mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332
Outcome: followed
Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 , Brennan and Dawson JJ stated (at 345) that it may be that Anshun is a case of mere issue estoppel. Pertinently for the present case, their Honours said (at 346): A plaintiff who has an unadjudicated cause of action which can be enforced only in fresh proceedings ( Duedu v Yiboe [[1961] 1 W.L.R. 1040, at p.1046] cannot be precluded from taking fresh proceedings merely because he could have and, if you will, should have counterclaimed on that cause of action in a forum chosen by the opposite party in proceedings in which the opposite party sued him. We do not read the majority judgment in Port of Melbourne Authority v. Anshun Pty. Ltd. as holding the contrary, except in a case where the relief claimed in the second proceeding is inconsistent with the judgment in the first: see especially at pp. 599-601. That is not the present case. [My emphasis] The passage emphasised is applicable to the circumstances of the present case.
Case: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: cited
The distinction between fears based on membership of a particular social group and fears based on revenge for individual actions is conceptually simple but difficult in practice. Many social groups are defined by the actions of their members: whistleblowers ( Zheng v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 670) , informers ( Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417), trade unionists, Muslim women who do not wear traditional dress, parents in China ( Chan v Canada [1995] 3 SCR 593; Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225). If a person from such a group fears persecution, it may be difficult to say whether the essential and significant reason for that fear is their membership of the collective or the individual action which causes them to be identified as a member of the collective. The distinction, according to Dawson J in Applicant A (at 243), "may sometimes be an unreal one." 21 However, it is well established that it will be insufficient for an applicant to demonstrate that persecution is feared solely by reason of some act that a person has done, or is perceived to have done: Morato v Minister for Immigration, Local Government and Ethic Affairs (1992) 111 ALR 417, 420 per Black CJ (with whom French J agreed). The primary focus must be upon what someone is rather than what they have done. This, according to Black CJ, "tells against the argument that a particular social group may be defined by reference to the sole criterion that its members are all those who have done an act of a particular character": (ibid.) It is not permissible to define a "particular social group" by reference to the act that gave rise to the fear of persecution: Applicant A per Dawson (at 243), McHugh (at 263) and Gummow JJ (at 264). 23 While it is vital to accurately identify the "particular social group" ( Applicant A at 401), it is often quite difficult to do so. These difficulties have lead applicants and tribunals into error. In Dranichnikov , the Tribunal defined the group as "businessmen in Russia." It concluded that membership of that group did not give rise to a validly held fear of persecution and so held against the applicant. The High Court explained that the correct social group, as the applicant had eventually argued, was "businessmen in Russia who publicly criticised law enforcement authorities for failing to take action against crime or criminals."
Case: Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387
Outcome: cited
Furthermore, a group will not be a particular social group within the meaning of the Convention if the only characteristic members have in common is a fear of persecution: Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387, 400 per Gleeson CJ, Gummow and Kirby JJ.
Case: Balbin v Minister for Immigration and Multicultural Affairs (Lindgren J, 7 December 1998, unreported)
Outcome: cited
Similarly, in Balbin v Minister for Immigration and Multicultural Affairs (Lindgren J, 7 December 1998, unreported), where the applicant claimed to fear persecution due to her exposure of corruption within the public service of the Philippines, Lindgren J held that the Tribunal had not erred in finding that the applicant's fears were due to her particular individual acts against the corrupt men rather than her membership of a group of "whistleblowers."
Case: Canada v Ward [1993] 2 SCR 689
Outcome: discussed
In Canada v Ward [1993] 2 SCR 689, the applicant was a member of the INLA, a para-military terrorist group committed to the unification of Ulster and the Republic of Ireland. As his first task with the INLA, the applicant was required to guard a group of innocent hostages. On learning that the hostages were to be executed, the applicant allowed them to escape without disclosing himself to his superiors. However, they subsequently learned of his disloyalty and he was captured and tortured. He escaped and fled to Canada with the assistance of the British authorities. His application for refugee status in Canada was partly founded on his membership of a particular social group. However, for a reason that is not clear from the decision, the particular social group pleaded was "members of the INLA" rather than "former members of the INLA who had betrayed the group in order to save innocent lives." The Court concluded (at 744) that "no subsequent disassociation from this group ... had any impact on his fear" and that, therefore, it was not appropriate to say that his "fear was based on his status as a former member of the INLA. The fact that Ward might no longer be a member is merely a result of the persecution feared, not its foundation". This reasoning is difficult. It is not clear whether the Court regarded the group under consideration as being "current INLA members" or "current and former members" and, if it included former members, how the applicant could subsequently disassociate himself from the group. If the group were defined as "former members who had betrayed the group" the Court's reasoning would lose much of its force. 26 In Ward , the Supreme Court of Canada did not need to address the question of whether the applicant belonged to a particular social group within the meaning of the Convention. The final paragraph on this ground of appeal is as follows (at 745): "Moreover, I do not accept that Ward's fear was based on his membership. Rather, in my view, Ward was the target of a highly individualized form of persecution and does not fear persecution because of his group characteristics. Ward feels threatened because of what he did as an individual, and not specifically because of his association. His membership in the INLA placed him in the circumstances that led to his fear, but the fear itself was based on his action, not on his affiliation."
Case: Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417
Outcome: cited
The distinction between fears based on membership of a particular social group and fears based on revenge for individual actions is conceptually simple but difficult in practice. Many social groups are defined by the actions of their members: whistleblowers ( Zheng v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 670) , informers ( Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417), trade unionists, Muslim women who do not wear traditional dress, parents in China ( Chan v Canada [1995] 3 SCR 593; Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225). If a person from such a group fears persecution, it may be difficult to say whether the essential and significant reason for that fear is their membership of the collective or the individual action which causes them to be identified as a member of the collective. The distinction, according to Dawson J in Applicant A (at 243), "may sometimes be an unreal one." 21 However, it is well established that it will be insufficient for an applicant to demonstrate that persecution is feared solely by reason of some act that a person has done, or is perceived to have done: Morato v Minister for Immigration, Local Government and Ethic Affairs (1992) 111 ALR 417, 420 per Black CJ (with whom French J agreed). The primary focus must be upon what someone is rather than what they have done. This, according to Black CJ, "tells against the argument that a particular social group may be defined by reference to the sole criterion that its members are all those who have done an act of a particular character": (ibid.) It is not permissible to define a "particular social group" by reference to the act that gave rise to the fear of persecution: Applicant A per Dawson (at 243), McHugh (at 263) and Gummow JJ (at 264).
Case: SZEGA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 1286
Outcome: cited
Further, in SZEGA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 1286 , where the applicants (husband and wife) claimed to fear persecution due to being participants in a "mixed marriage", Edmonds J held that "[e]ven assuming that the groups postulated ... are particular social groups within the meaning of the Convention, and further assuming that the appellants are members of one or both of these groups, their membership of one or both of these groups is not the essential and significant reason (s 91R(1)(a) of the Act) they fear persecution..."
Case: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678
Outcome: followed
The two most recent decisions in this Court, Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 and Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678 , indicate that any legal professional privilege in the statement is lost when the document is filed.
Case: Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 
Outcome: followed
The two most recent decisions in this Court, Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 and Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678 , indicate that any legal professional privilege in the statement is lost when the document is filed.
Case: Esso Australia Resources Limited v Plowman [1995] HCA 19 ; (1995) 183 CLR 10
Outcome: followed
In Esso Australia Resources Limited v Plowman [1995] HCA 19 ; (1995) 183 CLR 10 at 33, Mason CJ said after referring to the implied undertaking as to discovery: It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation. 22 Whilst those documents are subject to the implied undertaking referred to in O 24 r 14A of the Hong Kong Rules, in my opinion, consistent with the decisions in Esso Australia Resources Limited v Plowman [1995] HCA 19 ; 183 CLR 10 and Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 , the applicant should make production of those documents in this jurisdiction. No doubt the applicant will, at or before making production, apply to the High Court of Hong Kong for a release from the implied undertaking in relation to those documents. I should say that the defendants in the Hong Kong proceedings have indicated they have no objection to the documents being produced.
Case: Harman v Home Department State Secretary [1983] 1 AC 280 
Outcome: cited
That rule states the rule in Harman v Home Department State Secretary [1983] 1 AC 280. Mr Robertson said that his client was unable to produce the document, which it has discovered, by reason of that rule. It seems to me that there are two answers to that proposition. The first is that whilst, of course, the implied undertaking in relation to discovery binds a party, it does not prevent a party making discovery under obligations of other rules of court.
Case: Mulley v Manifold (1959) 163 CLR 341 
Outcome: cited
There are two answers given by the applicant in response to this aspect of the application. First, it is contended the respondent has failed to identify any documents which it says the applicant has failed to discover. Secondly, the applicant contends it has not been shown that any of that correspondence would be relevant in relation to any of the issues raised on the pleadings in this proceeding. I want to make it clear that whilst many of the rules relating to discovery have changed over the recent past it is still a requirement of discovery that the document which is sought to be discovered is relevant to an issue raised on the pleadings in the sense described by the High Court in Mulley v Manifold (1959) 163 CLR 341. Attempts have been made today to show that there might be evidence which would indicate that some correspondence could be relevant to this proceeding. That, in my opinion, is not an appropriate way of addressing the question of discovery and, in particular, in addressing a question of discovery so late in the proceeding and so shortly before trial. 9 It seems to me, if the respondent wishes to identify documents which it says ought to have been discovered, it must be able to do so precisely by reference to the pleadings and by reference to the document which it says ought to be discovered. In other words, it ought to be able to discharge the obligation which lies upon a party seeking further and better discovery. In my opinion, the respondent has failed to do so in respect of this category of documents and for that reason alone I would decline to make the order sought. However, I am also not persuaded, at this stage, that any of the documents sought are relevant in the sense to which I have referred. 10 The second category of documents has three groups of documents within it. First, it contains a witness statement given by a director of the applicant; and secondly, it lists a witness statement given by a defendant in the Hong Kong proceedings. Both of those documents were filed in the proceedings in Hong Kong. The third group of documents, within this larger category, are documents which were discovered by the defendants in the Hong Kong proceedings.
Case: Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436
Outcome: followed
Chief Justice Mason's dicta was applied by Tamberlin J in Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 at [15] to [21]. The point which the Chief Justice made and which was applied in Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 is that, notwithstanding the implied undertaking, if rules of court of a jurisdiction apply to a party who has a document in that party's possession by reason of a process in another jurisdiction, that party is still obliged to comply with the processes in the second jurisdiction and make discovery of the document if it be an application for discovery and production if production follows upon discovery. For that reason, in my opinion, the document should be produced. 21 Secondly, there has been no suggestion made by the applicant that the applicant could not obtain a release from the implied undertaking in the High Court of Hong Kong. Indeed, the applicant has sought and obtained a release in relation to other documents. I infer from the fact that such a release has been obtained, that the applicant could obtain a release in relation to the implied undertaking in respect of the witness statement of Cheng Chun Keung. The same applies to the documents discovered by the defendants in the Hong Kong proceedings which are presently in the possession, custody or control of the applicant. The applicant has discovered those documents and the respondent seeks production of them. 22 Whilst those documents are subject to the implied undertaking referred to in O 24 r 14A of the Hong Kong Rules, in my opinion, consistent with the decisions in Esso Australia Resources Limited v Plowman [1995] HCA 19 ; 183 CLR 10 and Patrick v Capital Finance Pty Ltd (No 4) [2003] FCA 436 , the applicant should make production of those documents in this jurisdiction. No doubt the applicant will, at or before making production, apply to the High Court of Hong Kong for a release from the implied undertaking in relation to those documents. I should say that the defendants in the Hong Kong proceedings have indicated they have no objection to the documents being produced.
Case: Minister for Immigration v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: cited
As to the alleged "harsh approach" it is useful to recall, in my opinion, observations made by Gummow J in Minister for Immigration v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 651, para 130: The "jurisdictional fact" upon the presence of which jurisdiction is conditioned, need not be a "fact" in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase "jurisdictional fact" is an awkward one in such circumstances it will, for convenience be retained in what follows. In Bankstown Municipal Council v Fripp, Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker. Section 65 of the Act is an example. The prosecutor was entitled to the grant of a visa only if the Minister were "satisfied" that the prosecutor answered the description in section 36(2).
Case: Commissioner of Taxation v B &amp; G Plant Hire Pty Ltd (1994) 123 ALR 699
Outcome: applied
In my opinion the litigation raised important and difficult fiscal issues in particular on the construction of the legislation, and I am unable to acknowledge the Commissioner's characterisation of the litigation as 'very much private litigation and not litigation in the public interest'. Evidence was tendered as to the existence of at least 100 foreign tour operators potentially affected by the outcome to the proceedings. Some juridical support in principle for SAGA's contention as to the order for costs sought by SAGA may be found in the following authorities to which my attention has been drawn: (i) Commissioner of Taxation v B &amp; G Plant Hire Pty Ltd (1994) 123 ALR 699 at 709 per Gummow J. (ii) Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146 ; (2003) 57 NSWLR 282 at [125] per Ipp JA (with whom Spigelman CJ and Handley JA agreed). (iii) Rohner v Scanlan (1998) 86 FCR 454 per Drummond, Kiefel and Finkelstein JJ.
Case: Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146 ; (2003) 57 NSWLR 282
Outcome: applied
In my opinion the litigation raised important and difficult fiscal issues in particular on the construction of the legislation, and I am unable to acknowledge the Commissioner's characterisation of the litigation as 'very much private litigation and not litigation in the public interest'. Evidence was tendered as to the existence of at least 100 foreign tour operators potentially affected by the outcome to the proceedings. Some juridical support in principle for SAGA's contention as to the order for costs sought by SAGA may be found in the following authorities to which my attention has been drawn: (i) Commissioner of Taxation v B &amp; G Plant Hire Pty Ltd (1994) 123 ALR 699 at 709 per Gummow J. (ii) Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146 ; (2003) 57 NSWLR 282 at [125] per Ipp JA (with whom Spigelman CJ and Handley JA agreed). (iii) Rohner v Scanlan (1998) 86 FCR 454 per Drummond, Kiefel and Finkelstein JJ.
Case: Rohner v Scanlan (1998) 86 FCR 454 
Outcome: applied
In my opinion the litigation raised important and difficult fiscal issues in particular on the construction of the legislation, and I am unable to acknowledge the Commissioner's characterisation of the litigation as 'very much private litigation and not litigation in the public interest'. Evidence was tendered as to the existence of at least 100 foreign tour operators potentially affected by the outcome to the proceedings. Some juridical support in principle for SAGA's contention as to the order for costs sought by SAGA may be found in the following authorities to which my attention has been drawn: (i) Commissioner of Taxation v B &amp; G Plant Hire Pty Ltd (1994) 123 ALR 699 at 709 per Gummow J. (ii) Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] NSWCA 146 ; (2003) 57 NSWLR 282 at [125] per Ipp JA (with whom Spigelman CJ and Handley JA agreed). (iii) Rohner v Scanlan (1998) 86 FCR 454 per Drummond, Kiefel and Finkelstein JJ.
Case: Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688
Outcome: referred to
Mr Fernon SC, who appears this morning for the plaintiffs, has referred me to a line of authorities which reveals the dispute. I do not intend to record what was said in those authorities, but the cases and relevant paragraphs are: Australian Competition and Consumer Commission v Australian Securities and Investments Commission [2000] NSWSC 316 ; (2000) 174 ALR 688 at [50] ; Ramantanis v G and M Excavations; v I and M Excavations [2003] NSWSC 1250 at [7] to [8]; Murray Halstead v CTS Quality Building Products Pty Ltd (in liq) [2006] NSWSC 1022 at [12] ; JP Morgan Portfolio Services Limited v Deloitte Touche Tohmatsu [2008] FCA 433 ; (2008) 65 ACSR 636 at [7] -[8], and [10]. With the exception of the decision of Austin J in ACCC v ASIC , these authorities support the proposition that on registration of a company, the liquidator who was in office at the time of deregistration is not automatically reinstated.
Case: Best v Yellow Express Carriers Limited (2004) NSWSC 666
Outcome: applied
However, in Best v Yellow Express Carriers Limited [2004] NSWSC 666 , Young CJ in Eq took a practical view to the question. His Honour took the view that in circumstances where the previous liquidator was served with the relevant papers relating to the application for reinstatement, and did not reply, it was open to the court to infer that the liquidator had no further interest in the matter. His Honour proceeded at [6] to observe that the company needed to have a liquidator and, in his view, the expedient and practical course was to remove the previous liquidator and to appoint another liquidator in accordance with the provisions of s 503 of the Corporations Act . 7 I have evidence before me today that indicates that the previous liquidators were served with notice of the application, but initially indicated no interest in continuing in office as liquidators of the company. However, there was then further communication with the previous liquidators which appeared to indicate a possible change of heart. However, on 22 May 2008, the plaintiffs' solicitors wrote to the solicitors for the previous liquidators requesting answers to a number of questions which would bear upon the issue of whether it was appropriate for the previous liquidators to continue in office upon reinstatement of the company. There has been no response to that letter. 8 It follows, in my view, that the appropriate course is not to seek to express any view as to the difference of opinion which has emerged in the cases to which I have referred, but, rather, to follow the expedient and practical course endorsed by Young CJ in Eq.