mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Alister v The Queen (1984) 154 CLR 404
Outcome: applied
an objection to the production of documents in answer to a subpoena is based upon a claim of public interest immunity, the usual practice&#8212;established many years ago&#8212;has been for the grounds of the claim to be set out and explained in an affidavit made by either the Minister who is the political head of the particular department concerned or the Secretary of that department ( Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 43). The weight to be afforded to that affidavit is governed to some degree by the extent of the knowledge which the deponent possesses concerning the documents which are the subject of the claim ( Sankey v Whitlam 142 CLR at 44). The knowledge of those documents which must be considered comprises not only knowledge of the contents of the documents but also knowledge of the circumstances in which they came into existence. When the claim is based partly or wholly on national security grounds, very considerable weight must be given to the views of the responsible Minister or the permanent head. In the present case, because we live in dangerous times and matters of national security are at the forefront of the ONA's responsibilities, very considerable weight must be given to the views of the Director-General expressed, as they were, on his oath ( Alister v The Queen (1984) 154 CLR 404 at 435). Claims of public interest immunity require the Court to decide whether the administration of justice will be impaired or perhaps even frustrated by the withholding of relevant evidence in favour of a greater public interest, namely, that harm shall not be done to the nation or the Public Service by the disclosure of the material in contest ( Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 940; Rogers v Home Department State Secretary [1973] AC 388 at 400; 406 407; Sankey v Whitlam 142 CLR at 38 39; 60; and 94; Alister v The Queen 154 CLR 404 at 412; and 434; and Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 at 616 617).
Case: Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536
Outcome: cited
seems to me that it is sufficiently "on the cards" that there may be something in the 15 redacted reports shown to Mr Cole which, either alone or in combination with other evidence, might advance the case which AWB seeks to put in answer to the allegations made against it by the applicants in the present proceedings in pars 26, 27(a) and 28 of the Second Further Amended Statement of Claim. The "on the cards" test is explained by the NSW Court of Appeal in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at [58] [80]. However, given that the remaining 47 reports were read and considered by lawyers assisting the Cole Inquiry and not thought by them to be of sufficient relevance and importance to be passed on to the Commissioner himself for his consideration and given the clear evidence of the Director-General set out in pars 18 and 19 of his affidavit sworn on 17 August 2009 (which I have extracted in full at [25] above), I do not think that it can fairly be said that it is "on the cards" that there will be information and material in the remaining 47 reports which might advance AWB's case in defence of the allegations made in pars 26, 27(a) and 28 of the Statement of Claim. Accordingly, in my view, AWB has failed to demonstrate that the 47 reports not seen by Mr Cole are or may be of sufficient importance to its case that the Court should undertake the exercise of balancing the public interest in withholding production against the public interest in the administration of justice. Accordingly, it has failed to satisfy the threshold question posed in respect of those 47 reports.
Case: Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604
Outcome: applied
of public interest immunity require the Court to decide whether the administration of justice will be impaired or perhaps even frustrated by the withholding of relevant evidence in favour of a greater public interest, namely, that harm shall not be done to the nation or the Public Service by the disclosure of the material in contest ( Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 940; Rogers v Home Department State Secretary [1973] AC 388 at 400; 406 407; Sankey v Whitlam 142 CLR at 38 39; 60; and 94; Alister v The Queen 154 CLR 404 at 412; and 434; and Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 at 616 617).
Case: Commonwealth v Northern Land Council (1991) 30 FCR 1
Outcome: applied
Commonwealth v Northern Land Council (1991) 30 FCR 1 at 31, a Full Court of this Court said: Threshold criteria for the balancing process When a claim for public interest immunity is raised, there may be a threshold question to be resolved by the court. That is whether the documents in question are or may be of sufficient importance to the case that the court should undertake the exercise, which may involve their inspection, of balancing the public interest in withholding production against the public interest in the administration of justice. The Commonwealth submitted that before the "balancing process" described in Sankey v Whitlam was undertaken this Court had to be satisfied, as a matter of likelihood rather than mere speculation, that the materials in question would contain evidence for tender at trial. The Council denied there was any such requirement imposed upon it. We agree there is no requirement in the terms contended for by the Commonwealth.
Case: Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910
Outcome: applied
of public interest immunity require the Court to decide whether the administration of justice will be impaired or perhaps even frustrated by the withholding of relevant evidence in favour of a greater public interest, namely, that harm shall not be done to the nation or the Public Service by the disclosure of the material in contest ( Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 940; Rogers v Home Department State Secretary [1973] AC 388 at 400; 406 407; Sankey v Whitlam 142 CLR at 38 39; 60; and 94; Alister v The Queen 154 CLR 404 at 412; and 434; and Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 at 616 617).
Case: Esso Australia Resources Ltd v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511
Outcome: applied
present application involves the application of the relevant principles at the earliest stage of the Court's processes designed to ensure that relevant evidence is brought to Court and is available for tender. The claim of public interest immunity is being made in order to justify the excusing order which the ONA seeks. Such a claim is governed by the common law ( Esso Australia Resources Ltd v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511 at 516519 and at 564 566; Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553 at [16] (p 571); [135] (p 606); [199] (p 624); and R v Young [1999] NSWCCA 166 ; (1999) 46 NSWLR 681 at [37] (p 691); [50] (p 692); [217] (p 721); [318] at (p 741); and [345] (p 747)).
Case: Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553
Outcome: applied
present application involves the application of the relevant principles at the earliest stage of the Court's processes designed to ensure that relevant evidence is brought to Court and is available for tender. The claim of public interest immunity is being made in order to justify the excusing order which the ONA seeks. Such a claim is governed by the common law ( Esso Australia Resources Ltd v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511 at 516519 and at 564 566; Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553 at [16] (p 571); [135] (p 606); [199] (p 624); and R v Young [1999] NSWCCA 166 ; (1999) 46 NSWLR 681 at [37] (p 691); [50] (p 692); [217] (p 721); [318] at (p 741); and [345] (p 747)).
Case: R v Young [1999] NSWCCA 166 ; (1999) 46 NSWLR 681
Outcome: applied
present application involves the application of the relevant principles at the earliest stage of the Court's processes designed to ensure that relevant evidence is brought to Court and is available for tender. The claim of public interest immunity is being made in order to justify the excusing order which the ONA seeks. Such a claim is governed by the common law ( Esso Australia Resources Ltd v Commissioner of Taxation [1998] FCA 1655 ; (1998) 83 FCR 511 at 516519 and at 564 566; Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553 at [16] (p 571); [135] (p 606); [199] (p 624); and R v Young [1999] NSWCCA 166 ; (1999) 46 NSWLR 681 at [37] (p 691); [50] (p 692); [217] (p 721); [318] at (p 741); and [345] (p 747)).
Case: Rogers v Home Department State Secretary [1973] AC 388
Outcome: applied
of the 62 reports are classified Top Secret . The remaining 17 are classified Secret . These classifications significantly restrict access to those documents within the Government and prevent disclosure outside Government circles. Many of the documents carry other classifications which cannot themselves be disclosed. Three grounds of substance are advanced by the ONA in support of its claim for public interest immunity. These are: (a) Disclosure of the contents of the 62 reports would prejudice Australia's national security; (b) Disclosure would damage our relations with other countries; and (c) Disclosure would enable interested parties to conduct what is called in the intelligence community, a mosaic analysis , which might lead to an accurate picture of a relevant state of affairs being conveyed accidentally because an informed and interested reader of disparate pieces of information may be able to piece together a picture which would not readily present itself to less informed and less interested persons. Ground (a) Prejudice to National Security The Director-General testified that disclosure of any part of the 62 reports would: Claims of public interest immunity require the Court to decide whether the administration of justice will be impaired or perhaps even frustrated by the withholding of relevant evidence in favour of a greater public interest, namely, that harm shall not be done to the nation or the Public Service by the disclosure of the material in contest ( Conway v Rimmer [1968] UKHL 2 ; [1968] AC 910 at 940; Rogers v Home Department State Secretary [1973] AC 388 at 400; 406 407; Sankey v Whitlam 142 CLR at 38 39; 60; and 94; Alister v The Queen 154 CLR 404 at 412; and 434; and Commonwealth v Northern Land Council [1993] HCA 24 ; (1993) 176 CLR 604 at 616 617).
Case: Jemella Australia Pty Ltd v MacKinnon [2008] FCA 1022
Outcome: cited
In the present case, the evidence which has been filed establishes, at a sufficient level for these purposes, the existence of the trade marks and the importation of the goods without the consent of the proprietor of the trade marks. I am satisfied at that level that the volume of importation is such that it would be inconsistent with personal use that it is commercial in nature (cf Jemella Australia Pty Ltd v MacKinnon [2008] FCA 1022 at [25] ) .
Case: Playboy Enterprises International Inc v You Tao Hong (2004) 63 IPR 533 , (2004) AIPC 92-030 , [2004] FCA 1205
Outcome: applied
I have been referred to the decision of Lindgren J in Playboy Enterprises International Inc v You Tao Hong (2004) 63 IPR 533 , [2004] AIPC 92-030 , [2004] FCA 1205 , where his Honour considered the question as to whether mere importation is use as a trade mark such as to constitute infringement. His Honour concluded the answer to that question was yes, based upon a line of authority to which he referred, and he further concluded that it was appropriate to make declarations of infringement where established. In those circumstances, and bearing in mind the absence of the respondent, I am satisfied that the orders proposed should be made. 4 I should say something as to the order for costs, being a lump sum order, which is authorised by O 62 in appropriate circumstances. I am satisfied that the circumstances are appropriate for a lump sum order. Bearing in mind that the respondent has not appeared, and that the task of taxation would involve yet further costs, expense and time, I am also satisfied on the evidence that the quantum is reasonable in the circumstances. I therefore make the declarations and orders in the form I have initialled and placed with the papers. I further order that the exhibits handed up at today's hearing exhibit A and confidential exhibit RN2 be returned instanter. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 17 July 2008 Solicitor for the Applicants: Mr P Kerr of Allens Arthur Robinson The Respondent did not appear Date of Hearing: 15 July 2008 Date of Judgment: 15 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1053.html
Case: F Hoffman-La Roche &amp; Company AG v Secretary of State for Trade and Industry [1975] AC 295
Outcome: applied
there is no requirement imposed upon the Tribunal to afford a party any opportunity to comment upon proposed findings that it may make: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]. There is no such obligation imposed by the common law: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314 , applying F Hoffman-La Roche &amp; Company AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Diplock LJ. Nor does " information " for the purposes of s 424A " encompass the Tribunal's subjective appraisals, thought processes or determinations ": SZEEU , supra , at [206]. In SZBYR , supra , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed (citations omitted): [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [16] per Emmett, Kenny and Jacobson JJ; SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260 at [20] to [21] per Siopis J.
Case: Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
Outcome: applied
there is no requirement imposed upon the Tribunal to afford a party any opportunity to comment upon proposed findings that it may make: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]. There is no such obligation imposed by the common law: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314 , applying F Hoffman-La Roche &amp; Company AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Diplock LJ. Nor does " information " for the purposes of s 424A " encompass the Tribunal's subjective appraisals, thought processes or determinations ": SZEEU , supra , at [206]. In SZBYR , supra , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed (citations omitted): [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [16] per Emmett, Kenny and Jacobson JJ; SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260 at [20] to [21] per Siopis J.
Case: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 , 113 FCR 396
Outcome: cited
essential purpose of s 424A is to provide " a statutory procedural analogue to the common law of procedural fairness " although " the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice ": VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ. In Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 , 113 FCR 396 Allsop J likewise observed: [104] The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant ...
Case: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314
Outcome: applied
there is no requirement imposed upon the Tribunal to afford a party any opportunity to comment upon proposed findings that it may make: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]. There is no such obligation imposed by the common law: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314 , applying F Hoffman-La Roche &amp; Company AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Diplock LJ. Nor does " information " for the purposes of s 424A " encompass the Tribunal's subjective appraisals, thought processes or determinations ": SZEEU , supra , at [206]. In SZBYR , supra , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed (citations omitted): [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [16] per Emmett, Kenny and Jacobson JJ; SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260 at [20] to [21] per Siopis J.