ors (2005) 216 ALR 670
Outcome: applied
The affidavit evidence discloses that there are intricate factual and legal matters, involving numerous parties, arising in the Supreme Court proceedings. This Court may grant leave under s 58(3) of the Bankruptcy Act if it considers that the issues would be better and more comprehensively dealt with by a contested trial of the action in the Supreme Court than would be the case if the applicants were required to lodge a proof of debt in respect of the bankrupt estate: see Allanson v Midland Credit Limited and Anor (1977) 30 FLR 108 at 114 per Bowen CJ, Riley and Deane JJ; Macquarie Bank Ltd v Bardetta and Ors (2005) 216 ALR 670 at [19]-[21] per Conti J.
Case: Re Veghelyi; Smith and Ors v Official Trustee in Bankruptcy (1993) 45 FCR 413
Outcome: applied
For these reasons, the Court considers that leave should be granted. The applicants seek that leave be granted effective from 26 July 2005. This Court has power to make a nunc pro tunc order: see Re Veghelyi; Smith and Ors v Official Trustee in Bankruptcy (1993) 45 FCR 413. Accordingly, the Court will make the orders as sought. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 4 July 2006 Counsel for the Applicant: P W Flynn Solicitor for the Applicant: Blake Dawson Waldron Counsel for the Respondents: The respondents did not appear. Date of Hearing: 7 June 2006 Date of Judgment: 7 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/852.html
Case: Chapman v Luminis Pty Ltd [2003] FCAFC 162
Outcome: cited
It seems to me, therefore, that the principles which were stated by McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 624-625 apply. That is to say, the Court does not embark upon a hypothetical trial to determine what the result of the application would have been. Whilst it is true that in certain circumstances the Court can make an order for costs where proceedings have not proceeded to trial, the usual rule will be that there be no order as to costs; see also Chapman v Luminis Pty Ltd [2003] FCAFC 162 at [7] .
Case: Re Struthers, Liquidator of Project Management, Architecture and Construction, Interior (PACI) Pty Ltd in Liquidation (No. 3) [2005] NSWSC 1113 ; (2005) 64 NSWLR 392
Outcome: referred to
Different considerations seem to me to apply to an application to set aside an examination summons. In Re Struthers, Liquidator of Project Management, Architecture and Construction, Interior (PACI) Pty Ltd in Liquidation (No. 3) [2005] NSWSC 1113 ; (2005) 64 NSWLR 392 at [38] , Brereton J pointed out that an examination summons in analogous to a subpoena; "Both may, in appropriate circumstances, be set aside on the application of the witness or the examinee". The witness or the examinee does not become a party to the proceedings in which the subpoena or the summons is issued. Nonetheless, as his Honour observed at [59], the Court does have power to make a costs order against persons who are not parties to the proceedings.
Case: Re The Minister for Immigration and Ethnic Affairs of the Commonwealth; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622
Outcome: followed
It seems to me, therefore, that the principles which were stated by McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 624-625 apply. That is to say, the Court does not embark upon a hypothetical trial to determine what the result of the application would have been. Whilst it is true that in certain circumstances the Court can make an order for costs where proceedings have not proceeded to trial, the usual rule will be that there be no order as to costs; see also Chapman v Luminis Pty Ltd [2003] FCAFC 162 at [7] . 23 For the reasons that I have given, it seems to me that it is appropriate that the application for the costs of Mr Trevor and BankWest be refused consistent with the principles stated by McHugh J in Ex parte Lai Qin , and applied by the Full Court. 24 The appropriate order seems to me to be that there be no order as to costs and I would indicate that I would make the same order in relation to today's application. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 5 April 2007 Counsel for the Applicant: Mr MBJ Lee Solicitor for the Applicant: Piper Alderman Counsel for the Respondent: Mr TM Thawley Solicitor for the Respondent: Henry Davis York Date of Hearing: 5 April 2007 Date of Judgment: 5 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/506.html
Case: Ryan v Australian Securities and Investments Commission; in the matter of Allstate Explorations NL (Subject to Deed of Company Arrangement) [2007] FCA 59
Outcome: referred to
The background to these proceedings may be seen in the decision of Gyles J in Ryan v Australian Securities and Investments Commission; in the matter of Allstate Explorations NL (Subject to Deed of Company Arrangement) [2007] FCA 59. It is to be noted that ASIC approved the applicants as persons who could seek examination orders. Nevertheless, in view of what I have said above, these are not matters which I need to consider in determining the costs question.
Case: Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424 
Outcome: applied
This is an application for a stay of proceedings under a sequestration order pending appeal. Because of the limitations in the Bankruptcy Act 1966 (Cth) (the Act) it must be seen as an application pursuant to O 52 r 17 of the Federal Court Rules which has been held to operate in circumstances such as the present. See for example Stedman v Commissioner of Taxation [1999] FCA 539 which referred in turn to Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424.
Case: Stedman v Commissioner of Taxation [1999] FCA 539
Outcome: applied
This is an application for a stay of proceedings under a sequestration order pending appeal. Because of the limitations in the Bankruptcy Act 1966 (Cth) (the Act) it must be seen as an application pursuant to O 52 r 17 of the Federal Court Rules which has been held to operate in circumstances such as the present. See for example Stedman v Commissioner of Taxation [1999] FCA 539 which referred in turn to Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424. 4 The Trustee in Bankruptcy, whilst accepting the case to be made in practice for the payment to be permitted, draws attention to the fact that vesting of property is effective by virtue of the operation of s 58 of the Act and there is no authority to establish that a stay would negate the effect of what has occurred to date. Indeed, as I read Stedman , the tendency may be rather to the contrary. However, it seems to me that a stay would operate from its date and the sequestration order would not have an effect upon events after that. Thus, the practical effect of the sequestration order would not lead to any moneys held pursuant to the Proceeds of Crime Act being vested in the Trustee to the exclusion of the bankrupt if released after the stay. In my opinion, if the Supreme Court of New South Wales were persuaded to make an order releasing some of those moneys, they would not vest in the Trustee but could be properly paid to the solicitors for the applicant for the purpose of conducting the appeal. 5 I can do no more than express my view about the way the law operates. The solicitor for the applicant seeks some comfort in relation to any claim that might be made in the event of the appeal failing. I think it is better that I say no more than I have said about that issue at the moment. 6 Under the circumstances, as the order under the Proceeds of Crime Act is in force, I therefore propose to grant a stay of proceedings under the sequestration order until the disposition of the appeal or earlier order on certain terms which have been discussed between the parties. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 8 June 2006 Solicitor for the Applicant: Mr D Bowles of Bowles Lawyers Pty Ltd Counsel for the Official Trustee in Bankruptcy: Mr JT Johnson Solicitor for the Official Trustee in Bankruptcy: Ms K Britton of Sally Nash &amp; Co Counsel for the Commonwealth Director of Public Prosecutions (amicus): Mr T Muir Date of Hearing: 30 May 2006 Date of Judgment: 30 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/715.html
Case: SZIRO v Minister for Immigration and Multicultural Affairs [2006] FMCA 1561
Outcome: affirmed
This is an appeal against a judgment of Federal Magistrate Scarlett of 12 October 2006, SZIRO v Minister for Immigration and Multicultural Affairs [2006] FMCA 1561. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal of 16 March 2006. The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellants. 2 The appellants are citizens of India who arrived in Australia on 1 August 2005. The appellants are a married couple and their two children. On 9 September 2005 the appellants lodged an application for a protection visa. Only the appellant husband made claims under the Convention. The appellant husband's application will govern the outcome of the applications of the other members of his family. I shall use the term appellant as referring to the appellant husband. 3 In the application for a protection visa the appellant claimed to have a well founded fear of persecution by reason of his political opinion. He claimed to be a freelance camera journalist who composed articles for the local newspaper about human rights issues in India. He asserted his photographs and writings enraged government supporters. Although he was threatened and told to stop writing he claimed that he continued and this enraged government supporters further. Subsequently the appellant and his family left India.
Case: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]
Outcome: applied
The Tribunal did complete the review on the information available. It is clear that the reason for the decision was the inadequacy of the information before it in the context of the appellant's failure to attend the hearing. This finding was open to the Tribunal. As was said by the Full Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] , there must be "a refusal if the decision-maker is not affirmatively satisfied that the criteria for the grant of visa in question had been satisfied."
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 42-43
Outcome: applied
The Tribunal's power under s 424 is clearly discretionary. The Tribunal does not have a duty to investigate the appellant's claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 42-43. No jurisdictional error is made out. 13 This ground was really not raised before the Federal Magistrates Court. In any event, it must also fail because the appellant had not provided adequate details for the Tribunal to be satisfied. 14 At the hearing of the appeal before me the appellant relied on some further matters. He tendered a number of documents apparently provided from India. Two are certificates dated 10 February 2007 by persons in India making statements about the appellant's work as a freelance reporter and also about any attack on him by people in the community and attendance at a hospital. The third document is a medical certificate apparently showing that the appellant was admitted to hospital and was treated as an out-patient for one week by an orthopaedic surgeon. Along with these documents the appellant also sought to raise other matters going to the merits of his claim. Obviously these were matters not put before the Magistrate, let alone the Tribunal, and do not make out a case of error by the Magistrate.
Case: 'Pooncarie' Barkandji (Paakantye People) v New South Wales Minister for Land &amp; Water Conservation [2006] FCA 25
Outcome: cited
The State also cites a body of law which recognises that the role of the applicant is a representative one and it submits that it is not competent for only some of those persons comprising the applicant to obtain separate legal representation and act in other than by unanimous agreement: see 'Pooncarie' Barkandji (Paakantye People) v New South Wales Minister for Land &amp; Water Conservation [2006] FCA 25 at [10] and Sampi v Western Australia (No 2) [2005] FCA 1567 at [24] - [27] . In these circumstances, in my view, there is a significant doubt whether Mr Black's firm has been duly authorised to act. I think the better view is that there is no such authority on the face of the present documents and the evidence before me.
Case: Sampi v Western Australia (No 2) [2005] FCA 1567
Outcome: cited
The State also cites a body of law which recognises that the role of the applicant is a representative one and it submits that it is not competent for only some of those persons comprising the applicant to obtain separate legal representation and act in other than by unanimous agreement: see 'Pooncarie' Barkandji (Paakantye People) v New South Wales Minister for Land &amp; Water Conservation [2006] FCA 25 at [10] and Sampi v Western Australia (No 2) [2005] FCA 1567 at [24] - [27] . In these circumstances, in my view, there is a significant doubt whether Mr Black's firm has been duly authorised to act. I think the better view is that there is no such authority on the face of the present documents and the evidence before me.
Case: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49
Outcome: approved
the legal advice limb of legal professional privilege, a document will attract privilege if it was brought into existence for the dominant purpose of giving or obtaining legal advice: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 ( 'Esso' ) at 64-65 [35]; Daniels Corporations International Pty Ltd v Australian Competition &amp; Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543 ( 'Daniels' ) at 552 [9].
Case: Daniels Corporations International Pty Ltd v Australian Competition &amp; Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543
Outcome: approved
the legal advice limb of legal professional privilege, a document will attract privilege if it was brought into existence for the dominant purpose of giving or obtaining legal advice: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 ( 'Esso' ) at 64-65 [35]; Daniels Corporations International Pty Ltd v Australian Competition &amp; Consumer Commission [2002] HCA 49 ; (2002) 213 CLR 543 ( 'Daniels' ) at 552 [9]. I do not agree with AWB's submission that, even if its disclosures were not compelled by law, the inquisitorial context in which they took place is a factor which strongly militates against waiver. In Australia, legal professional privilege is a fundamental common law right that can be asserted outside the context of adversarial litigation. It can, for instance, be invoked to resist the production of documents in answer to a search warrant or the giving of information or the production of documents pursuant to coercive statutory powers or notices: Daniels at 552-553 [9] [11] and 563 [44]; Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52. As legal professional privilege can be invoked outside the context of judicial or quasi-judicial proceedings, logic suggests that it should be capable of being waived if the claimant engages in conduct that is inconsistent with the maintenance of the confidentiality that the privilege is intended to protect. It should not matter whether the conduct takes place within, or outside, the framework of the proceedings or investigatory process in which a demand has been made for the production of privileged documents or information. The crucial question is whether the conduct is inconsistent with the maintenance of confidentiality.
Case: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54
Outcome: cited
placed particular reliance on Dawson J's formulation of the scope of legal advice privilege in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 95: legal professional privilege relied upon in this case is that which attaches to communications between a legal adviser and his client for the purpose of giving or receiving legal advice and to documents recording those communications or containing information for the purpose of enabling the advice to be given. In order to attract that privilege, the communications must be confidential and the legal adviser must be acting in his professional capacity: see Minet v Morgan ; Wheeler v Le Marchant ; Smith v Daniell ; Bullivant v Attorney-General (Vict.) ; Jones v Great Central Railway Co ; O'Rourke v Darbishire ' . There is nothing controversial about this formulation of the principle.
Case: Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674
Outcome: cited
Commonwealth contended that AWB had failed in its attempt to prove legal professional privilege because it had not adduced any proof as to AWB's dominant purpose in seeking or obtaining legal advice. AWB largely relied upon evidence given by in-house and external lawyers involved in the particular communications at issue. The Commonwealth submitted that evidence proving the lawyer's understanding of the purpose of the particular communication and that he or she was giving legal advice affords no evidence of the client's dominant purpose. There is no real substance in this criticism. Dominant purpose must be determined objectively, but it is not uncommon for the relevant purpose to be established by evidence given by the maker of the statement or another person responsible for commissioning the relevant document or bringing it into existence, such as a solicitor: see Mitsubishi Electric Australia Pty Ltd v Victoria WorkCover Authority [2002] VSCA 59 ; (2002) 4 VR 332 at [14] ; Grant v Downs at 677 and AWB v Cole at [110].
Case: Balabel v Air India [1988] 1 Ch 317
Outcome: approved
a lawyer has been retained for the purposes of providing legal advice in relation to a particular transaction or series of transactions, communications between the lawyer and the client relating to that transaction will be privileged, notwithstanding that they do not contain advice on matters of law; it is enough that they are directly related to the performance by the lawyer of his or her professional duty as legal adviser to the client: Minter v Priest [1930] AC 558 at 581 586; Balabel at 330; Nederlandse at 983 and Dalleagles at 332 333. In Dalleagles , Anderson J said at 332 333 that professional discourse in a professional capacity between a solicitor and his client with reference to the transactions covered by his instructions should be regarded as prima facie for the purpose of giving and receiving advice. In his Honour's view, this would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor's engagement and any communication from the client to the solicitor in connection with that engagement. These propositions were referred to, with approval, by Allsop J in DSE at [51]-[52] and by Branson J in Wenkart v Commissioner of Federal Police (unreported, Federal Court, Branson J, 11 November 1996). In DSE , Allsop J said that there was no substantive difference between the views expressed in Balabel and Dalleagles : at [51], [52] and [71]. Allsop J also observed that what underlies the expression of opinion in those cases is the recognition that the obligation of the lawyer to advise, once retained, is pervasive. In his Honour's view, it would be rare that one could, with any degree of confidence, say that a communication between client and lawyer, in the circumstances of a retainer requiring legal advice and the directing of the client by a legal adviser, was not connected with the provision or requesting of legal advice. Indeed, too literal a requirement of identifying legal advice as express advice about the law would place undue emphasis on formalism and undermine the privilege. Rix J (as his Lordship then was) expressed much the same view in Hellenic Mutual War Risks Associated (Bermuda) Ltd v Harrison [1997] 1 Lloyd's Rep 160 at 168.