mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Telstra Corp v Australis Media Holdings (unreported, Supreme Court of New South Wales Equity Division, McLelland CJ in Eq, 10 February 1997)
Outcome: discussed
The applicant submits that the rule of practice identified in GE Capital does not apply under the Rules of this Court. He submits that a party making discovery is not entitled to seal up or mask parts or sections of a document unless he has the consent of the other party or the permission of the Court. He refers to Telstra Corp v Australis Media Holdings (unreported, Supreme Court of New South Wales Equity Division, McLelland CJ in Eq, 10 February 1997) (" Telstra Corp "); Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 (" Gray ") and Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041. In Gray , Branson J said (at [15]-[16]): 15 In my view, where in this Court categories of documents are required to be discovered and thereafter made available for inspection, the true obligation on the party giving discovery is the same as that identified by McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings by reference to Pt 23 of the New South Wales Supreme Court Rules . The Chief Judge there said: "Under the new discovery rules, Pt 23 of the Supreme Court Rules , ... classes of documents required to be discovered may be, and were in the present case, specified not by reference to relevance to a fact or facts in issue, but by description of the nature of the documents, rendering it unnecessary to consider questions of relevance to an issue, as such. If in such cases the party giving discovery desires to withhold, by making [sic] or otherwise, production of part of a discoverable document on the ground that that part does not contribute to the satisfaction of any of the criteria by reference to which the class of documents is described, then it may be that a case can be made for giving effect to that desire, but in my view, unless there is some relevant qualification in the order for discovery, the order requires that the whole document be produced unless there is an agreement to the contrary by the party to which discovery is being made, or unless relief from the requirement, for example by making [sic] certain portions is obtained from the Court. 16 The respondents did not obtain the agreement of the applicant to the masking of portions of their discovered documents, nor did they seek relief from the Court from their prima facie obligations to allow full inspection of their discovered documents. Nonetheless, having regard to the course of argument on the applicant's notice of motion, it seems appropriate now to give consideration to the claim of the respondents that the masking undertaken by them is appropriate in the circumstances and ought to be authorised by the Court.
Case: The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55
Outcome: referred to
Under the Rules of Court there is express provision for an order for general discovery and for an order for limited discovery. The order for general discovery is no longer of a type that requires discovery of documents relating to any matter in question in the proceeding and the application of the test formulated in The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55 and referred to in Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341. The rule providing for such discovery was amended in 1999 by Federal Court Amendment Rules 1999 (No 6) (Statutory Rules 1999 No 295) (Cth) and replaced with O 15 r 2(3), which was in the following terms: Without limiting rule 3 or 7, the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given: (a) documents on which the party relies; and (b) documents that adversely affect the party's own case; and (c) documents that adversely affect another party's case; and (d) documents that support another party's case; and (e) documents that the party is required by a relevant practice direction to disclose. Paragraph (e) has since been removed.
Case: Westfield Management Ltd v Brisbane Airport Corp Ltd [2004] FCA 611
Outcome: referred to
I recognise that there are observations of Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; [2004] ATPR 41-996 at [12] - [13] that suggest that the longstanding rule of practice does not apply in this Court whether the order is one for general discovery or for limited discovery and that those observations have been referred to in a general way with approval (see Westfield Management Ltd v Brisbane Airport Corp Ltd [2004] FCA 611 at [12] and [22] per Cooper J; Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93 at [7] - [8] per RD Nicholson J; Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284 at 295 [53]-[54] per Lee J). However, for the reasons I have given, I would not follow those observations where the order is, as in this case, an order for general discovery.
Case: Australian Broadcasting Corporation v O'Neill (2006) 225 CLR 57
Outcome: cited
organising principles governing the exercise of the discretion in granting or withholding the grant of an interlocutory injunction are well understood and clearly explained by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 225 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] to [72] as their Honours emphasise the principles established in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. It is therefore necessary for the applicants to show a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo pending the trial. That is the sense in which the applicants must demonstrate whether a prima facie case is made out. In analysing whether the applicants have demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending trial, the Court will examine the strength of the prima facie case and whether, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief. The strength of the probability of success depends in part upon the nature of the rights asserted by the applicants and the practical consequences likely to flow from the order the applicants seek. A sufficient likelihood of success in this sense might properly also be described as whether the applicants have shown a serious question to be tried. The applicants must also demonstrate that the injury the individual applicants would be likely to suffer if an interlocutory injunction is not granted, outweighs the injury the defendant would suffer if the injunction is granted. Further, the applicants must show that damages will not be an adequate remedy. The question of balance of convenience and the adequacy of damages are in turn influenced by the strength of the prima facie case and the nature of the rights asserted by the individual applicants. In this case, the applicants contend that they have been deprived of their employment for a prohibited reason in circumstances where the legislation enacting the prohibition and conferring remedial rights in respect of contraventions of the prohibition, is directed to the protection and preservation of the freedom of association (Division 3 of Part 16 of the Act).
Case: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Outcome: cited
organising principles governing the exercise of the discretion in granting or withholding the grant of an interlocutory injunction are well understood and clearly explained by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 225 CLR 57 per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] to [72] as their Honours emphasise the principles established in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. It is therefore necessary for the applicants to show a sufficient likelihood of success in the principal proceeding at trial to justify, in the circumstances, the preservation of the status quo pending the trial. That is the sense in which the applicants must demonstrate whether a prima facie case is made out. In analysing whether the applicants have demonstrated a sufficient likelihood of success to justify the preservation of the status quo pending trial, the Court will examine the strength of the prima facie case and whether, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief. The strength of the probability of success depends in part upon the nature of the rights asserted by the applicants and the practical consequences likely to flow from the order the applicants seek. A sufficient likelihood of success in this sense might properly also be described as whether the applicants have shown a serious question to be tried. The applicants must also demonstrate that the injury the individual applicants would be likely to suffer if an interlocutory injunction is not granted, outweighs the injury the defendant would suffer if the injunction is granted. Further, the applicants must show that damages will not be an adequate remedy. The question of balance of convenience and the adequacy of damages are in turn influenced by the strength of the prima facie case and the nature of the rights asserted by the individual applicants. In this case, the applicants contend that they have been deprived of their employment for a prohibited reason in circumstances where the legislation enacting the prohibition and conferring remedial rights in respect of contraventions of the prohibition, is directed to the protection and preservation of the freedom of association (Division 3 of Part 16 of the Act).
Case: David's Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463
Outcome: cited
trial, the applicants propose to rely upon the presumption contained in s 809(1) of the Act. The operation of the presumption was explained by Wilcox and Cooper JJ in David's Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [109] in the context of the then s 298V of the Act which was, relevantly, in the same terms as s 809(1) of the Act. Their Honours said: Section 298V does not relieve the applicant in proceedings under Division 6 of Part XA of the Act from proving, on the balance of probabilities, each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise. Section 809(1) has the effect of reversing the onus of proof with the result that it is presumed in the proceeding brought under s 807 of the Act that the conduct was carried out for a prohibited reason unless the employer proves otherwise. The policy of that approach is simply that the circumstances by reason of which an employer might take action of dismissal against an employee are necessarily peculiarly within the knowledge of the employer. Section 809(2) suggests that the presumption might not operate in an application for an interim or interlocutory injunction. However, it seems to me that the correct approach is this. The organising principles governing the grant or otherwise of an interlocutory injunction are directed, importantly, to determining whether the applicants have demonstrated a sufficient likelihood of success at trial to justify, in the circumstances, the preservation of the status quo pending the trial. At the trial, the presumption operates, effecting a reversal of the onus of proof once the other integers of the section giving rise to the prohibition are made out. In determining whether the applicants have demonstrated a sufficient likelihood of success at trial, the Court must take into account the operation of the presumption at trial in the context of the evidence available on the interlocutory application. The presumption cannot be determinative of the interlocutory application but its operation in the context of the trial is relevant to the strength of the probability of success at trial.
Case: Bowling v General Motors Holdens Pty Ltd 8 ALR 197
Outcome: cited
Bowling v General Motors Holdens Pty Ltd 8 ALR 197, Smithers and Evatt JJ at p 201, ll 32 38 identify the immediate inquiry in these terms: In relation to the critical issue, the immediate inquiries are, what person or persons made the decision to dismiss the informant, what relevant circumstances were within their knowledge, whether it was known to them that the informant was a shop steward, and if they knew of the informant's position of shop steward, what they have to say as to whether or not that matter had any and what degree of influence in the making of the decision.
Case: Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: considered
applicant further submitted that having regarded the information as significant, the Tribunal was bound to accord the applicant an opportunity to deal with it: see Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 96. Even if the evidence was given no weight (unlike here), there was a real risk of prejudice arising from the admission of the evidence (see Brennan J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629 and Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL at 96 - 97). Because the exercise of the statutory power is conditioned upon the provision of procedural fairness, the denial of procedural fairness in this case vitiates the Tribunal's decision (see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [59] per Gaudron and Gummow JJ). The applicant observed that most of the evidence contained in the police intelligence reports and housing department records contained allegations of criminal conduct, such as physical assault and intimidation. Very few of the complaints reportedly made against the applicant and recorded in the documents alleged conduct that was not criminal in nature (such as mere 'verbal abuse'). That being the case, to take that evidence into account, the applicant submitted that the Tribunal was required to determine whether the information was 'logically probative' and 'credible, relevant and significant' (see Applicant VEAL of 2002 at 96). According to the applicant, it was also required to be satisfied on the balance of probabilities that the criminal conduct had in fact occurred. The applicant submitted that had the Tribunal applied the correct tests, it would not (and could not) have been satisfied that the evidence proved the commission of criminal offences to the requisite standard. As outlined in relation to ground 1, the evidence contained in the police intelligence reports and housing department records consisted largely of assertions and legal conclusions, hearsay and speculation. Yet the Tribunal took it into account and found that it showed a 'pattern of drug-dealing and lawless violence and intimidation' (at [161]). It follows necessarily, in the applicant's submission, that the Tribunal applied an incorrect standard of proof when assessing that evidence. The applicant submitted that the heart of the Tribunal's error appears at [168] where it states that 'when there is a substantial number of reports from a wide variety of sources all detailing similar conduct, the probability that the picture created is true markedly increases'. This is said to be impermissible reasoning. According to the applicant, it was not open to the Tribunal, when deciding that evidence showed a pattern of criminal behaviour, to find that the volume of allegations placed before the Tribunal made those allegations true or 'markedly' more probably true.
Case: Barbaro (Saverio) v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690
Outcome: referred to
applicant submitted that while the Tribunal is not bound by the rules of evidence (s 33 of the Administrative Appeals Tribunal Act 1975 (Cth)), it is well established that the right of the Tribunal to inform itself in such manner as it chooses is subject to compliance with the rules of natural justice (see Collins v Minister for Immigration &amp; Ethnic Affairs [1981] FCA 147 ; (1981) 36 ALR 598 ; Barbaro (Saverio) v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690 and before the Tribunal (1980) 3 ALD 1 at 5). A rationale for the rules of evidence is that decisions should be reached on the best evidence available and by giving the parties affected a fair hearing. This may mean that evidence that is unreliable should not be admitted or, if admitted, should be given little weight or no weight.
Case: Browne v Dunn [1893] 6 R 67
Outcome: referred to
the applicant submitted that, as an aspect of the rules of procedural fairness, the rule in Browne v Dunn [1893] 6 R 67 required the Tribunal to put these matters to the applicant. At the forefront of the Minister's submissions was that the applicant had everything that the Tribunal had. The applicant was served with the police intelligence reports and the housing department records prior to the hearing. They were tendered in evidence at the hearing without objection from the applicant. At no point did the applicant say she did not understand what was contained in them or that she had difficulty in knowing what was alleged against her. Indeed, all of this appears to be common ground. The Minister makes the point that the applicant was cross-examined on the housing department records (reference hearing transcript pp 35 39 and 104 120) and that at p 115 it was specifically put to the applicant that she was aggressive and violent towards Housing Commission staff and other tenants, had dealt drugs from her rented home and, when she could stay there no longer, invaded the homes of others. The Minister submitted that this was more than sufficient to indicate the nature of the allegations contained in the housing department records, which are in any event self-explanatory. As the evidence from Detective Inspector Galea was consistent with what had earlier been put to the applicant and he was specifically cross-examined on it on the applicant's behalf, there cannot, the Minister submitted, be any unfairness in this case. The Minister further observed that it was obvious that the applicant would deny being a significant drug dealer in Airds because she had previously denied dealing drugs at all; and her representative in closing submissions specifically denied that the applicant was a 'significant player in the drug trade', or indeed a dealer at all. The Minister submitted that the applicant did not need to be specifically recalled to deny the allegation herself; the rule in Browne v Dunn does not apply to inquisitorial tribunals: Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ; and that there was no unfairness in the Tribunal's reception of the evidence from Detective Inspector Galea. Analysis
Case: Collins v Minister for Immigration &amp; Ethnic Affairs [1981] FCA 147 ; (1981) 36 ALR 598
Outcome: referred to
applicant submitted that while the Tribunal is not bound by the rules of evidence (s 33 of the Administrative Appeals Tribunal Act 1975 (Cth)), it is well established that the right of the Tribunal to inform itself in such manner as it chooses is subject to compliance with the rules of natural justice (see Collins v Minister for Immigration &amp; Ethnic Affairs [1981] FCA 147 ; (1981) 36 ALR 598 ; Barbaro (Saverio) v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690 and before the Tribunal (1980) 3 ALD 1 at 5). A rationale for the rules of evidence is that decisions should be reached on the best evidence available and by giving the parties affected a fair hearing. This may mean that evidence that is unreliable should not be admitted or, if admitted, should be given little weight or no weight.
Case: Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 
Outcome: considered
response to the applicant's claim that the Tribunal was obliged to seek specific comment from the applicant about each allegation contained in the police intelligence reports and the housing department records, the Minister submitted that procedural fairness does not so require; it must have been obvious to the applicant that the Tribunal may rely on the allegations contained in these reports and records as they were in evidence before the Tribunal: cf. Puafisi v Minister for Immigration &amp; Citizenship [2008] FCAFC 39 at [14] . Moreover, the gist of the allegations contained therein was put to the applicant, and the Tribunal's conclusions from the reports and records were obvious so as not to require specific disclosure: Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 591 592; Pilbara Aboriginal Land Council v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 555 557, referred to with approval in NAOA v Minister for Immigration &amp; Multicultural Affairs [2004] FCAFC 241 at [25] [28]; Puafisi at [20] [23]. It follows, the Minister submitted, that neither more particulars of that evidence nor the Tribunal's conclusions based on that evidence were required to be put to the applicant. The weight to be attached to such evidence is a matter for the Tribunal. Having regard to the provenance and nature of the impugned material, one might expect that the Tribunal would not attach the weight to it that it attached to evidence of the applicant's convictions. In my view, that expectation is fulfilled in the passages from the Tribunal's reasons extracted in [68] and [69] above, but also at [168] of the Tribunal's reasons. But at the end of the day, the weight to be attached to such evidence is a matter for the Tribunal and even if it was obvious, and it certainly is not in this case, that the Tribunal attached greater weight to such evidence than might be thought appropriate having regard to its provenance and nature, that would not constitute a denial of procedural fairness to the applicant on the part of the Tribunal. Contrary to the submission of the applicant, nothing was said in Alphaone at 590 592 to make this 'an orthodox application' of the principles there embraced '... to somewhat unusual facts'. For these reasons, grounds 1 and 2 cannot sustain the application for review. GROUND 3 The Parties' Submissions The applicant submitted that the Tribunal erred in relying on the police intelligence reports and housing department records and in its findings in relation to those records in that it applied an incorrect standard of proof. The applicant relied on the submissions made in relation to ground 1 and made the following further submissions under this ground.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
applicant further submitted that having regarded the information as significant, the Tribunal was bound to accord the applicant an opportunity to deal with it: see Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 95 96. Even if the evidence was given no weight (unlike here), there was a real risk of prejudice arising from the admission of the evidence (see Brennan J in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 629 and Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL at 96 - 97). Because the exercise of the statutory power is conditioned upon the provision of procedural fairness, the denial of procedural fairness in this case vitiates the Tribunal's decision (see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [59] per Gaudron and Gummow JJ).