mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: referred to
In the same way as the reasons of the Administrative Appeals Tribunal or the Refugee Review Tribunal are not to be approached "minutely and finely with an eye keenly attuned to the perception of error", neither are the reasons of the Minister: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ. 24 Even adopting that approach, I am of the opinion that the Minister misconstrued Direction No 21. The Minister referred to "the information relevant to this consideration" and the only information to which that could have referred is the statement that the applicant has no children. That is the information the Minister said weighed in favour of cancelling the applicant's visa and to which he said he gave (as a consideration) considerable weight. In my opinion, that is a misconstruction of Direction No 21 because once the decision-maker finds that a non-citizen has no children, the matter or consideration became irrelevant. I do not think it is possible to construe the Minister's reasons as saying no more than that the matter of the best interests of the child was irrelevant and, as this was generally a matter in favour of not cancelling the visa, the other matters in favour of cancellation were not counter-balanced by this consideration.
Case: Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403
Outcome: cited
In any event, the recipient of a notice would have an obligation to claim privilege over documents in the possession of the recipient that the recipient reasonably believed were subject to the privilege of someone else, such as a client of the recipient. The recipient would have an obligation to preserve legal professional privilege by reason of the character or status of the documents as being privileged. The privilege attaches to a document and, once privileged, the document will always be privileged. As the possessor or custodian of a document that has such a special character or status, the recipient of a notice requiring production of such a document would have an obligation to take steps to preserve and maintain that character or status. The recipient of a notice would be obliged to make claims for privilege in respect of documents where the privilege might reasonably be expected to exist in order to ensure that such a claim for privilege would not be lost (see Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403 at 414). 35 A governmental authority issuing a compulsory production notice, in whatever form, must provide the recipient of the notice with a reasonable opportunity to claim legal professional privilege, both on its own behalf and on behalf of others. The recipient must not be denied the opportunity to make adequate claims for privilege in relation to the documents of itself or its clients that are the subject of the compulsory production notice (see Citibank at 414). 36 However, there is no requirement for such an authority to give clients of the recipient, as distinct from the recipient, a reasonable opportunity to make claims for privilege before enforcing the compulsory production notice. The most that is required is that the recipient of such a notice must be afforded the opportunity of asserting legal professional privilege, either on the recipient's account or on account of another person, such as a client. It has not been suggested that any recipient of a notice in issue in the present proceeding was not given an opportunity to obtain legal advice or that any claim for privilege made by a recipient, on behalf of the recipient or a third party, was not respected.
Case: May v Commissioner of Taxation [1999] FCA 287 ; (1999) 92 FCR 152
Outcome: cited
There is no requirement that a person other than a recipient be afforded the opportunity to claim or assert legal professional privilege and the scheme of the Act makes it clear that no such right is to be afforded to a person in the position of the applicants. There is no requirement for the Commission either to notify persons in the position of the applicants that a notice has been issued to a third party that may require the production of documents that are subject to a privilege of the applicants. Nor is there any requirement for a person in the position of the applicant to be notified by the Commission, after production of documents by a recipient of a notice, of the fact of the production of documents that may be the subject of a claim for privilege on behalf of an applicant that was not made by the recipient of the notice. There is no requirement, for example, that an authority issuing a compulsory production notice to a solicitor should notify the solicitor's clients that the solicitor has been given such a notice in order that the client might have the opportunity to challenge the validity of the notice on grounds of privilege (see May v Commissioner of Taxation [1999] FCA 287 ; (1999) 92 FCR 152 at [36] , [31] and [38]. 38 Further, the regime contemplated by s 29A(4) , under which a notation will be cancelled in specified circumstances, would be effective to ensure that, even if the privilege had not been claimed previously, it could be claimed as soon as a criminal proceeding is begun. Thus, the holder of the privilege would be able to make the claim for privilege prior to the tendering in evidence against that person of any document obtained by the Commission pursuant to a notice containing a relevant notation. The right of the holder of the privilege not to have privileged material used in evidence against him or her would therefore be protected. 39 Section 29B evinces a clear intention on the part of the Parliament that, in relation to documents produced by third parties who are not lawyers, the existence of the notice pursuant to which it is produced is not to be disclosed even to a potential holder or privilege, for so long as the notation is operational. The Act does not take away or abrogate legal professional privilege. It simply has the effect that, in particular circumstances, the holder of the privilege may not know that documents that might be the subject of the privilege are the subject of a notice requiring production by the possessor or custodian of the documents.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
An administrative decision may be impugned if the decision maker was bound to take a factor into account in reaching his or her decision but failed to do so. If a statute states expressly the factors that must be taken into account, that will be decisive. However, if the relevant factors are not expressly stated, they must be determined by necessary implication from the subject matter, scope and purpose of the [1986] HCA 40 ; Act ( Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40). 41 In the present case, s 29A(2) sets out factors that an Examiner must consider when determining whether a notation must or may be included in a notice. The matters that must be taken into consideration are: &#8226; the safety or reputation of a person; &#8226; the fair trial of a person who has been or may be charged with an offence; &#8226; the effectiveness of an operation or investigation. 42 Further, the scheme of ss 29A and 29B recognises the existence of legal professional privilege in so far as the prohibition on disclosure does not prevent a person from making disclosure to a legal practitioner or, if the person is a legal practitioner, for the purpose of obtaining instructions as to the production of a document. 43 Under s 30(3) a legal practitioner may refuse to comply with a requirement to produce a document containing a privileged communication unless the person with whom the communication was made agrees to the practitioner complying with the requirement. The subject matter, scope and purpose of the Act make it abundantly clear that an Examiner who is deciding whether or not to issue a notice and whether to include a notation in the notice is not required to have regard to the possibility that the recipient of the notice may not discharge that recipient's obligation to assert or claim legal professional privilege that may reside in a person other than the recipient in relation to the document that the recipient is required to produce. 44 That is the clear intent and purpose of ss 29A and 29B. However, the clear object of ss 29A and 29B is to ensure that, in some circumstances, the object of an investigation, such as persons in the position of the applicants, is not informed of the existence of a notice. The relevant Examiners did not fail to take into account a consideration that they were bound to take into account simply by reason of the fact that they did not have regard to the possibility that documents that were required to be produced by a notice might be the subject of legal professional privilege of a person other than the recipient.
Case: Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong [2009] FCA 539
Outcome: cited
22 May 2009, for reasons which I then gave, I granted certain interlocutory injunctive relief on the application of the Australian Communications and Media Authority (ACMA) - Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong [2009] FCA 539. These reasons should be read in conjunction with those of 22 May 2009. The interlocutory relief granted on 22 May 2009 was not as extensive as the ACMA had sought, but that was because of comprehensive undertakings which were then proffered to the Court. On that day, I also made directions for the further conduct of the proceedings. Those directions included the following: The first respondent provide a response to the applicant's request for particulars dated 15 May 2009 on or before 11 June 2009. The first respondent provide to the applicant a full electronic copy of that database referred to in paragraph 5 of the first respondent's discovery list filed 31 March 2009, or alternatively access to that database for the purposes of the applicant creating an electronic copy, on and from not later than 11 June 2009. The first respondent file and serve an amended discovery list by 11 June 2009, which list: (1) identifies, as fully and accurately as possible, the documents previously held by the first respondent, which it no longer holds, and what became of them; (2) identifies whether each such document is in its power or control and the steps it has taken to obtain documents that are within its power or control; (3) lists, to the extent they are within the discovery categories required of the first respondent, documents in relation to the employment of Ms Teresa Posella; (4) incorporates in the response to item 5 of the said discovery categories, production of any database in relation to the premium telephone number 19910007.
Case: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Outcome: cited
Salcedo states that he and his colleagues did not wish to appear without the services of a lawyer but could not afford that. Like any other individual party, each of the Fourth, Fifth and Seventh Respondents is entitled to represent himself if he chooses. None of them have indicated an active interest in so doing or even that they are actively seeking alternative legal representation. The preference voiced by Mr Salcedo is not a basis for the ignoring of the progression of a case in the Court in accordance with the Court's directions. That case management considerations are relevant to the exercise of discretions in respect of matters of practice and procedure arising under the rules of court was recently emphasised by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [30]. Mr Salcedo also makes reference to negotiations having occurred with the ACMA in relation to the proceedings and attaches, without the permission of the AGS, a copy of a "without prejudice" letter written by the AGS in that regard. That attachment should not have occurred. The ACMA, by the AGS, does not object to the marking of the letter as an exhibit but with the proviso that the attachment should not be available for general searching. That seems to me the appropriate course to take in respect of it. I shall give directions accordingly.
Case: Humphreys v Halifax Vogel Group Pty Ltd (ACN 104 808 853) [2008] FCA 569 ; (2008) 76 IPR 144
Outcome: cited
the Court is alternatively empowered to give judgment or make any other order against the respondent concerned. In other words, there is no requirement that evidence be adduced by the parties seeking default judgment in respect of the matters pleaded in the statement of claim. Instead, the statement of claim must be scrutinised to see whether it discloses a cause of action in law in respect of the relief sought. In Humphreys v Halifax Vogel Group Pty Ltd (ACN 104 808 853) (2008) IPR 144 at 146, [6] to [9], I concluded that this was the effect of the rule. I shall not repeat what is there stated.
Case: Australian Securities and Investments Commission v Cash King Pty Ltd [2005] FCA 1429
Outcome: referred to
Notwithstanding the attitude adopted by Mr Pritchard, a declaration is a judicial act which s 1317E of the Corporations Act prescribes should only be made if the Court is satisfied by the evidence that it is appropriate to grant the declarations sought: BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 at 412-413 (per Keely and Beaumont JJ). See also Australian Securities and Investments Commission v Cash King Pty Ltd [2005] FCA 1429 at para [3] .
Case: Australian Securities and Investments Commission v Intertax Holdings Pty Ltd [2006] QSC 276
Outcome: referred to
Contrary to the submission of Counsel for Mr Pritchard, neither the express words of the Corporations Act nor the relevant extrinsic materials (see in particular paras 6.2 and 6.3 of the Explanatory Memorandum extracted at [40] above) support the contention that the provisions are " contemplated to follow criminal prosecution rather than to precede it (with all the risks to the defendant that might entail) except where the subsequent prosecution is affected by the evidentiary restrictions imposed by s 1317Q" . To take just one example, s 1317P is directly contrary to that submission. Moreover, the decision of Fryberg J in Australian Securities and Investments Commission v Intertax Holdings Pty Ltd [2006] QSC 276 does not support that submission. It was not concerned with s 1317E of the Corporations Act or a civil penalty provision but the more difficult question of the power of a court to make a declaration as to whether conduct by a corporation or its officer contravened the Corporations Act when where there is a likelihood or prospect of criminal proceedings.
Case: BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401
Outcome: cited
Notwithstanding the attitude adopted by Mr Pritchard, a declaration is a judicial act which s 1317E of the Corporations Act prescribes should only be made if the Court is satisfied by the evidence that it is appropriate to grant the declarations sought: BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 at 412-413 (per Keely and Beaumont JJ). See also Australian Securities and Investments Commission v Cash King Pty Ltd [2005] FCA 1429 at para [3] .
Case: Maxwell v The Queen [1995] HCA 62 ; (1996) 184 CLR 501
Outcome: cited
If there is prejudice to any person by ASIC taking the step of first pursuing and securing a declaration of contravention (without seeking a pecuniary penalty order) under s 1317E of the Corporations Act prior to criminal proceedings being started against that person for conduct that is substantially the same as the conduct that constituted the contravention of the civil penalty provision, ASIC takes that step assessing the risk that it may impede any subsequent criminal proceedings whether by application of the principles under the heading of abuse of process or related doctrines (see for example, Pearce v The Queen [1998] HCA 57 ; (1998) 194 CLR 610 at [29] and [30] (per McHugh, Hayne and Callinan JJ) citing Maxwell v The Queen [1995] HCA 62 ; (1996) 184 CLR 501 at 512 and Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251 in relation to stay of criminal proceedings for abuse of process and Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518-520) or otherwise. It is neither necessary nor appropriate to explore these issues in the present case. It was not the subject of argument and, in any event, the issue may never arise.
Case: Pearce v The Queen [1998] HCA 57 ; (1998) 194 CLR 610
Outcome: cited
If there is prejudice to any person by ASIC taking the step of first pursuing and securing a declaration of contravention (without seeking a pecuniary penalty order) under s 1317E of the Corporations Act prior to criminal proceedings being started against that person for conduct that is substantially the same as the conduct that constituted the contravention of the civil penalty provision, ASIC takes that step assessing the risk that it may impede any subsequent criminal proceedings whether by application of the principles under the heading of abuse of process or related doctrines (see for example, Pearce v The Queen [1998] HCA 57 ; (1998) 194 CLR 610 at [29] and [30] (per McHugh, Hayne and Callinan JJ) citing Maxwell v The Queen [1995] HCA 62 ; (1996) 184 CLR 501 at 512 and Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251 in relation to stay of criminal proceedings for abuse of process and Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518-520) or otherwise. It is neither necessary nor appropriate to explore these issues in the present case. It was not the subject of argument and, in any event, the issue may never arise.
Case: Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251
Outcome: cited
If there is prejudice to any person by ASIC taking the step of first pursuing and securing a declaration of contravention (without seeking a pecuniary penalty order) under s 1317E of the Corporations Act prior to criminal proceedings being started against that person for conduct that is substantially the same as the conduct that constituted the contravention of the civil penalty provision, ASIC takes that step assessing the risk that it may impede any subsequent criminal proceedings whether by application of the principles under the heading of abuse of process or related doctrines (see for example, Pearce v The Queen [1998] HCA 57 ; (1998) 194 CLR 610 at [29] and [30] (per McHugh, Hayne and Callinan JJ) citing Maxwell v The Queen [1995] HCA 62 ; (1996) 184 CLR 501 at 512 and Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251 in relation to stay of criminal proceedings for abuse of process and Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518-520) or otherwise. It is neither necessary nor appropriate to explore these issues in the present case. It was not the subject of argument and, in any event, the issue may never arise.
Case: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509
Outcome: cited
If there is prejudice to any person by ASIC taking the step of first pursuing and securing a declaration of contravention (without seeking a pecuniary penalty order) under s 1317E of the Corporations Act prior to criminal proceedings being started against that person for conduct that is substantially the same as the conduct that constituted the contravention of the civil penalty provision, ASIC takes that step assessing the risk that it may impede any subsequent criminal proceedings whether by application of the principles under the heading of abuse of process or related doctrines (see for example, Pearce v The Queen [1998] HCA 57 ; (1998) 194 CLR 610 at [29] and [30] (per McHugh, Hayne and Callinan JJ) citing Maxwell v The Queen [1995] HCA 62 ; (1996) 184 CLR 501 at 512 and Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251 in relation to stay of criminal proceedings for abuse of process and Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 518-520) or otherwise. It is neither necessary nor appropriate to explore these issues in the present case. It was not the subject of argument and, in any event, the issue may never arise.
Case: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77
Outcome: applied
Unlike O 20 r 2 which applies generally, s 84C is clearly limited to native title determination applications under the Act. The language of s 84C and O 20 r 2 is dissimilar in that s 84C refers to "strike-out" of the application, whereas O 20 r 2 deals with permanent stay or summary dismissal of the proceedings. Further, the issues of which proof is required under each provision differs in that s 84C applies where an application does not comply with ss 61 , 61A or 62 whereas O 20 r 2 is only enlivened if no reasonable cause of action is disclosed, the proceeding is frivolous or vexatious, or the proceeding is an abuse of process. To that extent, s 84C is concerned with matters of form and authority rather than the merit of any native title determination (Branson J in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at 85). 18 The cautious approach of the Court as described in Williams [2004] FCAFC 178 was more recently reaffirmed by the Full Court in Bodney 140 FCR at 89, where Stone J (with whom Spender and Branson JJ agreed on this point) said that notwithstanding the operation of s 84C in the context of native title applications, the Court approaches strike-out applications under this section in the same way as applications under O 20 r 2 Federal Court Rules (see also Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at 497, Thomas v State of South Australia [2004] FCA 951 at [2] - [3] , McKenzie v State Government of South Australia (2005) 214 ALR 214 at 221).