mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Southern Equities Corporation Ltd (in liq) v Arthur Andersen &amp; Co (1997) 70 SASR 166
Outcome: followed
In Southern Equities Corporation Ltd (in liq) v Arthur Andersen (1997) 70 SASR 166 at 174 Doyle CJ said: 'I conclude from this reference to authority that the claim of privilege will fail only if there is material raising an arguable case that the relevant communications were made for the purpose of furthering or assisting a crime or fraud, and that fraud in this context embraces a range of legal wrongs that have deception, deliberate abuse of or misuse of legal powers, or deliberate breach of a legal duty at their heart. It is not enough, I consider, that one could simply say that a transaction constituted sharp practice, or fell below the normal standard of commercial probity. It is not enough, I consider, that one would regard a transaction on which advice was sought as artificial, or as deliberately structured to take advantage of the law on a topic. In light of the authorities, one cannot be more precise than that. It is not necessary to show that the solicitor in question is implicated. What is in issue is the purpose of the client.' 32 Senior counsel for both the Sobey interests and for Mr Nicol said that his Honour's observations reflected the current state of the law. 33 They disagreed firstly as to whether the evidence on this application, in essence the affidavit of Mr Lockett, raised an arguable case that the relevant communications between the Sobey interests and Mr Tanti or other legal advisers from TP and the TP internal records were made for any identifiable purpose. They disagreed secondly upon whether, whatever the purpose for obtaining that legal advice may be, it would engage public policy so that the communications in issue would not be privileged from disclosure. 54 In HLC , the Full Court of the Supreme Court of South Australia (Doyle CJ, Lander and Bleby JJ) held that a document recording information provided by a potential witness in litigation was privileged from production on the ground of legal professional privilege. There is no reason to regard 'litigation privilege' in that context differently from privilege arising from communications for the purpose of giving advice: see Propend , and per Doyle CJ in HLC at 364. That privilege was found to exist in HLC even though, at least arguably, the communication between the witness and the solicitor was not privileged. It existed because the document recording the statement was a communication by the solicitor who had taken the statement of the information provided by the witness, and had the necessary purpose (in that case, for use in existing litigation). See also Lander J at 370, and Bleby J at 371.
Case: O'Rourke v Darbishire [1920] AC 581
Outcome: referred to
The Court, when addressing such issues, does not need to be satisfied on the balance of probabilities of the conduct alleged. In Propend at 514, the test was expressed as being whether there are 'reasonable grounds for believing' that the relevant communication or record was for the illegal or improper purpose. In O'Rourke v Darbishire [1920] AC 581 at 604 it was said that there must be 'something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact.' In Baker v Evans (1987) 77 ALR 565 at 574 the expression 'prima facie case' of illegal or improper conduct was used.
Case: Baker v Evans (1987) 77 ALR 565
Outcome: referred to
The Court, when addressing such issues, does not need to be satisfied on the balance of probabilities of the conduct alleged. In Propend at 514, the test was expressed as being whether there are 'reasonable grounds for believing' that the relevant communication or record was for the illegal or improper purpose. In O'Rourke v Darbishire [1920] AC 581 at 604 it was said that there must be 'something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact.' In Baker v Evans (1987) 77 ALR 565 at 574 the expression 'prima facie case' of illegal or improper conduct was used.
Case: Re Moage Ltd (in liq); Sheahan v Pitterino (1998) 82 FCR 10
Outcome: referred to
It is of course only communications which were brought into existence in furtherance of the illegal or improper purpose which are removed from the shield of privilege: Re Moage Ltd (in liq); Sheahan v Pitterino (1998) 82 FCR 10 at 19-20. Those which are for the purpose of advice about (for example) the enforceability of security instruments would be protected, even if those concerning the creation of those instruments were not. 37 There are a number of documents where Mr Nicol says their description and the supporting evidence of Mr Lee does not support the claim of privilege or where the description indicates the documents are not privileged. Senior counsel for Mr Nicol submitted that Mr Lee's affidavits did not generally go any distance to supporting the claim for legal professional privilege. His affidavit of 10 March 2006 does not say that he has examined the documents in PT.1 and PT.2, but I infer from its contents that he has done so. He addresses sequentially the documents in issue (or most of them) and expands a little upon their description in the List of Documents. It asserts a purpose for many of the documents; I do not place much weight on that evidence as the affidavit does not indicate that he has made any inquiries beyond himself examining the documents. He has not deposed to any knowledge of the circumstances of the work carried out by TP or to any other matters which might enhance the weight to be given to his assertions. His affidavit of 27 March 2006 concerning the documents in PT.4 is structured the same way, although it expressly states he has inspected the documents and that he sets out 'the basis for our client's claim for privilege'. In effect, his affidavits do little more than provide a description of most of the documents in issue, and make an assertion or submission as to why each should be privileged. 38 I have looked at the documents in PT.1 and PT.4 to ensure I understand as much as possible of Mr Lee's evidence.
Case: Kennedy v Lyell (1883) 23 Ch D 387
Outcome: referred to
It does not necessarily follow that a document which records the communication may not be privileged. The recording of the communication may have been made for the dominant purpose of giving legal advice to the Sobey interests. In the cases of a document which records only, and apparently fully, the communication, one view is that the record is not itself privileged because it records no more than non-confidential information: Kennedy v Lyell (1883) 23 Ch D 387 at 405. Where a document selectively records the communication, its terms may reflect a perception of significance of the parts recorded which may therefore have the character of confidentiality: Handley v Baddock [1987] WAR 98. The public interest in protecting the document from disclosure becomes stronger if the record includes commentary of the note taker.
Case: Handley v Baddock [1987] WAR 98
Outcome: referred to
It does not necessarily follow that a document which records the communication may not be privileged. The recording of the communication may have been made for the dominant purpose of giving legal advice to the Sobey interests. In the cases of a document which records only, and apparently fully, the communication, one view is that the record is not itself privileged because it records no more than non-confidential information: Kennedy v Lyell (1883) 23 Ch D 387 at 405. Where a document selectively records the communication, its terms may reflect a perception of significance of the parts recorded which may therefore have the character of confidentiality: Handley v Baddock [1987] WAR 98. The public interest in protecting the document from disclosure becomes stronger if the record includes commentary of the note taker.
Case: DSE (Holdings) Pty Ltd v Intertan Inc (2003)135 FCR 151
Outcome: cited
Where the document in issue is itself a communication between TP and another person, if that person is a third party or counterparty in the sense referred to, I regard the document as not privileged as the communication itself is not privileged. If it was between TP and other solicitors also acting for the Sobey interests, I think it is a privileged communication. If it is a communication between TP and the accountant then acting for the Sobey interests in that capacity, so that the communication was part of the process of keeping TP informed so as to give legal advice, such communications are also privileged: DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191 ; (2003) 135 FCR 151; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332. Stone J in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 at 387 explained the need for evidence to indicate the function of communications with an expert such as an accountant, either by the client or by the expert to the lawyer, to show the dominant purpose of the communication was one which attracted privilege.
Case: Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332
Outcome: cited
Where the document in issue is itself a communication between TP and another person, if that person is a third party or counterparty in the sense referred to, I regard the document as not privileged as the communication itself is not privileged. If it was between TP and other solicitors also acting for the Sobey interests, I think it is a privileged communication. If it is a communication between TP and the accountant then acting for the Sobey interests in that capacity, so that the communication was part of the process of keeping TP informed so as to give legal advice, such communications are also privileged: DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191 ; (2003) 135 FCR 151; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332. Stone J in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 at 387 explained the need for evidence to indicate the function of communications with an expert such as an accountant, either by the client or by the expert to the lawyer, to show the dominant purpose of the communication was one which attracted privilege.
Case: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357
Outcome: discussed
Where the document in issue is itself a communication between TP and another person, if that person is a third party or counterparty in the sense referred to, I regard the document as not privileged as the communication itself is not privileged. If it was between TP and other solicitors also acting for the Sobey interests, I think it is a privileged communication. If it is a communication between TP and the accountant then acting for the Sobey interests in that capacity, so that the communication was part of the process of keeping TP informed so as to give legal advice, such communications are also privileged: DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 1191 ; (2003) 135 FCR 151; Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 ; (2002) 4 VR 332. Stone J in Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 ; (2004) 136 FCR 357 at 387 explained the need for evidence to indicate the function of communications with an expert such as an accountant, either by the client or by the expert to the lawyer, to show the dominant purpose of the communication was one which attracted privilege.
Case: Gartner v Carter; In the Matter of Gartner Wines Pty Ltd [2004] FCA 258
Outcome: considered
In Gartner v Carter; In the Matter of Gartner Wines Pty Ltd [2004] FCA 258 , Lander J concluded that communications between a client and a legal adviser for the purpose of the client putting assets beyond the reach of the legitimate claims of secured creditors is a 'fraud on justice'. His Honour at [130] said that such a purpose 'is a fraud on the creditor and there is no public interest in protecting that communication'. Lander J followed the decision in Barclays Bank Plc v Eustice [1995] 4 All ER 511. Schiemann LJ (with whom the other members of the Court of Appeal agreed) said at 524 that, because the relevant transactions involving the disposition of assets at undervalue were intended to prejudice the interests of the secured creditor, the '... purpose [was] sufficiently iniquitous for public policy to require that communications between [the client] and his solicitor in relation to the setting up of these transactions be discoverable. If that view be correct, then it matters not whether either the client or the solicitor shared that view. They may well have thought that the transactions would not fall to be set aside ... either because they thought that the transactions were not at an undervalue or because they thought that the court would not find that the purpose of the transactions was to prejudice the bank. But if this is what they thought then there is a strong prima facie case that they were wrong. Public policy does not require the communications of those who misapprehend the law to be privileged in circumstances where no privilege attaches to those who correctly understand the situation.'
Case: Barclays Bank Plc v Eustice [1995] 4 All ER 511
Outcome: considered
In Gartner v Carter; In the Matter of Gartner Wines Pty Ltd [2004] FCA 258 , Lander J concluded that communications between a client and a legal adviser for the purpose of the client putting assets beyond the reach of the legitimate claims of secured creditors is a 'fraud on justice'. His Honour at [130] said that such a purpose 'is a fraud on the creditor and there is no public interest in protecting that communication'. Lander J followed the decision in Barclays Bank Plc v Eustice [1995] 4 All ER 511. Schiemann LJ (with whom the other members of the Court of Appeal agreed) said at 524 that, because the relevant transactions involving the disposition of assets at undervalue were intended to prejudice the interests of the secured creditor, the '... purpose [was] sufficiently iniquitous for public policy to require that communications between [the client] and his solicitor in relation to the setting up of these transactions be discoverable. If that view be correct, then it matters not whether either the client or the solicitor shared that view. They may well have thought that the transactions would not fall to be set aside ... either because they thought that the transactions were not at an undervalue or because they thought that the court would not find that the purpose of the transactions was to prejudice the bank. But if this is what they thought then there is a strong prima facie case that they were wrong. Public policy does not require the communications of those who misapprehend the law to be privileged in circumstances where no privilege attaches to those who correctly understand the situation.'
Case: Richardson v Mellish (1824) 2 Bing 229
Outcome: referred to
Burrough J said in Richardson v Mellish (1824) 2 Bing 229 at 252 that public policy 'is a very unruly horse, and when once you get astride it you never know where it will carry you'. Public policy reflects the ideas which from time to time prevail in the community, so it is not a fixed and stable concept. See the discussion by Jordan CJ in Re Jacob Morris (deceased) (1943) 43 SR (NSW) 352 at 355-356. It can inform, and arise, in a wide range of contexts, e.g. how it should 'respond to the practicability of eugenics' (per Spigelman CJ in Harriton v Stephens [2004] NSWCA 93 ; (2004) 59 NSWLR 694 at 702); see also Waller v James [2006] HCA 16 ; Harriton v Stephens [2006] HCA 15. In Cattanach v Melchior [2003] HCA 38 ; (2003) 215 CLR 1 McHugh and Gummow JJ at [58]-[75] discussed a number of decisions and texts concerning the nature and significance of 'public policy' to judicial decision-making. Their Honours' observations provide a salutary caution against too ready an acceptance of current or contemporary perceptions of public policy as a tool in judicial decision-making.
Case: Re Jacob Morris (deceased) (1943) 43 SR (NSW) 352
Outcome: referred to
Burrough J said in Richardson v Mellish (1824) 2 Bing 229 at 252 that public policy 'is a very unruly horse, and when once you get astride it you never know where it will carry you'. Public policy reflects the ideas which from time to time prevail in the community, so it is not a fixed and stable concept. See the discussion by Jordan CJ in Re Jacob Morris (deceased) (1943) 43 SR (NSW) 352 at 355-356. It can inform, and arise, in a wide range of contexts, e.g. how it should 'respond to the practicability of eugenics' (per Spigelman CJ in Harriton v Stephens [2004] NSWCA 93 ; (2004) 59 NSWLR 694 at 702); see also Waller v James [2006] HCA 16 ; Harriton v Stephens [2006] HCA 15. In Cattanach v Melchior [2003] HCA 38 ; (2003) 215 CLR 1 McHugh and Gummow JJ at [58]-[75] discussed a number of decisions and texts concerning the nature and significance of 'public policy' to judicial decision-making. Their Honours' observations provide a salutary caution against too ready an acceptance of current or contemporary perceptions of public policy as a tool in judicial decision-making.
Case: Harriton v Stephens [2004] NSWCA 93 ; (2004) 59 NSWLR 694
Outcome: referred to
Burrough J said in Richardson v Mellish (1824) 2 Bing 229 at 252 that public policy 'is a very unruly horse, and when once you get astride it you never know where it will carry you'. Public policy reflects the ideas which from time to time prevail in the community, so it is not a fixed and stable concept. See the discussion by Jordan CJ in Re Jacob Morris (deceased) (1943) 43 SR (NSW) 352 at 355-356. It can inform, and arise, in a wide range of contexts, e.g. how it should 'respond to the practicability of eugenics' (per Spigelman CJ in Harriton v Stephens [2004] NSWCA 93 ; (2004) 59 NSWLR 694 at 702); see also Waller v James [2006] HCA 16 ; Harriton v Stephens [2006] HCA 15. In Cattanach v Melchior [2003] HCA 38 ; (2003) 215 CLR 1 McHugh and Gummow JJ at [58]-[75] discussed a number of decisions and texts concerning the nature and significance of 'public policy' to judicial decision-making. Their Honours' observations provide a salutary caution against too ready an acceptance of current or contemporary perceptions of public policy as a tool in judicial decision-making.
Case: Waller v James [2006] HCA 16
Outcome: cited
Burrough J said in Richardson v Mellish (1824) 2 Bing 229 at 252 that public policy 'is a very unruly horse, and when once you get astride it you never know where it will carry you'. Public policy reflects the ideas which from time to time prevail in the community, so it is not a fixed and stable concept. See the discussion by Jordan CJ in Re Jacob Morris (deceased) (1943) 43 SR (NSW) 352 at 355-356. It can inform, and arise, in a wide range of contexts, e.g. how it should 'respond to the practicability of eugenics' (per Spigelman CJ in Harriton v Stephens [2004] NSWCA 93 ; (2004) 59 NSWLR 694 at 702); see also Waller v James [2006] HCA 16 ; Harriton v Stephens [2006] HCA 15. In Cattanach v Melchior [2003] HCA 38 ; (2003) 215 CLR 1 McHugh and Gummow JJ at [58]-[75] discussed a number of decisions and texts concerning the nature and significance of 'public policy' to judicial decision-making. Their Honours' observations provide a salutary caution against too ready an acceptance of current or contemporary perceptions of public policy as a tool in judicial decision-making.
Case: Harriton v Stephens [2006] HCA 15
Outcome: cited
Burrough J said in Richardson v Mellish (1824) 2 Bing 229 at 252 that public policy 'is a very unruly horse, and when once you get astride it you never know where it will carry you'. Public policy reflects the ideas which from time to time prevail in the community, so it is not a fixed and stable concept. See the discussion by Jordan CJ in Re Jacob Morris (deceased) (1943) 43 SR (NSW) 352 at 355-356. It can inform, and arise, in a wide range of contexts, e.g. how it should 'respond to the practicability of eugenics' (per Spigelman CJ in Harriton v Stephens [2004] NSWCA 93 ; (2004) 59 NSWLR 694 at 702); see also Waller v James [2006] HCA 16 ; Harriton v Stephens [2006] HCA 15. In Cattanach v Melchior [2003] HCA 38 ; (2003) 215 CLR 1 McHugh and Gummow JJ at [58]-[75] discussed a number of decisions and texts concerning the nature and significance of 'public policy' to judicial decision-making. Their Honours' observations provide a salutary caution against too ready an acceptance of current or contemporary perceptions of public policy as a tool in judicial decision-making.
Case: Cattanach v Melchior [2003] HCA 38 ; (2003) 215 CLR 1
Outcome: referred to
Burrough J said in Richardson v Mellish (1824) 2 Bing 229 at 252 that public policy 'is a very unruly horse, and when once you get astride it you never know where it will carry you'. Public policy reflects the ideas which from time to time prevail in the community, so it is not a fixed and stable concept. See the discussion by Jordan CJ in Re Jacob Morris (deceased) (1943) 43 SR (NSW) 352 at 355-356. It can inform, and arise, in a wide range of contexts, e.g. how it should 'respond to the practicability of eugenics' (per Spigelman CJ in Harriton v Stephens [2004] NSWCA 93 ; (2004) 59 NSWLR 694 at 702); see also Waller v James [2006] HCA 16 ; Harriton v Stephens [2006] HCA 15. In Cattanach v Melchior [2003] HCA 38 ; (2003) 215 CLR 1 McHugh and Gummow JJ at [58]-[75] discussed a number of decisions and texts concerning the nature and significance of 'public policy' to judicial decision-making. Their Honours' observations provide a salutary caution against too ready an acceptance of current or contemporary perceptions of public policy as a tool in judicial decision-making.
Case: McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22
Outcome: referred to
power of the Court to strike out a claim for determination of native title should be exercised cautiously; see McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22 at [26], per Finn J and see also Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8 at [22] per Stone J.
Case: Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8
Outcome: referred to
power of the Court to strike out a claim for determination of native title should be exercised cautiously; see McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22 at [26], per Finn J and see also Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8 at [22] per Stone J. In Lawson , Stone J dismissed an application for compensation in circumstances where there was no reasonable prospect of evidence being adduced to advance the claim. Justice Kiefel took a similar approach in Beattie on behalf of Western Wakka Wakka Peoples v Queensland [2007] FCA 596 at [23]. Her Honour referred to a lack of response to the orders of the Court and the lack of any purpose served by the continuation of the proceeding.
Case: Beattie on behalf of Western Wakka Wakka Peoples v Queensland [2007] FCA 596
Outcome: referred to
Lawson , Stone J dismissed an application for compensation in circumstances where there was no reasonable prospect of evidence being adduced to advance the claim. Justice Kiefel took a similar approach in Beattie on behalf of Western Wakka Wakka Peoples v Queensland [2007] FCA 596 at [23]. Her Honour referred to a lack of response to the orders of the Court and the lack of any purpose served by the continuation of the proceeding.