mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158
Outcome: followed
So understood, objection was taken on behalf of the Respondent Minister. Leave to amend requires an adequate explanation to be provided as to why the new ground was not previously relied upon before the Federal Magistrate and may only be granted if the new ground has some merit: VUAX v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 158 at [46] [48]; SZIBR v Minister for Immigration &amp; Citizenship [2008] FCA 502 at [38] [41]; SZLBJ v Minister for Immigration &amp; Citizenship [2008] FCA 609.
Case: Arnotts Limited v Trade Practices Commission (No 1) (1989) 21 FCR 297
Outcome: considered
The relationship between s 157 of the TPA and the principles concerning legal professional privilege were considered by the Full Federal Court in Arnotts Limited v Trade Practices Commission (No 1) (1989) 21 FCR 297. In that case, the Full Court held that it could refuse to make an order under s 157(2) of the TPA in respect of a document where it considered that the conditions giving rise to legal professional privilege were satisfied in respect of the document or part of it, and privilege was not waived. The Full Court held that it had power to refuse to order disclosure in exercise of the statutory discretion conferred by s 157(3). It also held that the intention disclosed by s 157 is that a respondent is to be given fair treatment in the sense that it is to be given documents which the ACCC has in its possession and which would tend to establish or support the respondent's case. The Full Court considered that where a document tends to impeach the ACCC's case, it also tends to establish the case of the respondent. Such documents would therefore fall within the ambit of the section. The Full Court further observed that a document which might merely suggest some line of enquiry which could be of assistance to the respondent in conducting its case, was not a document which "tends to establish" that case. The Full Court observed that it could require the documents to be produced for inspection and, having inspected them, make an order for disclosure subject to conditions. The Full Court considered that, by on the one hand qualifying the scope of the ACCC's common law privilege, but on the other hand affording the ACCC an opportunity to demonstrate prejudice (or some other reason for non-disclosure) in a particular case, the legislative scheme contained in s 157 of the TPA achieved an appropriate balance of the respective interests involved.
Case: Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: considered
Counsel for Google sought to distinguish the principles underlying the decision in Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146. In that case, the High Court at 155 referred to the injustice of shutting an applicant out from raising an arguable case and thereby precluding the determination of a live issue between the parties. The Court indicated that considerations of case management should not be allowed to outweigh the primary aim of allowing full and proper ventilation of an arguable case. I do not consider that the principle expressed by the High Court in that case should be displaced in the present case. A hearing date has not yet been fixed in this proceeding, and the matter is still at a relatively incomplete stage. I have taken into account the factors mentioned by Kirby J in J L Holdings 189 CLR at 171, and the fact that the ACCC has conceded that it will be responsible for any costs thrown away as a result of the amendments. I also see force in the consideration that the ACCC wishes, through the proposed amendments, to have a comprehensive determination in relation to Google's continuing method of operation and activity, and to meet the defence advanced by Google pursuant to s 85(3) of the TPA. 32 Taking all these matters into account, I am of the opinion that leave should be granted to the ACCC to make the proposed amendments. Although there may be some difficulties for Google as a consequence of the proposed changes, I am not persuaded that leave to amend should be refused on that basis. I therefore grant leave to amend and file the Second Further Amended Statement of Claim. Any costs thrown away as a result of the amendments shall be paid by the ACCC. The costs of this application to amend and file the Second Further Amended Statement of Claim will be reserved, because I think it is appropriate, given Google's opposition to the application, to revisit the question of costs after the matter has been more fully ventilated. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 21 August 2008 Counsel for the Applicant: Ms C. Adamson SC and Ms A. Seward Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the First Respondent: Mr D. Healey Solicitor for the First Respondent: Mallesons Stephen Jaques Counsel for the Second Respondent: Mr A. Bannon and Mr C. Dimitriadis Solicitor for the Second Respondent: Gilbert + Tobin Date of Hearing: 14 July 2008 Date of Judgment: 21 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1298.html
Case: A2 v Australian Crime Commission [2006] FCA 106
Outcome: approved
The issues that fall for determination are: &#8226; the applicant's attack on the warrant on the same grounds as those dealt with by Young J in A2 v Australian Crime Commission [2006] FCA 106 (the A2 point); &#8226; his attack on the procedure by which the Commission obtained the notebook; and &#8226; his attack on the procedure by which the Commission obtained the DVDs. 14 The A2 point can be disposed of shortly. Mr Lucarelli QC for the applicant said: "The parties [are] content ... to ... simply rely upon [their] written submissions and the decision [in] A2 with the statement by the applicant that A2 is wrong. But the applicant understands ... that your Honour may well be persuaded by what [was] said in A2 and that your Honour is naturally entitled to follow A2 ..., although the applicant [says] that A2 is wrong and that your Honour ought not follow it." I have read A2 and the parties' written submissions. 16 The applicant has put no contention to me that was not put to Young J in A2 or, more importantly, explained why his Honour's treatment thereof was deficient. In those circumstances, I cannot see how I could be convinced that his Honour was clearly or plainly wrong in A2 .
Case: Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205
Outcome: followed
As a matter of comity I should follow the decision of another judge of this Court unless I am convinced it is "clearly or plainly wrong". See Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205 at [46] per Lander J which was approved by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586 at [38] .
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586
Outcome: followed
As a matter of comity I should follow the decision of another judge of this Court unless I am convinced it is "clearly or plainly wrong". See Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205 at [46] per Lander J which was approved by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586 at [38] .
Case: Ryder v Morley (1987) 16 FCR 257
Outcome: followed
In any case, Young J rejected the principal argument put to him as contrary to the decision of the Full Court in Ryder v Morley (1987) 16 FCR 257. Like Young J, I am bound by the decision in Ryder to reject that argument. 18 I should address the question of who bears the burden of proof before I turn to the second and third matters set out at [13].
Case: Kennedy v Baker [2004] FCA 562 ; (2004) 135 FCR 520
Outcome: approved
In Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at [235] and [236], Hely J said: "The applicants contend that the onus of proving the warrants were lawfully issued falls upon ASIC. Reliance was placed upon the decision of Heerey J in Challenge Plastics Pty Ltd v Collector of Customs (Vic) (No 2) (1994) 49 FCR 541. Heerey J said (at 543): 'Generally speaking, administrative acts are presumed to be valid and the onus is on the party seeking to challenge them: ... However, here we have a rather special situation of an entry on premises and removal of documents without the consent of the owner of the premises and documents. Without lawful justification, such conduct would constitute a trespass. In substance, this proceeding has been concerned with the legal justification advanced by the respondent for that action. Where the exercise of executive discretion interferes with liberty or property rights, once the person affected has shown a prima facie case the burden of justifying the legality of the decision is on the executive: R v Secretary of State for Home Department; Ex parte Khawaja [1982] UKHL 5 ; [1984] AC 74 at 112 per Lord Scarman.' I agree that once the applicants show an invasion of their property or premises by ASIC, the onus is upon ASIC to adduce evidence, and to persuade the trier of fact that its invasion of what would otherwise be the applicants' rights was undertaken with lawful justification. But ASIC discharges that onus by the production of the search warrants, and by demonstrating that its actions were within the scope of the authority conferred by the warrants. If the applicants wish to challenge the issue of the warrants on administrative law grounds, then the onus is on them to make good that challenge. This result is consistent with the decision of the Full Court in Malubel [Pty Ltd] v Elder [(1998) 88 FCR 242] at 249 where the Court held that the issue of a warrant is an administrative act, and steps taken pursuant to it may be presumed to be valid unless and until the warrant is set aside. The observations of Gummow J in Ousley v The Queen [(1997) [1997] HCA 49 ; 192 CLR 69] at 130-131 are to like effect." (The emphasis is mine.) This approach was approved by Branson J in Kennedy v Baker [2004] FCA 562 ; (2004) 135 FCR 520 at [85] and [86]. (And see X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 at [22] per Finn J.) Like Branson J, I think it "the correct approach".
Case: X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413
Outcome: cited
In Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at [235] and [236], Hely J said: "The applicants contend that the onus of proving the warrants were lawfully issued falls upon ASIC. Reliance was placed upon the decision of Heerey J in Challenge Plastics Pty Ltd v Collector of Customs (Vic) (No 2) (1994) 49 FCR 541. Heerey J said (at 543): 'Generally speaking, administrative acts are presumed to be valid and the onus is on the party seeking to challenge them: ... However, here we have a rather special situation of an entry on premises and removal of documents without the consent of the owner of the premises and documents. Without lawful justification, such conduct would constitute a trespass. In substance, this proceeding has been concerned with the legal justification advanced by the respondent for that action. Where the exercise of executive discretion interferes with liberty or property rights, once the person affected has shown a prima facie case the burden of justifying the legality of the decision is on the executive: R v Secretary of State for Home Department; Ex parte Khawaja [1982] UKHL 5 ; [1984] AC 74 at 112 per Lord Scarman.' I agree that once the applicants show an invasion of their property or premises by ASIC, the onus is upon ASIC to adduce evidence, and to persuade the trier of fact that its invasion of what would otherwise be the applicants' rights was undertaken with lawful justification. But ASIC discharges that onus by the production of the search warrants, and by demonstrating that its actions were within the scope of the authority conferred by the warrants. If the applicants wish to challenge the issue of the warrants on administrative law grounds, then the onus is on them to make good that challenge. This result is consistent with the decision of the Full Court in Malubel [Pty Ltd] v Elder [(1998) 88 FCR 242] at 249 where the Court held that the issue of a warrant is an administrative act, and steps taken pursuant to it may be presumed to be valid unless and until the warrant is set aside. The observations of Gummow J in Ousley v The Queen [(1997) [1997] HCA 49 ; 192 CLR 69] at 130-131 are to like effect." (The emphasis is mine.) This approach was approved by Branson J in Kennedy v Baker [2004] FCA 562 ; (2004) 135 FCR 520 at [85] and [86]. (And see X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 at [22] per Finn J.) Like Branson J, I think it "the correct approach".
Case: Chairman, National Crime Authority v Flack (1998) 156 ALR 501
Outcome: considered
By his written submissions in reply, the applicant contends that: "[The applicant] was required to produce a thing which was not in his 'custody, possession and/or control' in the requisite sense . In circumstances where: (a) the notice ... required the production of the ... DVDs 'forthwith'; (b) [the applicant] was afforded no opportunity to verify the contents of the DVDs; and (c) [the applicant] was handed the ... DVDs at a time when his presence at the [Commission's] offices was involuntary possession of the 'thing' did not pass to [the applicant]." (The emphases are in the original.) The applicant also cites Chairman, National Crime Authority v Flack (1998) 156 ALR 501 as discussing the relevant authorities. (The Commission does not dispute the facts set out in sub-paras (a) to (c) of the passage quoted above.) 48 The applicant's contentions in the passage quoted at [47] are fundamentally unsound. The qualification of "custody, possession and/or control" by "the requisite sense" begs the question of what that sense is. The terms of the notice are clear. There is no reason to read them down. In the events that occurred, possession however fleeting of the DVDs passed to the applicant when they were handed to him. It is beside the point that they were created by the Commission and handed to him in the knowledge or with the intention that he would immediately thereafter be compelled by way of the notice to hand them back. Until he was so compelled he was in possession of them. It is also beside the point that he was not in possession of them when the notice was issued as opposed to when the notice was served on him. As far as he was concerned, the notice was a dead letter unless and until it was served on him. 52 The authorities discussed in Flack avail the applicant nothing. They include the 'finding' cases of Bridges v Hawkesworth (1851) 21 LJQB 75, South Staffordshire Water Company v Sharman [1896] 2 QB 44 and Parker v British Airways Board [1982] 1 QB 1004. This is not a 'finding' case. The DVDs were handed to the applicant at the Commission's offices. The question whether the Commission intended to exercise control over its offices to the extent that it owns things found therein by strangers simply does not arise for determination.
Case: Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393
Outcome: discussed
The Commission referred to the decision of Hill J in Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 396 and 403. In that case, material had been 'seized' at two premises. However, those 'seizures' were defective. In order to remedy those defects, the material was returned to the respective premises and 're-seized'. At 396, his Honour said: "At the premises at Bungo Street the goods which had been seized were brought into the house and then re-seized. However, at 40 Parson Street the seized goods remained in the police vehicle stationary in the driveway and Mr Puglisi's wife was asked to come out to the vehicle and identify the material. The material was 're-seized' while it was still in the vehicle ... and driven away." At 403, his Honour said: "In my view the items that were in the Federal Police car were never 'found' at the Parson Street premises in the course of a search. Nor were they ever then 'seized'. The items were always in the possession of the ... Federal Police and in the car. In my view it would be a misuse of language to speak of items always in the possession of the ... Federal Police as being 'found' at premises merely because they are in a car owned by the Federal Police parked in the premises. Nor can items held by the ... Federal Police be seized by the Federal Police from the Federal Police." Clearly, the situation in the instant proceeding was different from that in Puglisi . The DVDs were handed back to the applicant. That is analogous to the situation at the Bungo Street premises rather than that at the Parson Street premises referred to above. 50 The fact that the applicant was not afforded an opportunity to verify that the DVDs' contents matched their description in the notice does not detract from the fact that he was in possession of the DVDs at time the notice was served on him. Only if the DVDs' contents did not match their description would the notice have been defective because it compelled the applicant to produce "forthwith" a thing that was not in his "custody, possession and/or control". 51 The fact that the applicant was served with the notice during his involuntary attendance at the Commission's offices is neither here nor there.
Case: Bridges v Hawkesworth (1851) 21 LJQB 75
Outcome: cited
The authorities discussed in Flack avail the applicant nothing. They include the 'finding' cases of Bridges v Hawkesworth (1851) 21 LJQB 75, South Staffordshire Water Company v Sharman [1896] 2 QB 44 and Parker v British Airways Board [1982] 1 QB 1004. This is not a 'finding' case. The DVDs were handed to the applicant at the Commission's offices. The question whether the Commission intended to exercise control over its offices to the extent that it owns things found therein by strangers simply does not arise for determination.
Case: South Staffordshire Water Company v Sharman [1896] 2 QB 44
Outcome: cited
The authorities discussed in Flack avail the applicant nothing. They include the 'finding' cases of Bridges v Hawkesworth (1851) 21 LJQB 75, South Staffordshire Water Company v Sharman [1896] 2 QB 44 and Parker v British Airways Board [1982] 1 QB 1004. This is not a 'finding' case. The DVDs were handed to the applicant at the Commission's offices. The question whether the Commission intended to exercise control over its offices to the extent that it owns things found therein by strangers simply does not arise for determination.
Case: Parker v British Airways Board [1982] 1 QB 1004
Outcome: cited
The authorities discussed in Flack avail the applicant nothing. They include the 'finding' cases of Bridges v Hawkesworth (1851) 21 LJQB 75, South Staffordshire Water Company v Sharman [1896] 2 QB 44 and Parker v British Airways Board [1982] 1 QB 1004. This is not a 'finding' case. The DVDs were handed to the applicant at the Commission's offices. The question whether the Commission intended to exercise control over its offices to the extent that it owns things found therein by strangers simply does not arise for determination.
Case: Malone v Metropolitan Police Commissioner [1980] QB 49
Outcome: cited
In the circumstances, I need not deal with the Commission's alternative submission that, if the applicant had made out a case for relief, I should not order the return of the information obtained pursuant to the warrant and the notice or prohibit its use, so as to preserve it for use in foreshadowed criminal proceedings pending a determination of the trial judge therein as to whether or not it should be excluded on the grounds that it was unlawfully obtained. See for example Malone v Metropolitan Police Commissioner [1980] QB 49 and Parker v Churchill (1985) 9 FCR 316.
Case: Parker v Churchill (1985) 9 FCR 316
Outcome: cited
In the circumstances, I need not deal with the Commission's alternative submission that, if the applicant had made out a case for relief, I should not order the return of the information obtained pursuant to the warrant and the notice or prohibit its use, so as to preserve it for use in foreshadowed criminal proceedings pending a determination of the trial judge therein as to whether or not it should be excluded on the grounds that it was unlawfully obtained. See for example Malone v Metropolitan Police Commissioner [1980] QB 49 and Parker v Churchill (1985) 9 FCR 316.
Case: Hardie Finance Corporation Pty Ltd v CCD Australia Pty Ltd (1995) 67 FCR 594
Outcome: cited
instituted proceedings against Euroz on 20 May 2008. The trial of these proceedings was listed to commence before Siopis J yesterday but by reason of this application did not commence until this morning. The privilege issue was referred to me, on an urgent basis, by Siopis J to be dealt with separately. It would have been preferable if an objection to the production of the second e-mail on the ground of privilege had been taken on the return of the subpoena: Hardie Finance Corporation Pty Ltd v CCD Australia Pty Ltd (1995) 67 FCR 594. At the time that the second e-mail was sent proceedings had not been instituted although legal proceedings against Euroz were in contemplation by EP. There were in fact two e-mails relevant to this matter which were sent on 17 April 2008. The first e-mail was from Mr Drummond, and was sent on EP's behalf to Ms Carita Kazakoff, a solicitor with Slater &amp; Gordon Solicitors who were acting for EP. It was copied by e-mail to one M. Walter, also a solicitor with Slater &amp; Gordon and P G Willis a barrister then retained on behalf of EP. The "Subject" of the first e-mail was expressed to be "Addition to witness statement".
Case: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1
Outcome: applied
the majority of the High Court said to like effect in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [16] the outcome on the question of privilege did not turn upon the manner in which the content of the privileged communications was disclosed. The privilege attaches to the communications, not to the pieces of paper on which they were written. What was shown were copies of privileged communications. The question is whether the disclosure of the communications resulted in the loss of privilege. The principal question in this application is, in my opinion, the same question identified by the High Court in Mann v Carnell at [1] namely whether the legal professional privilege was lost by a subsequent disclosure of those communications. There is no suggestion here of any express waiver, nor would the evidence justify such a finding. Section 122(2) of the Act provides: (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118 , 119 or 120 .
Case: Spotless Group Ltd v Premier Building and Consulting GroupPty Ltd [2006] VSCA 201 ; (2006) 16 VR 1
Outcome: referred to
second e-mail was no more than a re-communication of the privileged communication contained in the first e-mail. There is no need, in those circumstances, to ask whether the re-communication was made for a privileged purpose. That is the position at common law: Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd [2006] VSCA 201 ; (2006) 16 VR 1 at [20] - [24] per Chernov JA with whom Warren CJ agreed. It also reflects that the proper approach in this case in under s 118 and not s 119.