mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634
Outcome: cited
Allphones gave Hoy Mobile a notice of its intention to terminate the franchise agreement in late August 2006. Before that occurred, but after Allphones became aware of the allegation of unlocking of the telephones, Hoy Mobile alleges that Allphones acted in a way which affirmed the franchise agreement. Hoy Mobile alleges that Allphones required it to do certain things in accordance with the franchise agreement. Hoy Mobile relies on this affirmation, or election, to deny that Allphones was entitled to terminate the franchise agreement. It claimed that when Allphones sought to require Hoy Mobile to comply with requirements made by it earlier in June and July 2006 that conduct was inconsistent with Allphones' subsequent attempt to exercise a right to terminate: see Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634 esp at 642 per Stephen J. 7 The issue here is whether Allphones knew in June or July 2006 both about the unlocking of the phones and the failure to account, on which it relied, to uphold its exercise of a right to terminate. It gave notice of its intention to exercise the right to terminate in late August 2006. 8 This matter has had a long history of interlocutory case management. During early 2007, a question arose as to whether some documents produced on discovery by Allphones were entitled to be withheld from production on the ground of legal professional privilege. An interlocutory hearing took place before Tamberlin J on 1 June 2007. At that hearing, Allphones read and relied upon a sworn affidavit by Mr Lloyd on 5 April 2007. He was a solicitor employed by its solicitors on the record. Mr Lloyd said that he deposed to the matters in the affidavit based on information and belief unless otherwise stated. But, relevantly, he did not identify the sources of the information and belief. Nonetheless, the affidavit was read in full before Tamberlin J.
Case: Smith v Joyce [1954] HCA 15 ; (1954) 89 CLR 529
Outcome: followed
Earlier their Honours had discussed the principles from which these statements were derived. The Court later applied them in Smith v Joyce [1954] HCA 15 ; (1954) 89 CLR 529 at 535-536. There Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ said that it was a question of law whether a statement made by a party to an action is capable of constituting an admission on any relevant issue and that this, in general, must be determined by an examination of the words used: Smith 89 CLR at 535; see too Dovuro Pty Limited v Wilkins [2003] HCA 51 ; (2003) 215 CLR 317 at 340-341 [68] - [71] per Gummow J.
Case: Trade Practices Commission v TNT Management Pty Limited (1984) 56 ALR 647
Outcome: cited
Mansfield J briefly touched on the authority of counsel in separate proceedings to make admissions which affected that counsel's client in In the matter of Simionato Holdings Pty Limited; Commissioner of Taxation of the Commonwealth of Australia v Simionato Holdings Pty Limited [1997] FCA 125. He referred to what Franki J had earlier said in Trade Practices Commission v TNT Management Pty Limited (1984) 56 ALR 647 at 663, namely: 'In general, the passages sought to be tendered as admissions are statements made by counsel appearing in interlocutory matters and intended to be acted upon by the judge. I can see no reason why they should not be regarded as prima facie evidence against the client on whose behalf counsel was addressing the court.' Here, of course, Mr Lloyd's statements were not statements made by counsel addressing a court. Rather, they were statements put forward by him, on behalf of his client, in an affidavit tendered as evidence of the facts.
Case: Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, Lindgren J, 24 May 1996)
Outcome: considered
The observation by Sackville J in Quanta Software 175 ALR at 543 was made in the context of dismissing the clearly untenable proposition that "documents relating only to quantum are necessarily irrelevant in determining whether an applicant has satisfied O 15A r 6(b)." This does not mean that the extent of the alleged infringement must always be relevant to every preliminary discovery application in which the applicant hopes for a greater or more wide-ranging form of relief. The notion of "reasonable sufficiency" articulated by Lindgren J in Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, 24 May 1996) at 24 requires only that uncertainty about the available type and extent of relief be taken into account as one of the considerations relevant to the test in O 15A r 6(b), and that it not be treated as decisive.
Case: C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864
Outcome: cited
It is settled law that the purpose of preliminary discovery is not to procure documents that will strengthen an applicant's decision to commence proceedings, but rather to furnish it with information which is reasonably necessary to enable that decision to be made: see Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [19] . In other words, once a prospective applicant has enough information to meet the threshold of "a bare pleadable case" ( C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [44] ), an order under O 15A r 6 is no longer appropriate. Simply because it may be difficult to ascertain the finer detail of those pleadings and assess with accuracy the likelihood of success does not mean the prospects of success in the litigation should be amplified for the prospective applicant through the effects of an invasive order for preliminary discovery. An applicant which is unsuccessful in its preliminary discovery application can always plead its case as best it can, acquire further information and documentation through the ordinary processes of discovery and issue of subpoenas, and then, if necessary, amend its pleadings to assert further or different breaches of its rights or abandon any grounds or causes of action no longer considered tenable.
Case: C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1266
Outcome: cited
A second consideration in relation to the Court's discretion is that Tibra could suffer undue prejudice in respect of the conduct of the anticipated proceedings. Preliminary discovery is an invasive process, and can be granted only where the three limbs of O 15A r 6 are made out. One reason for this is that the grant of preliminary discovery, particularly if the application is as broadly drawn as it is in this case, can place the prospective defendant in a position of disadvantage in respect of the conduct of future negotiations and proceedings: see C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1266 at [7] . Unlike full discovery, where both parties can ascertain and test the strength of the case put against them, preliminary discovery is unilateral, and the Court should be wary of creating an imbalance between the parties, since the purpose of preliminary discovery is not to furnish an applicant with information of such breadth or significance as to prejudice or unnecessarily curtail the respondent's prospects in the proceedings, but rather to ensure an applicant is able to identify and consider the documents and information necessary to commence proceedings. 40 I am of the view that the disclosure at this early stage of Tibra's source code, particularly in circumstances where Optiver already has sufficient information to decide whether to start litigation, would not be consistent with the purposes of O 15A r 6 and would create an inappropriate imbalance between Optiver and Tibra in respect of any litigation. 41 For the above reasons, I dismiss the application with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 21 December 2007 Counsel for the Applicant: Mr R Cobden SC and Mr P Flynn Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: Mr A Bannon SC and Mr A Fox Solicitor for the Respondent: McCabe Terrill Lawyers Date of Hearing: 30 November 2007 Date of Judgment: 21 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2065.html
Case: Griffin Energy Pty Ltd v Western Power Corporation [2006] FCA 1241
Outcome: cited
I am not satisfied that information of such sensitivity to Tibra should be disclosed at this early stage. The authorities, taken together, stress that the confidentiality of the information sought in a preliminary discovery application is a relevant consideration in the discretion of the Court to grant the relief, but not an overriding consideration: Griffin Energy Pty Ltd v Western Power Corporation [2006] FCA 1241 at [110] ; Telstra Corporation Limited v Minister for Communications, Information, Technology and the Arts [2007] FCA 1331 at [31] - [32] . The Court has tended to permit applicants to erect suitable regimes to ensure the confidentiality of any material acquired by way of preliminary discovery. In this case, however, despite Optiver's proposal of a confidentiality regime, the exercise of the general discretion to refuse preliminary discovery is supported by two other considerations.
Case: Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591
Outcome: cited
It is settled law that the purpose of preliminary discovery is not to procure documents that will strengthen an applicant's decision to commence proceedings, but rather to furnish it with information which is reasonably necessary to enable that decision to be made: see Matrix Film Investment One Pty Ltd v Alameda Films LLC [2006] FCA 591 at [19] . In other words, once a prospective applicant has enough information to meet the threshold of "a bare pleadable case" ( C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [44] ), an order under O 15A r 6 is no longer appropriate. Simply because it may be difficult to ascertain the finer detail of those pleadings and assess with accuracy the likelihood of success does not mean the prospects of success in the litigation should be amplified for the prospective applicant through the effects of an invasive order for preliminary discovery. An applicant which is unsuccessful in its preliminary discovery application can always plead its case as best it can, acquire further information and documentation through the ordinary processes of discovery and issue of subpoenas, and then, if necessary, amend its pleadings to assert further or different breaches of its rights or abandon any grounds or causes of action no longer considered tenable.
Case: Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536
Outcome: considered
Optiver stressed that the question for it to decide pursuant to O 15A r 6(b) is whether it should commence proceedings against Tibra to obtain the relief to which it asserts an entitlement , that is, relief for breach of confidence and copyright. Optiver also referred to the observation by Sackville J in Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at 543 to the effect that an order under O 15A r 6 may be available to assess the extent of any alleged infringement of an applicant's rights. While these are correct statements of principle, I do not believe they are decisive in this case. 33 The observation by Sackville J in Quanta Software 175 ALR at 543 was made in the context of dismissing the clearly untenable proposition that "documents relating only to quantum are necessarily irrelevant in determining whether an applicant has satisfied O 15A r 6(b)." This does not mean that the extent of the alleged infringement must always be relevant to every preliminary discovery application in which the applicant hopes for a greater or more wide-ranging form of relief. The notion of "reasonable sufficiency" articulated by Lindgren J in Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, 24 May 1996) at 24 requires only that uncertainty about the available type and extent of relief be taken into account as one of the considerations relevant to the test in O 15A r 6(b), and that it not be treated as decisive.
Case: Ricegrowers Co-Operative Ltd &amp; Seatide Pty Ltd v ABC Containerline NV &amp; MED Containerline Antwerp NV (1996) 138 ALR 480
Outcome: cited
It follows that an applicant, upon obtaining enough information to plead its case, is no longer entitled to preliminary discovery. Delay may also be important: see Western Bulk Carriers (Aust) Pty Ltd v Cosco Bulk Carrier Co Ltd [2002] FCA 1520 at [25] . Once an applicant has obtained information sufficient to plead its case, or has unnecessarily delayed that acquisition, preliminary discovery will not be ordered, and the proceedings must commence. The threshold, once crossed, arrests the preliminary discovery process: see Ricegrowers Co-Operative Ltd &amp; Seatide Pty Ltd v ABC Containerline NV &amp; MED Containerline Antwerp NV (1996) 138 ALR 480 at 484.
Case: St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147
Outcome: referred to
The principles concerning whether an applicant for preliminary discovery has a "reasonable cause to believe" are well established, and are summarised by Hely J in St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 at 153-154. I do not propose to repeat those principles here. 23 In this case, Optiver has reasonable cause to believe that it may have a right to obtain relief from Tibra. The circumstances outlined above, when taken together, provide sufficient objective basis on which that belief is grounded. I am persuaded that Optiver's belief goes beyond mere conjecture or supposition; rather, Optiver has reasonably formed a conclusion that the circumstances surrounding the departure of its employees and the success of their subsequent business may depend to some degree on a breach of a duty of confidence owed to Optiver or a breach of its copyright. 24 It is important to stress that the above view does not mean that Optiver's belief is correctly held, in the sense that it is likely to be vindicated in the proceedings. The evidence presently before the Court does not, and need not, go so far as to establish a prima facie case or crystallise a successful cause of action. Under O 15A r 6(a), Optiver's evidence need only establish a tenable objective basis for its belief, which it has done. Accordingly, while Tibra's submissions regarding the shortcomings in Optiver's evidence are important, they are not sufficient to weaken the objective grounds on which Optiver asserts its belief to the extent that O 15A r 6(a) is not satisfied. Shortcomings will be relevant if and when the dispute progresses to hearing, at which stage detailed evidence can be fully adduced and weighed. 25 Although the parties disagreed whether Optiver had made all reasonable inquiries before bringing this application, in my view, O 15A r 6(b) is determinative in this case because it prohibits the Court exercising its discretion to grant preliminary discovery where the applicant has sufficient information to enable it to decide whether to commence proceedings to obtain the relief referred to in O 15A r 6(a). 26 I am persuaded that Optiver is equipped with sufficient information to decide whether to commence proceedings to obtain at least some of the relief which it submits may be available to it.
Case: Telstra Corporation Limited v Minister for Communications, Information, Technology and the Arts [2007] FCA 1331
Outcome: cited
I am not satisfied that information of such sensitivity to Tibra should be disclosed at this early stage. The authorities, taken together, stress that the confidentiality of the information sought in a preliminary discovery application is a relevant consideration in the discretion of the Court to grant the relief, but not an overriding consideration: Griffin Energy Pty Ltd v Western Power Corporation [2006] FCA 1241 at [110] ; Telstra Corporation Limited v Minister for Communications, Information, Technology and the Arts [2007] FCA 1331 at [31] - [32] . The Court has tended to permit applicants to erect suitable regimes to ensure the confidentiality of any material acquired by way of preliminary discovery. In this case, however, despite Optiver's proposal of a confidentiality regime, the exercise of the general discretion to refuse preliminary discovery is supported by two other considerations.
Case: Western Bulk Carriers (Aust) Pty Ltd v Cosco Bulk Carrier Co Ltd [2002] FCA 1520
Outcome: cited
It follows that an applicant, upon obtaining enough information to plead its case, is no longer entitled to preliminary discovery. Delay may also be important: see Western Bulk Carriers (Aust) Pty Ltd v Cosco Bulk Carrier Co Ltd [2002] FCA 1520 at [25] . Once an applicant has obtained information sufficient to plead its case, or has unnecessarily delayed that acquisition, preliminary discovery will not be ordered, and the proceedings must commence. The threshold, once crossed, arrests the preliminary discovery process: see Ricegrowers Co-Operative Ltd &amp; Seatide Pty Ltd v ABC Containerline NV &amp; MED Containerline Antwerp NV (1996) 138 ALR 480 at 484.
Case: Xin v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1925
Outcome: referred to
The federal magistrate conveniently set out the relevant legislation in his reasons: see Xin v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1925 at [7] . For present purposes, the essential criterion for entitlement to the business visa is that set out in cl 845.215 of the Migration Regulations 1994 (Cth) ('the Regulations'), which provides: The total value of the net assets owned by the applicant, or by the applicant and the applicant's spouse together, in the main business or main businesses in Australia: (a) is; and (b) has been throughout the period of 12 months immediately preceding the making of the application; at least AUD100,000. 5 On the basis of the application for a business visa, the appellant nominated Quincy Development Pty Limited ('Quincy'), as the main business. 6 The Tribunal was satisfied that Quincy was a main business, and the first appellant had an "ownership interest" in Quincy. However the Tribunal found that the first appellant did not satisfy the criterion in cl 845.215. In applying the criterion in cl 845.215 the Tribunal identified the relevant period as being from 27 February 2002 to 27 February 2003, this being the "period of 12 months immediately preceding the making of the application".
Case: Nelson v Comcare [2008] AATA 214
Outcome: related
19 March 2008, the Tribunal affirmed the two decisions made by the respondent dated 27 September 2006 and 2 May 2007 ( Nelson v Comcare [2008] AATA 214). The applicant appeals to this Court from that decision of the Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). An appeal under that section must be on a question of law. The applicant's Notice of Appeal raises four questions of law and advances several grounds in support of his contentions in respect of those questions of law. Despite the length of the Notice of Appeal, the applicant's appeal raises only one issue, namely, whether the Tribunal failed to address and make a determination concerning the applicant's contention that his underlying psychiatric condition was " aggravated " within the meaning of the definition of " disease " in s 4(1) of the Act by his employment with Centrelink. The applicant accepted that the above formulation of the matters which the applicant seeks to raise on appeal from the Tribunal captures the essence of the applicant's case on appeal. Section 14 of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
Case: Australian Postal Corporation v Sellick [2008] FCA 236 ; (2008) 245 ALR 561
Outcome: applied
applicant did argue before the Tribunal that his underlying condition had been aggravated by his employment in the sense contemplated by the definitions in s 4 of the Act. The argument was not developed much but this does not detract from the fact that the argument was put. The Tribunal was obliged to turn its mind to the argument and to deal with the question of aggravation. It was a significant part of the applicant's case before the Tribunal. The argument was seriously advanced by the applicant and was worthy of serious consideration. Whilst it is true that the Tribunal is not required to consider and address every submission made to it, serious submissions of the type to which I have just alluded must be addressed ( Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 277 per Jenkinson J). It is an error of law for the Tribunal not to consider such a submission and not to reveal its consideration of that submission in its Reasons for Decision (see Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50] ; and Australian Postal Corporation v Sellick [2008] FCA 236 ; (2008) 245 ALR 561 at [88] [89] (pp 579 480)). This statement of principle is consistent with the more general statements of principle directed to giving content to the concept of error of law made by the Full Court in Repatriation Commission v Hill [2002] FCAFC 192 ; (2002) 69 ALD 581 at [59] (pp 597 598).
Case: Casarotto v Australian Postal Commission [1989] FCA 116 ; (1989) 86 ALR 399
Outcome: cited
was submitted on behalf of the applicant that an ailment will be aggravated within the meaning of those expressions in the definitions contained in s 4 of the Act if it becomes more severe or is hastened in some way. The terms aggravation and acceleration in the present context have been given their normal English meanings in judgments of this Court (see Casarotto v Australian Postal Commission [1989] FCA 116 ; (1989) 86 ALR 399 at 404 405 and Martin v Australian Postal Corporation [1999] FCA 655 at [22] [28]).