mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Sun Newspapers Ltd &amp; Associated Newspapers Ltd v Commissioner of Taxation [1938] HCA 72 ; (1938) 61 CLR 337
Outcome: cited
Secondly, the relationship between the management fee and Riddell's income earning activities is direct. Riddell submitted that the services to which the management fee related were, as the invoice stated, for management fees. A label is never determinative: Commissioner of Taxation v Broken Hill Pty Co Ltd (2000) ATC 4659 at 4668; Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation [1953] HCA 68 ; (1953) 89 CLR 428; Hallstroms Pty Ltd v Federal Commissioner of Taxation [1946] HCA 34 ; (1946) 72 CLR 634 and Sun Newspapers Ltd &amp; Associated Newspapers Ltd v Federal Commissioner of Taxation [1938] HCA 72 ; (1938) 61 CLR 337. 55 The classic test for resolving the distinction between capital and revenue is that stated by Dixon J in Sun Newspapers Ltd at 363: "There are, I think, three matters to be considered, (a) the character of the advantage sought, and in this its lasting qualities may play a part, (b) the manner in which it is to be used, relied upon or enjoyed, and in this and under the former head recurrence may play its part, and (c) the means adopted to obtain it; that is, by providing a periodical reward or outlay to cover its use or enjoyment for periods commensurate with the payment or by making a final provision or payment so as to secure future use or enjoyment." See also Federal Commissioner of Taxation v Citylink Melbourne Limited [2006] HCA 35 ; (2006) 80 ALJR 1282 at [147] and GP International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1990) 170 CLR 124 at 137. 56 An examination of the character of the advantage sought is assisted by asking two questions: (1) what was the management fee really paid for? and (2) is what it was really paid for, in truth and in substance, a capital asset?: Colonial Mutual at 454 and Sun Newspapers Ltd at 359-360. The advantage must be identified and characterised. The answer to those questions is not assisted by an analysis of the contractual right or rights secured under the contract, as distinct from the activity itself: see Commissioner of Taxation v Raymor (NSW) Pty Ltd [1990] FCA 193 ; (1990) 24 FCR 90 at 99 (per Davies, Gummow and Hill JJ) citing Dixon J in Hallstroms at 648. As Dixon J said in Hallstroms , the answer: "...depends on what the expenditure is calculated to effect from a practical and business point of view, rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted in the process." See also Citylink at [148] (per Crennan J) (with whom Gleeson CJ, Gummow, Heydon and Callinan JJ agreed).
Case: Alfred Crompton Amusement Machines Ltd v Commissioners of Customs and Excise (No 2) [1972] 2 QB 102
Outcome: cited
Although Brennan J expressed a narrower view than Mason and Wilson JJ on the question of when legal professional privilege attaches to confidential professional communications between government agencies and salaried legal officers, their Honours were in agreement as to the need in every case for the legal adviser to be "independent" (see also Deane J at p 80). See also Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102 per Lord Denning MR at 129.
Case: Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341
Outcome: cited
In Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 the Full Court gave careful consideration to modern authorities, including recent judgments of the Full Court of this Court, on issue waiver. It is not necessary for me to refer extensively to what their Honours there said as they summarised their conclusions at [60]-[61]. At [60] their Honours emphasised that the authorities reveal that whether or not privilege has been waived will in every case depend very much on the particular circumstances of the case. At [61] their Honours identified the governing principle in the following way: Both before and after Mann , the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence. In DSE [ie DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499] [58], Allsop J put the matter somewhat more descriptively, saying waiver arises when "the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication" (emphasis in original).
Case: Commonwealth v Ternwood Holdings Pty Ltd [2002] WASC 107 
Outcome: cited
The above factual findings mean that it is appropriate for me to follow the approach adopted by Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499 at [115] . His Honour there rejected a contention that by denying an allegation as to their state of mind, the respondents had put in issue their state of mind and, to the extent that the respondents received legal advice which might have contributed to the state of mind asserted by them, they had waived privilege on the advice. At [121] his Honour noted that his views were in conformity with those of Wheeler J in Commonwealth v Ternwood Holdings Pty Ltd [2002] WASC 107 at 10 where her Honour said: ... it is the conduct of the party who possesses the privilege which is capable of waiving it. It is not apparently open to another party to litigation to force waiver of a party's legal professional privilege by making assertions about, or seeking to put in issue, that party's state of mind.
Case: DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499
Outcome: followed
In Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 the Full Court gave careful consideration to modern authorities, including recent judgments of the Full Court of this Court, on issue waiver. It is not necessary for me to refer extensively to what their Honours there said as they summarised their conclusions at [60]-[61]. At [60] their Honours emphasised that the authorities reveal that whether or not privilege has been waived will in every case depend very much on the particular circumstances of the case. At [61] their Honours identified the governing principle in the following way: Both before and after Mann , the governing principle required a fact-based inquiry as to whether, in effect, the privilege holder had directly or indirectly put the contents of an otherwise privileged communication in issue in litigation, either in making a claim or by way of defence. In DSE [ie DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499] [58], Allsop J put the matter somewhat more descriptively, saying waiver arises when "the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication" (emphasis in original). 25 The above factual findings mean that it is appropriate for me to follow the approach adopted by Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 ; (2003) 127 FCR 499 at [115] . His Honour there rejected a contention that by denying an allegation as to their state of mind, the respondents had put in issue their state of mind and, to the extent that the respondents received legal advice which might have contributed to the state of mind asserted by them, they had waived privilege on the advice. At [121] his Honour noted that his views were in conformity with those of Wheeler J in Commonwealth v Ternwood Holdings Pty Ltd [2002] WASC 107 at 10 where her Honour said: ... it is the conduct of the party who possesses the privilege which is capable of waiving it. It is not apparently open to another party to litigation to force waiver of a party's legal professional privilege by making assertions about, or seeking to put in issue, that party's state of mind.
Case: Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49
Outcome: cited
The common law of legal professional privilege (or client legal privilege as it has commonly been called since the enactment of the Evidence Act 1995 (Cth)) provides the test for determining whether confidential written communications between lawyer and client must be produced for inspection ahead of trial ( Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67 ; (1999) 201 CLR 49 (" Esso Australia ")). 5 Client legal privilege protects the confidentiality of certain communications, which may be but need not be written, made in connection with giving or obtaining legal advice or the provision of legal services. The communications accorded protection are those made for the dominant purpose of obtaining legal advice or to conduct or aid in the conduct of litigation in reasonable prospect ( Esso Australia per Gleeson CJ, Gaudron and Gummow JJ at [61]). 6 Client legal privilege exists to serve the public interest in the administration of justice by encouraging frank disclosure by clients to their lawyers. As Mason and Wilson JJ stated in Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 ( "Waterford" ) at 62, "the proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser". Their Honours went on to observe at pages 64-65 that legal professional privilege is the product of a balancing exercise between competing public interests whereby, subject to the well-recognised crime or fraud exception, the public interest in the administration of justice is accorded paramountcy over the public interest in a fair trial conducted by reference to all relevant documents (see also Esso Australia per Gleeson CJ and Gaudron and Gummow JJ at [35]). There is no further balancing exercise to be carried out; if client legal privilege attaches to a communication, the privilege may be waived or overridden by statue but is otherwise absolute ( Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 ( "Telstra" ) at [21]).
Case: Goldberg v Ng in Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253
Outcome: cited
The respondents argued that, even if there were not a sufficient identity of interest between Mr Harrington and Mr Edwards, it does not automatically follow that the limited disclosure to Mr Harrington resulted in a waiver of privilege in the advice against the rest of the world. They placed reliance in particular on the majority judgment in Mann v Carnell at [30] where their Honours said: In Goldberg v Ng this Court considered a case in which there was disclosure of a privileged communication to a third party, for a limited and specific purpose, and upon terms that the third party would treat the information disclosed as confidential. The Court was divided upon whether, in the circumstances of the case, privilege was waived. However, the reasoning of all members of the Court was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege. No application was made on the present appeal to re-open Goldberg or any of the earlier authorities on the subject. In Goldberg , reference was made to the statement of Jordan CJ in Thomason v Campbelltown Municipal Council : "The mere fact that a person on some one occasion chooses to impart to another or others advice which he has received from his solicitor indicates no intention on his part to waive his right to refuse on other occasions to disclose in evidence what that advice was, and supplies no sufficient reason for depriving him of a form of protection which the law has deemed it specially necessary to throw around communications between solicitor and client". (Citations omitted) 79 Shortly before the publication of the High Court's judgment in Mann v Carnell , Sackville J had followed Goldberg v Ng in Australian Rugby Union Ltd v Hospitality Group Pty Ltd (1999) 165 ALR 253. At [44] his Honour said: In my view, the mere fact that otherwise privileged communications at the meeting took place in the presence of persons who did not represent clients of [a legal firm], does not justify a conclusion that the ARU had expressly or intentionally waived privilege in those communications. The disclosure of the privileged communications was to a limited group, namely those attending the meeting. While there is no evidence of an express undertaking by the non-clients present at the meeting to preserve confidentiality, the circumstances suggest that the non-clients were under an implied obligation to respect the confidentiality of the communications at the meeting.
Case: National Crime Authority v S (1991) 29 FCR 203
Outcome: cited
It is not sufficient for a party merely to assert a claim for client legal privilege; the party making the claim must establish the facts giving rise to the privilege ( National Crime Authority v S (1991) 29 FCR 203 at 211). Where the claim is made in respect of a document, the Court has power to examine the document for itself ( National Crime Authority v S at 211). I interpolate that in this case, to avoid the risk of my seeing privileged communications that might render it impossible or undesirable for me to be the trial judge, I have undertaken not to examine any document in respect to which privilege is claimed without first hearing from the parties. If, having done so, I am persuaded that it is necessary for the Court to examine the document but that it would be inappropriate for me to do so, another judge will be asked to determine the status of the document in question.
Case: Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 
Outcome: cited
As Giles J observed in Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 at 279: If two parties with a common interest exchange information and advice relating to that interest, the documents or copy documents containing that information will be privileged from production in the hands of each; ...
Case: Nine Films &amp; Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442 
Outcome: cited
Although a party who asserts a claim for client legal privilege carries the onus of establishing the claim, where it is alleged that privilege has been waived in a communication that was privileged when made, the party alleging waiver carries the onus of establishing waiver ( Nine Films &amp; Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442 at [21]).
Case: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445
Outcome: cited
Client legal privilege exists to serve the public interest in the administration of justice by encouraging frank disclosure by clients to their lawyers. As Mason and Wilson JJ stated in Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 ( "Waterford" ) at 62, "the proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser". Their Honours went on to observe at pages 64-65 that legal professional privilege is the product of a balancing exercise between competing public interests whereby, subject to the well-recognised crime or fraud exception, the public interest in the administration of justice is accorded paramountcy over the public interest in a fair trial conducted by reference to all relevant documents (see also Esso Australia per Gleeson CJ and Gaudron and Gummow JJ at [35]). There is no further balancing exercise to be carried out; if client legal privilege attaches to a communication, the privilege may be waived or overridden by statue but is otherwise absolute ( Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 ( "Telstra" ) at [21]). 43 Graham J has more recently adopted the same approach in Telstra at [35]. In Telstra his Honour concluded at [36]-[39] that as no evidence had been adduced going to the independence of the relevant internal legal advisers no sufficient claim for legal professional privilege had been made. I reject the submission of Ms Rich that the respondents in this case have similarly adduced no real evidence going to the independence of OGC. I refer below to the evidence touching on the independence of OGC.
Case: The Queen (Brooke and Another) v Parole Board and Others [2007] EWHC 2036 (Admin)
Outcome: cited
The content of the requirement that a legal adviser be independent is understandably less stringent than the requirement that, for example, a judge be independent. However, it is informed by the same notions of absence of fear or favour. The concepts of independence and objective impartiality are closely linked ( The Queen (Brooke and Another) v Parole Board and Others [2007] EWHC 2036 (Admin) at [19]). An independent legal adviser is one who can bring a disinterested mind to bear on the subject matter of the legal advice. In the words of Brennan J in Waterhouse , what is required is a legal adviser who is able to be "professionally detached" in giving the advice. 41 Ms Rich submitted, in effect, that (a) the independence of legal advice provided by OGC could not rise above the independence of the person who holds the position of General Counsel because that person supervises, and carries responsibility for, the work of OGC; and (b) since at all relevant times General Counsel has been a partner in PwC, OGC's legal advice has not been independent because General Counsel has been both legal adviser and client. I have not found it necessary to form a concluded view as to the validity of the second part of this broad submission although the first part seems to me to be correct. For present purposes it is sufficient for me to reach a view on whether, having regard to the nature of the dispute between Ms Rich and PwC that forms the subject matter of this proceeding, the relationship between OGC and PwC was a professional relationship which secured OGC's advice an independent character notwithstanding that General Counsel, and one other senior solicitor in OGC, were partners in PwC.
Case: Jess v Scott (1986) 12 FCR 187
Outcome: followed
Under the Federal Court Rules ("the Rules"), the applicant was required to file and serve a notice of appeal against the sequestration order within 21 days from the date of the Federal Magistrates judgment, namely, on or before 18 August 2008: see O 52 r 15(1). Mr Strangio filed his application for an extension of time in which to appeal some 7 days outside the prescribed appeal period. Pursuant to O 52 r 15(2), the time limit in O 52 r 15(1) may be extended at any time for 'special reasons'. In Jess v Scott (1986) 12 FCR 187 , a Full Court of this Court said, at 195: "...the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression 'for special reasons' implies something narrower than this." 15 As counsel for Westpac pointed out, Mr Strangio also requires leave to appeal from her Honour's refusal of an adjournment since this decision is interlocutory in character: see Federal Court of Australia Act 1976 (Cth), s 24(1A). Mr Strangio, who as I have said was not represented in this Court, did not expressly seek leave to appeal before or at the hearing. It is plain enough, however, that he challenges her Honour's refusal of an adjournment. I would treat his submissions at the hearing as in substance an application for leave to appeal against this refusal and an application for an extension of time in which to file and serve an application for leave to appeal: see O 52 r 10. I would dispense with the need for a notice of motion.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: referred to
In determining whether leave to appeal against an interlocutory decision should be granted, the Court must be satisfied that the decision under challenge is attended with sufficient doubt to warrant it being reconsidered, and that substantial injustice would result if leave were refused, supposing the decision under challenge were wrong: see D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , at 399-400 per Sheppard, Burchett and Heerey JJ. The question on the extension of time is whether this test has sufficient prospect of being satisfied. 17 In practice, in this area, much the same considerations are relevant for the extensions of time and grant of leave to appeal. Unless the Court grants these applications for an extension of time and, in the case of the interlocutory decision, leave to appeal, there can be no competent appeal against the Federal Magistrate's judgment and orders. 18 Mr Strangio submitted, in effect, that he was misled about the time limit involved in filing a notice of appeal. Westpac did not argue that it has suffered any particular prejudice merely by virtue of the delay in lodgement.
Case: Adamopoulos v Olympic Airways SA (1990) 95 ALR 525
Outcome: cited
Mr Strangio would argue on appeal that the Federal Magistrate misapplied the principle in Ahern . In Ahern , which was also an appeal from a decision refusing an adjournment of a creditor's petition, the Full Court observed (at 148) that "in general a court exercising jurisdiction in bankruptcy should not proceed to sequestrate the estate of a debtor where an appeal is pending against the judgment relied on as the foundation of the bankruptcy proceedings provided that the appeal is based on genuine and arguable grounds". A Full Court of this Court followed Ahern in Adamopoulos v Olympic Airways SA (1990) 95 ALR 525 , at 526 per Pincus J and 531-32 per Burchett and Gummow JJ.
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
As already indicated, the Federal Magistrate's decision to refuse Mr Strangio's adjournment application was a discretionary one. The principles applicable on an appeal against the exercise of discretion are well established: see House v The King [1936] HCA 40 ; (1936) 55 CLR 499 , at 504-5 per Dixon, Evatt and McTiernan JJ; Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621 , at 627 per Kitto J; and Ahern, at 146-47 per Davies, Lockhart and Neaves JJ. In order for an appellate court to interfere with an exercise of discretion, it is not enough that the appellate court considers that, had it been the first instance judge, it would have taken a different course. Rather, the appellant must show that there was some error in exercising the discretion, as for example, that the first instance judge acted on a wrong principle. In the present case, there is nothing shown below or in the affidavits filed or the submissions made in this Court that would lead me to conclude that the Federal Magistrate made any discernible error in exercising her discretion. Her Honour did not deny Mr Strangio natural justice as he would allege.