mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pelechowski v The Registrar, Court of Appeal [1999] HCA 19 ; (1998) 198 CLR 435
Outcome: cited
In Pelechowski v The Registrar, Court of Appeal [1999] HCA 19 ; (1998) 198 CLR 435 at 463 [88] McHugh J observed: 'if breaches of court orders were regarded as of little moment, respect for and observance of the law would inevitably deteriorate and, ultimately, pose a threat to social order.' 19 In my view, the object of general deterrence in the present case requires that a penalty be imposed that protects the effective administration of justice by demonstrating that the Court's orders cannot be disobeyed with impunity. 20 APRA submits that for each of the disposal contempts the appropriate penalty is a sentence of imprisonment of nine months and that for each of the website contempts the appropriate penalty is a sentence of one month, with the sentences to be served concurrently. 21 The Court has a broad discretion as to penalty. Having regard to the factors set out above and the matters put forward by counsel on behalf of Siminton, the appropriate term of imprisonment for the disposal contempts is 10 weeks. I would add that had there been any prior contempt convictions, the penalty would have been significantly greater. I am also not prepared to accede to Siminton's submission that any sentence of imprisonment should be suspended. In the present case, there are not sufficient mitigating circumstances to justify suspending the sentence. 22 As explained above, the website contempts did not involve deliberate defiance and therefore do not warrant imprisonment. Although I have expressed doubt as to the efficacy of a fine in respect of Siminton, I have decided that a fine of $5 000 is appropriate in respect of the website contempts. In arriving at that figure, I have given particular weight to the absence of any satisfactory explanation, regret, contrition or remorse on Siminton's part. 23 APRA sought to have Siminton pay its costs in respect of the contempt motions on a 'party-party' basis. I am satisfied that APRA is entitled to have its costs paid on that basis. Although APRA failed on its 'failure to file allegations', those allegations played a very small part in the contempt case. In the circumstances, I am prepared to order that Siminton pay APRA's costs of and incidental to the contempt proceedings on a party-party basis. As APRA pointed out, costs orders against a bankrupt are subject to s 58(3) of the BA . I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel J. Associate: Dated: 10 April 2006 Counsel for the Applicant: D Sharp Solicitor for the Applicant: Erhardt &amp; Associates Counsel for the Respondent: D Mortimer SC with St J Hibble and V Prishkich Solicitor for the Respondent: Australian Prudential Regulation Authority Date of Hearing: 10 April 2006 Date of Judgment: 10 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/397.html
Case: Australian Competition and Consumer Commission v Info4pc.com [2002] FCA 949 ; (2002) 121 FCR 24
Outcome: cited
Counsel appearing for Siminton offered an 'unreserved apology' on behalf of his client but stated that Siminton maintains his plea of not guilty and proposes to appeal. As was stated by RD Nicholson J in analogous circumstances in Australian Competition and Consumer Commission v Info4pc.com [2002] FCA 949 ; (2002) 121 FCR 24 at 57-58 [155] , such an apology does not 'demonstrate any remorse to be taken into account'. Siminton's counsel also proffered an undertaking to comply with all of the orders of the Court. That undertaking is to do no more than Siminton is obliged to do in any event. 15 In the result, there is no evidence upon which I would be prepared to act that Siminton has displayed any regret, remorse or contrition about his contempts.
Case: Saunders v Commissioner, Australian Federal Police (1998) 86 FCR 51
Outcome: referred to
It is unclear whether the failure to attach the privilege notice constituted a breach of the Act. There is no requirement under the Act that a s 3E warrant contain a notice regarding an occupier's right to claim privilege over documents the subject of the warrant. In Saunders v Commissioner, Australian Federal Police (1998) 86 FCR 51, French J held that a search warrant issued pursuant to the Act was not invalid for failing to expressly limit its scope to documents the subject of legal professional privilege. The applicant nevertheless maintains that if the AFP chooses to include the privilege notice in the original warrant it must, pursuant to s 3H(1), be included in the occupier's copy.
Case: Arno v Forsyth (1986) 9 FCR 576
Outcome: cited
It was submitted alternatively on behalf of Mr Oke that the later provision of the privilege notice meant that the Birchgrove warrant was not executed reasonably, and so was invalid, relying on Arno v Forsyth (1986) 9 FCR 576. The same findings lead me to conclude that there was not such unreasonableness in the execution of the Birchgrove warrant as to lead to its invalidity. 63 The failure to provide a complete copy of the original Birchgrove warrant (subject to s 3H(5)) amounted to a breach s 3H(1). There is nothing in the Act to suggest that the AFP can selectively determine which parts of a search warrant it will make available to the occupier, and which parts it will not. However, it does not necessarily follow that the effect of that breach is to invalidate the entire search.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: referred to
The majority of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 (McHugh, Gummow, Kirby and Hayne JJ) said at 388-9, [91]: "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."
Case: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384
Outcome: considered
The construction of the Act, and particularly of s 3H, was considered (in a different context) by the Full Court of this Court in Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384. Relevantly, the Court said: "[64] The construction of statutes authorising the search of premises and the seizure of things from them begins with the ordinary meaning of the words considered according to their context and the legislative purpose... [65] The purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them: Rogers v Moore (1992) 39 FCR 201 at 217 per French J. Recognition of that purpose may yield a construction of the legislative words that is not necessarily narrowly defined. Remaining ambiguity or doubt whether of meaning or application will, in accordance with authority, be resolved in favour of the rights and freedoms of the subject... [68]...[E]ffect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences. Where the language of the statute authorising their use offers choices between one construction requiring fine legal judgments in the issue and/or execution of warrants and another which is more likely to be consistent with operational realities then the latter construction is generally to be preferred ..."
Case: Lawrie v Muir [1950] SLT 37
Outcome: referred to
In their analysis of the competing policy considerations underpinning the Act, their Honours relied upon the following passage from the judgment of Lord Cooper in Lawrie v Muir [1950] SLT 37 (at 39-40): "From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interests of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods." 67 The invasion of premises without the consent of the occupier is authorised by a warrant issued under s 3E of the Act. The validity of such a warrant necessarily depends upon the fulfilment of the conditions governing its issue. The legislative imposition of those conditions reflects the balance struck between the desirability of an effective and efficient investigation of suspected criminal offences and the need to protect the right of an individual to enjoy that person's privacy and property.
Case: George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104
Outcome: referred to
The High Court in George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 said at 111: "... the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation." (my emphasis) It must be recognised that that case concerned the validity of the issue of a search warrant, and not the validity of the execution of a validly issued search warrant, although the underlying principles referred to by the High Court would appear to me to apply equally in the case of the execution of a warrant. 69 The consequence of the failure to comply with such statutory conditions may lead to the invalidity of the search warrant itself. George v Rockett is an example. Counsel for Mr Oke also relied upon certain observations in Woodroffe v National Crime Authority [1999] FCA 591 at [14] - [15] , but I do not consider that case advances Mr Oke's position simply because it concerned an application by the National Crime Authority to summarily dismiss a challenge to the validity of a search warrant and to the manner of its execution. Consequently, the Court was called upon only to determine whether the grounds of the challenge were arguable. The copy of the search warrant made available to the person challenging the validity of the execution of the search warrant was assumed not to have included the privilege notice.
Case: Woodroffe v National Crime Authority [1999] FCA 591
Outcome: referred to
The consequence of the failure to comply with such statutory conditions may lead to the invalidity of the search warrant itself. George v Rockett is an example. Counsel for Mr Oke also relied upon certain observations in Woodroffe v National Crime Authority [1999] FCA 591 at [14] - [15] , but I do not consider that case advances Mr Oke's position simply because it concerned an application by the National Crime Authority to summarily dismiss a challenge to the validity of a search warrant and to the manner of its execution. Consequently, the Court was called upon only to determine whether the grounds of the challenge were arguable. The copy of the search warrant made available to the person challenging the validity of the execution of the search warrant was assumed not to have included the privilege notice.
Case: Harts Australia Ltd v Commissioner, Australia Federal Police (1997) 75 FCR 145
Outcome: referred to
The purpose of s 3H(1) has not been the subject of much judicial discussion. Nor was its purpose explored in the Review of Commonwealth Criminal Law: Fourth Interim Report , Canberra, November 1990 (the Gibbs Committee Report) which presaged the introduction of Part 1AA into the Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). (The history of Part 1AA is discussed by the Full Court in Harts Australia Ltd v Commissioner, Australia Federal Police (1997) 75 FCR 145 at 147-148.) In Wright v Queensland Police Service [2002] 2 Qd R 667, Holmes J at [30] referred to the ability of an occupier to whom a copy of a search warrant is made available being able "to ascertain the scope of the authority conferred by [the warrant] or the jurisdiction by which it was issued". That approach also is consistent with the approach of Spender J in Seeter 210 ALR 47.
Case: Australian Airlines Ltd (1991) 28 FCR 360
Outcome: cited
The "blanket" claim to legal professional privilege was made for the reasons discussed above. But whether the laptop computer contains only legal privileged documents, or any legal privileged documents, is not yet resolved. If it contains only legally privileged documents (a position I did not understand senior counsel for Mr Oke to contend on his behalf), then it has not been validly seized under the Birchgrove warrant. If it contains some legally privileged documents, then it has been validly seized but only to the extent that it contains documents not legally privileged. I am using the term "documents" as explained in ss 25 and 25A of the Acts Interpretation Act 1901 (Cth), and as discussed in Australian Federation of Air Pilots v Australian Airlines Ltd (1991) 28 FCR 360.
Case: Commissioner for Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501
Outcome: referred to
There has been some judicial and academic comment to the effect that the guidelines, contrary to their objective, do not preserve legal professional privilege: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 537 (Gaudron J); Suzanne McNicol, "Unresolved Issues Arising From the General Guidelines Between the AFP and the Law Council of Australia" (1998) 72 Australian Law Journal 137. I note, however, that the law with respect to waiver of legal professional privilege has since been further refined by the High Court. It is now accepted that "it is inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [28] . Mr Oke's conduct in objecting to the seizure of documents at his house was wholly consistent with the maintenance of their confidentiality. It seems unlikely that any waiver of privilege should be imputed in such circumstances. Furthermore, French J held in Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 that legal professional privilege is not necessarily waived even where the occupier fails to claim privilege at the time of execution of the warrant. His Honour said, at 473: "As in the present case circumstances can arise in which the question whether legal professional privilege exists is not able to be answered by simple inspection of the documents or within a timeframe consistent with the exigencies of the investigative process." See also the comments of the Full Court of this Court in JMA Accounting [2004] FCAFC 274 ; 139 FCR 537, quoted above at [111].
Case: Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469
Outcome: referred to
There has been some judicial and academic comment to the effect that the guidelines, contrary to their objective, do not preserve legal professional privilege: see Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 537 (Gaudron J); Suzanne McNicol, "Unresolved Issues Arising From the General Guidelines Between the AFP and the Law Council of Australia" (1998) 72 Australian Law Journal 137. I note, however, that the law with respect to waiver of legal professional privilege has since been further refined by the High Court. It is now accepted that "it is inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege": Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [28] . Mr Oke's conduct in objecting to the seizure of documents at his house was wholly consistent with the maintenance of their confidentiality. It seems unlikely that any waiver of privilege should be imputed in such circumstances. Furthermore, French J held in Saunders v Commissioner, Australian Federal Police (1998) 160 ALR 469 that legal professional privilege is not necessarily waived even where the occupier fails to claim privilege at the time of execution of the warrant. His Honour said, at 473: "As in the present case circumstances can arise in which the question whether legal professional privilege exists is not able to be answered by simple inspection of the documents or within a timeframe consistent with the exigencies of the investigative process." See also the comments of the Full Court of this Court in JMA Accounting [2004] FCAFC 274 ; 139 FCR 537, quoted above at [111].
Case: Caterpillar Inc v John Deere Limited and Others [1999] FCA 1503 ; (1999) 48 IPR 1
Outcome: cited
A more difficult question is whether or not the applicant has established a prima facie case in this matter. Mr Philp directed my attention to Caterpillar Inc v John Deere Limited and Others [1999] FCA 1503 ; (1999) 48 IPR 1 , where the Full Court considered the meaning of " prima facie case" in the context of O 8 r 3(2). It is clear from such decisions as Caterpillar [1999] FCA 1503 ; (1999) 48 IPR 1 and earlier decisions of the Full Court (including Sydbank Soenderjylland (A/S) v Bannerton Holdings Proprietary Limited (1996) 68 FCR 539 at 549) that in order to establish a prima facie case for the purposes of O 8 r 3(2), the court does not call for a substantial inquiry. The court requires only that there be material before the court, from which inferences are open and which, if translated into findings of fact, would support the relief claimed.
Case: Sydbank Soenderjylland (A/S) v Bannerton Holdings Proprietary Limited (1996) 68 FCR 539
Outcome: cited
A more difficult question is whether or not the applicant has established a prima facie case in this matter. Mr Philp directed my attention to Caterpillar Inc v John Deere Limited and Others [1999] FCA 1503 ; (1999) 48 IPR 1 , where the Full Court considered the meaning of " prima facie case" in the context of O 8 r 3(2). It is clear from such decisions as Caterpillar [1999] FCA 1503 ; (1999) 48 IPR 1 and earlier decisions of the Full Court (including Sydbank Soenderjylland (A/S) v Bannerton Holdings Proprietary Limited (1996) 68 FCR 539 at 549) that in order to establish a prima facie case for the purposes of O 8 r 3(2), the court does not call for a substantial inquiry. The court requires only that there be material before the court, from which inferences are open and which, if translated into findings of fact, would support the relief claimed.
Case: D&eacute;cor Corp Pty Ltd &amp; Anor v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: referred to
Counsel for the respondents properly raised the question whether the decision of Lander J was an interlocutory decision or a final decision. If the latter, no leave to appeal from his decision was necessary. If the former, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provided that no appeal lay from that decision without leave. Leave to appeal may be given by a single judge: s 25(2)(a). Under O 52 r 10 of the Federal Court Rules leave to appeal is given in accordance with principles discussed in D&eacute;cor Corp Pty Ltd &amp; Anor v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , in particular having regard to two main considerations, namely, whether in all the circumstances the decision is attended with sufficient doubt to warrant its reconsideration by the Full Court, and whether substantial injustice would result if leave to appeal were refused supposing the decision to be wrong.
Case: Paramasivam v Flynn [1998] FCA 1711 ; (1998) 90 FCR 489
Outcome: distinguished
Counsel for the respondents drew attention to Paramasivam v Flynn [1998] FCA 1711 ; (1998) 90 FCR 489 ( Paramasivam ). That case involved an application for an extension of time to commence an action for damages in tort and for compensation for breach of fiduciary duty in relation to a series of sexual assaults upon that appellant against his guardian. The appeal from the dismissal of an application for an extension of time within which to have commenced those proceedings was dismissed, in essence because there was no real prospect of the claim succeeding. However, the Full Court (Miles, Lehane and Weinberg JJ) at 493 said that an order refusing an application to extend time to issue after the expiry of a limitation period may or may not be regarded as interlocutory since it may or may not finally determine the rights of the parties in respect of the subject matter of the action. The order appealed from did not simply refuse an application for an extension of time within which to issue proceedings, but it also entered summary judgment for the respondent. Consequently, the Full Court at 493 concluded that the orders were final in nature. 6 I do not consider that decision dictates that the decision of Lander J in the present matter was a final order so that no leave to appeal is necessary. That is because this proceeding, unlike the proceeding in Paramasivam , did not seek to enforce an existing alleged cause of action which had become statute barred by the elapse of time. In other words, there was no claimed legal right which Mr Ferdinands was seeking to enforce. His application was for an extension of time within which to apply for an order to show cause why the termination decision should not be set aside. It was necessary for him, even had he applied for such an order within time, to satisfy a Justice of the High Court (or if the matter were remitted to this Court, a judge of this Court) that it was appropriate for an order to show cause to be issued. Moreover, as McHugh ACJ, Gummow and Heydon JJ said in Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] : the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. (original emphasis, citations omitted)